Judgment — ECLI:EU:T:2011:361
Date: 2011-07-13
Language of the case: Italian
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Italy

summary of the pleas in law on which the application is based. According to settled case-law, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C‑52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17, and Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 94). Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T-84/96 Cipeke v Commission [1997] ECR II-2081, paragraph 34, and Case T-231/99 Joynson v Commission [2002] ECR II-2085, paragraph 154). 162 Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 333). 163 In this case, Polimeri states that: ‘[O]n account of the strictly limited number of pages with which this application has to comply, the applicant will put forward its arguments on the part headed “General description of the cartel”, whereas it will reserve its specific observations on the part headed “Cartel meetings” for Annex [A] 23, Annex [A] 24 and Annex [A] 25 [to the application].’ 164 Accordingly, Polimeri sets out in the body of the application a complaint concerning the part of the contested decision headed ‘General description of the cartel’ (that is Section 4.2). The complaint concerning the part of the contested decision headed ‘Cartel meetings’ (that is Section 4.3) is fully explained, in law and in fact, only in Annexes A 23 to A 25 to the application. 165 More specifically, the only arguments advanced by Polimeri in the body of the application as regards the part of the contested decision headed ‘Cartel meetings’ are the following: ‘So far as concerns the period from 1996 to 2000 (in Annex [A] 23 [to the application]), Polimeri claims that it is impossible to maintain that there was any form of cartel between competitors on either ESBR or BR prices. In the few cases where the annexed documentation refers to meetings apart from official meetings, documentation which relates in very large part to ESBR, there really is nothing to support the conclusion that the commercial policy of the undertakings was coordinated in any way whatsoever. As for 2001, Polimeri demonstrates, in Annex [A] 24 [to the application], that it was an absolutely irrelevant year from the antitrust point of view, both as regards BR and as regards ESBR, so that if the Commission were to find as established the existence of a cartel in the case of EniChem, although it is not established, that cartel should in any event be regarded as having ended in 2000 at the latest. Finally, in 2002 (Annex [A] 25 [to the application]), as the Commission itself admits, BR is not covered by any objection. So far as ESBR is concerned, no illegal activity has been demonstrated in the case of Polimeri.’ 166 The places and dates of the meetings in question are indicated in footnotes. 167 Moreover, the eighth plea in law raised by Polimeri in the application breaks down into two parts, excluding the part headed ‘Introduction’. Those two parts, headed ‘Sources of the evidence’ and ‘General description of the cartel’, relate to specific parts of the contested decision with the same headings. Nowhere does the eighth plea raised by Polimeri in the application contain a part headed ‘Cartel meetings’. 168 In those circumstances, Polimeri’s complaint against the section of the contested decision headed ‘Cartel meetings’ (that is Section 4.3), the main points of fact and law of which are set out only in Annexes A 23 to A 25 to the application, does not satisfy the requirements laid down by Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure. 169 Polimeri cannot compensate for that deficiency by introducing, at the reply stage, certain factual or legal data relating to ‘Cartel meetings’ and by referring to Annexes A 23 to A 25 to the application or by providing new annexes to the reply. In reviewing the compliance of the application with the requirements of Article 44(1) of the Rules of Procedure, the content of the reply is, by definition, not relevant. In particular, the admissibility, permitted by the case-law (Case T‑106/95 FFSA and Others v Commission [1997] ECR II‑229, paragraph 125, and Case T‑14/96 BAI v Commission [1999] ECR II‑139, paragraph 66), of pleas and arguments put forward in the reply as amplifications of pleas in the application cannot be raised with the aim of compensating for a failure, arising during the initiation of the action, to comply with the requirements of Article 44(1) of the Rules of Procedure, without rendering the latter provision devoid of purpose (order in Case T‑144/04 TF1 v Commission [2008] ECR II-761, paragraph 30; see also, to that effect, Joined Cases T‑33/89 and T‑74/89 Blackman v Parliament [1993] ECR II‑249, paragraph 65, and order in Case T‑85/92 De Hoe v Commission [1993] ECR II‑523, paragraph 25). 170 In the light of those considerations, in so far as it relates to Section 4.3 of the contested decision headed ‘Cartel meetings’, Polimeri’s complaint is inadmissible (see, to that effect, Mo och Domsjö v Commission, cited in paragraph 162 above, paragraph 334; Case T‑322/01 Roquette Frères v Commission [2006] ECR II‑3137, paragraph 210; and Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraph 168). The first part of the eighth plea in law, concerning the sources of the evidence 171 Firstly, as regards the statements made by the undertakings which had applied for immunity or a reduction of their fine, Polimeri’s arguments are raised, as the Commission points out, in general terms, without providing sufficiently precise information. Those arguments cannot, therefore, affect the lawfulness of the contested decision in that regard. Assuming that Polimeri’s arguments seek to call into question the evidential value of the statements made by undertakings in the context of the Leniency Notice, they must be rejected for the same reasons as those set out in the context of the first plea in law (see paragraph 58 above). 172 Secondly, as regards the handwritten notes of Mr N. (Dow), it must be pointed out first of all that, in the part of the application relating to ‘sources of the evidence’, Polimeri disputes only those relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt (recital 201 to the contested decision). Polimeri does not dispute Mr N.’s handwritten notes relating to the illegal meeting of 25 and 26 February 1997 in Vienna (Austria) (recital 173 to the contested decision). Moreover, Polimeri does not dispute, in that part of the application, Mr N.’s handwritten notes relating to the illegal meeting of 20 and 21 May 1996 in Milan (recital 163 to the contested decision). The fact that Polimeri may have disputed the evidential value of the last-mentioned notes elsewhere in the application, and in particular in the context of the 13th plea in law, cannot alter that conclusion. In any event, for the reasons which will be set out in the context of that plea, Polimeri has not adduced any evidence to call into question the evidential value of those notes. Consequently, even if there may be some doubt as to the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt or the contested decision suffers from a defective statement of reasons in that regard, as Polimeri maintains, that cannot impair the evidential value of the other handwritten notes mentioned previously. 173 Next, Polimeri’s eighth plea in law is part of the pleas relating to the substance of the contested decision and not part of the pleas relating to the cancellation or reduction of the fine. Polimeri’s eighth plea therefore seeks a declaration by the Court that no infringement was committed by Polimeri. However, even if the Court finds it necessary to negate the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt or to hold that Polimeri did not participate in that meeting, that would not have the effect of establishing that no infringement was committed by that undertaking. The finding of the infringement is based on other evidence, including statements by undertakings which corroborate other statements of the same nature, handwritten notes of other illegal meetings and documentary evidence collected in the course of the Commission’s investigation. Moreover, in the case of agreements reached at meetings of competing undertakings, the competition rules are infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 145). 174 It follows that the arguments made by Polimeri with regard to the sources of the evidence must be rejected. The second part of the eighth plea in law, concerning the general description of the cartel 175 As a preliminary point, regarding the criticism directed by Polimeri against the assertion by Mr W. (Bayer), reproduced in recital 112 to the contested decision, that Mr L. (EniChem) and Mr W. asked Mr N. (Dow) no longer to take notes of the unofficial discussions, it must be held that, even if Polimeri’s criticism can be upheld and Mr W.’s assertion is rejected, such a circumstance would not affect the lawfulness of the contested decision. That would not call into question Bayer’s other statements, since they are confirmed by Dow or Shell or are supported by documentary evidence. Moreover, the abovementioned statement by Mr W. enabled the Commission to explain why, according to it, no handwritten notes concerning illegal meetings could be found in respect of the years 2000 and 2001 (recital 113 to the contested decision). That explanation does not affect the substance of the contested decision. The Commission also makes use of Mr W.’s statement in recital 152 to the contested decision, where it describes the role of each undertaking concerned in the cartel. However, it is not evident from the contested decision that the Commission took account of that circumstance in assessing the gravity of the infringement with respect to Polimeri. In any event, even if an error on the part of the Commission in that regard might have affected the amount of Polimeri’s fine, it cannot affect the finding of the infringement. 176 As a further preliminary point, it should be noted that Polimeri’s arguments will be analysed separately for BR and ESBR, even though Polimeri has failed to show that the Commission erred in classifying the present infringement as single (see, in that regard, the fourth plea in law above). – Price agreements 177 As regards BR, and so far as concerns the fact that the statements of Mr W. (Bayer), reproduced in recitals 105 and 106 to the contested decision, are vague, it must also be pointed out that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated therein. In that context, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission (JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 203). Consequently, Polimeri’s arguments are not capable of calling into question Mr W.’s statements reproduced in recitals 105 and 106 to the contested decision, which are, moreover, supported by the statements of Dow and Shell and by documentary evidence. 178 As regards Mr W.’s statement reproduced in recital 103 to the contested decision, it is adduced by the Commission for the purpose of establishing the history of the relations between the undertakings concerned. More specifically, the statement in question concerns 1995, that is a period in respect of which the Commission did not find any infringement of the competition rules. Consequently, Polimeri’s arguments are irrelevant for the purpose of establishing that no infringement took place in this case. 179 As regards ESBR, and so far as concerns the fact that Mr de J. (Shell) has always denied having taken part in the agreements in question, it is sufficient to observe that Shell expressly admits having participated in price-fixing agreements between 30 August 1995 and 31 May 1999 (recital 119 to the contested decision). Contrary to what Polimeri seems to suggest, that statement was made on behalf of Shell and not on behalf of Mr V. personally. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion (Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraph 45, and JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 205). As regards the fact that statements by undertakings have evidential value only with regard to the company which makes them, it is sufficient to point out that Shell’s statements are supported not only by the statements of Bayer and Dow but also by documentary evidence adduced by the Commission. 180 As regards the claim that Bayer’s statement reproduced in recitals 110 to 114 to the contested decision conflicts with the position stated by certain of its employees, it must be observed that Bayer’s statement tends to acknowledge the existence of agreements on ESBR prices between September 1996 and 1999. As noted in the previous paragraph, the answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion. Consequently, the statements of Bayer’s employees cannot have greater evidential value than that company’s statement. Furthermore, Bayer’s statement is supported by the statements of Dow and Shell and by a number of items of documentary evidence. 