Judgment — ECLI:EU:T:2004:221
Date: 2004-07-08
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: European Free Trade Association (EFTA);Competition;Agreements, decisions and concerted practices;External relations
Concepts: General;Statement of reasons;Applications by natural or legal persons;Pleas in law;Determining the amount of the fine;Rights of the defence and procedural guarantees;Restriction of competition;Effect on trade between Member States;Decision of the Commission;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Hearing of persons concerned and of third parties / Access to the file;Presumption of innocence;Professional secrecy
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful

Summary of the Commission’s request’ that all cases falling within Community competence in the field of competition before the entry into force of the EEA agreement remain subject to the exclusive competence of the Commission after its entry into force. All the cases in which trade between Member States of the European Community is affected continue to fall within the Commission’s competence, regardless of whether or not there is also an impact on trade between the Community and the EFTA States and/or between the EFTA States themselves. 486 In the light of the foregoing considerations, it must be held that the provisions of the EEA Agreement cannot be interpreted in such a way as to deprive the Commission, even temporarily, of its competence to apply Article 81 EC to an anti-competitive agreement affecting trade between Member States of the Community. 487 It must be observed in this case that the Commission, in its decision of 25 November 1994 opening an investigation in the steel tube sector, relied in particular on Article 81 EC and Regulation No 17 as a legal basis. In the context of the investigation, it exercised the powers vested in it by Regulation No 17 in order to gather the evidence used in the contested decision and, finally, penalised the offending agreements solely on the basis of Article 81 EC in Articles 1 and 2 of that decision. 488 Accordingly, it is appropriate to reply expressly to the specific arguments of the Japanese applicants concerning the illegality of the dual legal basis used by the Commission in its decision of 25 November 1994, namely not only Article 81 EC and Regulation No 17 but also Article 53 EEA and the decision of the EFTA Surveillance Authority of 17 November 1994 giving authority for a request for assistance to be sent to the Commission. 489 It must be observed that, in this case, the Commission could not have reasonably known with certainty at the time of adoption of its decision of 25 November 1994 what the correct legal basis was, since the answer to that question depended on the geographical scope of the possible infringement and, more specifically, on the question whether the infringement affected trade between Member States of the Community. The Japanese applicants correctly observe that the EEA Agreement, in particular Articles 56 and 109 thereof, establishes a ‘one-stop-shop’ for the application of the competition rules, a system which is applicable as from the investigation stage, so that each of the two authorities is under an obligation to cease handling the matter and to transfer its file to the other authority if it determines that the other authority is the competent authority. 490 However, that ‘one-stop’ concept cannot apply from the start of the investigation if it is not possible at that stage to determine which authority is competent, otherwise, in the event of the EFTA Surveillance Authority being seised of the case but the Commission ultimately proving to be the competent authority, there would be a breach of the principle, described above, whereby the provisions of the EEA Agreement cannot deprive the Commission of its power to investigate anti-competitive conduct affecting trade between Member States of the Community. 491 It must also be observed in that connection that the mere fact that a Community institution relies for a measure both on a correct legal basis and on one or more other legal bases which subsequently prove to have been inappropriate cannot in itself entail the result that the measure in question is vitiated (see, to that effect, Case T-213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraphs 79 to 103, in particular paragraph 94). 492 It follows that the Commission was competent, at all times, to conduct inquiries concerning the anti-competitive agreements ultimately penalised in the contested decision despite the fact that the EFTA Surveillance Authority had already launched an investigation concerning possible practices of a similar nature in the Norwegian market. Consequently, the other arguments put forward by the Japanese applicants, in particular the argument based on the Spanish Banks judgment (see paragraphs 468 and 469 above), are not relevant to this case. 493 In those circumstances, the present plea must be rejected. B – The pleas concerning reduction of the fines 1. The first and second pleas: defective statement of reasons concerning the failure to apply to JFE-NKK the Leniency Notice and an error in that regard a) Arguments of the parties 494 JFE-NKK argues that the Commission failed in recital 175 to the contested decision to give reasons for its refusal properly to apply in its favour the provisions of its Leniency Notice. 495 JFE-NKK maintains that it responded in detail to the four requests for information addressed to it by the Commission. That warrants a reduction of 10% of the fine imposed on it in accordance with the judgment of the Court of Justice in Case 48/69 ICI v Commission [1972] ECR 619. Moreover, it was the only producer to provide the Commission with the exact dates, names of participants at and locations of the meetings between the European and Japanese producers. That, according to the same case-law, warrants a 20% reduction in the fine. 496 The Commission says that JFE-NKK’s argument is unfounded: recital 175 to the contested decision states that there was no effective cooperation in its case. According to the Leniency Notice, the party concerned would have at least to inform the Commission that it did not substantially contest the materiality of the facts set out in the SO, and JFE-NKK did not do so. b) Findings of the Court 497 It need merely be stated that recital 175 to the contested decision states that there was ‘no effective cooperation’ on the part of JFE-NKK in the context of the investigation conducted in this case. Whether or not that finding is correct, it must be pointed out that it constitutes a sufficient statement of the reasons for which the Commission refused to grant a reduction of the fine imposed on JFE-NKK in respect of cooperation. 498 Even if it could be assumed that the present pleas could be regarded as alleging misapplication of the Leniency Notice, they must be rejected. 499 It must be borne in mind that, in order to justify reduction of the fine for cooperation, an undertaking’s conduct must facilitate the Commission’s task of identifying and penalising infringements of the Community competition rules (see Case T-347/94 Mayr-Meinhof v Commission [1998] ECR II-1751, paragraph 309, and the case-law cited therein). 500 In this case, it must be observed that, although the answers given to the questions by JFE-NKK, in particular the indications given in its reply of 7 November 1997 concerning the dates and places of several meetings of the Europe-Japan Club, were of some use to the Commission, they merely confirmed certain items of information already given by Mr Verluca in the statements he made on behalf of Vallourec in 1996. Accordingly, it is not correct that JFE-NKK was the only undertaking to supply such information. 501 Admittedly, in so far as undertakings supply the Commission, at the same stage of the administrative procedure and in similar circumstances, with similar information concerning the matters regarding which they are accused, the degrees of cooperation afforded by them must be regarded as comparable (see, by analogy, Krupp Thyssen Stainless and Acciai Speciali Terni v Commission, cited in paragraph 50 above, paragraphs 243 to 245). 