Judgment — ECLI:EU:T:2014:62
Date: 2014-02-06
Language of the case: English
Court formation: Third Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: France

summary, there seemingly were improper meetings/discussions in which Akcros did participate. Although we probably do still have the occasional discussion that might be considered to be wrong, no longer do we participate in the formal meetings that are clearly inappropriate. I would recommend the following: (1) Notify AC-Treuhand that we will no longer attend meetings in Switzerland for the Tin and [ESBO/esters] groups, although we will continue to send in our sales data as before[;] (2) Have … put on awareness training that our Marketing Managers (and others) must attend so that they know clearly what actions they can and cannot take related to contact with competitors. Please let me know if you agree to these suggestions.’ 62 Fourth, and to support its interpretation of the Akcros memorandum, the Commission stated in recital 318 of the contested decision that Akzo had admitted that the Akcros memorandum had been preceded by the handwritten notes of the author of that memorandum (‘the handwritten Akcros notes’), from which it is clear, as the applicants do not dispute, that there had been discussions which were ‘not written up’ concerning ‘price levels’ which ‘need[ed] to go up’, or be supported, and on ‘some customer[s]’, and, moreover, that the meetings had taken place in ‘Switzerland — not EU member’, as they ‘can’t get raided’. 63 Fifth, the Commission noted that, as a follow-up to the Akcros memorandum, the representative of Akcros stated, at a meeting on 21 March 2000 in Zurich, that it would no longer attend the AC-Treuhand meetings, ‘while continuing its participation in the exchange of sales data’ (see recital 319 of the contested decision), a matter the applicants do not dispute. 64 Sixth, the Commission noted that Akcros had confirmed by letter of 5 June 2000 addressed to Mr S., then an AC-Treuhand employee, that it would no longer participate in AC-Treuhand meetings (see recital 321 of the contested decision), a matter the applicants do not dispute. 65 Seventh, the Commission referred to the statements made by Chemtura in the context of its cooperation with the Commission during the administrative procedure, referring to the continuation of the tin stabilisers cartel ‘until 2000’ (see recital 420(a) of the contested decision). 66 In the light of all that evidence, taken together, the Court considers that the Commission has proved the infringement which it identified in the contested decision in relation to tin stabilisers, by adducing evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement in relation to tin stabilisers in the present case, in that the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the infringement relating to tin stabilisers was committed by the applicants. 67 Considered together, the various items of evidence referred to in paragraphs 59 to 65 above with regard to tin stabilisers preclude the possibility that the AC-Treuhand meetings which were held at the end of November 1999 and in March 2000, as regards tin stabilisers, did not have an anti-competitive object. 68 That evidence clearly demonstrates the anti-competitive object of those AC-Treuhand meetings, having particular regard to the Akcros memorandum, which criticises the anti-competitive nature of the AC-Treuhand meetings; the decision of that undertaking no longer to participate in them; the fact that it distanced itself publicly, on two occasions in 2000, and further that it envisaged competition rules awareness training for its marketing managers; the statements by Chemtura attesting to the continuation of the cartel ‘until 2000’, and the lack of any evidence from the applicants of a change in the nature of the AC-Treuhand meetings. 69 It follows that the AC-Treuhand meetings at the end of November 1999 and in March 2000 could not have had a different object from that of the previous meetings when the same undertakings and the same individuals were convened in the same context by Mr S. 70 Consequently, it must be held that the Commission produced, in the contested decision, a body of evidence which, assessed as a whole, supports the firm conviction that there was unlawful conduct in relation to tin stabilisers at the AC-Treuhand meetings, after 11 November 1999. 71 That assessment cannot be called into question by the applicants’ arguments asserting that, unlike other addressees of the contested decision, they are not claiming that the infringement ended ‘in 1996-1997’ but that, in respect of the period after the end of February 1999, there is insufficient solid and reliable evidence of the cartel activities to support the conviction that the cartel was still operating on 11 November 1999. With regard to tin stabilisers, the applicants submit that the Commission cannot assume that all the AC-Treuhand meetings, the last of which took place on 21 March 2000, had an illicit object, in so far as there is no evidence of the anti-competitive object of the meetings that is probative subsequent to 27 April 1999 and that is admissible subsequent to 23 February 1999. 