Judgment — ECLI:EU:T:2011:342
Date: 2011-07-12
Language of the case: English
Court formation: Second Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: United Kingdom

summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by the applicants, suggests that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently, which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese producers on the EEA market. 187 However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that specific aspect, but not to the situation in Western Europe. 188 It should also be noted that the applicants’ interpretation is incompatible with their own argument in relation to competition on the EEA market. If, as claimed by the applicants, the Japanese producers were not perceived as credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it is apparent from the summary provided by the applicants that Alstom’s proposal concerned the EEA market as well as the Central and Eastern European market. 189 Accordingly, it is necessary to uphold the interpretation set out in recitals 127 and 128 of the contested decision, namely that Alstom proposed extending the common understanding to include Central and Eastern Europe, and to reject the interpretation proposed by the applicants. 190 The other arguments raised by the applicants are not capable of influencing that finding. First, Alstom’s proposal was made at a time when, as a result of the fact that Siemens and Hitachi had withdrawn from the cartel, the methods of operation of the cartel had developed. The Commission’s interpretation that that development was supposed to include the extension of the common understanding beyond the limits previously laid down by the GQ Agreement is in no way contradictory. 191 Second, as noted in paragraph 147 above, Mr M’s statement that implementation of the ‘GQ Agreement System’ ceased in June 2002, does not imply that the common understanding also ceased to exist or that the scope of that understanding was not able to be widened subsequently to cover Central and Eastern Europe. In addition, Mr M ceased his participation in the cartel’s activities in June 2002 and thus, in principle, he does not have any direct knowledge of how it was operated subsequently. 192 In conclusion, it must be found that, at the meeting of 10 July 2002, Alstom proposed the extension of the common understanding referred to by the Commission to the countries of Central and Eastern Europe. That is proof that the common understanding existed at the time of that meeting. 193 In addition, in the light of the interpretation of Alstom’s proposal, the rejection of that proposal by Hitachi does not amount to a rejection of the common understanding as such, but represents merely a refusal to extend it. Consequently, such a rejection does not constitute evidence that the common understanding was abandoned in July 2002. The position of the other addresses of the statement of objections – Arguments of the parties 194 The applicants submit, first, that the existence of the common understanding was disputed by five Japanese companies, namely Hitachi, JAEPS, Toshiba, Melco and TM T & D. 195 Second, the applicants state that the Commission incorrectly interpreted VA Tech’s position by claiming that it did not contest the existence of the common understanding. Similarly, the common understanding was called into question by Siemens, which also submitted the witness statement of one of its employees, Mr T, who was closely associated with the operation of the cartel. The Commission failed to take account of those facts and based its decision to a large extent on the witness statements of the employees and of a former employee of ABB. In addition, the probative value of the evidence furnished by Siemens is even greater since its leniency application was rejected as it contested the facts put forward by the Commission. 196 In addition, according to the applicants, the European undertakings generally had no interest in contesting the statements concerning the common understanding, since that understanding was not relevant to the Commission’s objections in regard to them. On the contrary, those undertakings would probably have benefited from a finding by the Commission that the common understanding existed, since that would have to some degree alleviated the weight of their own anti‑competitive conduct. Furthermore, as illustrated by the case of Siemens, the fact that they did not contest the facts put forward by the Commission was relevant to the outcome of the leniency applications of the European undertakings. – Findings of the Court 197 First of all, it is apparent from the file that VA Tech explicitly contested the existence of the common understanding, as the applicants submit. 198 However, the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of the applicants relating to notification and project loading had to be regarded as being of a higher probative value than the claims made by Hitachi, JAEPS, Toshiba, Melco, TM T & D, Siemens and VA Tech that there was no common understanding. 199 Unlike the first group of evidence, the claims that there was no common understanding are not contrary to the interests of the undertakings concerned, since they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. That finding also applies to Mr T’s witness statement in which he merely set out the background of the GQ Agreement, challenged the existence of the common understanding and referred to barriers to trade both on the EEA market and on the Japanese market. As regards the common understanding in particular, Mr T’s witness statement does not contain any additional evidence to that furnished by the addressees of the statement of objections. 200 In addition, it cannot be considered that the European undertakings, including Siemens, had no interest in contesting the existence of the common understanding, since that understanding was interpreted by the Commission in the statement of objections as a collusive agreement between the European producers and the Japanese producers in relation to the EEA market and thus constituted an infringement of Article 81 EC and Article 53 of the EEA Agreement. Indeed, such a finding was detrimental to the interests of the European producers, or at least could potentially have been, if the Commission had not been able to establish the other objections against them to the requisite legal standard. 201 Moreover, the Commission submits that it did not rely on the position of the European undertakings in concluding that the common understanding existed, but merely noted their position. Although that interpretation is confirmed by the wording of recital 125 of the contested decision, in which no corroborative value is accorded to the position of Alstom, Areva and VA Tech, unlike Fuji’s statements confirming the existence of the common understanding, it is called into question in recital 255 of that decision, in which the Commission refers to the implicit acknowledgement of the existence of the common understanding by certain European producers. 202 In any event, the neutral position of Alstom and Areva cannot be interpreted as evidence of the existence of the common understanding. Given that the burden of proof is on the Commission in proceedings under Article 81 EC and Article 53 of the EEA Agreement, an undertaking’s failure to challenge a fact does not mean that the fact in question is established. 203 It follows from all of the above that the evidence put forward by the applicants does not make it possible to draw conclusions in relation to the existence of the common understanding. The notification and project loading mechanism – Arguments of the parties 204 First of all, the applicants submit that the aim of the notification and project loading mechanism was to artificially reduce the European producers’ quota for GIS projects outside of the EEA, owing to the comparatively strong competitive position of the Japanese producers in markets such as Asia and the Middle East, primarily covered by the global cartel. Project loading was in fact an alternative solution put forward by the European producers instead of a flat-rate reduction of their joint quota. 205 They add that there is no evidence to suggest that the notification was mandatory, systematic or regular, that it took place before the allocation of the projects concerned and that it continued after 1999. 206 According to the applicants, a loading mechanism, based on notification which was discretionary, and not systematic or mandatory, could not provide the Japanese suppliers with any security or compensation. Consequently, the theory of the common understanding, as defended by the Commission, is not compatible with the facts of the case. 207 In so far as concerns the various items of evidence put forward by the Commission, the reference, in the EQ Agreement, to the notification of European GIS projects in the EEA to the Japanese suppliers is irrelevant, the content of that agreement having been unknown to the Japanese producers. Moreover, according to the EQ Agreement, the disclosure of information on the GIS projects in the EEA post-dated their allocation and was discretionary. 208 Similarly, the applicants submit that, in their leniency application, the statement that Siemens would regularly circulate tables summarising a share of GIS projects allocated to various members of the cartel clearly relates only to GIS projects outside the EEA. 209 In addition, the applicants submit that, in their reply to the statement of objections, the statement based on Mr Wa’s witness statement that European suppliers told Japanese suppliers the details of GIS projects in the EEA for the purposes of project loading, refers to occasional reporting and not mandatory and systematic notification throughout the duration of the agreement. They add that they had no knowledge of the allocation itself, only the results of it, and that the data disclosed were historic and therefore not confidential, which means that their disclosure was not liable to have any impact on competition between European and Japanese producers. Moreover, all reporting ended in 1999 in any event. 