Judgment — ECLI:EU:T:2008:254
Date: 2008-07-08
Language of the case: English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Restriction of competition;Decision of the Commission;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Effects of a declaration that a measure is void;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: United Kingdom

summary of the Commission’s analysis (see recitals 534 to 538 of the contested decision) that it relied on several indicia in order to find that the cartel had an actual impact on the market. The Commission relied on the fact that the cartel participants held all or almost all plasterboard supply on the four markets to which the cartel extended. It also found that the various elements of the cartel were put into practice in that the undertakings in question effectively modified their conduct after the London meeting and that the information exchanges decided on were implemented throughout the period in question, on the main markets and more specifically on the United Kingdom and German markets. As regards prices, it added, referring to recitals 212 and 395 of the contested decision, that they had tended to rise or, at least, stabilise and that the contacts relating to price increases were effectively linked to the publication of price lists subsequently taken into account in the prices invoiced to customers. Furthermore, the Commission, referring to recitals 71, 196 and 289 of the contested decision and the annex thereto, found that market shares had been relatively stable during the period in question, more so than during the period before 1988–1992, which was characterised by the undertakings in question as a price war. 303 Both the fact that the parties involved in the cartel held the majority (indeed even almost all) of the market concerned and that the arrangements brought to light were specifically intended to increase prices to a level higher than that which they would otherwise have reached are indications tending to show that the infringement was capable of producing significant anti‑competitive effects. 304 Thus, the Commission cannot be criticised for having found that the fact that the cartel participants held a very considerable share of the market concerned was an important factor which ought to be taken into account in examining the cartel’s actual impact on the market. It cannot be denied that the probability that a cartel on prices and on market stabilisation is effective increases with the size of the market shares divided among the participants in that cartel. Although that alone does not prove an actual impact, nevertheless in the contested decision the Commission did not show a cause-and-effect relationship of that kind, but merely took it into account in the same way as other factors. 305 As regards the Commission’s assertion that prices effectively tended to rise or, at least, stabilise (recital 534 of the contested decision), it must be pointed out that the Commission does not present statistics on price developments, but notes merely that BPB and Lafarge stated in their replies to the statement of objections that prices on the United Kingdom and German markets had tended to rise or, at least, stabilise. 306 In this respect, the following should be noted. First, concerning Lafarge’s reply to the statement of objections, it is apparent from paragraph 58 above that the Court has decided, for the sake of completeness, to disregard it as inculpatory evidence against the applicant. Second, even if the applicant’s reply to the statement of objections can be interpreted in the way that the Commission claims, namely that, for the United Kingdom and German markets, the applicant itself admitted that prices tended to rise or, at least, to stabilise, the French and Benelux markets are not covered by that assertion. Third, it is apparent from the applicant’s reply to the statement of objections that it stated that, during the period 1992 to 1998, transaction prices had remained at the same level in real terms in the United Kingdom and had fallen in Germany. 307 However, the Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel. It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility is in no way proved (Opinion of Advocate General Mischo in Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, I‑9858, point 109). 308 In the present case, it is apparent from the contested decision and from the applicant’s own admission that the price war came to an end, which, by definition, had the effect of increasing prices to levels higher than they would have reached without the illicit arrangements. 309 Further, the fact that the contacts relating to price increases were linked to the publication of price lists subsequently taken into account in the prices invoiced to customers (recital 534 of the contested decision) had, by its very nature, an impact on the market and on the conduct of the various operators, both on the supply and demand side, given that such announcements influenced the pricing process, in that the price announced constituted a point of reference for individual negotiation of transaction prices with customers (see, to that effect, Case T‑338/94 Finnboard v Commission [1998] ECR II‑1617, paragraph 342), who inevitably saw their scope for price negotiation restricted (see, to that effect, LVM v Commission, paragraph 234 above, paragraph 745). 