72 First, the applicants cannot reasonably maintain that the contested decision does not contain any contemporaneous note of the facts relating to the AC-Treuhand meetings after the meeting of 27 April 1999, since the Commission referred to a body of evidence, including, in particular, the Akcros memorandum and the handwritten Akcros notes, which, assessed as a whole, serves to prove the anti-competitive object of the AC-Treuhand meetings after that date. 73 Nor, second, can they criticise the Commission for failing to refer in the contested decision to meetings other than the AC-Treuhand meetings, since it is precisely the AC-Treuhand meetings that constituted the formal framework of the cartel in question. 74 Third, the applicants dispute the admissibility of certain evidence also referred to in the contested decision, in that that evidence was not mentioned in the statement of objections as regards the infringement relating to tin stabilisers. The evidence in question is, in particular, a Chemtura monthly report for August 1999, a Chemtura monthly report for October 1999, a Chemtura email of 23 November 1999 and a Chemtura monthly report for November 1999. 75 However, while the Commission did not refer to that evidence with regard to the infringement relating to tin stabilisers, the fact remains that the applicants’ arguments must be rejected as ineffective, since the Court considers that the Commission established, to the requisite legal standard, that the infringement continued to 11 November 1999 on the basis of evidence, referred to in paragraphs 59 to 65 of the present judgment, the admissibility of which is not disputed by the applicants. 76 Fourth, the applicants cannot convince the Court by maintaining, for the purposes of refuting the evidential value of the Chemtura statement mentioned in paragraph 65 of this judgment, that ‘much’ of that statement ‘relates to North America’, since that statement relates, at least in part, to the EEA, as the very wording of the applicants’ argument shows. 77 Nor, fifth, can the applicants convince the Court by disputing the evidential value of the Akcros memorandum, mentioned in paragraph 61 of this judgment, and of the handwritten Akcros notes, mentioned in paragraph 62 of this judgment, on the basis of internal contradictions. 78 It is clear that, in their written pleadings, the applicants submit that the Commission’s interpretation is wrong but fail to read the Akcros memorandum, reproduced in paragraph 61 of this judgment, in its entirety. 79 Yet it is patent from certain passages of the Akcros memorandum, dated 16 February 2000, that its author recommended no further participation in the AC-Treuhand meetings, and in fact did so twice in that document, and that Akcros should do no more than send in ‘sales information’. He also referred, using, it must be emphasised, the present tense, to ‘freezing market shares’ and to ‘the occasional discussion that might be considered to be wrong’ and that is ‘clearly inappropriate’. 80 In any event, a reading of the entire Akcros memorandum proves, to the requisite legal standard, the existence of the unlawful conduct of which the applicants are accused in the contested decision, in that it provides, with regard, moreover, both to the tin stabilisers market and to that of the ESBO/esters sector, proof that an undertaking participating in the AC-Treuhand meetings identified their anti-competitive object and that that undertaking considered it appropriate no longer to participate in those meetings in March 2000 and to distance itself openly, on two occasions, from their object, and did so in the first quarter of the year 2000, that is to say, contemporaneously with AC-Treuhand meetings whose occurrence is not disputed by the applicants. 81 Sixth, the applicants submit that the AC-Treuhand meetings had no illicit objective, but were solely designed as a blind system for the gathering and exchange of statistical information, the AC-Treuhand meetings having been anodyne meetings for the exchange of information with AC-Treuhand, who consolidated the information, so that each undertaking could see their sales by country. 82 That argument cannot be successful, in the light of the case-law recalled in paragraphs 40 and 41 of this judgment, since the applicants do no more than dispute the anti-competitive object of the AC-Treuhand meetings at issue, while admitting having participated in them, and submit no evidence capable of calling into question the probative value of the factors relied on by the Commission. 