502 However, in this case, Vallourec explicitly recognised, through Mr Verluca’s statements, that the meetings in question were held in the context of a market‑sharing agreement concerning in particular the national markets of the four European producers. Mr Verluca observed that each member of the Europe-Japan Club was required to respect the national markets of each of the other members of that club, and made it clear that the United Kingdom offshore market had a special status, being ‘semi-protected’. He also specified the duration and the method of operation of the market-sharing agreement. In contrast, JFE-NKK contended, in its reply of 7 November 1997, that although the European producers asked it to respect their national markets, it never responded favourably to those requests. 503 It must be observed that Mr Verluca did not confine himself to answering the questions asked by the Commission during the first investigation carried out at Vallourec in September 1996. It is clear from Mr Verluca’s statements, taken as a whole, that he genuinely wished to recognise the existence of an infringement and to cooperate effectively in the investigation being conducted by the Commission. JFE-NKK, on the other hand, merely provided the factual information which the Commission asked it to provide, whilst at the same time rejecting any interpretation thereof which was capable of establishing the existence of an infringement on its part. 504 It must be considered that the usefulness of the information provided by JFE-NKK derives solely from the fact that it corroborates, to some extent, the statements by Mr Verluca which were already in the Commission’s possession. Consequently, the disclosure of that information did not significantly facilitate the Commission’s task and, therefore, was not sufficient to justify a reduction, in respect of cooperation, of the fine imposed. 505 For the rest, the Commission correctly found that JFE-NKK did not inform it at any time that it admitted the materiality of the facts during the administrative procedure. Moreover, it has continued to contest them before the Court. 506 In those circumstances, it must be held that JFE-NKK’s arguments do not justify application of the Leniency Notice with a view to reducing the fine imposed on that undertaking. 2. The third plea: defective statement of reasons concerning the method of calculating the fines a) Arguments of the parties 507 JFE-NKK argues that the Commission’s explanation of its method of calculating the fines is insufficiently detailed to satisfy the requirements laid down in case-law (Case T-148/99 Tréfilunion v Commission [1995] ECR II-1063, paragraph 142). In fixing the fines, it failed to examine in particular the turnover figures or to assess the actual involvement of each of the addressees of the contested decision which were parties to the infringement. According to JFE-NKK, that omission is a defect in its reasoning. 508 The Commission points out that it gave an adequate explanation of its method of calculating the fines in the contested decision, in particular in recital 162. b) Findings of the Court 509 It need merely be stated, in that connection, that the Commission clearly and coherently indicated in recitals 156 to 175 to the contested decision the factors of which it took account in determining the amount of the fines. The Tréfilunion v Commission judgment, cited in paragraph 507 above, does not avail JFE-NKK since it merely indicates in that regard that the Commission must set out the method of calculating the fines. The separate question of whether the Commission made errors of assessment regarding calculation of the amount of the fines will be considered in paragraph 515 et seq. below. 510 Accordingly, the present plea must be rejected. 3. The fourth plea: incorrect assessment of the duration of the infringement a) Arguments of the parties 511 In paragraph 136 et seq. above a summary is given of the Japanese applicants’ arguments to the effect that the Commission should, at least, have ascertained an infringement of a shorter duration than that determined in Article 1 of the contested decision. 512 Since the Commission applied an increase of 10% per year of the amount of the fine determined by reference to the gravity of the infringement and since the infringement lasted for, at most, four complete years (from 1991 to 1994) rather than five, the overall increase of 50% adopted in the contested decision for all the Japanese applicants on account of duration should become a maximum of 40%. Nippon states, in its reply, that the Commission’s argument that the voluntary restraint agreements did not prevent the Japanese producers from selling seamless tubes in the Community is at odds with the position which it adopted in the contested decision with regard to the period 1977 to 1989. Sumitomo states in that connection that Commission officials cannot act as if they were Members of the Commission by arguing that it was right to impose a fine in respect of 1990 even if it were assumed that the voluntary restraint agreements had been in force during that year. 513 The Commission’s arguments concerning the duration of the infringement found in Article 1 of the contested decision are summarised in paragraph 157 et seq. above. Essentially, since the duration of the infringement was established to a sufficient legal standard, it is inappropriate, in the Commission’s view, to reduce the amount of the fines. b) Findings of the Court 514 The parties’ arguments concerning the duration of the infringement have been examined in paragraphs 338 to 352 above and it is therefore sufficient, for the purposes of the present plea, to repeat that that duration must be reduced, as regards each of the Japanese applicants, from five years to three years and six months, namely the period from 1 January 1991 to 1 July 1994. That new duration will be taken into account below in paragraphs 588 and 590 concerning determination of the amount of the fines imposed on the Japanese applicants. 4. The fifth plea: incorrect assessment of the documents relied on to prove the existence of the infringement found in Article 1 of contested decision a) Arguments of the parties 515 The Japanese applicants refer to the arguments put forward by them in seeking the annulment of Article 1 of the contested decision, which are based on inconsistency between the products mentioned in the various items of documentary evidence on which the Commission relied in the contested decision and those finally stated to be involved in the infringement (see paragraph 105 et seq. above). If the Court were to reject some of the documentary evidence relied upon by the Commission but none the less upheld the contested decision, the fine should be reduced to reflect the definition of the products and the duration of the infringement inferred from the documentary evidence which it does admit. Account should also be taken in this context of the fact that certain items of evidence, notably the sharing key document, relate to a more limited range of products. 516 JFE-Kawasaki and Sumitomo also argue that, at very least, the Commission ought, in deciding the degree of gravity of the infringement and, thus, fixing the fines to be imposed on the addressees of the decision, to have taken account of a more restricted market. Specifically, from the geographical point of view, the Commission failed to establish to the requisite legal standard that the alleged infringement concerned the United Kingdom offshore market. 517 The Commission replies that, in so far as the documentary evidence shows that the scope of the agreement varied, it would seem to be indicative of a broader scope than that determined in the contested decision. As regards the allegation that it failed properly to identify the relevant geographical market, the Commission replies that, in assessing the gravity of the infringement, it referred to the accurate market definition contained in recitals 160 and 161 to the contested decision, which was established on the basis of evidence obtained during its inquiry (see also paragraph 155 et seq. above). b) Findings of the Court 518 It is sufficient, in order to reject this plea, to refer to the fact that, as held in paragraph 352 above, the infringement found in Article 1 of contested decision was established to a sufficient legal standard in all respects except as regards its duration, and the repercussions thereof for the amount of the fines are indicated in paragraph 514 above. 