310 Moreover, the fixing of a price, even one which merely sets a target, affects competition because it enables all the cartel participants to predict with a reasonable degree of certainty what the pricing policy pursued by their competitors will be (Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 21). More generally, such cartels involve direct interference with the essential parameters of competition on the market in question (Thyssen Stahl v Commission, paragraph 270 above, paragraph 675). By expressing the common intention to apply a given price level to their products, the producers concerned do not independently determine their policy in the market, thus undermining the concept inherent in the provisions of the Treaty relating to competition (see, to that effect, BPB de Eendracht v Commission, paragraph 270 above, paragraph 192). 311 The Court therefore considers that the Commission has demonstrated to the requisite legal standard that the cartel had an actual impact on the marked concerned as regards prices. 312 As regards the Commission’s assertion at recital 534 of the contested decision that market shares were relatively stable during the period in question on account of the infringement in question, that assertion is not borne out. Admittedly, it is apparent from the table in the annex to the contested decision, to which the Commission refers, that market shares during the period 1992 to 1998 seem to have remained relatively stable. None the less, in the absence of data relating to the situation on the market concerned before the cartel, that table does not prove to the requisite legal standard that the stability, if established, was the consequence of the infringement in question. 313 So far as concerns the exchanges of information, it is settled case‑law that, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more true where the undertakings concert together on a regular basis over a long period, as is the case here (see HFB and Others v Commission, paragraph 79 above, paragraph 216, and the case-law cited). 314 In the light of the foregoing considerations, the Court finds that the Commission has sufficiently proved the effects of the infringement on the market concerned, with the exception of the stability of market shares. Given the gravity of the conduct in question and the nature of the market, it may also be presumed that there was an effect on the French and Benelux markets. 315 Thus, it is still necessary to consider whether the fact that the Commission has not proved all the alleged effects of the infringement has an impact on the classification of the infringement as a very serious infringement and therefore on the amount of the fine. 316 In this respect, it should be recalled that the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 33). 317 The Court held, in Michelin v Commission, paragraph 273 above (paragraphs 258 and 259), that the gravity of the infringement could be established by reference to the nature and the object of the abusive conduct and that, according to settled case‑law, factors relating to the object of a course of conduct may be more significant for the purposes of setting the amount of the fine than those relating to its effects. 318 The Court of Justice has confirmed that approach by holding that the effect of an anti-competitive practice is not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as price fixing and market sharing (judgment of the Court of Justice in Thyssen Stahl v Commission, paragraph 180 above, paragraph 118). 319 Moreover, it must be remembered that horizontal price agreements have always been regarded as among the most serious infringements under Community competition law (Tate & Lyle and Others v Commission, paragraph 154 above, paragraph 103, and Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 262). 320 Finally, it is also important to point out that the Commission did not attach primary significance to the criterion of the actual impact of the infringement on the market in setting the starting amount of the fine. The Commission also based its determination on other considerations, namely the finding that the infringement was to be classified as very serious by its very nature (recitals 528 to 530 of the contested decision) and that the relevant geographic market constituted a large part of the Community market, geographically and in terms of value, since it represented approximately 80% of the market’s total value (recitals 539 to 542 of the contested decision). 321 Consequently, in the light of all the foregoing considerations, the Commission was right to classify the infringement as very serious. 322 Further, the Court finds, in the exercise of its unlimited jurisdiction and in the light of the foregoing considerations, that the fact that the Commission demonstrated only partially the effects of the infringement is not capable of calling in question the Commission’s assessment of the starting amount of the fine set according to gravity. The determination of the starting amount of the fine according to the gravity of the infringement – Arguments of the parties 323 The applicant considers that, according to the third indent of the second paragraph of Section 1.A of the Guidelines, a very serious infringement will attract a fine of a starting amount which will be likely to be above EUR 20 million. The applicant takes the view that, in view of that provision, the Commission should explain on the basis of which criterion it chose an amount above EUR 20 million. In the absence of such an explanation, the figure chosen appears to have been chosen at random. 