83 Seventh, the applicants dispute the probative value of the distancing from the cartel mentioned in paragraphs 63 and 64 of this judgment. 84 According to the applicants, there can be no presumption of an undertaking’s continued involvement in an infringement until the production of proof to the contrary by some affirmative act of withdrawal. 85 That argument cannot be accepted, in that, first, it concerns the imputation of the unlawful conduct not to the applicants, but to another undertaking and, secondly, in any event, the Commission did not rely on any presumption, but relied on specific and detailed evidence, mentioned in paragraphs 59 to 65 of this judgment, in order to conclude that the infringement concerned continued beyond 11 November 1999. 86 In the light of all the foregoing, it must be held that the Commission established, to the requisite legal standard, the continuation, beyond 11 November 1999, of the infringement concerned on the part of the applicants. The continuation, beyond 11 November 1999, of the infringement relating to the ESBO/esters sector 87 As regards the ESBO/esters sector, the Commission considered, in the contested decision, that the unlawful conduct had continued into 1999 and until 26 September 2000, in other words beyond 11 November 1999, on the basis of various items of evidence set out in recitals 305 to 315, for 1999, and in recitals 316 to 323, for 2000. 88 First, as regards 1999, eight AC-Treuhand meetings took place, namely two in January, two in May, two in September, one on 14 December and one on 15 December, the participants in those meetings being Akcros, CECA, Chemson, Faci and Chemtura (see recital 305 of the contested decision), which the applicants do not dispute. 89 Second, the Commission stated that Chemtura’s monthly report for August, dated 16 September 1999, indicated that the undertakings had succeeded with ‘a price increase of about 10% for [the ESBO/esters sector] effective in October’ (see recital 308 of the contested decision). 90 Third, the Commission referred, in recital 315 of the contested decision, to the minutes of a meeting of 15 December 1999, drafted by AC-Treuhand and mentioning the impossibility of ‘closer cooperation … at present’ with another undertaking not yet attending the AC-Treuhand meetings. 91 Fourth, as regards 2000, five AC-Treuhand meetings took place, namely two in March, one in June and two in September, the participants in those meetings being Akcros, CECA, Chemson, Faci and Chemtura (see recital 316 of the contested decision), which the applicants do not dispute. 92 Fifth, the Commission relied on the Akcros memorandum, the content of which was reproduced in paragraph 61 of this judgment. 93 Sixth, the Commission also relied on the handwritten Akcros notes, which were mentioned in paragraph 62 of this judgment. 94 Seventh, the Commission submitted that, as a follow-up to the Akcros memorandum, the representative of that company announced, at an AC-Treuhand meeting of 22 March 2000 in Zurich, that it would no longer attend AC-Treuhand meetings (see recital 319 of the contested decision). 95 Eighth, the Commission also stated that Akcros confirmed, by email of 5 June 2000, its intention no longer to attend the AC-Treuhand meetings (see recital 320 of the contested decision), which the applicants do not dispute. 96 Ninth, the Commission referred to the minutes of a meeting of 26 September 2000 organised by AC-Treuhand in Italy, which it had obtained from Chemson during the administrative proceedings and which mentioned the possibility that the ‘cooperation’ might not continue ‘as in the past’ (see recital 323 of the contested decision), which the applicants do not dispute. 97 Tenth, the Commission also relied on the statements made by Chemtura as part of its cooperation with the Commission during the administrative proceedings which referred to the continuation of the cartel in the ESBO/esters sector ‘until 2001’ (see recital 420(b) of the contested decision). 98 In the light of all the foregoing, taken together, the General Court considers that the Commission proved the infringement concerning the ESBO/esters sector that it found in the contested decision by adducing evidence capable of demonstrating, to the requisite legal standard, the existence of facts constituting the infringements at issue in this case, in that the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the infringement concerning the ESBO/esters sector was committed by the applicants. 