5. The fifth and sixth pleas: breach of the principle of proportionality and of the Guidelines for calculating fines, and inadequate statement of reasons a) Arguments of the parties 519 The Japanese applicants submit that, in fixing the amount of the fines imposed on them, account should have been taken of the fact that no effects were felt in the European market as a result of the infringement (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 51 et seq., Suiker and Others v Commission, cited in paragraph 56 above, paragraph 614 et seq.; Thyssen Stahl v Commission, cited in paragraph 74 above, paragraph 672). In that connection Nippon and Sumitomo refer back to the points they made concerning trade barriers the existence of which prevented the Japanese producers from selling their products in the Community markets, so that the effects on the common market of the infringement would, in any event, have been practically non-existent. In that context, JFE-NKK refers to section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, hereinafter ‘the Guidelines’), which provides that non-implementation of offending agreements or practices is to be regarded as a mitigating factor. Kawasaki argues in that connection that the fines, including those imposed on the Japanese applicants, seem to take account of the infringement found in Article 2 of the contested decision, which would be unlawful given that the second infringement concerns only the Community producers. 520 Furthermore, the range of products described in Article 1 of the contested decision is considerably smaller than that described in the SO. Essentially, the range is so small that the fine of EUR 99 million in total is disproportionate to the average cumulative turnover of all the addressees of the contested decision for those products, which is EUR 73 million per annum (recital 162 to the contested decision). In that connection Sumitomo refers to the judgments of the Court of First Instance in Case T-77/92 Parker Pen v Commission [1994] ECR II-549, paragraph 580, and Case T-319/94 Fiskeby Board v Commission [1998] ECR II‑1331, paragraph 40. The Commission has never in any of its earlier decisions imposed a fine of almost the same amount as the annual turnover achieved in the market concerned in a decision recording an infringement. In addition, JFE‑Kawasaki observes that this figure of EUR 73 million seems to include sales in the offshore markets of the Community, which ought not to have been taken into account for the reasons summarised in paragraph 405 above. 521 Nippon states in that connection that, according to the judgment in PVC II, cited in paragraph 61 above, the Commission must take into account all the circumstances of the infringement in deciding what amount of fine is proportionate. Those circumstances include the number and value of goods involved in the infringement (Musique diffusion française v Commission, cited in paragraph 56 above, paragraph 120). Moreover, according to the Guidelines, the actual impact of an infringement in the market concerned ought to be taken into account and the amount of the fine adjusted to reflect the actual impact in the market, and thus the gravity of the infringing conduct of each of the undertakings concerned (see also Case C-51/92 P Hercules v Commission [1999] ECR I-4235, paragraph 110, and Cement, cited in paragraph 66 above, paragraph 4949). JFE-Kawasaki adds that the Commission ought to have taken account of the fact that the Japanese applicants did not comply with the unlawful agreement: they in fact continued to sell the products in question in the only market that interested them, that is to say the United Kingdom offshore market (Buchmann v Commission, cited in paragraph 58 above, paragraph 121). In that connection, the Commission’s assertion at recital 161 to the contested decision that the four States of origin of the European producers concerned by the contested decision make up a broad geographical market is at odds with its observations in recitals 106 and 145 to the decision, where it talks of four national markets. 522 The argument which the Commission draws from the case-law relating to its discretion in fixing the amount of fines is irrelevant because the Commission nevertheless remains obliged to comply with Article 15 of Regulation No 17. Moreover, its argument that the Guidelines provide, in principle, for a basic fine of EUR 20 million for ‘very serious’ infringements cannot prevail over the principle of proportionality when fines are calculated. 523 Sumitomo takes the view that the existence of the voluntary restraint agreements prior to 1991 is a mitigating factor which the Commission ought to have taken into consideration as regards the subsequent period, despite the fact that application of Article 81 EC was no longer precluded at the time when the agreement expired. Sumitomo invites the Court to apply by analogy paragraphs 619 and 620 of the judgment in Suiker and Others v Commission, cited in paragraph 56 above. The Commission’s argument, set out in its defence in Case T-78/00, that the existence of the voluntary restraint agreements prior to 1991 is an aggravating, rather than a mitigating, factor is inconsistent with the approach it adopted in the contested decision and thus constitutes a breach of its duty to state reasons, as provided for in Article 253 EC. 524 The Commission denies that the fine is disproportionate and contends that the Japanese applicants have based their argument on the false premiss that the fine must be set by reference to the size of the market concerned. The Commission says that it must be proportional to the infringement appraised as a whole and not merely to the turnover of the addressees of the contested decision. In recital 162 to the contested decision, the Commission stated that the market-sharing agreement was a ‘very serious’ infringement of Article 81 EC because its purpose was to ring-fence national markets which account for most of the Community’s consumption of the products concerned by the contested decision. The infringement thus clearly affected the functioning of and competition within the common market. 525 The approach taken in recital 162 to the contested decision conforms to the Guidelines, which state that, subject to the ceiling of 10% of turnover, fines are to be determined by taking a basic amount reflecting the seriousness of the infringement as a starting point. The turnover of the addressees of a decision recording an infringement is relevant only in relation to that 10% limit (Cement, cited in paragraph 66 above, paragraphs 5005 to 5025). The Guidelines give EUR 20 million as the basic amount for very serious infringements and since the Commission has already reduced that figure to EUR 10 million to reflect the size of the market (recital 163 to the decision), there is no reason to reduce it further. The Commission also points out that, according to the Guidelines, the impact of an infringement on the market is a factor to be taken into account only ‘where this can be measured’ and that the individual turnover figures of each of the firms guilty of an infringement of the same kind are only taken into account where there is significant variance between them. That is not so in the present case. 526 The approach taken in the contested decision is consistent with case-law, in which it has been acknowledged that the Commission may exercise discretion in setting the amount of fines (Mo och Domsjö, cited in paragraph 425 above, paragraph 268). In paragraph 358 of that judgment, which was confirmed on appeal by the Court of Justice in Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, paragraph 62, the Court of First Instance held that, where the object of the infringement is in itself serious, an effect on the market may be presumed or, at least, becomes irrelevant to any assessment of its gravity. 527 In response to JFE-Kawasaki’s argument that the fine imposed on the Japanese producers includes an amount on account of the infringement found in Article 2, the Commission maintains that that view is incorrect: no fine was imposed, nor was the original fine increased in respect of that infringement. 528 The Commission points out that its decision not to impose a fine in respect of the period during which the voluntary restraint agreement was in force was already a concession to the Japanese producers, particularly in the light of the Commission’s Notice concerning imports into the Community of Japanese products (OJ 1972 C 111, p. 13), which stated that no comfort could be drawn from voluntary restraint agreements as regards the application of competition law. Thus, the existence of voluntary restraint agreements prior to 1990 is in no way a mitigating factor for the purpose of fixing the fine in respect of the period 1990 onwards, contrary to Sumitomo’s argument to that effect. 