324 The applicant asserts that its fine is also disproportionate and excessive when compared with its turnover. It observes that the fine imposed represents 18.1% of its plasterboard turnover in Europe, 24.3% of its plasterboard turnover in the four main markets, and 44.4% of its plasterboard turnover in the United Kingdom and Germany in 2001‑2002. Moreover, its fine is much higher in terms of its turnover than the other fines imposed for the same or comparable infringements. 325 The applicant submits that, in examining the proportionality of the fine, a comparison with other cases must be ‘illuminating’. It asks by what yardstick proportionality is to be measured if it is not able to argue that the fine is disproportionate by comparison even with contemporaneous cases or by reference to the applicant’s turnover or that of other undertakings. 326 The applicant also maintains that the Commission’s delay of at least one year in taking the contested decision has contributed to the imposition of a much higher fine than would have been likely had that decision been taken at the end of 2001 rather than on 27 November 2002. At that time, the Commission tried to deflect public attention away from a number of setbacks in a series of merger cases and therefore sought to derive maximum political capital from the imposition of ‘heavy fines’ for that cartel. 327 The Commission asserts that the starting amounts it selected for each of the undertakings bear a clear and proportionate relationship to each other and to the gravity of the infringement. 328 The Commission states that the reasons which prompted it to set the initial amount at EUR 80 million are set out in recitals 545 to 549 of the contested decision. It states that it is not required to give further reasons for its choice. 329 The Commission contends that any comparison between the fines imposed in the other cases is not illuminating, because it determines the amount of the fines case by case and may in any event increase the general amount of fines within the limits set by Regulation No 17 if that proves necessary in order to implement competition policy. The Commission gives a table of the starting amounts of fines imposed in cases concerning markets with the largest values to demonstrate that the starting amount of the fine imposed on the applicant is no higher than those of the fines imposed in other cases and that, on the contrary, it is significantly lower when the size of the relevant market is taken into account. It emphasises, however, that it does not seek to justify the starting amount by reference to that table, which relates to only one of the factors taken into account in assessing the starting amount. 330 Finally, the Commission submits that BPB has shown neither that there has been unreasonable delay, given the complexity of the case, nor that this delay had caused any prejudice to its rights of defence. BPB’s assertions concerning the political climate are pure speculation, and wholly irrelevant to the question whether the fine was lawfully imposed. – Findings of the Court 331 As regards the scope of the duty to state reasons as it applies to the setting of a fine imposed for infringement of the Community competition rules, it should be noted, first, that such a fine must be fixed in the light of the provisions of the second subparagraph of Article 15(2) of Regulation No 17, which states that ‘[i]n fixing the amount of the fine, regard shall be had both to the gravity and the duration of the infringement’. In this respect, the Guidelines and the Leniency Notice indicate what factors the Commission takes into consideration in measuring the gravity and duration of an infringement (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 217). In those circumstances, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and, where appropriate, the Leniency Notice and which enabled it to determine the gravity of the infringement and its duration for the purpose of calculating the amount of the fine (Cheil Jedang v Commission, cited above, paragraph 218). 332 It is true that, in the present case, the Commission has not indicated figures other than those relating to the market shares of the undertakings in question on the basis of which it set the starting amount of the fine imposed on the applicant at EUR 80 million. 333 However, there is no obligation on the Commission, as part of its duty to state reasons, to indicate in its decision the figures relating to the method of calculating the amount of fines (Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 66). 334 Statements of figures relating to the calculation of the amount of fines, however useful such figures may be, are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C‑182/99 P Salzgitter v Commission [2003] ECR I‑10761, paragraph 75). 