210 According to the applicants, the Commission also misinterpreted Fuji’s statements relating to the disclosure of data on the GIS projects in the EEA. Fuji expressly denied that information was notified systematically and indicated that it had no knowledge of the mechanism for allocation of those projects. 211 Finally, it its statement of 3 February 2005 on the notification, ABB did not indicate whether the mechanism at issue was mandatory and regular and did not mention its duration or any effects of it within the common market. ABB, on the other hand, confirmed that only the results of the allocation of European projects were reported to the Japanese producers. 212 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 213 It is necessary, at the outset, to dismiss the alternative explanation of the notification and project loading mechanism put forward by the applicants. They have not identified any evidence to support their claims that the Japanese producers requested an adjustment of the quotas laid down in the GQ Agreement, that such an adjustment was rejected by the European producers and that the process of notifying and loading certain GIS projects in the EEA was suggested and adopted as a viable alternative. In any event, a random notification and project loading mechanism, as suggested by the applicants, would be considerably more complex than simply adjusting the quotas, while not offering any additional advantages over the latter approach. 214 As regards the various evidence relating to notification and loading, it is apparent from point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement that ‘the European producers decide[d] about notification of [E]uropean projects to [the group of Japanese producers]’. 215 As noted in paragraph 87 above, that provision related to the possible communication of information prior to the allocation of the GIS projects concerned. By contrast, it did not relate to the monitoring of projects which had already been allocated. Consequently, although the content of that provision suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, the measures which it provided for are not part of the notification and project loading mechanism as claimed by the Commission. Therefore, Annex 2 to the EQ Agreement is of no use for proving that mechanism. 216 As regards the evidence furnished by ABB, it should be noted that, in his witness statement, Mr M explicitly affirmed the existence of the notification and project loading mechanism. He also stated that that mechanism did not concern the GIS projects in the home countries, that is to say in Japan and in certain European countries. 217 The existence of a mechanism whereby the value of GIS projects in the EEA was charged to the worldwide quota laid down in the GQ Agreement was also confirmed in ABB’s replies of 3 February 2005 to the questions put by the Commission. ABB affirmed that, when projects outside of the European Union were allocated, the results of the allocation of projects within the European Union were taken into account. 218 In so far as concerns the evidence furnished by the applicants, it should be noted that, read in the context of the sentences which immediately precede it, the statement, in point 2.10 of the leniency application made by the applicants, according to which Siemens would regularly circulate tables summarising a share of the GIS projects allocated to the various members of the cartel, refers to GIS projects outside of the EEA. Consequently, that statement is not relevant as evidence of the notification and project loading mechanism, alleged by the Commission, concerning GIS projects in the EEA. 219 On the other hand, in their reply to the statement of objections, the applicants stated that, before Hitachi discontinued its participation in the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside of the EEA allocated to the two groups of producers under the GQ Agreement. 220 That statement expressly confirms the existence of the notification and project loading mechanism referred to by the Commission until 1999. In addition, it is of a high probative value for two reasons. First, that statement goes against the applicants’ interests, since it implies the existence of a link between the collusive activities within the EEA and the Japanese producers and constitutes, as a result, incriminating evidence. Second, it is apparent from reading the relevant passage of the reply to the statement of objections that the applicants were not aware of the inferences which could be made from that statement. 221 In that regard, it should be noted that the applicants provided the Commission with an additional reply to the statement of objections. However, in that document, they merely dispute the Commission’s interpretation of the statements relating to the notification and project loading mechanism contained in their first reply, in particular in relation to the relevance of those statements as evidence of the common understanding and of the existence of a single infringement involving both the common understanding and the GQ Agreement. By contrast, the applicants did not comment on the actual content of the statements at issue. 222 Fuji, for its part, stated in its reply to the statement of objections that the information concerning the allocation of GIS projects in the European countries excluded from the scope of the GQ Agreement was not systematically provided to the Japanese producers and that, consequently, Fuji did not know about the operation of the EQ Agreement. 223 Fuji’s secondary role within the cartel, noted in paragraph 171 above, may explain the fact that Fuji was not privy to all the information exchanged by the group of European producers. That also calls into question the reliability of Fuji’s statements in that regard compared with that of the evidence furnished by ABB and Hitachi, which were members of the committees of their respective groups and were, for that reason, more closely associated with the detailed operation of the cartel alleged. 224 Contrary to what the applicants claim, it is not apparent from the evidence analysed above, taken as a whole, that the notification and project loading mechanism was implemented occasionally and in a discretionary manner. Although ABB’s statements, those of the applicants and Mr M’s witness statement do not address that subject explicitly, it is clear from the wording used in the documents at issue that notification was carried out regularly and applied to all of the participants and projects concerned. As explained in the preceding paragraph, Fuji’s statements are less reliable in that respect than the evidence provided by ABB and the applicants. In addition, it has been noted in paragraph 215 above that Annex 2 to the EQ Agreement does not concern notification and loading, as claimed by the Commission, and is thus not relevant in that regard. 225 As regards the implementation period of the notification and project loading mechanism, ABB’s statements of 3 February 2005 do not refer to a specific period and may therefore, a priori, be interpreted as referring to the entire duration of the infringement. As for Mr M’s statements, they refer to the period during which he was involved in the cartel, that is to say from 1988 to June 2002. However, in so far as it has been noted in paragraphs 68 and 129 above that the evidence provided by ABB had to be corroborated by other evidence and that such corroboration could not be provided by Mr M’s witness statement, it must be pointed out that the applicants’ statements, contained in their reply to the statement of objections, concern the period preceding the date when Hitachi discontinued its participation in the cartel in 1999. Therefore, it must be considered that the existence of the notification and project loading mechanism was established for that latter period. 226 As regards the relevance of the notification and project loading mechanism in proving the existence of the common understanding, it must be found that the mechanism constitutes a serious indicator that the Japanese producers were perceived by the European producers as potential credible competitors on the EEA market. If the European market was actually impenetrable for the Japanese producers because of the barriers to entry, the European producers would have no reason to notify the results of the allocation of certain GIS projects in the EEA and, a fortiori, to load those projects into the joint ‘European’ quota provided for in the GQ Agreement, since such loading would deprive them of a share of the GIS projects in the regions covered by the GQ Agreement. Consequently, the existence of such a notification and project loading mechanism implies that the Japanese undertakings could have entered the European market. If they did not do so it is because they committed themselves not to, in exchange for a larger share of the GIS projects outside of the EEA. Thus, the mechanism at issue constitutes a link between the collusive activities within the EEA and the Japanese producers and, as a result, indirect evidence of the existence of the common understanding. 227 The question whether the notification and project loading mechanism affected the EEA market is irrelevant in this case. As noted in paragraph 76 above, the basis of the Commission’s complaint against the applicants in the contested decision is the commitment of the Japanese undertakings not to enter the EEA market, which is indirectly proven by the existence of the notification and project loading mechanism. By contrast, it is not apparent from the contested decision that, in the Commission’s view, that mechanism constitutes a separate infringement of Article 81 EC and Article 53 of the EEA Agreement. 