529 In response to Sumitomo’s argument that the Commission is not entitled to raise for the first time before the Court the allegedly aggravating nature of the voluntary restraint agreements prior to 1990, the Commission states that Sumitomo is asking the Court, in the exercise of its unlimited jurisdiction, to reduce the fine. In this context, the Commission considers that it is appropriate to draw to the Court’s attention all factors relevant to the Commission’s exercise of its discretion. 530 In that connection, it is appropriate to point out that Sumitomo appears to be attempting to introduce a new plea relating to its claim that the fine should be reduced by raising, in its reply, the issue of reasoning, even though its application contains no plea alleging inadequacy of the statement of reasons concerning the calculation of that amount. That plea is inadmissible pursuant to Article 48(2) of the Rules of Procedure. b) Findings of the Court 531 It is important to note first of all that, under Article 15(2) of Regulation No 17, the Commission may impose fines from a minimum of EUR 1 000 to a maximum of EUR 1 000 000, and the latter amount may be increased to 10% of the turnover achieved during the previous financial year by each of the undertakings which participated in the infringement. To determine the amount of the fine within those limits, that provision requires account to be taken of the gravity and of the duration of the infringement. 532 However, neither Regulation No 17, nor the case-law nor the Guidelines provide that the amount of the fines must be fixed directly by reference to the size of the market concerned, that factor being only one of several. Under Regulation No 17, as interpreted by the case-law, the amount of the fine imposed on an undertaking in respect of an infringement of competition law must be proportional to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, Case T‑83/91 Tetra Pak v Commission [1994] ECR II‑755, paragraph 240, and, by analogy, Case T‑229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127). As the Court held in paragraph 120 of its judgment in Music diffusion française and Others v Commission, cited in paragraph 56 above, it is necessary in assessing the gravity of an infringement to take account of numerous elements whose nature and importance varies according to the type of infringement concerned and the special circumstances surrounding it (see also, by analogy, Deutsche Bahn v Commission, paragraph 127). 533 It must also be noted in that connection that the only express reference to the turnover of the undertaking concerned, namely the limit of 10% of the turnover relied on for the purpose of determining fines in Article 15(2) of Regulation No 17, relates to the overall worldwide turnover of the undertaking (see to that effect Music diffusion française and Others v Commission, paragraph 119) and not the turnover achieved by it on the market affected by the anti-competitive conduct penalised. It is clear from the same paragraph of that judgment that that limit is designed to ensure that the fines are not disproportionate to the size of the undertaking as a whole. 534 However, it must be emphasised that that reference to worldwide turnover is relevant only to the calculation of the upper limit of the fine which may be imposed by the Commission (see paragraph 1 of the Guidelines) and certainly does not mean that there must be a strictly proportional relationship between the size of each undertaking and the fine imposed on it. 535 In so far as it is not alleged in this case that the amount of the fines exceeds 10% of the total turnover of the Japanese applicants, those fines are not open to criticism merely because, when added to those imposed on the European producers, they exceed the turnover achieved on the relevant market, namely EUR 73 million. It must, admittedly, be observed that the Court of Justice, in its judgment in Case C-248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 61, emphasised incidentally that ‘Article 15(2) of Regulation No 17 … aims to ensure that the penalty is proportionate to the undertaking’s size on the product market in respect of which the infringement was committed’. However, apart from the fact that, in paragraph 61 of that judgment, the Court of Justice mentions expressly, by way of reference, paragraph 119 of the Music diffusion française judgment, it must be emphasised that the wording in question, which was not taken up in the subsequent case-law, forms part of the special context of the KNP BT v Commission case. In that case, the applicant criticised the Commission for having taken into account the value of sales within the group for the purpose of determining its market shares, an approach which was nevertheless held to be valid by the Court of Justice for the reason given above. It cannot therefore be inferred that the penalties imposed on the Japanese applicants in this case are disproportionate. 536 Moreover, it must be observed that, although the Commission did not expressly refer to the Guidelines in the contested decision, it nevertheless determined the amount of the fines imposed on the Japanese applicants by applying the calculation method laid down by the Guidelines. 537 However, whilst the Commission enjoys a discretion in fixing the amount of fines (Case T-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 59, and, by analogy, Deutsche Bahn v Commission, cited in paragraph 532 above, paragraph 127), it must be pointed out that the Commission cannot depart from the rules which it has set for itself (see Hercules Chemicals v Commission, cited in paragraph 327 above, paragraph 53, confirmed on appeal by the judgment of 8 July 1999 in Hercules Chemicals v Commission, cited in paragraph 521 above, and the case‑law cited therein). Thus, the Commission must in fact take account of the Guidelines when determining fines, in particular the elements which are mandatory under the Guidelines. 538 However, the discretion enjoyed by the Commission and the limits which it has imposed in that regard do not in any event prejudge the exercise by the Community judicature of its unlimited jurisdiction. 539 It must be observed that, according to point 1 A of the Guidelines for calculating fines, ‘[i]n assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market’. However, in recital 159 to the contested decision, the Commission states that it took account of those same three criteria in determining the gravity of the infringement. 540 However, the Commission relied, in recital 161 to the contested decision, essentially on the nature of the offending conduct of all the undertakings as a basis for its conclusion that the infringement found in Article 1 of the contested decision is ‘very serious’. In that regard, it referred to the seriously anti-competitive nature of the market-sharing agreement penalised and the way it jeopardised the proper functioning of the single market, the intentional nature of the illegal conduct and the secret and institutionalised nature of the system established in order to restrict competition. The Commission also took into account in the same recital 161 the fact that ‘the four Member States in question account for most of the consumption of seamless OCTG and line pipe in the Community and therefore constitute an extended geographic market’. 541 On the other hand, the Commission found in recital 160 to the contested decision that ‘the specific impact of the infringement on the market has been limited’, because the two specific products covered by it, namely standard thread OCTG and project line pipe, account for only 19% of Community consumption of OCTG and seamless line pipe and welded tubes can now cater for part of the demand for seamless tubes as a result of technological progress. 542 Thus, in recital 162 to the contested decision, the Commission, after describing the infringement as ‘very serious’ on the basis of the factors listed in recital 161, took account of the relatively low level of sales of the products in question by the addressees of the contested decision in the four Member States concerned (EUR 73 million a year). That reference to the size of the market affected relates to the assessment of the limited impact of the infringement on the market in recital 160 to the contested decision. The Commission therefore decided to set the amount reflecting the gravity of the infringement as EUR 10 million. The Guidelines provide, in principle, for a fine ‘above [EUR] 20 million’ for an infringement categorised as very serious. 