335 As regards the reasons underlying the setting of the amount of fines in absolute terms, it must be borne in mind that fines constitute an instrument of the Commission’s competition policy and the Commission must be allowed a margin of discretion when fixing their amount in order that it may channel the conduct of undertakings towards observance of the competition rules (Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59). 336 Moreover, it is important to ensure that fines are not easily foreseeable by economic operators. If the Commission were required to indicate in its decision the figures relating to the method of calculating the amount of fines, the deterrent effect of those fines would be undermined. If the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the competition rules. 337 In the present case, it must be noted that in recitals 522 to 553 of the contested decision the Commission set out the factors which it took into account in calculating the fines on the basis of the gravity of the infringement of each of the undertakings concerned. Those recitals plainly set out the reasoning followed by the Commission in a clear and detailed manner, thereby allowing the applicant to ascertain the factors taken into account in order to measure the gravity of the infringement for the purposes of calculating the amount of the fine and the Court to exercise its power of review. It must therefore be held that the contested decision satisfies the duty to state reasons imposed on the Commission under Article 253 EC. 338 Concerning the applicant’s argument that its fine is disproportionate and excessive when compared with its turnover, it is sufficient to recall that, as the Commission is not obliged to calculate the fine by reference to amounts based on the turnover of the undertakings concerned, it is likewise not required to ensure, where fines are imposed on several undertakings involved in the same infringement, that the final amount of the fines produced by the calculation for the undertakings concerned reflects any distinction between them regarding their total turnover or their turnover in the relevant product market (Dansk Rørindustri and Others v Commission, paragraph 90 above, paragraphs 255 and 312). 339 Further, Community law contains no general principle that the penalty be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraph 101). 340 Article 15(2) of Regulation No 17 likewise does not require that, where fines are imposed on several undertakings involved in the same infringement, the fine imposed on a small or medium-sized undertaking must not be greater, as a percentage of turnover, than those imposed on the larger undertakings. It is clear from that provision that, both for small or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement. Where the Commission imposes on undertakings involved in a single infringement fines which are justified, for each of them, by reference to the gravity and duration of the infringement, it cannot be criticised on the ground that, for some of them, the amount of the fine is greater, by reference to turnover, than that imposed on other undertakings (Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraph 203). 341 The applicant’s argument that the disproportionate nature of the fine imposed is obvious when its amount is compared with that of fines imposed on other undertakings in similar cases must also be rejected. The Commission cannot be compelled to set fines that are proportionate to turnover and also perfectly coherent with those imposed in earlier cases. 342 It must be emphasised, in that connection, that the Commission’s practice in earlier decisions does not in itself serve as a legal framework for fines in competition matters. The fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is estopped from raising that level within the limits indicated by Regulation No 17 if that is necessary to ensure implementation of Community competition policy (Musique diffusion française and Others v Commission, paragraph 278 above, paragraph 109). 343 Furthermore, the gravity of infringements must be established by reference to numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up (Ferriere Nord v Commission, paragraph 316 above, paragraph 33, and LR AF 1998 v Commission, paragraph 275 above, paragraph 236). The relevant data, such as the markets, the products, the countries, the undertakings and the periods concerned differ in each case. It follows that the Commission cannot be compelled to impose on undertakings fines whose amount corresponds to the identical percentage of their respective turnovers in cases that are comparable as regards the gravity of the infringements (see, to that effect, Case T‑67/01 JCB Service v Commission [2004] ECR II‑49, paragraphs 187 to 189). 344 In this respect, it must be borne in mind that the Court has power to assess, in the exercise of its unlimited jurisdiction under Article 229 EC and Article 17 of Regulation No 17, the appropriateness of the amount of the fines. 