181 Finally, as regards the price analyses cited by Polimeri, as regards both BR and ESBR, proof of consultation between the undertakings does not result from a mere finding of parallel conduct on the market, but from documents showing that the practices were the result of consultation. In those circumstances, the explanation give by Polimeri as regards the prices charged is not capable of calling into question the Commission’s finding that a cartel existed between the undertakings concerned. 182 For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion regarding price agreements. – Market-sharing agreements 183 As regards BR, it must be pointed out, firstly, that Polimeri states that only Bayer’s statement reproduced in recital 129 to the contested decision relates to market-sharing agreements. However, Polimeri’s premiss is incorrect. The Commission’s conclusion is also based on a statement by Dow, reproduced in recital 125 to the contested decision, ‘covering both BR and ESBR’. In that statement, Dow states inter alia that bilateral discussions between the producers concerned specific customers. In particular, Dow notes that the producers had assured EniChem SpA that they would not attack its position with Michelin or Bridgestone. Moreover, Shell’s statement, reproduced in recital 127 to the contested decision, mentions a discussion between Mr W. (Bayer) and Mr V. (Shell) concerning sales of BR to ‘BP’. The fact that Mr L. (EniChem) denies having participated in that discussion or that BR does not concern the carpet market cannot call that statement into question, at least as regards the bilateral contact between Bayer and Shell. Moreover, Bayer’s statement reproduced in recital 129 to the contested decision, which Polimeri does not formally challenge, is explicit as regards the market-sharing agreements between the competitors for BR. In it Bayer states that, ‘also for BR’, it was agreed not to take other competitors’ customers. It follows that the sharing of the BR market is confirmed by the statements from three of the undertakings concerned, namely Bayer, Dow and Shell. It must be recalled, in that regard, that the statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks. That probative value is particularly high when, as is the case here, the statements of undertakings support other statements of the same nature. 184 Secondly, certain statements by undertakings, even though they do not relate specifically to BR, mention instances of market sharing. That is true of Shell’s statement in recitals 120 and 128 to the contested decision, and of Bayer’s statement in recital 126 to the contested decision. 185 Thirdly, as regards the alleged fact that sharing of the BR market is unlikely in view of the commercial strength of the customers or the fluctuations in EniChem SpA’s sales, it must be recalled that, in the case of agreements reached at meetings of competing undertakings, the competition rules are infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see the case-law cited in paragraph 173 above). 186 As regards ESBR, and so far as concerns Bayer’s statement reproduced in recital 124 to the contested decision, Polimeri’s arguments are actually based on a mistranslation into Italian of Mr P.’s statement made in German. However, regrettable though that mistranslation may be, it is not such as to call into question either Mr P.’s statement or its evidential value. It must be pointed out, in that regard, that the original version of Mr P.’s statement is reproduced in a footnote to the contested decision, regardless of the language version of the latter. Moreover, that mistranslation cannot have affected Polimeri’s rights of defence before the Court, since it was able to put forward arguments in that regard at the reply stage. Finally, even if the translation produced by the Commission before the Court is to be disregarded, as Polimeri maintains, that would leave intact the original version of Mr P.’s statement reproduced in the contested decision, which was notified to Polimeri. The Court would therefore have every right to refer to that version in assessing the lawfulness of the contested decision. It is evident from the original version of Mr P.’s statement that, even though he states that no agreement to freeze market shares or production capacities had been concluded, it was nevertheless understood that none of the undertakings involved wished to hurt the others and that they were also minded not to engage in aggressive competition towards the main customers of the other parties. Consequently, it must be concluded that the undertakings concerned were following a consistent pattern of non-aggression as regards customers. 187 As regards Dow’s statement, reproduced in recital 125 to the contested decision, it supports Bayer’s statement that the undertakings concerned were following a consistent pattern of non-aggression. The fact that Polimeri specifically disputes the assertion that the producers assured EniChem SpA that they would not attack its position with Michelin and Bridgestone, in particular because EniChem SpA’s sales had fluctuated, does not affect the finding that Dow’s statement supports that of Bayer. Furthermore, in the case of agreements reached at meetings of competing undertakings, Article 81 EC is infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see the case-law cited in paragraph 173 above). 188 Finally, as regards Bayer’s statement reproduced in recital 126 to the contested decision, the fact that the undertakings concerned (in this case Dow and EniChem SpA) accused each other, at joint meetings with the other undertakings, of having stolen each other’s customers or market shares is evidence that the underlying reasoning of the undertakings was one of non-aggression, and not the opposite. 189 The consistent pattern of non-aggression adopted by the undertakings concerned is also confirmed by Shell’s statements, reproduced in recitals 120 and 128 to the contested decision, and by that of Bayer, reproduced in recital 129 to the contested decision. Furthermore, certain items of documentary evidence demonstrate at the very least that information concerning the customers of the undertakings concerned was exchanged. This is apparent, inter alia, from the handwritten notes of Mr N. (Bayer) made at the illegal meeting of 20 and 21 May 1996 in Milan. 190 For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards market-sharing agreements. – Exchange of sensitive commercial information 191 It is sufficient to observe, in this regard, that, in view of the conclusions relating to the agreements on prices and on market sharing, the undertakings concerned necessarily exchanged sensitive commercial information, namely, at the very least, data on prices or on customers. 192 For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards the exchange of sensitive commercial information. – Monitoring of compliance with the agreements 193 As a preliminary point, it must be observed, as the Commission correctly points out, that Polimeri criticises certain recitals to the contested decision, relating to the monitoring of the agreements in so far as they specifically concern EniChem SpA. Polimeri does not contest the recitals to the contested decision which implicate other undertakings. An undertaking may be held liable for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements, if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and if that overall plan included all the constituent elements of the cartel (PVC II, cited in paragraph 52 above, paragraph 773, and JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 370). Similarly, the fact that different undertakings have played different roles in the pursuit of a common objective does not mean that there was no identity of anti-competitive object and, therefore, of infringement, provided that each undertaking has contributed, at its own level, to the pursuit of the common object (JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 370). Since it has already been concluded that Polimeri had participated in agreements on prices and on market sharing, Polimeri’s arguments relating to its individual participation in complying with the agreements are not capable of calling into question the finding of an infringement of the competition rules so far as it is concerned. 194 In any event, as regards BR and the statements of Bayer and Dow reproduced in recitals 137, 138 and 143 to the contested decision, it must be held that, although the events described in them are not precisely dated, they are sufficiently detailed (names of undertakings, and even of the employees concerned or their superiors, names of customers or products, date ranges). There is nothing to cast doubt on their evidential value as, in general terms, Polimeri does. More specifically, as regards Dow’s statement reproduced in recital 143 to the contested decision, even though it mentions the name of Karbochem (an undertaking owned by Dow at the time), it does not refer to the litigation mentioned by Polimeri in its pleadings. On the other hand, Dow’s statement does explicitly mention bilateral contacts aimed at increasing the prices charged by Karbochem for sales to Pirelli. So far as concerns the statement by Mr W. (Dow) reproduced in recital 144 to the contested decision, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. In any event, that statement is in line with the statement by Mr F. (Dow) reproduced in recital 143 to the contested decision, which, for its part, is detailed. The statement reproduced in recital 144 to the contested decision seeks to show that another Dow employee had been contacted by EniChem SpA for the same reasons (namely actual selling prices). Furthermore, even assuming that that conversation did not take place, that would not take away the probative value of the other evidence contained in the part of the contested decision relating to the monitoring of compliance with the agreements, the majority of which is not contested by Polimeri. 195 As regards ESBR, Polimeri challenges only the statement of Bayer reproduced in recital 140 to the contested decision. According to Polimeri, the contacts in question were connected with a supply contract relating to a product which does not fall within the ESBR category. However, Bayer’s statement refers specifically to discussions on ESBR (market, raw material prices, and so forth). The fact alleged by Polimeri is therefore not capable of justifying the bilateral contacts set out in recital 140 to the contested decision. 196 For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards the monitoring of compliance with the agreements. – The factual framework described by Mr N. 197 In the light of the considerations set out above, it must be held that the contacts between the undertakings concerned in the margins of the meetings of the European Synthetic Rubber Association were anything but ‘unavoidable and natural’, as Polimeri maintains. 198 Furthermore, it is clear from the statements of Dow (namely Mr N.’s employer) that that company expressly acknowledges having participated in the conclusion of agreements contrary to the competition rules. Mr N.’s statement referred to by Polimeri in its pleadings cannot, therefore, have more evidential value than that made by the company employing him. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion (see the case-law cited in paragraph 179 above). 199 For those reasons, Polimeri’s arguments are not capable of calling into question the finding, in this case, of an infringement of the competition rules. 200 In the light of those considerations, the eighth plea in law raised by Polimeri must be rejected as unfounded. 6. Ninth plea in law: unsubstantiated finding that Polimeri participated in the alleged cartel a) Arguments of the parties 201 Firstly, Polimeri notes that recital 152 to the contested decision, which states that cartel discussions were initiated following pressure from EniChem SpA, itself refers to recital 103 to the contested decision. However, it argues, the latter recital refers to a period – 1995 – which is no longer covered by the accusation. The same observation also applies to the Commission’s findings concerning ESBR and the reference to recital 108 to the contested decision, since the latter recital refers to a meeting held in August 1995. Moreover, a cartel would have been absurd since, during that period, prices continued to increase spontaneously. 202 Secondly, as regards the Commission’s finding that Bayer and Dow considered that EniChem SpA played a leading role within the cartel, it was unrealistic to expect those two market leaders (one for BR, the other for ESBR) to admit to being themselves the instigators of the cartel. Recital 150 to the contested decision is however interesting, inasmuch as Dow identifies Bayer as one of the two companies which drove BR price discussions, whereas Bayer dismisses any responsibility in that regard. 