543 It must be concluded that that reduction of the amount determined by reference to the gravity of the infringement to 50 % of the minimum sum usually adopted in the case of a ‘very serious’ infringement adequately takes account of the limited impact of the infringement on the market in this case. In that connection, it must also be remembered that the purpose of fines is to have a deterrent effect in matters of competition (see, in that connection, the fourth paragraph of point 1 A of the Guidelines). Thus, in view of the large size of the addressees of the contested decision, mentioned in recital 165 to the contested decision (see also paragraph 552 below), a substantially greater reduction of the amount determined in respect of gravity of the infringement could have deprived the fines of their deterrent effect. 544 As regards the arguments relating to the existence of obstacles to exports to onshore Community markets, it must be observed that the Commission did not take account of those factors in the contested decision for the purpose of fixing the amount of the fines, because it contests them from the factual point of view. Since the classification of the infringement as ‘very serious’ in this case is based on the nature of the infringement and its purpose, rather than on its effects, those arguments of the Japanese applicants have no impact on that analysis as such. 545 Moreover, it must be borne in mind, once again, in that connection that the Commission applied a very significant reduction, as compared with the amount usually imposed for an infringement of that seriousness, in order to take account of the limited economic effects of the agreement. 546 It must be also pointed out that, since the existence of the infringement found in Article 1 of the contested decision was established on the basis of documentary evidence, the participation of the Japanese applicants in the anti‑competitive agreement thereby penalised is one of the main reasons for which the Commission was not required to assess in any event the reality and size of the obstacles to trade referred to by the Japanese applicants. An undertaking which agrees, under a wider agreement, to decline to sell a particular product on a given market when it had no intention of doing so in any case makes it practically impossible, by virtue of its own attitude, to determine how it would have behaved in relation to the sale of that product on the market in question in the absence of that agreement. 547 Point 1 of the Guidelines states that the impact of an infringement on the market must be taken into account ‘where this can be measured’ (see paragraph 539 above). It must be stated that, in the circumstances of this case, it was precisely the offending conduct of the Japanese applicants themselves which made it almost impossible to measure the extent of the alleged obstacles to trade and, therefore, to take account of those obstacles in assessing the impact of the infringement on the market. 548 In those circumstances, even if it were assumed that the applicants’ allegations as to the existence and extent of the barriers to trade were well founded, the Court considers, in the exercise of its unlimited jurisdiction, that, in determining the amount of the fines in respect of gravity of the infringement, the Commission did not in any way breach the principle of proportionality in this case and there is therefore no justification for further reducing that amount by reference to those circumstances. Consequently, it is unnecessary to give a decision on the merits or otherwise of that argument in this case. 549 The Japanese applicants’ arguments concerning their alleged non‑compliance with the penalised agreement regarding the United Kingdom offshore market on which they claim to have sold substantial quantities of the products referred to in Article 1 of the contested decision must also be rejected. Like the arguments considered in the foregoing paragraphs, that argument, even if it were assumed to be well founded, merely places in context the practical effects of the agreement penalised in Article 1 of the contested decision. However, the Commission has already established and correctly taken account of the fact that the infringement had a limited impact on the markets concerned (see paragraphs 542 and 543 above). 550 In any event, the impact of such ‘non‑compliance’ with the agreement regarding the United Kingdom offshore market is limited by the fact that that market was only ‘semi-protected’, in the terms of the contested decision, so that the Commission was already aware of that factor when setting the fines (see recital 62 to the contested decision). 551 The Japanese applicants observe that the sixth paragraph of point 1 A of the Guidelines provides that it is possible ‘in some cases to apply weightings to the amounts determined within each of the three categories [of infringement] in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition’. According to that paragraph, that approach is appropriate ‘particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’. 552 In this case, the Commission found, in recital 165 to the contested decision, that all the addressees of the contested decision were large undertakings, so that it was not appropriate for that reason to differentiate the amounts of the fines imposed. In that connection, none of the Japanese applicants has challenged its classification as a large undertaking as such, their arguments in that connection being merely of a comparative nature. 553 Moreover, it is clear from the use of the expression ‘in some cases’ and the term ‘in particular’ in the Guidelines that weighting according to the individual size of undertakings is not a systematic stage in the calculation which the Commission has imposed on itself but falls within the scope of the flexibility which it has granted itself in cases where it is called for. It is appropriate in this context to refer to the case‑law according to which the Commission enjoys a discretion enabling it to take account or not take account of certain factors when determining the amount of the fines which it intends imposing, having regard in particular to the circumstances of the case (see, to that effect, the order of the Court of Justice of 25 March 1996 in Case C‑137/95 P SPO and Others v Commission [1996] ECR I‑1611, paragraph 54, Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraphs 32 and 33, and Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 180 above, paragraph 465; see also, to that effect, Case T‑309/94 KNP BT v Commission [1998] ECR II‑1007, paragraph 68). In view of the terms of the sixth paragraph of point 1 A of the Guidelines, referred to above, it must be considered that the Commission retains a degree of discretion concerning the appropriateness of weighting fines according to the size of each undertaking. 554 Since the Commission found in the contested decision that all the Japanese applicants were large undertakings (see paragraph 552 above) and since it took account of the relatively limited impact of the infringement on the markets generally (see paragraphs 542 and 543 above), the Japanese applicants’ argument is not sufficient to show that the Commission exceeded its discretion in this case by not applying the sixth paragraph of point 1 A of the Guidelines. 555 Moreover, Sumitomo alleges that the existence of voluntary restraint agreements before 1991 is an attenuating factor which the Commission should have taken into account for the period subsequent to those agreements. It need merely be stated in that connection that, while the status of the voluntary restraint agreements was a matter of contention between the Japanese applicants and the Commission in the present proceedings, it is common ground that those agreements were no longer in force, either nationally or internationally, as from 1 January 1991. It must be stated that, as soon as the voluntary restraint agreements ceased to be operative, they should no longer have affected the commercial conduct of the Japanese producers and cannot therefore be invoked as an attenuating circumstance in the present context. 556 In that connection, since the voluntary restraint agreements were not taken to be an aggravating circumstance in the contested decision, there can be no question of any inadequacy of the statement of reasons regarding that classification. 