345 In the present case, the Court finds that the infringement is particularly serious in the light of certain factors, as observed by the Commission at recitals 534, 535 and 539 to 542 of the contested decision, in particular the oligopolistic nature of the market and the fact that the infringement in question affected all or almost all plasterboard supply on the four national markets covered by the cartel. Further, the size of the market concerned, both geographically and in terms of value, was large. The four markets concerned were the four main Community plasterboard markets and accounted for approximately 80% of the total value of the Community market, which amounted to EUR 1.21 billion in the last complete year of the infringement. Lastly, having regard to the nature of the product concerned, the cartel necessarily had an impact on a substantial part of the construction market and thus affected a sector which is very important for the whole of the economy. 346 Moreover, it is not evident that the starting amount set according to the gravity of the infringement in the present case is more severe than that imposed in other cases, having regard to the size of the market in question. However, that comparison does not mean that the size of the relevant market is the best or only criterion for comparing the fines imposed in different cartels. Comparison between different cartels is difficult, given the large number of the various factors that the Commission may take into account in order to assess the gravity of the infringement. Further, as was recalled at paragraph 342 above, such a comparison, in any event, only serves as an indication, since the Commission’s practice in earlier decisions cannot itself constitute a legal framework for fines in competition matters. 347 Given the numerous factors which made the infringement particularly serious in the present case (see paragraph 345 above), the Court finds that the starting amount of the fine imposed on the applicant determined according to the gravity of the infringement is proportionate. 348 Lastly, the applicant’s argument that its fine would have been less severe had the Commission brought the administrative procedure to an end at an earlier stage, given that it is only very recently that it has increased the general level of penalties, must be rejected. Even if it is accepted that the general level of fines has increased during the period of the administrative procedure, it is sufficient to recall that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (Musique diffusion française and Others v Commission, paragraph 273 above, paragraph 109, and judgment of the Court of Justice in Dansk Rørindustri and Others v Commission, paragraph 90 above, paragraph 169). 349 It follows from all the foregoing that the applicant’s arguments seeking to show that the starting amount of the fine determined according to the gravity of the infringement was disproportionate must be rejected. – Duration of the infringement Arguments of the parties 350 The applicant considers that the Commission incorrectly assessed the duration of the alleged infringement on the basis of separate and distinct facts. The Commission was wrong to conclude that it had committed an infringement lasting from 31 March 1992 to 25 November 1998, namely six years and seven months, amounting to an infringement of long duration justifying an increase of 65% of the starting amount of the fine. 351 The applicant maintains that the alleged infringements relate to two separate periods. The first includes the London meeting and the exchange of information between Mr [A] and the cousins of the Knauf family from 1992 to early or mid-1993, and the second includes information exchanges from mid‑ or late 1993 to 1998 between Mr [D] and the CEOs of the undertakings in question. Those events have no connection with other alleged infringements, which occurred in the period 1994 to 1998 or with the information exchanges on United Kingdom sales from mid‑1992 to February 1998. 352 In those circumstances, the applicant maintains that there was no complex and continuous agreement and contends that, under Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), infringements occurring before the five-year period ending with the commencement of the Commission inspections are time barred and cannot be the subject of any fine. 353 Moreover, the applicant maintains that Mr [D] continued the information exchanges in March and November 1998, even though it had prohibited them in March 1998. The applicant considers that it cannot be responsible for action taken by an employee who is acting contrary to its instructions and that the end of the infringement should therefore be set at the end of March 1998. 354 The applicant further claims that the Guidelines are unclear on the question whether the Commission is entitled to take into account partial years. Adopting a strict interpretation of the Guidelines, the applicant submits that the Commission was entitled only to impose an increase of 60% of the starting amount, rather than 65%, that is to say 10% for each complete year of infringement. 355 The applicant also observes that the Commission should not always apply a 10% increase, as it has automatically in all the recent cartel cases. The Commission should take account of all the relevant circumstances of the case in determining the increase of the fine. It adds that that was the Commission’s practice in its Decisions 98/273/EC of 28 January 1998 relating to a proceeding under Article [81 EC] (Case IV/35.733 – VW) (OJ 1998 L 124, p. 60) and 2002/190/EC of 21 December 2000 relating to a proceeding under Article 81 [EC] (Case COMP.F.1/35.918 – JCB) (OJ 2002 L 69, p. 1), and in the pre-insulated heating pipes case, in which it took account of the intensity of the infringement in the different periods. 