228 Similarly, pursuant to the reasoning set out in paragraph 226 above, it is not necessary to establish that the notification and project loading mechanism did not concern GIS projects in the European home countries or that Japan constituted a home country to be able to regard that mechanism as a relevant indication of the existence of the common understanding. Consequently, the fact that Mr M’s witness statement may not be corroborated in that regard is of no significance. 229 In addition, since the Commission’s argument relating to the notification and project loading mechanism is not based on either the confidential nature of the data provided or on the fact that it was provided prior to the allocation of the GIS projects concerned, those aspects are also irrelevant in this case. 230 In the light of all of the above, it must be held that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, has been established in so far as concerns the period from 1988 to Hitachi’s withdrawal from the cartel in 1999 by ABB’s statements, those of the applicants and Mr M’s witness statement. In addition, the mechanism at issue constitutes indirect evidence of the existence of the common understanding alleged by the Commission. The allocation of GIS projects in the EEA – Arguments of the parties 231 The applicants submit that the GIS projects in the EEA were shared amongst the European members of the cartel at meetings separate from those on the GQ Agreement, without the participation of the Japanese undertakings. 232 In that regard, the lists of projects supplied by ABB do not constitute plausible evidence that the information on the GIS projects concerned had been notified to the Japanese producers and discussed with them before those projects were allocated. 233 In the applicants’ view, that same finding is valid in relation to the claim that the Japanese undertakings planned to submit bids for GIS projects in the EEA, thereby creating tension within the cartel. The statements in that respect by ABB’s witnesses are imprecise or irrelevant in this case. 234 Similarly, aside from the alleged interest of Melco in a GIS project in Spain, only European producers apparently discussed the eleven GIS projects in the EEA mentioned in the contested decision. It is possible that Melco received information on the project concerned from sources other than the list of projects or the European suppliers. 235 In addition, it has not been established that the Japanese undertakings participated in price fixing for GIS projects in the EEA which could not be allocated to a particular supplier, in the implementation of the clause of the GQ Agreement requiring the parties to end licence agreements with non-cartel members in relation to the territory of the EEA or in exchange for sensitive information concerning the European market for GIS projects. 236 Furthermore, the pre-existing arrangements between European suppliers, relating to the allocation of GIS projects in the EEA, and in particular the GE Agreement, constitute evidence which calls into question the existence of the common understanding. According to the applicants, the GE Agreement describes a complex cartel between the European producers, which predated the signing of the GQ Agreement and was independent from it. Thus, the cartel at issue was implemented without benefiting from any protection from the alleged common understanding. That calls into question the Commission’s argument relating to the importance of the common understanding for the collusive activities of the European producers within the EEA. – Findings of the Court 237 The file does not contain any evidence which suggests that GIS projects in the EEA were discussed at GQ Agreement meetings in which the Japanese members of the cartel participated. 238 Similarly, it is not apparent from the lists of projects provided by ABB that GIS projects in the EEA were discussed with the Japanese producers, with the exception of Melco’s alleged interest in the ‘MSP via GC’ project in Spain. It cannot be ruled out that the reference to interest shown by Melco in that project is a mistake, given the length of the list of projects concerned and the fact that the Commission did not identify other cases in which a Japanese producer showed interest in a GIS project in the EEA. In any event, the content of the list of projects concerned is not corroborated by other evidence in respect of the ‘MSP via GC’ project and cannot therefore be taken into consideration in that regard. 239 In addition, when the Commission stated in recital 125 of the contested decision that the Japanese producers sometimes considered replying to European tenders, but normally declined them and mentioned the projects concerned to the European producers, it based its findings solely on ABB’s statements and on the witness statements given by its employees. Consequently, since that statement is not corroborated by other evidence, it cannot be taken into consideration. 240 In addition, the Commission does not accuse the applicants of having participated in the fixing of minimum prices for GIS projects in the EEA or in the ending of licence agreements with non-cartel members concerning the EEA. Consequently, the applicants’ arguments in that regard are irrelevant in this case. 241 As regards the exchange of sensitive information concerning GIS projects in the EEA, the notification as established in this case goes beyond the limits of normal competitive conduct both in respect of its duration and intensity and in respect of the nature of the information provided. However, it is not established that the object of the notification was to allocate GIS projects in the EEA to Japanese producers or that the information actually provided was used to that end. 242 In the light of all of the above, it must be found that it has not been established that the Japanese undertakings participated in the allocation of GIS projects in the EEA. 243 As regards the European agreements which pre-date the GQ Agreement, it should be noted that, with the exception of the GE Agreement, the applicants’ claims are not sufficiently precise or substantiated. Consequently, they must be rejected. 244 As for the GE Agreement, it is not disputed that it was signed prior to the GQ and EQ Agreements. However, that does not imply, contrary to what the applicants claim, that it was independent of the GQ Agreement or the common understanding. 245 Under Article 15 of the GE Agreement, that agreement was initially intended as a temporary solution valid until the entry into force of the GQ Agreement and, failing that, had to be renegotiated after 31 December 1988. Thus, it is apparent that, when concluding the GE Agreement, the signatories already anticipated the establishment of the worldwide cartel and its various components, including, according to the Commission’s claims, the common understanding. That interpretation is corroborated by Mr M’s witness statement, according to which the worldwide cartel came about as a result of years of complex negotiations prior to the signing of the GQ Agreement. 246 In addition, according to Mr M, the mutual commitment of the two groups of producers not to enter the domestic markets of the other group, which constitutes the main part of the common understanding alleged by the Commission, predated the conclusion of the GQ Agreement. Consequently, that commitment could be taken into consideration by the European producers when signing the GE Agreement. 247 Accordingly, it cannot be considered that the GE Agreement calls into question the existence of the common understanding alleged by the Commission. Overall assessment – Arguments of the parties 248 According to the applicants, the evidence relied on by the Commission linked with the existence of the common arrangement is selective, lacking in probative value and unsupported, and does not reflect reality, the Commission having developed its theory before examining the facts of the case. 249 The applicants submit, in that regard, that the evidence produced by ABB does not establish to the requisite legal standard the existence of a common understanding, and in particular the fact that the Japanese producers agreed to the allocation of GIS projects in the EEA among the European producers, the importance of the common understanding regarding the alleged worldwide cartel, the existence of a mandatory and systematic notification mechanism or the fact that the Japanese undertakings participated in the collusive activities of the European producers within the EEA. Similarly, the Commission took a selective approach, since it did not refer in the contested decision to evidence provided by ABB which was not in line with its theory, in particular the GE Agreement. 250 The applicants consider that, in so far as the evidence given by ABB is both of a low probative value and contested by them, Toshiba, Melco, TM T & D and, in certain respects, by Fuji, it should have been corroborated by other evidence, which ‘would have to be of the highest corroborative quality’. However, it had not been. In particular, the Commission made allegations regarding the GQ and EQ Agreements which are contradictory with other evidence in the file and misinterpreted the statements made by the applicants and Fuji concerning the notification and project loading mechanism. 