203 Thirdly, Polimeri states that it has already expressed its views on Shell’s subsequent evidence, only confirmed a posteriori by the vague recollections of Mr W. (Bayer), who described the meeting of 19 and 20 February 1998 with Mr L. (EniChem), and refers to an annex to the application. 204 Fourthly, as regards the assertion that Mr L. (EniChem) telephoned ‘around’ to coordinate the activities of the cartel, it comes from the first statement of objections. However, the second statement of objections and the contested decision indicate the contrary. Polimeri also observes that the Commission mentions the fact that Mr L. intervened to persuade Mr N. (Dow) to stop taking notes of the cartel meetings, but does not mention, in recital 150 to the contested decision, the fact that Mr W. (Bayer) did the same thing. In any event, that assertion is unfounded. 205 Finally, Polimeri argues, the Commission’s claim that in 1998, 2000 and 2001 EniChem was the largest combined supplier of BR and ESBR is incorrect. EniChem was the market leader for ESBR only in 1998. Bayer has always been the market leader for BR. Dow was the market leader for ESBR, at least from 2000 onwards (that is from when it acquired Shell’s share). 206 In conclusion, the elements cited in recital 152 to the contested decision to establish the leading role played by EniChem SpA in the alleged cartel are unsubstantiated. 207 The Commission contends that the plea should be rejected. It points out that it was not required to demonstrate that EniChem SpA/Polimeri had played a leading role in the cartel in question, but merely that that undertaking had participated in it. The analysis of the complaints relating to alleged errors in the assessment of the evidence concerning the existence of the cartel (see the eighth plea above) shows clearly that Polimeri has not demonstrated the unsubstantiated nature of the numerous items of evidence showing the existence of a single and continuous infringement of Article 81 EC and the participation of EniChem SpA/Polimeri in that infringement. b) Findings of the Court 208 By its ninth plea in law, Polimeri maintains that the elements cited in recital 152 to the contested decision to establish the leading role played by EniChem SpA in the alleged cartel are unsubstantiated. 209 It must be observed, in that regard, that the ninth plea was put forward by Polimeri in the context of the pleas relating to the substance of the contested decision and not in the context of the pleas relating to annulment or reduction of the fine. 210 For the reasons set out in the context of the eighth plea, the Commission correctly found that EniChem SpA participated in the infringement. Consequently, even if the Commission erred as regards the allegedly leading role of EniChem SpA in the cartel, the arguments raised in the context of the ninth plea are not capable of calling into question the lawfulness of the contested decision as regards the finding of the infringement in Polimeri’s case. 211 It should nevertheless be pointed out that Polimeri stated at the hearing that the ninth plea also concerned the amount of the fine. It must be held, in that regard, that, in view of the wording used in the pleadings lodged before the Court, and in particular that of the application, the argument put forward by Polimeri at the hearing constitutes a new plea in law which must, on that basis, be declared inadmissible. In any event, it is not apparent from the contested decision that the Commission took account of the allegedly leading role of EniChem SpA in the cartel for the purpose of setting the amount of the fine imposed on Polimeri. 212 In the light of those considerations, the ninth plea in law raised by Polimeri must be rejected as unfounded. C – The pleas in law relating to the setting of the amount of the fine 1. Tenth plea in law: unsubstantiated assessment of the gravity of the infringement a) Arguments of the parties 213 Firstly, according to Polimeri, the analysis carried out in the context of the pleas relating to the substance of the contested decision shows that the conduct at issue cannot be classified as very serious in itself, since the term ‘cartel’ cannot apply to the situation in this case. Even if the Court were to confirm the contested decision as a whole, it should nevertheless take account of the fact that, of the two products in respect of which the contested decision was adopted, at least one – BR – was never the subject of any form of collusion. 214 Secondly, the Commission should have taken account of the actual impact of the alleged cartel on the market, in so far as it was measurable. As is apparent from recital 462 to the contested decision, the Commission did not carry out such an analysis. It merely claimed that the infringement in question was very serious by definition (recital 464 to the contested decision). Polimeri takes issue with that approach and refers, inter alia, to Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraphs 223 and 243 to 254. In particular, Polimeri submits that, if it is proved that the cartel did not have any effect, the Commission should set the amount of the fine at a lower level than that which would have been set in the absence of that finding. Polimeri points out in particular that, if an actual effect on the market constitutes a factor to be taken into account in any increase of the fine, the absence of harmful effects on the sectors concerned can only justify a reduction of the penalty. The absence of any analysis of the effects of the alleged cartel does not arise from an objective impossibility of making an assessment, but from an inability on the part of the Commission to carry out such an analysis or from a clumsy attempt on its part to conceal an item of data fundamental for evidential purposes and for the determination of the amount of the fine. The fact that the Commission included an analysis of prices in the first statement of objections, then withdrew it, confirms that conclusion. 215 Thirdly, Polimeri points out that the studies which it carried out, without great difficulty despite the absence of actual data (that is to say, only on the basis of the price data with which the parties provided the Commission), demonstrate that the alleged infringement had no effect on the trend of prices. The latter increased only in line with the rise in the prices of raw materials. Furthermore, even on the disputed assumption that the sporadic market-sharing agreements actually existed, they had no impact on customers, since the latter continued to buy from whom they wished and when they wished to do so. Polimeri also refers to Commission Decision 1999/210/EC of 14 October 1998 relating to a proceeding pursuant to Article [81] EC (Case IV/F‑3/33.708 – British Sugar plc, Case IV/F-3/33.709 – Tate & Lyle plc, Case IV/F-3/33.710 – Napier Brown & Company Ltd, Case IV/F‑3/33.711 – James Budgett Sugars Ltd) (OJ 1999 L 76, p. 1), in which the Commission ruled out a very serious infringement, since the effects of the infringement had not been demonstrated. 216 Fourthly, Polimeri reiterates its position that the Commission reduced the overall value of the market in order to make the case that the cartel accounted for more than 80% of BR and ESBR sales. That conclusion, it argues, is invalid. Furthermore, Polimeri has, it maintains, demonstrated that the alleged cartel never involved more than one third of the market for BR/natural rubber, or more than half the market for ESBR/natural rubber. Polimeri refers, finally, to Degussa v Commission, cited in paragraph 214 above, in which the Court reduced the fine by 15% because, ‘according to the Commission’s own findings, the cartel members’ market share had fallen progressively, from the time of Monsanto’s entry into the market, reaching 60% towards the end of the infringement’. 217 Fifthly, Polimeri states that the assessment of the gravity of the infringement should have differentiated between the two markets in question. However, even when analysed together, those two markets are, it maintains, of little significance. The Court has stated, in that regard, that the adjustment of the starting amounts of fines according to market size is a reasonable and coherent practice (Case T‑15/02 BASF v Commission [2006] ECR II‑497). Moreover, Polimeri’s fine amounts to nearly half the value of the market for 2001 (recital 467 to the contested decision). That approach is unreasonable and contrary to the principle of proportionality. Polimeri adds that, since that observation also applies in the context of the increase for repeated infringement, the Commission cannot base an argument on the fact that Polimeri did not contest in the application Eni’s involvement in the cartel. It is not for Polimeri, but for Eni itself, to challenge that fact. 218 The Commission contends that the plea should be dismissed. It submits, in essence, that it did not err in its assessment of the gravity of the infringement. b) Findings of the Court 219 The gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 108 above, paragraph 465, and Dansk Rørindustri and Others v Commission, cited in paragraph 173 above, paragraph 241). 220 The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see Dalmine v Commission, cited in paragraph 108 above, paragraph 130 and the case-law cited). 221 Furthermore, the Guidelines state, inter alia, that in assessing the gravity of the infringement account must be taken of its nature, its actual impact on the market, where that can be measured, and the size of the relevant geographic market. Infringements are thus put into one of three categories: minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1.A). 222 In the present case, the Commission finds, first of all, in the contested decision that the undertakings concerned concluded agreements on price targets and market sharing, and exchanged sensitive commercial information. For the Commission, these practices are, by their very nature, very serious infringements (recital 461 to and Article 1 of the operative part of the contested decision). Next, the Commission states that it is not possible to measure the actual impact of the cartel on the EEA market. The Commission further contends that, even if it is not possible to measure the actual impact of the cartel, the agreements in question were implemented by the undertakings concerned and, therefore, had an effect on the market. The Commission concludes by stating that it will not take into account the impact on the market in determining the amounts of the fines (recital 462 to the contested decision). Finally, the Commission notes that the infringement covers the whole of the EEA (recital 463 to the contested decision). For those reasons, the Commission takes the view that the infringement at issue can be described as very serious (recital 464 to the contested decision). 223 Thereafter the Commission applies differential treatment to the undertakings concerned on the basis of their combined BR and ESBR sales for 2001, the last full year of the infringement, except in respect of Shell (1998, since Shell sold its businesses in 1999) and Stomil (1999, since Stomil ended its infringement in 2000). The Commission places the undertakings concerned in five categories, EniChem being in the first category (starting amount of the fine: EUR 55 million) (recitals 465 to 473 to the contested decision). 224 Firstly, it must be observed that, by its arguments, Polimeri maintains that the cartel had no effect on the market. 225 It should be recalled that, as is clear from the considerations set out in the context of the eighth plea, the Commission correctly concluded that the undertakings concerned had infringed Article 81(1) EC in respect of BR and ESBR. In that regard, it follows from the description of very serious infringements in the Guidelines that agreements or concerted practices aimed in particular, as in this case, at setting target prices or the allocation of market shares may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without the Commission being required to demonstrate an actual impact of the infringement on the market (see, to that effect, Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 75; see also Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 178, and Hoechst v Commission, cited in paragraph 59 above, paragraph 345). Similarly, it is settled case-law that horizontal price agreements are particularly injurious under Community competition law and may, by reason of that fact alone, be classified as very serious (see, to that effect, Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others v Commission [2001] ECR II‑2035, paragraph 103, and Groupe Danone v Commission, cited in paragraph 160 above, paragraph 147). 226 The Commission did not therefore err in finding that the practices at issue were, by their nature, very serious infringements. 