356 The Commission considers that BPB’s arguments are yet another attempt to challenge the Commission’s finding in the contested decision of a single, complex and continuous infringement. 357 As regards the conduct of Mr [D], the Commission contends that it is not required to distinguish between various organs of the undertakings, some of whom are actively involved in the cartel and some of whom were attempting to put an end to the infringement. 358 According to the Commission, there is nothing in the Guidelines to indicate that the Commission must confine itself to increasing the amount of fines only for complete years of infringements. It explains that the risk of having to pay a much larger fine, proportionate to the duration of the infringement, will necessarily increase the incentive to denounce it or to cooperate with the Commission. Any other approach would be inconsistent with its stated goal of increasing the fine proportionately to the duration of the infringement. Findings of the Court 359 The applicant’s arguments seeking to show that this case involves separate infringements, part of which is therefore time barred, overlap with those set out in the third plea. Thus, since the Court held earlier that the Commission did not err in finding that it was a single and continuous infringement, the applicant’s arguments must be rejected. 360 The applicant’s argument that its participation in the infringement would have already come to an end in March 1998 if Mr [D] had not disobeyed its instructions is irrelevant. An undertaking – that is to say an economic unit comprising personal, tangible and intangible elements (Case 19/61 Mannesmann v High Authority [1962] ECR 357, 371) – is directed by the organs provided for in its articles of association and any decision imposing a fine on it may be addressed to the management as provided for in those articles of association (management board, management committee, chairman, manager, and so on). The rules of competition would be easily circumvented if the Commission, faced with unlawful conduct on the part of an undertaking, were required to ascertain and to prove who is the author of the various activities, which could have the effect of preventing it from penalising the undertaking which benefited from the cartel. 361 As regards the applicant’s assertion that the Guidelines are unclear on the question whether the Commission is entitled to take into account partial years, it is sufficient to note that nothing in the Guidelines prevents the actual duration of the infringement from being taken into account in the calculation of the amount of the fine. Such an approach is entirely logical and reasonable and falls, in any event, within the Commission’s discretion. 362 As regards the applicant’s objection to the fact that the Commission automatically applied the maximum rate of 10% per year, it must be borne in mind that, even if the third indent of the first paragraph of Section 1.B of the Guidelines does not provide that there should be an automatic increase of 10% per year for infringements of long duration, it leaves the Commission a margin of assessment in that connection (Cheil Jedang v Commission, paragraph 331 above, paragraph 134). 363 In the present case, at recital 554 of the contested decision, the Commission found that BPB had committed the infringement for six years and seven months, that is a long duration for the purposes of the Guidelines, and it thus increased the amount of the fine determined on the basis of the gravity of the infringement to 65%. It is apparent from this that the Commission complied with the rules which it had imposed upon itself in the Guidelines. Furthermore, the Court considers that, having regard to the duration of the infringement, the increase of 65% is not disproportionate in the present case. 364 So far as concerns the applicant’s assertion that the Commission did not take account of the different levels of intensity of the infringement during the period in question, it must be borne in mind that the increase is calculated by the application of a certain percentage to the starting amount which is determined according to the gravity of the infringement as a whole, thus already reflecting the different levels of intensity of the infringement. Thus, it would not be logical to take into account, for the increase of that amount on the basis of the duration of the infringement, a variation in the intensity of the infringement during the period concerned. 365 In so far as BPB submits that in other cases concerning restrictions of a similar nature and duration the Commission applied increases in respect of the duration of the infringement that were lower than that applied in the present case, it is sufficient to point out that the Commission’s practice in earlier decisions does not in itself serve as a legal framework for fines in competition matters, since that framework is defined solely in Regulation No 17 and that, moreover, economic operators cannot have a legitimate expectation that an existing situation which is capable of being altered by the Commission in the exercise of its discretionary power will be maintained (judgment of the Court of Justice in Dansk Rørindustri and Others v Commission, paragraph 90 above, paragraph 171). 