251 The applicants submit, in that context, that the Japanese producers were not in a position to enter the European GIS market as a result of the existence of insurmountable barriers to entry, which meant that there was no need for their involvement at European level and, therefore, for the existence of the common understanding. They add that the plausibility of that alternative explanation was confirmed by all the undertakings concerned and it is also apparent from numerous items of evidence in the file, such as the GE Agreement in particular, which was entered into exclusively by the European producers without them needing to secure any arrangement with the Japanese producers or to inform them. 252 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 253 It is apparent from the examination carried out in paragraphs 84 to 230 above, first, that ABB’s statements and the witness statements of its employees and of its former employee show that an understanding existed whereby the European and Japanese producers undertook mutually not to enter the domestic markets of the other group. Those items of evidence also make it possible to identify the parties to the understanding and to conclude that, although it was probably concluded prior to the GQ Agreement, it was concluded, at the latest, at the time the GQ Agreement was concluded. 254 Second, the existence of the mutual understanding referred to above is corroborated by the proposal made by Alstom at the meeting of 10 July 2002. The existence of the commitment of the Japanese undertakings not to enter the European market is also corroborated by Fuji’s statements. 255 Third, it is apparent from ABB’s statements and its witness statement, corroborated by the applicants’ statements, that the Japanese producers accepted, at least in so far as concerns the period from 1988 to 1999, the regular notification of the results of the allocation of certain GIS projects in the EEA and their loading into the joint ‘European’ quota provided for in the GQ Agreement. Similarly, under Point 4 of Part ‘E (E (Members)’ of Annex 2 to the EQ Agreement, the European producers foresaw the possibility of providing the Japanese producers with the details of certain GIS projects in the EEA prior to their allocation. Those two factors suggest that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, but that they had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions. They thus constitute indirect evidence of the existence of the mutual understanding between the European producers and the Japanese producers. 256 Thus, the evidence produced by the Commission supports its assertions regarding the existence of the common understanding, as summarised in paragraph 74 above. By contrast, the evidence relied on by the applicants is not capable of calling those statements into question. 257 First, as set out in paragraphs 244 to 247 above, the GE Agreement does not constitute evidence of a European cartel which was implemented without the aid of the common understanding. 258 Second, although it has not been established that the Japanese undertakings participated, with the European producers, in the allocation of GIS projects in the EEA, it should be pointed out that, in the light of the nature of their alleged commitment under the common understanding, their participation in it would not have been necessary. The Japanese producers would have had no interest in intervening in the actual allocation of GIS projects in the EEA which they had committed themselves not to take. Their sole interest would have been to learn the value of the projects concerned and the identity of the undertakings to which they were awarded, in order to be able to monitor the loading into the joint ‘European’ quota provided for in the GQ Agreement. At least in so far as concerns the period from 1988 to 1999, that information was communicated to the Japanese producers via the notification mechanism. 259 In the light of all of the above, it must be found that the existence of the common understanding as described in paragraph 74 above has been established to the requisite legal standard. 260 Accordingly, contrary to what the applicants claim, the Commission was not required to prove the commercial interest of the undertakings concerned in concluding the common understanding. Moreover, as set out in paragraphs 110 and 158 above, the conclusion of the common understanding was likely to confer certain advantages on those undertakings and was thus not without purpose, notwithstanding the existence of barriers to entry on to the EEA market and the possible lack of immediate commercial interest in entering that market. 261 In addition, since the Commission did not base its findings solely on the conduct of the undertakings at issue on the market in concluding that the alleged infringement had been committed, it is not sufficient for the applicants to substitute their own alternative plausible version of the facts for the version given by the Commission. Consequently, the alternative explanation proposed by the applicants is irrelevant in so far as concerns the existence of that infringement. In any event, the evidence supporting that explanation is also relied on by the applicants in the context of the first part of the third plea and will therefore be examined in paragraphs 317 to 332 below. 262 Consequently, the first part of the second plea must be rejected. 263 Furthermore, in accordance with what has been stated in paragraph 41 above, since it has been possible to establish the existence of the common understanding without taking account of Fuji’s observations of 21 November 2006 as incriminating evidence, ultimately it is necessary to dismiss the first part of the first plea, alleging that the applicants did not have access to certain items of incriminating evidence. Consequently, the first plea must be dismissed in its entirety. b) The second part, alleging that the Commission did not establish that the common understanding constituted a restrictive agreement or a concerted practice – Arguments of the parties 264 The applicants claim that, even if the Commission had established the existence of a common understanding, it has not established, by precise and plausible evidence, that it represented the manifestation of a meeting of minds in the form of a restrictive agreement or concerted practice. In their view, at most, the Commission’s file discloses parallel behaviour on the part of operators, compatible with normal market conditions. That fact is attested to by Mr M’s witness statement, in which he stated that, at the meetings he attended, it was not necessary to raise the question of the common understanding, in so far as the latter went without saying. – Findings of the Court 265 According to the case‑law, it is for the Commission to gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement constitutes an agreement or a concerted practice within the meaning of Article 81(1) EC (Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47). The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement. 266 In the contested decision, the Commission did not comment expressly on the issue whether the conduct imputed to the Japanese undertakings constituted an agreement or a concerted practice. In recital 248 of the contested decision, it merely observed that the infringement consisted of several actions which may be classed as agreements or concerted practices. 267 Consequently, it should be assessed, first, whether the common understanding constitutes an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement. 268 In that regard, in order for there to be an agreement within the meaning of those provisions, it is sufficient that the undertakings in question expressed their joint intention to conduct themselves on the market in a specific way (see, by analogy, Cimenteries CBR and Others v Commission, paragraph 70 above, paragraph 958, and the case‑law cited). There is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition (see Cimenteries CBR and Others v Commission, paragraph 70 above, paragraph 837, and the case‑law cited). 269 In the present case, it is apparent from the various items of evidence produced by the Commission, and in particular ABB’s and Fuji’s statements and the witness statements of Mr M and Mr V.-A that the European and Japanese producers mutually agreed not to enter the domestic markets of the other group. The existence of a mutual agreement necessarily implies the existence of a meeting of minds, even if there is no evidence which makes it possible to determine with precision the exact point in time that meeting of minds was manifested or which formalised its expression. In addition, it is apparent from paragraph 141 above that Mr M considered that it was not necessary to refer to the common understanding during the discussions in which he participated, since the content of that understanding was understood, accepted and implemented by all the participants to the cartel without the need for any specific discussion on it. Moreover, as set out in paragraph 152 above, Mr V.-A stated that he participated in discussions between the European undertakings and the representative of a Japanese undertaking expressly concerning compliance with the common understanding. 270 Similarly, the acceptance over a number of years – confirmed by ABB’s statements and witness statement and by the applicants’ statements – by the Japanese producers of the notification of the results of the allocation of certain GIS projects in the EEA and the monitoring of their loading into the joint ‘European’ quota provided for in the GQ Agreement is not consistent with the mere parallel conduct of competitors with no meeting of minds. 271 Furthermore, the object of the common understanding was to determine the conduct of the Japanese undertakings in relation to the EEA market, since those undertakings committed themselves not to enter that market. Thus, that understanding effectively amounted to reserving the EEA market for European producers. 272 Consequently, the Commission was right to find that the common understanding constituted an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement. 273 Accordingly, it is not necessary to examine whether the common understanding constituted a concerted practice within the meaning of those provisions. 274 In the light of all the foregoing, the second part of the second plea must be rejected and, therefore, the second plea must be dismissed in its entirety. 