227 As regards the Commission’s previous decision-making practice, and in so far as Polimeri alleges a breach of the principle of equal treatment, it is sufficient to point out that the considerations which led to the adoption of Decision 1999/210 (see paragraph 215 above), referred to by Polimeri in its pleadings, are different from those of this case. In particular, Decision 1999/210 made it clear that the geographic scope of the relevant market was confined to Great Britain (recital 193 to Decision 1999/210). It cannot therefore be inferred from Decision 1999/210 that the Commission concluded that a serious, and not a very serious, infringement had taken place solely on the basis of the fact that the effects of the infringement had not been demonstrated, as Polimeri in essence maintains. Furthermore, the contested decision finds that there was a single and continuous agreement under which the undertakings concerned agreed, inter alia, to share customers. No such circumstance was mentioned in Decision 1999/210. 228 In the light of those considerations, the arguments put forward by Polimeri as regards the absence of effects of the cartel on the markets concerned must be dismissed. 229 Secondly, as regards the alleged fact that the Commission incorrectly determined the overall value of the relevant market, it must first be recalled that the size of the market is one of the factors to be taken into account in determining the gravity of the infringement (see, to that effect, Dalmine v Commission, cited in paragraph 108 above, paragraph 132, and Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraph 102). Secondly, it is apparent from the documents produced by the Commission in response to a question put by the Court that the assertion contained in recital 66 to the contested decision, that sales of BR and ESBR by producers outside the cartel totalled ‘at least around EUR 70 million’ in 2001, is not incorrect. In those circumstances, there is nothing to support a finding that the Commission erred in the contested decision by estimating the value of the market concerned at ‘at least’ EUR 550 million in 2001 (recital 467). In any event, as the Commission rightly points out, there is nothing to support a finding that an underestimate of that figure was detrimental to Polimeri. 230 Thirdly, as regards the alleged fact that the Commission should have taken account of natural rubber, which is substitutable for BR and ESBR, in determining the value of the market in question and, therefore, the market shares of the undertakings concerned, it must be pointed out that the cartel did not cover that product. The assessment of the gravity of an infringement, and in particular of the effective economic capacity of the offenders to cause damage to other operators (fourth paragraph of Section 1.A of the Guidelines), cannot be made by reference to products other than those to which the cartel related (Case T‑48/02 Brouwerij Haacht v Commission [2005] ECR II‑5259, paragraph 59). 231 Fourthly, as regards the arguments put forward in the alternative by Polimeri, relating to the taking into account of the size of the relevant market as it appears from the contested decision (namely the amount of EUR 550 million for 2001 in the EEA), it must be held that, although that factor may be taken into consideration in determining the gravity of the infringement, account must be taken of the other relevant factors in the specific case (see, to that effect, Dalmine v Commission, cited in paragraph 108 above, paragraph 132, and Archer Daniels Midland v Commission, cited in paragraph 229 above, paragraph 102). In the present case, account must be taken of the fact that the infringement in question was intrinsically very serious and that it covered the whole of the EEA. In particular, it must be pointed out that the undertakings concerned agreed to set price targets, share customers by non-aggression agreements and exchange sensitive information on prices, competitors and customers. Furthermore, it must be borne in mind that, under Section 1.A of the Guidelines, the likely fine for a very serious infringement is more than EUR 20 million. Next, it must be noted that EniChem’s sales for the products in question in 2001 amounted to more than EUR 164 million (recital 468 to the contested decision). Finally, Polimeri does not dispute that the amount of the fine set does not exceed the cap of 10% of its turnover during the preceding business year laid down by Article 23(2) of Regulation No 1/2003, a limit which is designed to prevent the undertaking concerned from being unable to pay the fine in question (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 119). In the light of those circumstances, the setting of a starting amount of the fine of EUR 55 million cannot be called into question by the arguments put forward by Polimeri. 232 As regards the disproportion alleged as between the final amount of the fine jointly and severally imposed on Eni and Polimeri (namely EUR 272.25 million) and the size of the relevant market for 2001 (namely EUR 550 million), it must be recalled that, when fixing the amount of each fine, the Commission has a discretion (Case C‑283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, paragraph 47, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 151). Moreover, under Article 23(3) of Regulation No 1/2003, the amount of the fine is to be determined on the basis of the gravity of the infringement and its duration. Furthermore, that amount is the result of a series of arithmetical calculations performed by the Commission in accordance with the Guidelines. That amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the existence of aggravating or attenuating circumstances (Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraphs 82 and 85). It cannot be inferred from that legal framework that the Commission must ensure a proportion between the amount of the fine, as thus calculated, and the overall volume of the relevant product market in the EEA, for a given year of the infringement (in this case 2001), when the infringement in question lasted more than six years and when the amount of the fine also depends on other factors linked to the individual conduct of the undertaking (see, to that effect, Hoechst v Commission, cited in paragraph 59 above, paragraph 342). It follows that Polimeri’s argument in that regard must be dismissed. 233 In the light of those considerations, the 10th plea in law raised by Polimeri must be dismissed as unfounded. 2. Eleventh plea in law: unlawful application of differential treatment a) Arguments of the parties 234 Polimeri points out that the specific weight of the undertakings was established by comparing the combined sales of BR and ESBR with the total value of sales in 2001. The latter value is, it argues, far from verified, in so far as it was visibly reduced between the second statement of objections and the contested decision. Moreover, by adding together the value of the sales of the two products, Polimeri was wrongly assigned a specific weight which it never had, since it was always positioned after Bayer for BR and it was positioned before Dow only in respect of 1998. If the two markets had been separated, the result would have been different. Polimeri observes, in that regard, that the Guidelines lay down that account is to be taken of the ‘real impact of the offending conduct of each undertaking on competition’. That means first identifying the markets concerned by the infringement. Even in deciding to aggregate the two markets, account should have been taken of their competitive environment, and in particular of natural rubber. Finally, the starting amount of the fine for Polimeri is equivalent to 33% of the combined value of its sales. In view of the fact that the specific weight assigned to Polimeri is unjustified, that amount is excessive. 235 The Commission contends that the plea should be dismissed. It points out in particular that, according to the wording of Section 1.A of the Guidelines, the criterion under consideration is intended to apportion the basic amount of the fine between the undertakings participating in the cartel found to exist, and not to assess the impact of the cartel (as a whole) on the relevant market (by also taking account of possible replacement products). b) Findings of the Court 236 It is sufficient to note that most of the arguments raised by Polimeri overlap with those put forward in the context of the 4th and 10th pleas. Consequently, for the same reasons as those set out in paragraphs 100, 101, 229 and 230 above, Polimeri’s arguments must also be dismissed in that regard. 237 As regards the starting amount of the fine imposed on EniChem (namely EUR 55 million) being equivalent to 33% of the combined value of its sales on the relevant market for 2001 (namely EUR 164.9 million), it must be held that, for the same reasons as those set out in paragraph 231 above, the setting of a starting amount of the fine of EUR 55 million cannot be called into question by the arguments put forward by Polimeri. 238 In the light of those considerations, the 11th plea in law raised by Polimeri must be dismissed as unfounded. 3. Twelfth plea in law: unlawful application of a multiplier for deterrence a) Arguments of the parties 239 Firstly, Polimeri maintains that the Commission failed to fulfil its obligation to state reasons. Recital 474 to the contested decision states that the multiplier for deterrence was determined, inter alia, having regard to the ‘circumstances of the case’. However, those circumstances are neither described nor analysed. The Court has already drawn attention to the need for the basic factors taken into account in order to fix the amount of fines to be set out in the body of the decision (Case T‑295/94 Buchmann v Commission [1998] ECR II‑813, paragraph 173). According to Polimeri, the Commission’s element of discretion in setting the rate of increase for deterrent effect (Degussa v Commission, cited in paragraph 214 above, paragraph 317) is not absolute. The definition of those ‘circumstances’ given by the Commission in the defence is questionable and, in any event, belated. The Commission thus infringed the rights of defence of Polimeri, which did not have the opportunity to debate a fundamental element in the determination of the fine. 240 Secondly, Polimeri submits that the Commission breached the principles of equal treatment and proportionality. It is apparent from recital 474 to the contested decision that the Commission used the turnover of the group to which the undertakings involved in the infringement belong. The difference in turnover between Eni and Bayer, which is EUR 46.355 billion, and that between Shell and Eni, which is 3.7 times larger, that is EUR 172.81 billion, resulted in increases in the multiplier of 0.5 and 1 respectively. Without maintaining that there should be a precise relationship of proportionality between the turnover and the multiplier, Polimeri claims that it was wrongly the subject of a highly penalising method of calculation. Polimeri refers, in particular, to Degussa v Commission, cited in paragraph 214 above, and adds that the existence of an upper limit (namely a multiplier of 3), which is not in fact provided for by the legislation, should not, in any event, operate to its disadvantage. Polimeri adds that it does not understand why the Commission calculated the increase in the fine for the purposes of deterrence on the basis of turnover figures which represent, under the legislation governing concentrations, the amounts deriving from the sale of goods and the provision of services. Furthermore, using Eni’s turnover to determine Polimeri’s multiplier is disproportionate, since it finds itself jointly and severally liable for payment of a fine which was doubled on the basis of the parent company’s turnover. 241 The Commission contends that the plea should be dismissed. It submits, in essence, that it did not err in the application of a multiplier for deterrence. b) Findings of the Court 242 The Guidelines provide that, in addition to the nature of the infringement, its actual impact on the market and the size of the relevant geographic market, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect (fourth paragraph of Section 1.A). 243 The Commission’s power to impose fines on undertakings which, intentionally or negligently, commit an infringement of Article 81 EC is one of the means given to it with which to carry out the task of supervision conferred on it by Community law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that, in assessing the gravity of an infringement for the purpose of setting the amount of the fine, the Commission must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community (see, to that effect, Musique Diffusion française and Others v Commission, cited in paragraph 231 above, paragraphs 105 and 106; Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 166; and Groupe Danone v Commission, cited in paragraph 160 above, paragraph 169). 244 That requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed. This is so that the fine is not rendered negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, firstly, the need to ensure that the fine is effective and, secondly, respect for the principle of proportionality. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that imposed in respect of the same infringement committed by an undertaking without such resources (see, to that effect, Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraphs 241 and 243; see also ABB Asea Brown Boveri v Commission, cited in paragraph 243 above, paragraph 170, and BASF v Commission, cited in paragraph 217 above, paragraph 235). 245 It should be added that the Court of Justice has recognised in particular the relevance of taking into account the overall turnover of each undertaking participating in a cartel in setting the amount of the fine (see, to that effect, Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraphs 85 and 86, and Case C-57/02 P Acerinox v Commission [2005] ECR I‑6689, paragraphs 74 and 75; see also Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 17). 246 Finally, it must be observed that the objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings comply with the competition rules laid down by the Treaty in respect of the conduct of their activities within the Community or the EEA. It follows that the deterrence factor which may be included in the calculation of the fine is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. That principle applies, in particular, where the Commission has determined a ‘deterrence multiplier’ with which the fine imposed on an undertaking is adjusted (see, to that effect, Showa Denko v Commission, cited in paragraph 245 above, paragraphs 23 and 24). 247 In the present case, the Commission stated that, within the category of very serious infringements, the scale of fines made it possible to set the fines at a level which would ensure that they had a sufficiently deterrent effect, taking into account the size of each undertaking. On the basis of the worldwide turnover of the undertakings concerned in 2005, the Commission noted that there was a considerable difference in size between, on the one hand, Kaučuk (turnover: EUR 2.718 billion) and Stomil (turnover: EUR 38 million) and, on the other, the other undertakings concerned, particularly Bayer (turnover: EUR 27.383 billion), the first of the large undertakings covered by the contested decision. On that basis, and taking the circumstances of the present case into account, the Commission concluded that no multiplier for deterrence should be applied in respect of Kaučuk and Stomil, and that a multiplier of 1.5 was appropriate in respect of Bayer. Finally, still on that basis, and taking the circumstances of the present case into account, the Commission applied multipliers of 1.75 in relation to Dow (turnover: EUR 37.221 billion), 2 in relation to EniChem (turnover: EUR 73.738 billion) and 3 in relation to Shell (turnover: EUR 246.549 billion) (recital 474 to the contested decision). 248 Firstly, as regards the lack of reasoning alleged by Polimeri, it must be borne in mind that the statement of reasons for an individual decision must disclose, clearly and unequivocally, the reasoning of the institution which adopted it, in such a way as to allow those concerned to know the reasons for the measure and the competent Court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. The reasoning is not required to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 253 EC must be assessed by reference not only to the wording of the measure in question but also to the context in which it was adopted (Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63). The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration (Sarrió v Commission, cited in paragraph 245 above, paragraph 73, and Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 108 above, paragraph 463). 249 In the present case, it must be noted that the Commission stated that, in order to ensure that the fine had a sufficiently deterrent effect, it would take account of the size of each undertaking. On that basis, the Commission used the overall turnover in 2005 of the undertakings concerned. Furthermore, the Commission compared the respective sizes of the various undertakings for the purposes of setting multipliers for deterrence. More specifically, as regards EniChem, the Commission stated that the overall turnover of that undertaking was almost double that of Dow. It follows that the factors which enabled the Commission to fix the multiplier for EniChem are clear from the contested decision. 250 The fact that the Commission referred, moreover, to the ‘circumstances of the case’ cannot alter that conclusion. It is not apparent from the contested decision that the Commission referred explicitly to factors other than the overall turnover and relative size of the undertakings concerned in order to fix the multipliers for deterrence, a point confirmed, moreover, by the Commission at the hearing. Furthermore, the expression ‘circumstances of the case’ can be understood as referring precisely to the overall turnover and relative size of the undertakings concerned. In that context, it must be held that the contested decision is sufficiently reasoned to enable the Court to review its legality and Polimeri to exercise its rights of defence. 251 Secondly, as regards breach of the principle of equal treatment, it is apparent from the contested decision that the multipliers for deterrence chosen by the Commission were determined according to the relative size of the undertakings concerned. Polimeri does not dispute the turnover figures referred to by the Commission in the contested decision. In particular, Polimeri does not dispute that, in 2005, EniChem was larger than Bayer and Dow and smaller than Shell. It is therefore consistent and objectively justified for the multiplier applied to EniChem to be higher than that applied to Bayer and Dow, and lower than that applied to Shell. Moreover, it must be pointed out that the worldwide turnover figures for 2005 were EUR 27.383 billion for Bayer, EUR 37.221 billion for Dow (35.93% more than Bayer) and EUR 73.738 billion for EniChem (169.28% more than Bayer and 98.11% more than Dow). In those circumstances, the fact that EniChem’s multiplier was increased by 14.28% by comparison with Dow’s (2 as against 1.5) does not constitute a breach of the principle of equal treatment. On the contrary, the Commission would have been entitled on that basis to select an even higher multiplier for EniChem. As to the remainder, and in so far as, by its arguments, Polimeri requests the Court to examine the lawfulness of the amounts of the fines set for the large undertakings with which the applicant compares the fine imposed on it, particularly with regard to the multiplier chosen for Shell, it is apparent from the contested decision that the multiplier chosen for EniChem was calculated on the basis of that chosen for Dow, not on the basis of that chosen for Shell. Polimeri’s arguments are therefore ineffective in that regard. Moreover, it must be pointed out that the Commission has a discretion when determining the amount of the fine and is not required to apply any particular mathematical formula (see Hoek Loos v Commission, cited in paragraph 232 above, paragraph 68 and the case-law cited). In the present case, the Commission did not, therefore, make a manifest error of assessment in taking into consideration the difference in the economic capacity of the undertakings concerned when selecting the multipliers that it applied (see, to that effect, judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others v Commission, not published in the ECR, paragraph 155). As regards Degussa v Commission, cited in paragraph 214 above, referred to by Polimeri, it is sufficient to observe that, in that case, the Commission had applied a multiplier for deterrence to undertakings displaying a significant disparity in turnover. The situation which gave rise to the judgment in Degussa v Commission, cited in paragraph 214 above, is therefore not comparable to that in the present case. So far as concerns the argument put forward by Polimeri at the hearing, that Eni’s situation is different from those of Shell and Dow, in that the holding companies of the latter undertakings, unlike Eni, could have been informed of the cartel, and assuming that that argument is admissible despite its lateness and that it is capable of affecting the determination of the multiplier for deterrence, it is sufficient to observe that the holding companies of Shell and Dow were not held liable for their own participation in the infringement. Those companies, like Eni, were held responsible on account of the control which they exercised over their subsidiaries which participated directly in the infringement. Polimeri’s argument must therefore be rejected. 252 Thirdly, as regards breach of the principle of proportionality, Polimeri does not produce any detailed evidence to support a finding that the multiplier chosen in EniChem’s case is disproportionate to the gravity of the infringement and to the objective of ensuring that fines are set at a level that serves as a deterrent. 253 As regards the multiplier chosen being disproportionate in so far as Polimeri is held jointly and severally liable for payment of a fine which was doubled on account of its parent company’s turnover, it must be recalled first of all that the Commission does not commit an error of assessment when it takes the size of the resources of the group of undertakings as a whole as a basis in order to ensure that fines have a deterrent effect (see, to that effect, Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraph 120). Secondly, the fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The upper limit of 10% for the purposes of that provision must be calculated on the basis of the total turnover of all the companies constituting the economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraphs 528 and 529, and Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 90). Polimeri does not state that the maximum amount of 10%, calculated on the basis of the combined turnover of Polimeri and Eni, was exceeded. In those circumstances, the fact that Polimeri is jointly and severally liable for payment of a fine which was doubled on account of the parent company’s turnover cannot, in itself, and in the absence of other, more detailed arguments, lead to a finding that the multiplier applied in this case is disproportionate. 254 In the light of those considerations, the 12th plea in law raised by Polimeri must be dismissed as unfounded. 4. Thirteenth plea in law: incorrect determination of the duration of the infringement for Polimeri a) Arguments of the parties 255 The Commission finds, in recital 478 to the contested decision, that Polimeri participated in the alleged infringement in respect of the period from 20 May 1996 to 28 November 2002. 256 As regards the period between 20 May 1996 and 31 December 2001, Polimeri observes, first of all, that the determination of the starting date of the infringement was uncertain (Polimeri refers, in particular, to the first statement of objections, then to the second statement of objections and, finally, to the contested decision). Next, so far as concerns the date of 20 May 1996, Polimeri points out, firstly, that that date is not referred to by any of the declarants as the starting date of the alleged cartel. Secondly, the handwritten notes of Mr N. (Dow) relating to that meeting are similar to those of an earlier meeting dating from February 1996. Those notes are therefore not probative. Polimeri points out, in that regard, contrary to what the Commission maintains in its pleadings, that it did dispute the evidential value of those notes. Thirdly, the participants in that meeting include employees of Bayer and Shell (Mr O. and Mr de J.), who have always denied participating in agreements or in anti-competitive discussions. That also corresponds to a period when Bayer had stated that it was unable to say whether there had been agreements between May and the end of November 1996 so far as concerns ESBR. So far as concerns BR, Polimeri points out that the Commission itself does not find any illegal agreement before the meeting of 4 September 1997. There is therefore no indication of circumstances showing that the undertakings concerned established a cartel on that occasion. 