99 Considered as a whole, the various items of evidence referred to in paragraphs 88 to 97 of this judgment, as regards the ESBO/esters sector, preclude the possibility that AC-Treuhand meetings which took place, at least in December 1999, for that sector, did not have an anti-competitive object. 100 That evidence clearly demonstrates the anti-competitive object of those AC-Treuhand meetings, having particular regard to the minutes of the AC-Treuhand meeting dated 15 December 1999 referred to in paragraph 90 of this judgment; the Akcros memorandum, which criticises the anti-competitive nature of the AC-Treuhand meetings; the Akcros decision no longer to attend those meetings; the fact that Akcros publicly distanced itself, on two occasions in 2000; the fact that Akcros envisaged that its managers should have competition rules awareness training; Chemtura’s statements testifying to the continuation of the cartel ‘until 2001’, and the failure of the applicants to produce any evidence that the nature of the AC-Treuhand meetings changed. 101 It follows that the AC-Treuhand meetings of December 1999 and March 2000 could not have had any object other than that of the preceding meetings when the same undertakings and the same individuals were convened in the same context by Mr S., which the applicants do not dispute. 102 Consequently, it must be held that the Commission produced, in the contested decision, a body of evidence which, assessed as a whole, supports the firm conviction that the applicants’ engagement in the unlawful conduct concerning the ESBO/esters sector, in the AC-Treuhand meetings, continued beyond 11 November 1999 at least. 103 That finding cannot be called into question by the applicants’ arguments, which claim, in essence, that the Commission did not prove the existence of the infringement beyond 29 September 1999 and that the Commission could not presume that the anti-competitive object of those meetings continued. 104 It is more than improbable that a cartel should come to an end on the day of the last meeting of its participants, because, particularly where the object of the cartel consists of the infringements at issue in this case, that cartel is capable of continuing to produce its effects after the date of that meeting. 105 The price increase, discussed at the meeting of 29 September 1999 and admitted by the applicants, was more than capable of producing its effects after 11 November 1999. 106 In the light of all the foregoing, it must be held that the Commission proved to the requisite legal standard in the contested decision that the applicants’ unlawful conduct in the ESBO/esters sector had continued after 11 November 1999, and consequently its powers to impose penalties were not time-barred on 11 November 2009. 107 Lastly, it must be held that the applicants’ argument concerning the lack of a legitimate interest to find that an infringement had been committed thereby loses its factual premiss and that it must, therefore, be rejected. 108 Consequently, the plea claiming an infringement of Article 25(5) of Regulation No 1/2003, which the applicants have relied on to support the annulment of the contested decision, must be rejected. The plea claiming an infringement of Article 7(1) of Regulation No 1/2003 109 In their plea in law relied on solely to support the annulment of Article 1(1)(i) and (j) of the contested decision, the applicants claim that the Commission was in breach of the last sentence of Article 7(1) of Regulation No 1/2003, in that it found that the applicants participated in the infringement concerning tin stabilisers in the March 1994 to March 1996 period. 110 In contending that this plea should be rejected, the Commission states that, in recital 437 of the contested decision, it stated reasons, to the requisite legal standard, why there was a legitimate interest in finding that an infringement had been committed in that period. 111 In that regard, as a preliminary point, it must, first, be recalled that, in accordance with the last sentence of Article 7(1) of Regulation No 1/2003, ‘[i]f the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past’. 112 It must, secondly, be observed that it is apparent from recital 437 of the contested decision that the Commission did not, in this case, impose any fine on the applicants in respect of the infringement concerning tin stabilisers for the March 1994 to March 1996 period, in the exercise of the discretion accorded to it by Article 23(2) of Regulation No 1/2003, and accordingly, for the purposes of assessing this plea of the applicants, there is no need to determine whether the powers of the Commission to impose fines for the March 1994 to March 1996 period were time-barred. 