3. The third plea, alleging that the Commission has not proved the existence of a single and continuous infringement 275 In the context of the first part of the third plea, the applicants submit that, in so far as they are concerned, the Commission has established neither the essential aspects of the measures implemented by the cartel participants, nor that those measures pursued a single objective. In the context of the second part, they challenge the finding that the alleged cartel was continuous and, in particular, that its objective was continuous. 276 The Commission considers the applicants’ arguments to be unfounded. a) The first part, alleging that the Commission failed to establish the existence of a single infringement encompassing the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activity of the European producers within the EEA – Arguments of the parties 277 The applicants submit that, in the present case, the products, the geographic markets and the undertakings concerned, first, by the cartel provided for in the GQ Agreement and, second, by the agreements on GIS projects in the EEA are different, which in the applicants’ view means that the GQ Agreement is separate from the European agreements and that it is thus wrong to consider that the activities of the cartel outside the EEA and the activity of the European undertakings within the EEA form a single infringement. 278 The applicants add that the facts set out in the contested decision do not establish, beyond all reasonable doubt, the existence of a single infringement. 279 According to the applicants, the common understanding has not been established, since the evidence furnished by ABB lacks probative value and is not corroborated by other evidence. 280 Similarly, the Commission has not established the importance of the common understanding regarding the alleged worldwide cartel, since it is not apparent from the evidence in the file that such an arrangement was necessary either to establish mutual trust or to encourage the activities of the European members of the cartel relating to the territory of the EEA. In addition, the Commission has not proved that the Japanese producers knew of and accepted the mutual reservation of the home countries. The notion of home countries was a concept which was applied solely in relation to agreements between European producers and was thus unknown to the Japanese undertakings. 281 According to the applicants, the independent nature of the participation of the Japanese undertakings in the GQ Agreement in relation to the collusive conduct of the European undertakings within the EEA resulted from the fact that the Japanese producers were not in a position to enter the European GIS market as a result of insurmountable barriers to entry. 282 The existence of two independent cartels is confirmed, in addition, by various items of evidence in the file. In that regard, the applicants refer to the existence of the GE Agreement and of other earlier agreements concluded between European suppliers, to the fact that the common understanding is not mentioned in the written agreements, that the conduct of the European producers within the EEA is not mentioned in the GQ Agreement, and refers to the non-disclosure agreement concluded with ABB, Areva, Siemens and VA Tech aimed at facilitating the exchange of sensitive information between signatories, without the knowledge of the other undertakings which participated in the cartel. 283 By contrast, there is no evidence which suggests that the Japanese undertakings participated in the allocation of GIS projects within the EEA and in the associated collusive activities of the European producers within the EEA, or that they were aware thereof. 284 In so far as concerns the notification and project loading mechanism, the applicants refer, first of all, to the alternative version of the facts set out in paragraph 204 above. Moreover, they reiterate that the notification was not systematic, that it took place after the projects concerned had been allocated, that the practice was discontinued in 1999 and that it concerned non-confidential data. 285 In particular, the applicants dispute that the mere knowledge of the past existence of arrangements between other undertakings and the exchange of historical information in summary form constituted infringements of Article 81 EC and Article 53 of the EEA Agreement. 286 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 287 The agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collusion on the part of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 79 to 80). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA Agreement. 288 Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission v Anic Partecipazioni, paragraph 287 above, paragraph 83). The case‑law cited above is applicable, by analogy to Article 53(1) of the EEA Agreement. 289 In the present case, first, it is apparent from the examination of the second plea that the Japanese undertakings participated along with the European undertakings in the common understanding, which was an agreement between undertakings within the meaning of Article 81 EC and Article 53 of the EEA Agreement concerning the European market for GIS projects. Participation in the common understanding implies that the Japanese undertakings were aware of the fact that the GIS projects in the EEA were reserved for European producers. 290 In that regard, the fact that the applicants did not participate in the specific collusive measures in the EEA is irrelevant. As stated in paragraph 258 above, given the nature of their commitment under the common understanding, the participation of the Japanese undertakings in the allocation of GIS projects on the EEA market was not necessary. Thus, the passive role of the Japanese producers was not due to their choosing but to the form of their participation in the agreement relating to the EEA market. On the other hand, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA between European producers could be carried out pursuant to the principle of the protection of home countries or pursuant to the GE Agreement. 291 Second, ABB’s statements and Mr M’s witness statement suggest that, although the common understanding was not referred to explicitly in the GQ Agreement, it was behind its operation, since it made it possible to ensure the confidence required for the worldwide cartel to be able to function. The existence of the link between the common understanding and the GQ Agreement is confirmed by Mr V.-A’s witness statement which states that, at a meeting on the GQ Agreement, the need to comply with the common understanding was discussed between the European undertakings and a representative of the Japanese undertakings. 292 Third, the notification and project loading mechanism constitutes a link between the collusive activities of the European undertakings within the EEA and the worldwide undertaking governed by the GQ Agreement. Through that mechanism, the results of the allocation of certain GIS projects in the EEA were taken into account when allocating GIS projects in other regions pursuant to the GQ Agreement. The existence of the mechanism concerned is established by the statements and witness statements of ABB and by the applicants’ statements, irrespective of the fact that it was not referred to explicitly in the GQ Agreement. 293 In that respect, the alternative explanation of the notification and project loading mechanism proposed by the applicants has been rejected in paragraph 213 above. Similarly, it is apparent from paragraphs 243 to 247 above, first, that the applicants’ arguments relating to the European agreements other than the GE Agreement cannot be taken into account by the Court and, second, that the GE Agreement does not constitute evidence that the collusive activities of the European producers within the EEA were independent of the worldwide cartel governed by the GQ Agreement. In addition, it is not apparent from the evidence produced by the applicants that the non-disclosure agreement between the European producers was actually concluded nor, a fortiori, that the exchange of information between the two groups of producers was affected as a result. 294 Fourth, it must be held that, as a result of the regular notification of the results of calls for tenders for certain GIS projects in the EEA, carried out at least from 1988 to 1999, the Japanese undertakings could reasonably have envisaged that the allocation of GIS projects in the EEA among European producers was the result of collusive activity. The fact that a group of producers has communicated to it regularly, over several years, the results of calls for tenders in which the members of another group of producers in the same industrial sector participated, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct. Notification should therefore have given rise to doubts regarding the conditions under which the GIS projects concerned were allocated. That is all the more the case since the results of a call for tenders are not necessarily public information, in particular in so far as concerns calls for tenders launched by private undertakings and in respect of the details of the winning tender. 295 In that regard, the Commission rightly stated, in recital 277 of the contested decision, that knowledge of the collusive nature of the allocation of GIS projects in the EEA, acquired by the Japanese undertakings as a result of the notification mechanism between 1988 and 1999, was not likely to be affected by any subsequent interruption of notification. The same applies to JAEPS, irrespective of the fact that it was not created until 2001. JAEPS took over the GIS business of its shareholders, including Hitachi and Fuji. Accordingly, it can be considered that it had the same knowledge as those shareholders in relation to the allocation of GIS projects in the EEA. 296 Fifth, the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA were implemented at the same time, concerned the same products and involved the same European producers and, in so far as concerns the common understanding and the GQ Agreement, the same Japanese producers. Similarly, the various measures had the same objective, namely the establishment of a system for sharing the worldwide market for GIS projects and allocating those projects among the various participants. 