257 As regards the period between 1 January and 28 November 2002, Polimeri observes, so far as BR is concerned, that 31 August 2001 is the date of the last anti-competitive meeting found by the Commission for that product. The latter assertion is, moreover, unsubstantiated. Polimeri observes, in that regard, that the statements of Mr W. (Bayer), mentioned in recital 229 to the contested decision, do not refer explicitly to that meeting. Aware of that, the Commission withdrew the text originally included in the second statement of objections. Moreover, as is noted in recital 229 to the contested decision, certain participants at that meeting (Mr G., Mr W.’s successor) formally deny having participated in anti-competitive agreements. As regards ESBR, none of the events or documents cited by the Commission in the contested decision for 2002 supports the argument that the alleged cartel was continued during that year. Polimeri refers, in that regard, to its analysis in the context of the eighth and ninth pleas. As regards Bayer’s assertions reproduced in recitals 240 and 247 to the contested decision, they were contradicted by Mr N. and Mr W. and by Ms I. of Dow (Polimeri refers, in that regard, to the first statement of objections). In those circumstances, the Commission organised a second round of consultations with Dow’s employees, with the aim of obtaining a version of the facts more reconcilable with that of Bayer. However, the statements of one of Dow’s employees (Mr W.), reproduced in recital 244 to the contested decision, are only hypothetical. They do not, in any event, serve to substantiate the Commission’s conclusion that Bayer and Dow both state that the last cartel meeting took place on 2 September 2002 (recital 443 to the contested decision). Finally, Polimeri questions the fact that, after having placed so much emphasis on the meeting of 2 September 2002, the Commission determined that the infringement ended on 28 and 29 November 2002, the dates of a meeting which Polimeri did not attend. Polimeri adds, regarding the emails from Mr P. (Bayer), referred to in recital 241 to the contested decision and relied on by the Commission in its pleadings, that it has adduced rebutting evidence in that regard, notably in the annex to the application. That evidence had already been provided to the Commission during the administrative procedure. 258 In conclusion, Polimeri submits that, if the Court finds that an infringement was committed, it should, so far as concerns ESBR, start after 20 May 1996 and end before 2 September 2002 and, so far as concerns BR, start after 4 September 1997 and end before 31 August 2001. The fine should be reduced accordingly. 259 The Commission contends that the plea should be dismissed. It points out, in particular, that it adopted a cautious approach as regards the starting date of the infringement. Regarding the date on which the infringement ended, the Commission maintains inter alia that it was entitled to consider that the infringement found in this case had continued until the meeting of 28 and 29 November 2002, during which the members of the cartel seem to have collectively decided to end it. b) Findings of the Court 260 It is clear from the case-law that it is incumbent on the Commission to prove not only the existence of the agreement but also its duration (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79; Case T‑48/98 Acerinox v Commission [2001] ECR II‑3859, paragraph 55; and Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 36). To calculate the duration of an infringement whose object is to restrict competition, it is necessary to determine the period during which the agreement existed, that is the time between the date on which it was entered into and the date on which it was terminated (Brasserie nationale and Others v Commission, cited in paragraph 225 above, paragraph 185, and Westfalen Gassen Nederland v Commission, cited in paragraph 232 above, paragraph 138). Otherwise, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued without interruption between two specific dates (Dunlop Slazenger v Commission, paragraph 79, and Peróxidos Orgánicos v Commission, cited in paragraph 58 above, paragraph 51). 261 In the present case, the Commission finds that Polimeri must be held liable for the infringement in respect of the period from 20 May 1996 to 28 November 2002 (recital 478 to the contested decision). 262 Firstly, so far as concerns the date of the start of the infringement found for Polimeri, it corresponds to the date of the first illegal meeting found by the contested decision, which took place in Milan (at the margins of a meeting of the European Synthetic Rubber Association) between representatives of Bayer, EniChem SpA, Shell and Buna Sow Leuna Olefinverbund (‘BSL’, which Dow would subsequently control) (recitals 161 and 162 to the contested decision). 263 Proof that an illegal meeting was held stems, firstly, from handwritten notes made by an employee of BSL at the time, who later became an employee of Dow (Mr N., recital 163 to the contested decision), and, secondly, from a statement by Dow (recital 164 to the contested decision). 264 As regards Mr N.’s handwritten notes, Polimeri contests their evidential value in so far as those notes and those of a previous meeting dating from February 1996 are ‘similar’. Polimeri refers, in point of fact, to some handwritten notes dated 21 February 1996. In the end, those notes were not used by the Commission as inculpatory evidence. 265 It is sufficient to observe, in that regard, that the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 20 May 1996 cannot be impaired by the fact that similar handwritten notes (that is to say, also containing market information) were not used by the Commission as inculpatory evidence. The only question is whether the handwritten notes in question are capable of constituting evidence to support the finding that there was an illegal meeting between the undertakings concerned. 266 In that regard, Polimeri does not formally deny that one of its representatives may have met representatives of Bayer, Shell and BSL on 20 May 1996 in Milan. Nor does it deny that, on the substance, Mr N.’s handwritten notes make it clear that sensitive data were exchanged between the undertakings. Thus, data concerning Bayer’s stock of ESBR appear in those notes. Similarly, a list of prices relating to Shell can also be seen. Moreover, one part of the handwritten notes states that Eni ‘will lay off’ staff ‘[a]t the end of the year’, which suggests, in the absence of any rebutting evidence, that a representative of that undertaking was present at that meeting. Finally, Mr N.’s handwritten notes show the date 20 May 1996 and the reference ‘Milano ESRA’. In the light of those considerations , it must be held that the handwritten notes in question are capable of constituting evidence to support the finding that there was an illegal meeting between the undertakings concerned in Milan on 20 May 1996. 267 Mr N.’s handwritten notes were, moreover, confirmed by Dow in a corporate statement. It must be recalled, in that regard, that statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks (see the case-law cited in paragraph 53 above). In particular, Dow states that certain prices noted in Mr N.’s handwritten notes were target prices for ESBR (recital 164 to the contested decision). 268 Moreover, the statements of the other undertakings concerned, notably Bayer and Shell, corroborate the abovementioned evidence. 269 In particular, Bayer states that Mr B., who was one of the persons present at the illegal meeting of 20 May 1996, participated ‘for Bayer’ in anti-competitive agreements concerning ESBR between the middle or end of 1995 and ‘mid-May 1996’ (recital 107 to the contested decision). The reference to ‘mid-May’ corroborates the evidence that there was an illegal meeting on 20 May 1996. The fact that Bayer was able to state, as Polimeri observes, that ‘Bayer could not say whether there were any agreements between May and the end of November 1996 as regards ESBR’ does not conflict with Bayer’s precise statement regarding the role of Mr B. until mid-May 1996. That statement may mean that, after that time (mid-May 1996) and until the end of November 1996, Bayer did not find any trace of anti-competitive agreements between the undertakings concerned. 270 Shell, for its part, states that its representatives participated in a price cartel between 30 August 1995 and 31 May 1999. In particular, Shell confirms the factual part of the first statement of objections, that is the part which already contained a summary of the illegal meeting of 20 May 1996 and which described the handwritten notes of Mr N. and the interpretation given by Dow. The fact that Mr de J., who represented Shell at certain meetings, and in particular that of 20 May 1996, did not concede that the first statement of objections correctly described the competitor contacts (recital 119 to the contested decision) cannot affect the corporate statement made by Shell. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion. 271 As regards Mr O. (Bayer), referred to by Polimeri in its pleadings, the Commission correctly points out that he did not participate in the illegal meeting of 20 May 1996. 272 Finally, as regards Polimeri’s argument that the Commission does not find any illegal agreement for BR before the meeting of 4 September 1997, it is sufficient to recall that an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When, as in this case, the different actions form part of an overall plan, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see the case-law cited in paragraph 100 above). When the Commission is legally entitled to conclude that the various manifestations were part of a single infringement in that they were elements of an overall plan designed to distort competition, the fact that the number and intensity of the collusive practices varied according to the market concerned does not mean that the infringement did not concern the markets on which the practices were less intense and less numerous. It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied according to the market concerned. 273 It follows from all those considerations that the Commission did not err in finding that Polimeri should be held liable for the infringement in respect of a period starting on 20 May 1996. 274 Secondly, as regards the date on which the infringement found in relation to Polimeri ended, namely 28 November 2002 (recital 447 to the contested decision), it corresponds to the last illegal meeting referred to by the contested decision, which took place in London (United Kingdom), at the margins of a meeting of the European Synthetic Rubber Association, between representatives of Bayer, Dow, Dwory and Kaučuk (represented by Tavorex) on 28 and 29 November 2002. According to Bayer’s statement, it informed Dow and Dwory that there was no reason to continue with the agreements in question (recitals 246 to 248 to the contested decision). 275 As regards the distinction which Polimeri makes in its arguments between BR and ESBR, it is sufficient to recall that it would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied according to the market concerned. 276 As regards the claim that the cartel was not continued in 2002, the contested decision finds that an illegal meeting on ESBR took place on 2 and 3 September 2002 in Prague. The Commission’s conclusion is based, firstly, on a statement by Bayer, which indicates that an agreement on prices was entered into between Bayer, Dow, Polimeri, Dwory and Kaučuk (represented by Tavorex). The Commission’s conclusion is based, secondly, on the confirmation of Bayer’s statement by Dow, after reading the first statement of objections. Contrary to Polimeri’s assertions, the Commission did not organise a second round of consultations with Dow’s employees. As recital 244 to the contested decision clearly indicates, Dow itself decided, on reading the statement of objections, to re-interview its employees regarding the facts alleged and it was therefore Dow which provided the Commission with a new corporate statement. Dow acknowledges in that statement that, following the new statements by its employees, it is entirely possible that the cartel did not end until 28 November 2002 and therefore, by implication, that the meeting of 2 and 3 September 2002 forms part of the illegal meetings. Even though Dow’s statement does not constitute an explicit admission of its participation in an illegal meeting on 2 and 3 September 2002, it corroborates Bayer’s statement rather than the converse. The Commission’s conclusion is based, finally, on documentary evidence consisting of two internal Bayer emails sent on 4 and 12 September 2002, providing for price increases for ESBR. Polimeri states that it disputed the evidential value of those emails in Annex A 25 to the application. However, for the reasons set out in the context of the eighth plea, the arguments made by Polimeri in that annex must be disregarded. For all those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s assessment that the cartel continued in 2002. 277 As regards the fact that Polimeri did not attend the meeting of 28 and 29 November 2002, it is irrelevant for the purpose of determining the date on which the infringement ended. The Commission does not find that an illegal agreement existed on 28 and 29 November 2002, but does find that it was the intention of the participants in that meeting to end the activities of the cartel. 278 It follows from all those considerations that the Commission did not err in concluding that Polimeri should be held liable for the infringement in respect of a period ending on 28 November 2002. 