557 Finally, as regards JFE‑Kawasaki’s argument concerning the taking into account of the infringement found in Article 2 of the contested decision, it is clear from recital 164 to the contested decision and from the absence of references to the supply contracts constituting that second infringement in recitals 159 to 163 and 165 to 175 that the Commission decided not to take account thereof for the purpose of determining the amount of the fines. That fact is sufficient to render JFE‑Kawasaki’s argument entirely irrelevant for the purposes of the present plea. 558 It follows that the present plea must be rejected in its entirety. 6. The sixth plea: breach of the principle of equal treatment a) Arguments of the parties 559 JFE-Kawasaki and Sumitomo argue that the level of the fine imposed on the Japanese producers for supposedly agreeing to refrain from selling the products mentioned in Article 1 of the contested decision in Europe is disproportionate by comparison with the level of the fines imposed on the European producers. The latter in fact are alleged to have committed two infringements the purpose of which was to ring-fence European markets, conferring on their infringement an intra-Community aspect absent from the infringement alleged against the Japanese producers. The Commission thus breached the principle of non-discrimination, which precludes different situations being treated in the same way without objective justification (Case C-342/93 Gillespie [1996] ECR I-475, paragraph 16, and the Guidelines). Sumitomo states that it is unfair to draw inferences from the fact that the infringement found in Article 2 of the contested decision supposedly forms part of the infringement found in Article 1 because the Commission does not allege that the agreement between the European and Japanese producers required the European producers to commit that further infringement. Moreover, it follows that the Japanese applicants indeed had an interest in disputing the Commission’s reasoning in recital 164 to the contested decision according to which no additional fine should be imposed on the European producers. 560 In that connection JFE-Kawasaki reiterates its argument that the relations between the European and Japanese producers and the relations between the European producers themselves should be treated as two separate infringements. Sumitomo maintains that, in any event, if one infringement the object of which was sharing the Community markets between the European producers may be described as very serious because it is likely to lead to ring-fencing of the markets of the Member States, that does not apply to any undertaking given by producers in a non-Member country to refrain from selling their products in the Community market. 561 According to Sumitomo, the Commission also breached the principle of non-discrimination by failing to take account of the longer duration of the infringement found in Article 2 of the contested decision in fixing the fines imposed on the European producers. Sumitomo also points out that the Article 2 infringement does not relate to the same products as the Article 1 infringement. It relates to plain-ended steel tubes. 562 Nippon also submits that the voluntary restraint agreements should not be taken into account for the purposes of calculating the fine imposed on the European producers because they had no bearing on that intra-Community aspect of the infringements. Moreover, according to JFE-Kawasaki, the fine imposed in respect of the infringement found in Article 1 of the contested decision includes the fine that ought to have been imposed in respect of the infringement found in Article 2, in which the Japanese producers had absolutely no part. In view of those arguments, the fines imposed on the Japanese producers should be reduced in order to re-establish equilibrium between them and the European producers. 563 In that connection, JFE-NKK submits that, by concluding that each producer was responsible for implementation of the alleged cartel as a whole, the Commission applied the principle of collective liability and in so doing infringed the general principle that penalties should be based upon individual responsibility. 564 According to the Commission, the Japanese applicants have not been discriminated against, the same fine on account of the seriousness of the infringement having been imposed on each of the European and Japanese producers implicated in the infringement found in Article 1 of the contested decision. 565 It is of no interest to the Japanese applicants to dispute the conclusion set out in recital 164 to the contested decision because the Commission’s decision to impose no additional fine in respect of the second infringement causes them no harm. The fact that the Article 2 infringement went on for longer than the principal infringement which it helped implement and that it related to the market for plain-end pipes is irrelevant to the level of fine imposed in Article 1 of the contested decision. b) Findings of the Court 566 As regards the argument that the infringement found in Article 1 of the contested decision in fact comprises two infringements, namely an intra‑Community infringement and an inter-continental infringement, it need merely be borne in mind that, for the reasons set out in paragraphs 370 to 374 above, that infringement constitutes a single infringement. Thus, the fact of considering that all the parties participated in it to the same extent does not, in that regard, in any way infringe the general principle of equal treatment, or the principle of proportionality. 567 As regards the criticism concerning the existence of the infringement found in Article 2 of the contested decision against the European producers, it has been held in paragraph 557 above that the Commission did not take account of it for the purpose of calculating the fines in the contested decision. 568 However, it has also been held, in paragraph 451 above, that, contrary to the Commission’s assertion, the Japanese applicants did indeed have a legal interest in challenging the Commission’s assessment, set out in recital 164 to the contested decision, concerning the relationship existing between the two infringements established in the decision. 569 It must be remembered that the Commission itself considered in recital 111 to the contested decision, after examining their specific characteristics, that the supply contracts constituted in themselves an infringement of Article 81(1) EC and that their competition‑restricting objects and effects went beyond a mere contribution to the continuation of the Europe-Japan agreement (see paragraphs 362 to 364 above). In particular, the Commission considered that that infringement had had an impact not only on the upstream market in standard thread OCTG tubes, but also, directly and clearly, on the downstream market in seamless tubes. 570 It must be stated that the Commission was required to draw certain inferences from those findings of fact and legal classifications for the purpose of setting the amount of the fines, and that it did not do so. 571 As has been held in paragraph 364 above, the first sentence of recital 164 to the contested decision is vitiated by errors of assessment in that the Commission considered that the contracts constituting the second infringement were merely a ‘means of ensuring the application’ of the first infringement. Consequently, the second sentence of recital 164, in which the Commission announces its intention not to impose an additional fine in respect of the second infringement, is deprived of its logical basis. 572 The Commission enjoys a degree of latitude in determining fines and, in so far as its Guidelines do not require it to take account systematically of any given circumstance (see paragraphs 537 and 553 above, and the case‑law cited), it can determine which factors should be taken into account for that purpose, which enables it to adapt its assessment to specific cases. Its assessment must, however, be carried out in compliance with Community law, which includes not only the provisions of the Treaty but also the general principles of law (see, by analogy, Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 38). 