113 Having made those preliminary points, in order to assess the merits of the applicants’ plea in these Cases that there was an infringement of the last sentence of Article 7(1) of Regulation No 1/2003, in that the Commission found, in the contested decision, that they had participated in the infringement concerning tin stabilisers during the March 1994 to March 1996 period, it must be observed that, in the contested decision, to demonstrate the existence of a legitimate interest in finding that an infringement had been committed on the tin stabilisers market, the Commission, in recital 437, considered that ‘Arkema France (CECA) participated in the cartel on tin stabilisers during the [March 1994 to March 1996] period, because Arkema France (CECA) later rejoined the same cartel’, and that, ‘moreover, this finding [was] appropriate with a view to discouraging repeat infringements by Arkema France (CECA) and the interest of enabling any injured parties to bring matters before national civil courts’. 114 It is therefore clear that the Commission, in the contested decision, established, to the requisite legal standard, its legitimate interest in adopting a decision finding that the applicants committed an infringement concerning tin stabilisers during the March 1994 to March 1996 period. 115 The Commission was entitled for that purpose to rely solely on the fact that the applicants participated in the tin stabilisers cartel in the March 1994 to March 1996 period, because they later rejoined the same cartel. 116 That consideration on the part of the Commission is, in itself, sufficient ground for a legitimate interest in finding that an infringement had been committed. 117 Consequently, it must be observed that the Commission was not, in the contested decision, required to support its argument concerning there being a legitimate interest in discouraging ‘repeat infringements by Arkema France (CECA)’. 118 For the same reason, nor was the Commission required, in the contested decision, to provide information, specific to the circumstances of this case, on the legal proceedings brought or even contemplated by third parties who were harmed by the unlawful conduct at issue concerning tin stabilisers in the March 1994 to March 1996 period, but could confine itself, in the circumstances of this case, to a general assertion in that regard. 119 Accordingly, the Commission was fully entitled to take the view that the unlawful conduct at issue concerning tin stabilisers in the March 1994 to March 1996 period was such that it was necessary to find in the contested decision that it had occurred. 120 Therefore, the plea in law alleging an infringement of Article 7(1) of Regulation No 1/2003 must be rejected. The plea in law relied on in support of the claims in the alternative for the variation of the contested decision in respect of the amounts of the fines imposed 121 In their claims in the alternative seeking the variation of the contested decision, the applicants ask that the Court, exercising its unlimited jurisdiction, vary the amount of the fines imposed on them. 122 In this case, as the applicants confirmed at the hearing in their reply to a question from the Court to that effect, the applicants are seeking a variation of the contested decision as regards the amount of the fines imposed on them solely in the event that the Court were to hold that the infringements did indeed continue ‘after September 1999’, but that they came to an end before 21 March 2000, in respect of the tin stabilisers, and before 26 September 2000, in respect of the ESBO/esters sector. 123 However, the Court’s analysis, in its examination of the application for the annulment of the contested decision, of the evidence relied on by the Commission has disclosed nothing from which it could be concluded that the applicants’ participation in the infringements had come to an end on dates earlier than those stated in the contested decision. It must further be noted that the applicants have not specified the dates when, according to them, the infringements came to an end. 124 In any event, the Court, exercising its unlimited jurisdiction, considers that the amount of the fines imposed on the applicants is appropriate, having regard, inter alia, to the gravity of the unlawful conduct established in the contested decision. 125 Consequently, the applicants’ application that the contested decision should be varied in respect of the amount of the fines imposed on them must be rejected, and the action must be dismissed in its entirety. Costs 126 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. 127 Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Commission, in accordance with the latter’s pleadings. On those grounds, THE GENERAL COURT (Third Chamber) hereby: 1. Dismisses the actions; 2. Orders Arkema France and CECA SA to pay the costs. Czúcz Labucka Gratsias Delivered in open court in Luxembourg on 6 February 2014. [Signatures] * Language of the case: English.