279 In the light of those considerations, the 13th plea in law raised by Polimeri must be dismissed as unfounded. 5. Fourteenth plea in law: unjustified increase in the basic amount of the fine for repeated infringement a) Arguments of the parties Arguments of Polimeri 280 Firstly, Polimeri submits that the condition that the undertakings should be the same is not satisfied. 281 Polimeri observes, in that regard, that, according to the Commission, the fundamental condition for entitlement to invoke repeated infringement is that a number of infringements have been committed by the same undertaking, a concept which, in the context of competition law, means an ‘economic unit … made up of a combination of personal and physical elements’ (Commission v Anic Partecipazioni, cited in paragraph 50 above). In this case, the increase in the fine was wrongly applied in relation to infringements for which penalties were imposed in 1986 and 1988, in which a completely different undertaking from Polimeri had participated. According to the Guidelines, the rules governing repeated infringement apply only where two or more instances of conduct similar to each other are imputable to the same undertaking. The Commission seems to confuse the concept of undertaking – the only relevant concept in this case – with that of legal personality. It is not possible to impute to Eni retroactively conduct which has not been attributed to it. 282 Moreover, the two sectors on which sanctions were previously imposed (PVC and polypropylene) do not belong to the same sphere of activity as elastomers, were not transferred from EniChem SpA to Polimeri and Polimeri has never engaged in business in them. Those sectors were sold to other companies, either in 1983 (in the case of polypropylene) or in 1986 (in the case of PVC), before the respective infringement decisions, that is approximately 18 and 15 years before Polimeri succeeded EniChem SpA in the BR and ESBR business. 283 Furthermore, there is a contradiction between the application of repeated infringement and the decision to use a multiplier for deterrence based on Eni’s turnover and not on that of Polimeri. According to Polimeri, if the reference turnover for the purposes of deterrent effect is Eni’s, the Commission was not entitled to increase the fine on the ground of repeated infringement, since that did not apply to Eni. 284 Secondly, Polimeri submits that the Commission breached the principles of legal certainty and proportionality. Polimeri observes, in that regard, that repeated infringement in the case of infringement of Community competition law is not provided for by any enactment of a legislative nature, since the Guidelines are a mere act of self-regulation. In the present case, the decisions serving as the basis for repeated infringement date from 18 and 20 years before the contested decision. However, the legal institution of repeated infringement should be subject to time-limits. Polimeri refers, in particular, to Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, in which a 10-year period between two infringements appeared to be a limit. Polimeri adds that the legal orders of the 27 Member States make the application of repeated infringement subject to the condition that the interval of time between the new offence and the previous offence be five years or less. It is, moreover, paradoxical to consider proceedings for an infringement committed more than five years previously to be inexpedient or pointless on the basis that they are time-barred, and at the same time to wish to take into consideration for repeated infringement infringements dating back to more than 10 years before the start of the new infringement. 285 Polimeri concludes that, in any event, an increase of 50% is absolutely disproportionate and unacceptable, since it also starts from a basic amount of the fine calculated by reference to an undertaking – Eni – which has never been charged with any infringement. Polimeri observes, in that regard, that in Groupe Danone v Commission, cited in paragraph 160 above, the Court considered that it should fix the overall increase of the basic amount of the fine in respect of aggravating circumstances at 40%, taking into account two previous infringements. The rate of increase of 50% is not the rule, as the Commission asserts in its pleadings. Arguments of the Commission 286 Firstly, as regards the claim that the condition that the undertakings must be the same is not met, the Commission points out that Polimeri does not contest the imputability of the infringement to Eni. In addition, the Commission notes that the question of repeated infringement was addressed in the second statement of objections. Polimeri did not raise any objections in that regard. 287 Since Community competition law recognises that different companies belonging to the same group form an economic unit, the Commission could, had it so wished, have imposed the fine on the same parent company in the previous decisions. The Commission would, therefore, have been fully entitled to consider, in the contested decision, that the same undertaking had already been punished for the same type of infringement (Case T‑203/01 Michelin v Commission [2003] ECR II‑4071). The Commission points out that, in Michelin v Commission, the Court approved the application of an increase in the fine for repeated infringement to another company in the group, more specifically a sister company of the company which had been punished previously. 288 The concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement has been made in the past (Groupe Danone v Commission, cited in paragraph 160 above). Consequently, it is immaterial that the Commission did not impose a fine on Eni as such in previous decisions. On the other hand, the fact that the companies to which the previous decisions were addressed were wholly controlled by Eni is decisive. It is not acceptable that group companies, which are part of the same undertaking, should escape an increase in the fine for repeated infringement solely by virtue of the organisational structure of the group itself or its restructuring. 289 The finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and the Commission cannot be bound by any limitation period when making such a finding (Groupe Danone v Commission, cited in paragraph 284 above). Be that as it may, in the relevant cases, the infringements relating to polypropylene and PVC were found by decisions adopted in 1986 and 1994 respectively (Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article [81 EC] (IV/31.149 – Polypropylene)) (OJ 1986 L 230, p. 1; ‘the Polypropylene decision’) and Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (IV/31.865 – PVC) (OJ 1994 L 239, p. 14; ‘the PVC II decision’). It is perfectly logical, normal and appropriate to take account of those precedents in the event of a new infringement committed from 1996 onwards. 290 Moreover, it is of little account that the previous infringements concerned the separate sectors of PVC and polypropylene (Groupe Danone v Commission, cited in paragraph 160 above) or that those activities have since been transferred to third parties (see, inter alia, Cascades v Commission, cited in paragraph 116 above). 291 Finally, there is no contradiction between, on the one hand, determining the multiplier by reference to the turnover of Eni, the group’s parent company, and, on the other, taking into account the repeated nature of infringements found by decisions addressed to other companies in the group, but for which Eni was also responsible. 292 As regards the alleged breach of the principles of legal certainty and proportionality, the judgment in Groupe Danone v Commission, cited in paragraph 284 above, reaffirmed that, under Article 15(2) of Regulation No 17, any repeated infringement was among the factors to be taken into consideration in the analysis of the gravity of the infringement in question and that, in that context, the applicant was still able to foresee the legal consequences of its conduct. The same applies with regard to Article 23(3) of Regulation No 1/2003. The judgment in Groupe Danone v Commission, cited in paragraph 284 above, also rejected pleas regarding a possible limitation period. Moreover, as regards the increase in the basic amount of the fine of 50% being disproportionate, since Eni has never been charged with any infringement, the Commission reiterates that it was perfectly legitimate to take account of Eni’s situation. So far as concerns the rate of increase applied, the Commission showed leniency, since such a rate is generally applied to undertakings guilty of repeated infringement after only a single previous infringement. The fact that the Court decided, in Groupe Danone v Commission, cited in paragraph 160 above, to set the increase in the fine at 40% stems from the circumstances of that case. b) Findings of the Court 293 Section 2 of the Guidelines refers, as an example of aggravating circumstances, to ‘repeated infringement of the same type by the same undertaking(s)’. 294 The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements (Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II-347, paragraph 617, and Michelin v Commission, cited in paragraph 287 above, paragraph 284). 295 Any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question (Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraph 91, and Groupe Danone v Commission, cited in paragraph 284 above, paragraph 26). 296 In the present case, the Commission notes in the contested decision that EniChem had already been the addressee of Commission decisions concerning cartel activities (namely the Polypropylene and PVC II decisions). This proves that the first fines were not sufficient for that undertaking to change its conduct. The Commission concludes that that repeated infringement constitutes an aggravating circumstance that justifies an increase of 50% in the basic amount of the fine (recital 487 to the contested decision). 297 Polimeri lays particular emphasis on the fact that neither it nor Eni was covered by the previous decisions mentioned by the Commission in the contested decision. 298 It is evident from the contested decision that the Commission took account, in this case, of the concept of ‘undertaking’ within the meaning of Article 81 EC for the purpose of applying the aggravating circumstance of repeated infringement, a fact which the Commission confirms in its pleadings. More specifically, the Commission considered, in essence, that the same undertaking had repeated offending conduct, even if the legal persons involved in the infringements in question were not the same. It should be recalled, in that regard, that the concept of an undertaking within the meaning of Article 81 EC must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 55 and the case-law cited). In that context, it must be held that, when the Commission seeks to invoke the concept of ‘undertaking’ within the meaning of Article 81 EC, it must adduce detailed and specific evidence to support its assertion. 299 It must be pointed out, firstly, that the Commission makes reference, in a general way, in recital 487 to the contested decision, to ‘EniChem’, that term being defined in recital 36 to the contested decision as ‘any company owned by Eni SpA’. It must therefore be observed that the term used by the Commission in the contested decision, in the context of the assessment of the repeated infringement, is relatively imprecise, at least as regards the legal persons forming the economic unit covered by the Polypropylene and PVC II decisions. Furthermore, even if the legal persons in question are those mentioned in recitals 26 to 35 to the contested decision, it must be pointed out that the company which was the subject of the Polypropylene decision, namely Anic, is not one of the legal persons mentioned in those recitals. Moreover, recitals 26 to 35 to the contested decision are essentially intended to describe the development of the companies owned by Eni during the infringement, which post-dates the adoption of the Polypropylene and PVC II decisions. Those recitals are therefore not such as to provide sufficiently detailed and specific information on the companies owned by Eni before the infringement for which penalties are imposed by the contested decision. 300 Secondly, the Commission refers, in footnote 262 to the contested decision, to the Polypropylene and PVC II decisions, stating that ‘Eni’ was involved in those decisions. It must be pointed out, first of all, that the term ‘Eni’ is not defined in the contested decision, unlike the term ‘EniChem’, which is. In particular, it is apparent from recitals 26 to 36 to the contested decision that, whenever the Commission refers to Eni as the parent company of the other companies, it uses the term ‘Eni SpA’. 