573 By thus omitting to take account of the infringement found in Article 2 of the contested decision in determining the fine imposed on the European producers, the Commission treated different situations in the same way but without relying on objective reasons capable of justifying that approach. It follows that it infringed the general Community law principle of equal treatment (see, to that effect, Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II-1129, paragraph 309, and the case-law cited). 574 Consequently, the present plea alleging breach of the principle of equal treatment must be upheld. Accordingly, it is appropriate for the Court to exercise its unlimited jurisdiction, deriving from Article 229 EC and Article 17 of Regulation No 17, to adjust the amount of the fines imposed by Article 4 of the contested decision. 575 In that connection, the Commission observed at the hearing that the possible existence of unequal treatment referred to above should logically lead to an increase in the fines imposed on the European producers, rather than a reduction of the amount of the fines imposed on the Japanese producers. It must be observed, in that context, that, contrary to the views put forward by JFE‑Kawasaki in this case in connection with another plea (see paragraph 512 above), Commission representatives may, subject to any express instructions to the contrary from their superiors, lawfully plead that the Community judicature should exercise its unlimited jurisdiction to increase the amount of a fine set by the Members of the Commission. The mere fact that a Commission representative asks the Community judicature to exercise a power available to it and puts forward arguments which might justify such a course of action cannot mean that the representative is acting in the stead of the Members of the Commission. 576 It must be considered that, in the circumstances of this case, the most appropriate way of restoring a fair balance between the addressees of the contested decision would be to increase the amount of the fine imposed on each of the European producers which brought an action calling upon the Court to change the amount of its fine and therefore to reassess the amount of the fine, rather than to reduce the amount of the fines imposed on the Japanese applicants. The abovementioned unequal treatment does not relate to the proportionally over‑severe fine imposed on the Japanese producers, the method of calculation adopted by the Commission in setting their fines having been held to be perfectly lawful in itself (see paragraphs 531 to 558 above), but, on the contrary, relates to the fact that the gravity of the offending conduct of the European producers, appraised as a whole, was under‑evaluated by comparison with the unlawful conduct of the Japanese producers. 577 Moreover, the applicants in Cases T‑44/00, T‑48/00, and T‑50/00, namely Mannesmann, Corus and Dalmine, each asked the Court in their applications to exercise in that connection its unlimited jurisdiction to change the amount of the fine imposed. It must be recognised that, where the exercise of that jurisdiction is requested by an applicant, including in connection with an application for reduction of a fine, the Court is therefore empowered to amend the contested measure, even if it does not annul it, having regard to all the factual circumstances, in order to amend the amount of the fine imposed (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 180 above, paragraph 692). Moreover, the unlimited jurisdiction conferred on the Community judicature by Article 17 of Regulation No 17 in accordance with Article 229 CE, expressly includes the power to increase the fine imposed, if appropriate. 578 However, the Commission has not pleaded in its defence in Cases T‑44/00, T‑48/00 and T‑50/00, which have been joined to the present cases for the purposes of the hearing (see judgments delivered today, Mannesmannröhren‑Werke v Commission, paragraph 38, Corus v Commission, paragraph 38, and Dalmine v Commission, paragraphs 38 and 245 to 247), or even belatedly at the hearing, even though it did refer to that possibility, that the Court should revise upwards the amount of the fines imposed on the applicants in these cases. In that connection, the Court has not asked those applicants to submit observations on that point. Accordingly, the applicants in the three cases mentioned above have not had an opportunity to give their views on the appropriateness of increasing their fines, or on the factors which might possibly influence the amount thereof. In those circumstances, the fines imposed on the applicants in the three cases mentioned above have not been increased (see the operative parts of the judgments in Mannesmannröhren‑Werke v Commission, Corus v Commission and Dalmine v Commission, cited above). 579 It follows that the most suitable way of remedying the unequal treatment observed in this case is, for the purpose of determining the amount of the fine imposed on each of the Japanese applicants, to reduce the amount decided on by the Commission in respect of the gravity of the infringement, in recital 163 to the contested decision. In the exercise of its unlimited jurisdiction, the Court considers, having regard to all the circumstances of this case, that the fine should be reduced from EUR 10 million to EUR 9 million for each of the Japanese applicants. 580 That new amount is taken into account in paragraphs 588 and 590 below in order to fix the amount of the fines imposed on the Japanese applicants. 581 Finally, as regards Nippon’s argument that the voluntary restraint agreements should not be taken into account for the purpose of calculating the fine imposed on the European producers because they had no impact on the intra‑Community aspect of the infringements, it must be stated, first, that it has already been held that there was no reason in this case to treat the infringement found in Article 1 of the contested decision as two separate infringements, the first relating to relations between the European‑Japanese producers and the second to intra‑Community relations (see paragraph 584 below). 582 It must next be observed that the choice made by the Commission not to find that an infringement existed before 1990, because of the existence of the voluntary restraint agreements, necessarily constitutes a concession made by the Commission both to the Japanese producers and to the European producers for reasons relating to the commercial policy followed in the steel industry. According to the Commission opinion on the import of Japanese products into the Community, the existence of the voluntary restraint agreements should not have assisted the Japanese producers in any way in terms of the application of competition law. 583 In that connection, it is clear from recital 27 to the contested decision that the voluntary restraint agreements were included as from the 1970s ‘as part of the anti-crisis trade measures’ adopted by the Commission to cope with the difficult situation prevailing in the Community steel industry. The Japanese applicants have not challenged that statement in the present procedure and it must be borne in mind, in that regard, that the Commission granted a reduction of the fines imposed on all the addressees of the contested decision in respect of attenuating circumstances to take account of the fact that ‘the steel pipe and tube industry has been in crisis for a long time’ (recital 168 to the contested decision). 584 In view of those circumstances, it must be concluded that the commercial policy reasons underlying the concession mentioned in recital 108 to the contested decision for the period corresponding to the lifetime of the voluntary restraint agreements relate not only to the relations between the Community and the Japanese authorities but also to the existence of the crisis which affected the Japanese steel tube manufacturers in the same way as their Community counterparts during that same period. 585 Moreover, the Commission observed in recital 27 to the contested decision and before the Court, without being contradicted by the Japanese applicants on that point, that the voluntary restraint agreements were simply quota agreements and limited rather than prohibited the marketing of steel tubes from Japan into the European Community. The difference of circumstances invoked by Nippon is therefore relative and not absolute. Those agreements are not therefore sufficient to account for the passive conduct of the Japanese applicants in the Community markets. 586 In those circumstances, the Court considers that the unequal treatment alleged by Nippon does not exist. 