297 In the light of all the foregoing, it must be held that the Commission did not err in finding that the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA formed a single infringement and pursued a common objective. Consequently, the first part of the third plea must be rejected. b) The second part, alleging that the Commission has not proved the continuous nature of the cartel – Arguments of the parties 298 The applicants submit that, following the meeting of 10 July 2002, the cartel did not pursue the same economic objective, since it was focused on the Middle East and South East Asia and its new objective was to combat price erosion in those regions. 299 In addition, the applicants claim that the Commission was required to take account of the changes in the structure and operation of the cartel made at the same time, which included a simplification of the working methods, the introduction of a system of packages of projects allocated directly and changes to the designation codes of the members of the cartel. 300 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 301 It is not apparent from the evidence in the file that the economic objective of the worldwide cartel was changed at the meeting of 10 July 2002. Both before and after that date the essential aim of that cartel was to share the markets for GIS projects and to coordinate the allocation of those projects between the undertakings involved in the worldwide cartel. In that regard, it is apparent that the will of the undertakings concerned to combat price erosion in the Middle East and South East Asia was not the result of changing their essential objectives, but of the development of competition on those markets. 302 In addition, the structural and operational development referred to by the applicants consists of isolated changes limited to certain aspects of the functioning of the cartel, but did not affect its overall objective. As submitted by the Commission, it appears that the various changes were related to changes in the number of participants to the cartel and to technological developments. Furthermore, the applicants do not support their objection regarding the progressive nature of the changes that were made, set out by the Commission in recital 280 of the contested decision. 303 It follows that the applicants’ claims regarding the continuity of the cartel and its objective have no factual basis. It must therefore be considered that the Commission did not err in finding that, between 15 April 1988 and 11 May 2004, there was a continuous infringement which pursued the same economic objective. 304 Therefore, the second part of the third plea must be rejected as, consequently, must the third plea in its entirety. 305 Since none of the pleas raised in support of the main claim can succeed, that claim must be rejected. B – The first claim in the alternative, seeking annulment of Article 2 of the contested decision in so far as it concerns the applicants 1. The fourth plea, alleging that the Commission committed errors in calculating the fines imposed on the applicants 306 The applicants maintain that the Commission committed errors in calculating the fines which it imposed on them. In the first part of the plea, they claim that the Commission failed in its obligation to assess the relative importance of the infringement committed by each undertaking. In the second part they claim that the Commission committed a manifest error in applying the Leniency Notice. In the third part they submit that the Commission committed a manifest error in assessing the factors relating to duration of the cartel. 307 The Commission considers the applicants’ arguments to be unfounded. a) The first part, alleging an error in the evaluation of the relative weight of the infringement committed by each undertaking – Arguments of the parties 308 The applicants submit that the Commission should have taken into account the secondary role which they played within the cartel, both in relation to the relative gravity of their conduct and the effect thereof on the EEA market. 309 First, the applicants state that they did not participate in the cartel within the EEA or at the meetings organised in the context of the EQ Agreement, but merely implemented the GQ Agreement. Consequently, their possible participation in the European cartel could only be passive and their conduct did not affect trade between the Member States, owing also to the existence of the earlier European cartel governed by the GE Agreement. 310 Second, the applicants submit that their alleged participation in the common understanding had no impact on the EEA market and was thus not liable to harm competition on that market. In that regard, they refer to the evidence which they submitted to the Commission, in particular the external report, statements by other cartel participants and the fact that they did not sell any GIS in Europe either between 2000 and 2002, that is to say during the period when they did not take part in the cartel, or after the cartel was terminated. They add that the fact that they were not able to harm competition in the EEA should have been taken into consideration as an attenuating circumstance. 311 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 312 According to settled case‑law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see Commission v Anic Partecipazioni, paragraph 287 above, paragraph 150, and the case‑law cited).Thus, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined (Commission v Anic Partecipazioni, paragraph 287 above, paragraph 90). 313 It is pointed out, first of all, in that regard, that the contested decision does not penalise its addressees for having participated in the GQ Agreement, which did not concern the territory of the EEA. Article 1 of the contested decision states clearly that the infringement of Article 81 EC and Article 53 of the EEA Agreement concerned the GIS sector in the EEA. 314 It is apparent from the examination of the second plea that the nature of the participation of the Japanese producers in the agreements and concerted practices concerning the EEA was not the same as that of the European producers. The Japanese undertakings committed themselves, under the common understanding, not to enter the EEA market and their participation thus consisted of a failure to act. The European undertakings, for their part, distributed the various GIS projects on that same market through active collusion. 315 However, there is no substantial difference in respect of the gravity of those two types of conduct. As noted in paragraphs 258 and 290 above, given the nature of the applicants’ commitment under the common understanding, the fact that they did not participate in the distribution of GIS projects in the EEA is irrelevant, since it was not necessary for them to intervene; their lack of participation in the distribution of such projects was not the result of their choice, but a mere consequence of the nature of their participation in the agreement relating to the EEA market. By contrast, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA between European producers could be carried out among the European producers in accordance with the rules agreed to that effect. 316 Consequently, it must be considered that the gravity of the conduct of the Japanese undertakings is comparable to that of the conduct of the European undertakings. 317 As regards the alleged inability of the applicants to harm competition in the EEA, it is apparent from section 1 A of the Guidelines on the method of setting fines that, when setting fines, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers. 318 In that regard, the applicants submit, first, that a Japanese producer wishing to enter the EEA GIS market would be confronted with ‘high’ barriers to entry of a technical, commercial, cultural and economic order. Second, that same market is a ‘mature’ market, which implies that, during the period of the infringement, there was only a low rate of growth and that it was adequately served by the European producers. 319 It should be noted, first, that the existence of a common understanding, and in particular of the notification and project loading mechanism, implies that the Japanese producers were perceived as credible potential competitors for the European producers, irrespective of certain objective barriers to entry, the existence of which is also not disputed by the Commission. If that had not been the case, the common understanding would not have been concluded and respected by the European producers, for whom that would mean a loss of a share of the GIS projects outside of the EEA. In so far as the European producers were particularly well situated to assess the situation in the EEA, as a result of their privileged position in Europe, their acceptance of the common understanding constitutes an argument which seriously calls into question the plausibility of the line of argument put forward by the applicants. 320 Second, it should be pointed out that the external report submitted by the applicants was elaborated ex post, for the specific needs of the parties’ defence in the procedure which led to the adoption of the contested decision. As submitted by the Commission, the report is drafted in general terms and it does not state that the feasibility or commercial opportunity of entering the EEA market was discussed by the parties. Similarly, in so far as concerns the technical barriers in particular, the external report refers to a large extent to the statements of JAEPS and the other addressees of the contested decision, which suggests that, by the same token, it does not constitute an independent source. 