301 Thirdly, even if, by the use of the term ‘Eni’ in footnote 262 to the contested decision, the Commission is referring to the companies which form part of the ‘undertaking’ within the meaning of Article 81 EC, consisting of the legal persons controlled by Eni, it must be pointed out that the Commission did not adduce any detailed and specific evidence in that regard in the contested decision. The Commission merely notes, in its pleadings before the Court, that Eni ‘wholly’ controlled the companies addressed by the Polypropylene and PVC II decisions. However, apart from the fact that that assertion is not corroborated by any evidence, it was not included in the contested decision. 302 Fourthly, it must be pointed out that, in this case, the development of the structure and control of the companies concerned is particularly complex. More specifically, the Polypropylene decision was addressed to Anic, and Eni’s name did not appear in that decision. As for the PVC II decision, the Commission refers in recital 8 to that decision to the fact that Anic is ‘now’ EniChem SpA and, in recital 43, to the fact that that change is due to ‘various reorganisations’, without providing further details. Moreover, here again, Eni’s name does not appear in that decision. It must be added that, in the present case, Eni’s activity in respect of the products concerned was originally carried out by EniChem Elastomeri (before the latter company was merged into EniChem SpA in 1997, that is to say, after the adoption of the PVC II decision) and that the activities of EniChem SpA were then transferred to Polimeri, which adds to the complexity of the structural development of the undertakings concerned. In that context, it was for the Commission to be particularly precise and to adduce all the detailed evidence necessary for it to be considered that the companies addressed by the contested decision and those addressed by the Polypropylene and PVC II decisions formed the same ‘undertaking’ within the meaning of Article 81 EC. 303 Taking account of all those considerations, the Court considers that the Commission did not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same ‘undertaking’ within the meaning of Article 81 EC repeated offending conduct. In those circumstances, the 14th plea in law must be upheld and Article 2(c) of the contested decision must therefore be annulled, in so far as it sets the fine imposed on Polimeri at EUR 272.25 million. 6. Fifteenth plea in law: no account taken of mitigating circumstances a) Arguments of the parties 304 Reiterating its view that the alleged cartel, even if proved to exist, was not implemented, Polimeri submits that the Commission failed, unlawfully, to apply to it the mitigating circumstance of ‘non-implementation in practice of the offending agreements or practices’ (Section 3, second indent, of the Guidelines). The fact that an undertaking participates in meetings or other contacts with its own competitors does not mean that what may have been discussed was actually implemented. Polimeri has demonstrated that the agreements at issue, even if established, were not implemented. 305 The Commission contends that the plea should be dismissed. It submits, in essence, that the facts of this case did not make it possible to grant the benefit of the mitigating circumstance pleaded by Polimeri. b) Findings of the Court 306 According to the second indent of Section 3 of the Guidelines, ‘non-implementation in practice of the offending agreements or practices’ may also amount to a mitigating circumstance. However, the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself on the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 490). 307 An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 142, and Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 230) and an undertaking which does not distance itself from the results of a meeting in which it was present in principle retains full responsibility for the fact of its participation in the cartel (see Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 491 and the case-law cited). Therefore, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful cartel and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraphs 277 to 279, and Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 491). 308 In this case, Polimeri does not adduce any evidence to support the conclusion that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. Accordingly, it was not possible for any mitigating circumstance to be taken into account with regard to it by the Commission on that basis. 309 Furthermore, even if it were shown that there were no effects on the market, that would be irrelevant, as it would not prove that the agreements had not been implemented in practice (Groupe Danone v Commission, cited in paragraph 160 above, paragraph 389). 310 In the light of those considerations, the 15th plea in law raised by Polimeri must be dismissed as unfounded. 7. Sixteenth plea in law: breach of the limit of 10% of turnover a) Arguments of the parties 311 Reiterating its criticism of the fact that Syndial was not included among the addressees of the contested decision, Polimeri submits that the Commission was required to limit the fine imposed on Syndial/Polimeri to EUR 86 million, since Syndial’s turnover in 2005 was EUR 860 million. According to Polimeri, in the context of a single fine imposed jointly and severally, the Commission should adhere to the limit of the smallest undertaking. Otherwise, full payment of the fine could not be required of all the undertakings. In any event, the Commission should have imposed two separate fines, taking account of the period during which the undertakings concerned managed the business relating to the products in question. 312 The Commission contends that the plea should be dismissed. According to it, if Syndial had been an addressee of the contested decision, Article 23(2) of Regulation No 1/2003 could have prevented the Commission, in certain circumstances, from exceeding the amount of EUR 86 million in the case of the fine which would have been imposed on Syndial, but not at all in the case of that imposed on Polimeri. b) Findings of the Court 313 The fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (HFB and Others v Commission, cited in paragraph 253 above, paragraphs 528 and 529, and Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 253 above, paragraph 90). 314 Consequently, even if Syndial had been an addressee of the contested decision, the amount of the fine for which Polimeri would have been held jointly and severally liable would not have had to be limited to 10% of Syndial’s turnover. It follows that Polimeri’s arguments are ineffective. 315 Furthermore, Polimeri’s arguments to the effect that the Commission should have imposed two separate fines, taking account of the period during which the undertakings concerned managed the business relating to the products in question, must be rejected. The fine imposed on Polimeri reflects its direct participation in the infringement and its responsibility for the infringement committed by EniChem SpA (now Syndial). That fine is therefore not limited to the period during which Polimeri managed the business relating to the products in question. Even assuming that, by its arguments, Polimeri is in fact contesting the responsibility imputed to it for the infringement committed by EniChem SpA (now Syndial), those arguments must be rejected for the reasons set out in paragraphs 120 to 131 above. 316 In the light of those considerations, the 16th plea in law raised by Polimeri must be dismissed as unfounded. 317 It follows from all those considerations that the 14th plea in law must be upheld, that Article 2(c) of the contested decision must therefore be annulled, in so far as it sets the amount of the fine imposed on Polimeri at EUR 272.25 million, and that the remainder of the claims for partial annulment of the contested decision must be dismissed. D – Measures of inquiry 318 Submitting that the evidence offered by the Commission in support of its charge is limited and equivocal, Polimeri requests that the Court hear a number of employees of Bayer, Dow and Shell. 319 The Court considers that it has sufficient information on the basis of the documents in the case and therefore decides not to undertake the measures of organisation of procedure requested by Polimeri. II – Claims for alteration of the amount of the fine 320 For the reasons set out in paragraphs 298 to 303 above, the Court must, in the exercise of its unlimited jurisdiction under Article 31 of Regulation No 1/2003, amend Article 2(c) of the contested decision, in so far as the Commission, in arriving at the amount of EUR 272.25 million, wrongly took into account against Polimeri the aggravating circumstance of repeated infringement. 321 In the circumstances of this case, in order to set the amount of the fine at an appropriate level, the method of calculation applied by the Commission must, in all other respects, be kept unchanged. 322 The final amount of the fine imposed on Polimeri is therefore set at EUR 181.5 million. Costs 323 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. Under the first subparagraph of Article 87(3) of those rules, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. In the circumstances of this case, each party is to bear its own costs. On those grounds, THE GENERAL COURT (First Chamber) hereby: 1. Annuls Article 2(c) of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as it sets the amount of the fine imposed on Polimeri Europa SpA at EUR 272.25 million; 2. Sets the amount of the fine imposed on Polimeri Europa at EUR 181.5 million; 3. Dismisses the action as to the remainder; 4. Orders the parties to bear their own costs. Dehousse Wiszniewska-Białecka Wahl Delivered in open court in Luxembourg on 13 July 2011. [Signatures] Table of contents Background to the dispute Procedure and forms of order sought Law I – Claims for partial annulment of the contested decision A – The pleas in law relating to procedural defects 1. First plea in law: inappropriate use of the Leniency Notice a) Arguments of the parties b) Findings of the Court 2. Second plea in law: unjustified sending of a second statement of objections a) Arguments of the parties b) Findings of the Court 3. Third plea in law: in essence, infringement of Polimeri’s rights of defence a) Arguments of the parties b) Findings of the Court B – The pleas in law relating to the substance of the contested decision 1. Fourth plea in law: incorrect definition of the relevant market a) Arguments of the parties b) Findings of the Court 2. Fifth plea in law: the trend of prices during the period in question a) Arguments of the parties b) Findings of the Court 3. Sixth plea in law: the supply of the main customers a) Arguments of the parties b) Findings of the Court 4. Seventh plea in law: unlawful imputation of the infringement to Polimeri a) Arguments of the parties b) Findings of the Court 5. Eighth plea in law: unsubstantiated finding of the existence of a cartel a) Arguments of the parties Preliminary observations The first part of the eighth plea in law, concerning the sources of the evidence The second part of the eighth plea in law, concerning the general description of the cartel – Price agreements – Market-sharing agreements – Exchange of sensitive commercial information – Monitoring of compliance with the agreements – The general factual framework described by Mr N. b) Findings of the Court Admissibility of certain arguments put forward by Polimeri in the context of the eighth plea in law The first part of the eighth plea in law, concerning the sources of the evidence The second part of the eighth plea in law, concerning the general description of the cartel – Price agreements – Market-sharing agreements – Exchange of sensitive commercial information – Monitoring of compliance with the agreements – The factual framework described by Mr N. 6. Ninth plea in law: unsubstantiated finding that Polimeri participated in the alleged cartel a) Arguments of the parties b) Findings of the Court C – The pleas in law relating to the setting of the amount of the fine 1. Tenth plea in law: unsubstantiated assessment of the gravity of the infringement a) Arguments of the parties b) Findings of the Court 2. Eleventh plea in law: unlawful application of differential treatment a) Arguments of the parties b) Findings of the Court 3. Twelfth plea in law: unlawful application of a multiplier for deterrence a) Arguments of the parties b) Findings of the Court 4. Thirteenth plea in law: incorrect determination of the duration of the infringement for Polimeri a) Arguments of the parties b) Findings of the Court 5. Fourteenth plea in law: unjustified increase in the basic amount of the fine for repeated infringement a) Arguments of the parties Arguments of Polimeri Arguments of the Commission b) Findings of the Court 6. Fifteenth plea in law: no account taken of mitigating circumstances a) Arguments of the parties b) Findings of the Court 7. Sixteenth plea in law: breach of the limit of 10% of turnover a) Arguments of the parties b) Findings of the Court D – Measures of inquiry II – Claims for alteration of the amount of the fine Costs * Language of the case: Italian.