587 Furthermore, in view of the context described in paragraphs 583 to 585 above, particularly the political nature of the concession granted by the Commission, the legality of which has not been contested, it would not in any event be appropriate for the Community Court to change the amount of the fines imposed on the Japanese applicants, since it is clear from the contested decision that, for the Commission, that concession was justified on a political level. 7. Calculation of the fines 588 It follows from the foregoing that the fine imposed on each of the Japanese applicants must be reduced to take account, first, of the reduction of the amount relating to the gravity of the infringement from EUR 10 to EUR 9 million and, second, that the duration of the infringement is established in the present cases as three‑and‑a‑half years rather than five years. 589 The method of calculating the amount of the fines adopted in the Guidelines and employed by the Commission in this case has not been criticised in itself, for which reason it is appropriate for the Court, in the exercise of its unlimited jurisdiction, to apply that method in the light of the conclusion reached in the foregoing paragraph. 590 Thus, the basic amount for each Japanese producer shall be EUR 9 million, plus 10% for each year of the duration of the infringement, that is to say 35% in all, which gives a figure of EUR 12.15 million. That amount must then be reduced by 10% to reflect the attenuating circumstances referred to in recitals 168 and 169 to the contested decision, giving a final amount for each of the Japanese applicants of EUR 10.935 million instead of EUR 13.5 million. Costs 591 Under Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs if the parties succeed on some and fail on other heads of claim. Since each party has failed on one or more heads in this case, it is appropriate to order each of the Japanese applicants and the Commission to bear their own costs. 592 Under the second subparagraph of Article 87(4) of the Rules of Procedure, the EFTA Surveillance Authority must bear its own costs if it intervenes in proceedings. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber) hereby: 1. Annuls Article 1(2) of Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) in so far as it establishes the existence of the infringement found in that article against the four applicants in Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 as pre-dating 1 January 1991 and extending beyond 30 June 1994; 2. Sets the fine imposed on each of the four applicants by Article 4 of Decision 2003/382 at EUR 10 935 000; 3. Dismisses the remainder of the four applications; 4. Orders the four applicants and the Commission to bear their own costs; 5. Orders the EFTA Surveillance Authority to bear its own costs. Forwood Pirrung Meij Delivered in open court in Luxembourg on 8 July 2004. H. Jung J. Pirrung Registrar President Table of contents Facts and procedure A – Administrative procedure B – Relevant products C – Infringements found by the Commission in the contested decision D – Essential facts established by the Commission in the contested decision E – Operative part of the contested decision F – Procedure before the Court of First Instance Forms of order sought The impact of the concentration between Kawasaki and NKK Law A – The claims for annulment of the contested decision, in particular Article 1 thereof 1. The first plea: the Commission did not establish to the requisite legal standard the existence of the infringement found in Article 1 of the contested decision a) Arguments of the parties Preliminary observations First part: incompatibility of the existence of the alleged agreement with the situation existing in the British offshore market and the other European markets The second part of the first plea: evidence allegedly lacking probative value The third part of the first plea: incorrect assessment of the scope of the infringement found in Article 2 of the contested decision b) Findings of the Court Preliminary observations The second part of the plea: the absence of probative force of the evidence and, subsidiarily, the first part, alleging that the existence of the alleged agreement is inconsistent with the situation prevailing on the United Kingdom offshore market and the other markets – Mr Verluca’s statements – The Vallourec notes – The 1993 documents in English – The steel tube system document – Sharing key document – Replies of the European producers – Mr Biasizzo’s deposition – Duration of the infringement The third part of the plea: the Commission’s allegedly misconceived view of the significance of the infringement found in Article 2 of the contested decision 2. The second plea: the infringement found in Article 1 should in fact be seen as comprising two separate infringements a) Arguments of the parties b) Findings of the Court 3. The third plea: the agreement should not be regarded as having had an appreciable effect on competition a) Arguments of the parties b) Findings of the Court 4. The fourth plea: the agreement had no impact on trade between Member States a) Arguments of the parties b) Findings of the Court 5. The fifth plea: insufficient reasoning to support the Commission’s conclusions concerning the significance of the infringement found in Article 2 of the contested decision a) Arguments of the parties b) Findings of the Court 6. The sixth plea: insufficient reasoning concerning the status of the Community offshore markets and the United Kingdom offshore market in particular a) Arguments of the parties b) Findings of the Court 7. The seventh and eighth pleas: insufficient statement of the reasons for the Commission’s decision to penalise the Japanese producers and not the Latin American producers, and unequal treatment in that respect a) Arguments of the parties b) Findings of the Court 8. The ninth plea: flawed reasoning on the part of the Commission concerning sales at prices above variable cost a) Arguments of the parties b) Findings of the Court 9. The 10th plea: breach of the rights of the defence arising from inconsistencies between the statement of objections and the contested decision in relation to the geographical market referred to in Article 1of that decision a) Arguments of the parties b) Findings of the Court 10. The 11th plea: breach of the rights of the defence arising from inconsistencies between the statement of objections and the contested decision as regards the products concerned a) Arguments of the parties b) Findings of the Court 11. The 12th plea: breach of the rights of the defence deriving from the lack of an adequate analysis of the voluntary restraint agreements in the statement of objections and from inconsistencies between the statement of objections and the contested decision regarding the scope of those agreements a) Arguments of the parties b) Findings of the Court 12. The 13th plea: breach of the rights of the defence deriving from inconsistencies between the statement of objections and the contested decision regarding the scope attributed to the infringement found in Article 2 of the decision a) Arguments of the parties b) Findings of the Court 13. The 14th plea: the illegality of the Commission decision of 25 November 1994 to authorise the investigations of 1 and 2 December 1994 a) Arguments of the parties b) Findings of the Court B – The pleas concerning reduction of the fines 1. The first and second pleas: defective statement of reasons concerning the failure to apply to JFE-NKK the Leniency Notice and an error in that regard a) Arguments of the parties b) Findings of the Court 2. The third plea: defective statement of reasons concerning the method of calculating the fines a) Arguments of the parties b) Findings of the Court 3. The fourth plea: incorrect assessment of the duration of the infringement a) Arguments of the parties b) Findings of the Court 4. The fifth plea: incorrect assessment of the documents relied on to prove the existence of the infringement found in Article 1 of contested decision a) Arguments of the parties b) Findings of the Court 5. The fifth and sixth pleas: breach of the principle of proportionality and of the Guidelines for calculating fines, and inadequate statement of reasons a) Arguments of the parties b) Findings of the Court 6. The sixth plea: breach of the principle of equal treatment a) Arguments of the parties b) Findings of the Court 7. Calculation of the fines Costs * Language of the case: English.