321 In addition, as regards the technical barriers, it indeed appears to be the case that a Japanese producer wishing to enter the EEA market is required to adapt the product concerned to the norms in place, resulting from the standards defined by the International Electrotechnical Commission, to carry out a certain number of conformity tests and to obtain the corresponding certificates. However, the applicants do not dispute that the Japanese producers made sporadic sales of GIS products in the EEA, and a larger number of sales in other territories in which the standards defined by the International Electrotechnical Commission are also applicable. 322 The applicants also refer to the additional technical requirements and usages which apply in certain countries in Western Europe. At least in so far as concerns the countries other than the home countries, such requirements apply to all potential suppliers, whether European or Japanese. 323 The same goes in relation to the alleged preference for national products, since it is apparent from the contested decision that the EEA countries other than the home countries were precisely those in which there were no credible national suppliers. Such reasoning applies, a fortiori, to the alleged preference for the supplier of the equipment already installed. A pre-existing satisfactory relationship with a supplier tends to disadvantage all other suppliers, irrespective of the whether they are European or Japanese. 324 The applicants also submit that Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), required that preference be given to European suppliers in procurement procedures. However, as the applicants acknowledge themselves, that rule was no longer applicable to Japanese producers from 1 January 1996. Moreover, the preference rule was not an absolute one, since, pursuant to Article 36(3) of that directive, the latter applied only where tenders were equivalent in the light of the award criteria, that is if the price difference did not exceed 3%. 325 The applicants arguments alleging, first, the need to establish a presence in Europe to ensure the sale and the services and maintenance infrastructures and, second, the impact of the distance between Japan and Europe on transport and insurance costs and on delivery times, cannot be upheld in the light of the GIS sales made by the Japanese producers in the EEA, and in the rest of Europe and in the Mediterranean region, namely in territories which are geographically distant from Japan. 326 As regards the alleged tariff barriers, the applicants did not provide details of the rate of customs duty which would be applicable to imports of GIS products to the EEA from Japan. Consequently, that argument must be rejected. 327 Finally, it should be noted that the prolonged existence of the common understanding and, consequently, the absence of the Japanese producers on the EEA market was likely to reinforce artificially some of the barriers to entry referred to by the applicants, in particular those related to the acceptance by European customers of Japanese suppliers. The applicants cannot be permitted to rely on the consequences of the functioning of the infringement in which they participated to seek a reduction of the fine imposed on them for that very infringement. Moreover, the effects referred to above of the prolonged existence of the common understanding are capable of explaining why the applicants did not make any GIS sales in the EEA between 1999 and 2002 and between 2004 and 2006, that is to say during relatively short periods compared with the duration of the infringement. 328 Third, it should be noted that the statements made by the other participants do not refer to barriers to entry other than those raised by the applicants. Consequently, the arguments set out in paragraphs 321 to 327 above also apply here. 329 Fourth, it should be pointed out that the information given in the external report relating to the state of the EEA market is not sufficiently detailed, since it covers only certain parts of the period of infringement. Moreover, part of that information concerns the growth rate of the EEA market, but does not provide details of the size of that market. A large market in absolute terms may offer opportunities for entry even if there is not a high growth rate. 330 Similarly, the presence of other competitors is a factor inherent in the exercise of an economic activity in a market economy and thus does not constitute, in itself, a particularity which should have been taken into account. In so far as the applicants’ argument emphasises the alleged privileged relationship between the European customers and the European producers, reference should be made to paragraphs 323 and 327 above. 331 In addition, the interest in analysing the capacity of the Japanese producers in entering the EEA market is not to find out whether an entry on to that market was the most attractive alternative available to the Japanese producers, but whether it was a realistic option which, had the common understanding not existed, could have put pressure on the conduct of the producers present on the EEA market. Consequently, the fact that opportunities may have been available to the Japanese producers on other markets is not relevant in itself. 332 In the light of all of the foregoing, it must be concluded that the applicants have not substantiated to the requisite legal standard their claim that the particularities of the EEA market meant that the conduct of the Japanese producers who were parties to the common understanding was not likely to harm competition on that same market in the present case. Accordingly, the Commission cannot be accused of having failed to take that claim into consideration, either when evaluating the gravity of the infringement committed by the applicants or when evaluating the attenuating circumstances. 333 The first part of the fourth plea must therefore be rejected. b) The second part, alleging an erroneous application of the Leniency Notice Arguments of the parties 334 The applicants claim that, in concluding that they participated in the common understanding and, more generally, in a single and continuous infringement, the Commission relied on two pieces of information volunteered by the applicants: first, the statements concerning the notification and project loading mechanism and, second, the description of their rejection of Alstom’s proposal, made on 10 July 2002 relating to a common understanding for the European market. That information was not known to the Commission at the time and had a direct impact in demonstrating the existence of a single and continuous infringement. 335 The applicants consider that the Commission therefore erred in finding that the abovementioned information did not constitute added value such as to merit a reduction of the fine in accordance with the Leniency Notice. They also maintain, referring to point 23 of the Leniency Notice, that no fine should have been imposed on them. 336 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 337 Points 4, 20, 21 and 23 of the Leniency Notice state the following: ‘4. The Commission considered that it is in the Community interest to grant favourable treatment to undertakings which cooperate with it. The interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Authority to detect and prohibit such practices. … 20. Undertakings that do not meet the conditions … above [to obtain immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed. 21. In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence. … 23. … In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’ 338 Assessed in the light of that criteria, the applicants’ arguments cannot be upheld. 339 As noted in paragraphs 192 and 230 above, the statements relating to the notification and project loading mechanism and to Alstom’s proposal of July 2002 constitute evidence which is relevant for proving the existence of the common understanding. However, during the administrative procedure, the applicants claimed, first, that the notification and project loading mechanism was not relevant when establishing the existence of that understanding and, second, that Alstom’s proposal and their reaction to that proposal made it possible to call the existence of that understanding into question. Accordingly, it cannot be argued by the applicants that they cooperated with the Commission in that regard, in accordance with point 4 of the Leniency Notice. Therefore, the Commission did not err in refusing to apply points 20 and 21 of that notice to them. 340 As regards the application of point 23 of the Leniency Notice, it should be noted that on 9 September 2004, namely the day the applicants made their leniency application to which they annexed a description of Alstom’s proposal of 10 July 2002, the Commission was already aware of the existence and of the nature of the common understanding, and of the fact that it covered specifically the period from July 2002 to 2004. Those facts were made known in ABB’s statements of 11 March 2004. Similarly, when the statement of objections was sent, that is before the applicants submitted their statements relating to the notification and account loading mechanism, the Commission knew that that very mechanism was in place between the participants to the cartel from 1988 to 2002, since that information was provided in both ABB’s statements and in Mr M’s witness statement. Consequently, it cannot be considered that the applicants’ statements at issue related to facts of which the Commission was previously unaware or, a fortiori, that they could affect the gravity of the infringement or its duration. Therefore, the Commission did not err in refusing to apply point 23 of the Leniency Notice in that regard. 341 Consequently, the second part of the fourth plea must be rejected. c) The third part, alleging an error in the assessment of the facts relating to the duration – Arguments of the parties 342 The applicants reaffirm, first, their position that the Commission failed to establish continuity of the purpose of the infringement from 15 April 1988 to 11 May 2004. Second, they submit that the finding of their participation in an infringement after July 2002 is undermined by the changes made to the structure and nature of the arrangements at that time, and in particular by their rejection of Alstom’s proposal of 10 July 2002 that an arrangement be entered into regarding the European market. 343 The Commission considers the applicants’ arguments to be unfounded. – Findings of the Court 344 The applicants’ arguments raised in the context of this part of the plea are the same as those already dealt with in the context of the second and third pleas. The arguments relating to the continuity of the purpose of the cartel and to the changes made to it have been examined in paragraphs 301 to 303 above. Similarly, the relevance of Hitachi’s rejection of the proposal made by Alstom on 10 July 2002 has been examined in paragraphs 185 to 193 above. 345 It is apparent from the passages at issue that the evidence raised by the applicants does not enable it to be concluded that the Commission erred, first, in finding that a continuous infringement existed which pursued the same economic objective from 15 April 1988 to 11 May 2004 and, second, in considering that the common understanding and, consequently, the applicants’ participation in the infringement, continued beyond July 2002. 346 Accordingly, the third part of the fourth plea must be rejected as, consequently, must the fourth plea in its entirety. 2. The fifth plea, alleging that the Commission calculated the applicants’ fines by means of a method which infringed the principles of equal treatment and proportionality a) Arguments of the parties 347 The applicants submit that the Commission infringed the principles of equal treatment and proportionality in applying a deterrence multiplier of 2.5 to Hitachi, while applying the lowest multiplier of 1.25 to ABB. In their view, whereas Hitachi is a minor operator in the GIS sector and its conduct was not likely to harm competition on the common market substantially, ABB is the largest supplier in that sector worldwide and is established in Europe. In addition, unlike ABB, Hitachi is not a repeat offender. In so far as that is relevant in preventing future anti‑competitive conduct, it should have been taken into account when determining the applicable deterrence multipliers. In addition, the application of deterrence multipliers significantly outstripped any consideration of the applicants’ small market share. 348 The Commission considers the applicants’ arguments to be unfounded. b) Findings of the Court 349 It is apparent from recital 491 of the contested decision that the Commission deemed it necessary to apply a deterrence multiplier to the undertakings with a particularly high turnover. On the basis of the worldwide turnover of the undertakings concerned, the Commission applied deterrence multipliers of 1.25 to ABB and of 2.5 to Hitachi. 350 The applicants complain that that calculation reflects neither ABB’s power on the worldwide and European GIS markets nor the fact that ABB has been fined in the past for an infringement of Article 81 EC. However, it is apparent from recital 491 of the contested decision that the purpose of applying a deterrence multiplier was not to take account of those two factors, but to reflect the disparity in size of the various undertakings which participated in the cartel. The taking into account of that latter element is in line with both point 1 A of the Guidelines on the method of setting fines and the case‑law according to which, when the Commission calculates the amount of the fine, it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 119 to 121). 351 The proportionality of the deterrence multipliers applied to ABB and to Hitachi in relation to their size can easily be verified by reference to a graph showing all the deterrence multipliers applied in relation to the respective turnovers of the undertakings concerned. On that graph, the multipliers of all the undertakings concerned, with the exception of Siemens, are in a line. This implies that the deterrence multiplier applied to Hitachi is proportionate to that applied to ABB and that, consequently, Hitachi was not treated unfairly compared with ABB. 352 Moreover, as regards the other factors raised by the applicants, it must be noted that ABB’s weight on the GIS market does indeed constitute a relevant factor, since it is a direct indicator of the capacity of that undertaking to harm competition. In the present case, that factor was taken into account when determining the starting amount, since ABB was classed, together with Siemens, in the first group on the basis of their total worldwide sales. Thus, ABB’s starting amount was five times greater than that of Hitachi and JAEPS. 353 As regards repeated infringements, it must be pointed out that deterrence is an objective of the fine and that the need to ensure it is a general requirement which must be a reference point for the Commission throughout the calculation of the fine and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 226). Thus, the Commission was entitled to take that factor into account when assessing the aggravating circumstances as opposed to when determining the deterrence multipliers. In recital 510 of the contested decision, the Commission thus increased ABB’s fine by 50% pursuant to point 2 of the Guidelines on the method of setting fines, while the fine was not increased on that basis for any of the applicants. 354 In the light of all of the above, the fifth plea must be rejected, along with the applicants’ first claim in the alternative that Article 2 of the contested decision be annulled in so far as it concerns them. 355 Since no separate plea was raised in support of the applicants’ second claim in the alternative, seeking annulment or a reduction of the fines imposed on them, the action must be dismissed in its entirety. Costs 356 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. As the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Dismisses the action; 2. Orders the applicants to pay the costs. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 12 July 2011. [Signatures] Table of contents Background to the dispute A – Applicants B – Goods concerned C – Administrative procedure D – Contested decision Procedure and forms of order sought by the parties Law A – The main application, seeking annulment of the contested decision in so far as it concerns the applicants 1. The first plea, alleging that the Commission infringed the applicants’ rights of defence a) Arguments of the parties b) Findings of the Court – The first part, alleging a failure to communicate the incriminating evidence – The second part, alleging a failure to communicate the exculpatory evidence 2. The second plea, alleging that the Commission failed to prove the existence of a common understanding or the resulting infringement a) The first part, alleging that the Commission failed to establish the existence of a common understanding The GQ and EQ Agreements – Arguments of the parties – Findings of the Court ABB’s statements – Arguments of the parties – Findings of the Court The witness statements of the employees and of a former employee of ABB – Arguments of the parties – Findings of the Court The evidence furnished by Fuji – Arguments of the parties – Findings of the Court The proposal made by Alstom on 10 July 2002 – Arguments of the parties – Findings of the Court The position of the other addresses of the statement of objections – Arguments of the parties – Findings of the Court The notification and project loading mechanism – Arguments of the parties – Findings of the Court The allocation of GIS projects in the EEA – Arguments of the parties – Findings of the Court Overall assessment – Arguments of the parties – Findings of the Court b) The second part, alleging that the Commission did not establish that the common understanding constituted a restrictive agreement or a concerted practice – Arguments of the parties – Findings of the Court 3. The third plea, alleging that the Commission has not proved the existence of a single and continuous infringement a) The first part, alleging that the Commission failed to establish the existence of a single infringement encompassing the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activity of the European producers within the EEA – Arguments of the parties – Findings of the Court b) The second part, alleging that the Commission has not proved the continuous nature of the cartel – Arguments of the parties – Findings of the Court B – The first claim in the alternative, seeking annulment of Article 2 of the contested decision in so far as it concerns the applicants 1. The fourth plea, alleging that the Commission committed errors in calculating the fines imposed on the applicants a) The first part, alleging an error in the evaluation of the relative weight of the infringement committed by each undertaking – Arguments of the parties – Findings of the Court b) The second part, alleging an erroneous application of the Leniency Notice Arguments of the parties – Findings of the Court c) The third part, alleging an error in the assessment of the facts relating to the duration – Arguments of the parties – Findings of the Court 2. The fifth plea, alleging that the Commission calculated the applicants’ fines by means of a method which infringed the principles of equal treatment and proportionality a) Arguments of the parties b) Findings of the Court Costs * Language of the case: English.