366 It follows that the complaint alleging that the Commission erred in increasing the amount of the fine in respect of the duration of the infringement must be rejected. Repeated infringement Arguments of the parties 367 The applicant considers that the increase of 50%, that is EUR 66 million, of the basic amount of the fine for repeated infringement is excessive and disproportionate. 368 First, the applicant claims that the role played by its subsidiary in the earlier infringement was minor and passive (Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article [81 EC] (IV/C/33.833 – Cartonboard) (OJ 1994 L 243, p. 1)). Consequently, the fine ultimately imposed on its subsidiary was only EUR 750 000. Moreover, the earlier infringement was penalised more than eight years before the contested decision was issued. The applicant maintains that the Commission is not entitled to determine an increase mechanically on the basis of the existence of an earlier infringement. It should take account of all the circumstances of the earlier infringement: its nature, the circumstances in which it was committed, how long ago it took place and the penalty imposed. The applicant refers to a number of jurisdictions to show that the nature of any earlier infringement and the time that has elapsed since it was committed are taken into account when a court envisages an increase of the penalty for repeat offences. 369 Second, the applicant claims that the Commission is not entitled to increase the fine on account of repeated infringement where the first offence is contemporaneous with the second offence. In this case, the decision in Cartonboard (see paragraph 368 above) was adopted on 13 July 1994 and, accordingly, the increase of 50% should have been applied only as from that time. According to the applicant, the increase should therefore be reduced accordingly to EUR 43.7 million. Looked at another way, the aggravation factor should only be applied to the fine increased in respect of the duration of the infringement from July 1994. In that case, the amount to be added for aggravating circumstances would be EUR 56 million. 370 Third, the applicant maintains that the increase is excessive and disproportionate because it exceeds the starting amount of the fine imposed in respect of the gravity of the infringement on Knauf, Lafarge and Gyproc. 371 Fourth, the applicant claims that the increase exceeded the 30% decrease in the fine awarded to it to recognise its cooperation with the Commission in this case. Reductions granted for cooperation should be real and should not be cancelled out on account of the increase for repeated infringment. 372 Fifth, the applicant claims that there is only one Commission decision, that concerning the British Sugar case (see paragraph 264 above), in which the increase was higher, namely 75% of the basic amount, and that, in that case, the increase was based on British Sugar’s role as instigator of the first infringement. In the light of the circumstances of that case and of Commission Decision 2002/405/EC of 20 June 2001 relating to a proceeding pursuant to Article 82 [EC] (COMP/E‑2/36.041/PO – Michelin) (OJ 2002 L 143, p. 1), the increase of 50% which was applied to it is excessive. 373 Finally, the applicant claims that the Commission applied to it the same increase in respect of repeated infringement as to Lafarge even though the infringement committed by Lafarge in the case which gave rise to Commission Decision 94/815/EC of 30 November 1994 relating to a proceeding under Article [81 EC] (Cases IV/33.126 and 33.322 – Cement) (OJ 1994 L 343, p. 1) was more serious than that penalised in the Cartonboard case. The Commission should have taken account of the differences between the two earlier cartels, in particular Lafarge’s significant role, the long duration of the cartel in which Lafarge had participated and the fact that Lafarge had been fined EUR 14.9 million for that infringement. By not taking account of those differences and by imposing the same increase of 50% on both the undertakings, the Commission infringed the principle of equal treatment. 374 The Commission considers repeat offending to be an aggravating circumstance because the undertaking commits a further infringement despite having been penalised for an infringement of the same type and therefore having received a clear warning that those actions were unlawful and not to be repeated. 375 As regards the applicant’s argument that the first and second infringements are contemporaneous and that the increase should be applied pro rata, the Commission maintains that the applicant fails to take account of the aim of the increase, which is to penalise the undertaking’s willingness to infringe the competition rules despite earlier penalties being imposed. 376 It is wholly irrelevant whether the increase for repeat offending is above or below the starting amount of the fine imposed on other undertakings or the reduction granted on account of BPB’s cooperation. 377 According to the Commission, BPB has added a complaint which was not made in the application, namely that the Commission should have considered the length of time that has elapsed since its previous offence which, according to the reply, took place ‘more than eight years before the decision in this case was issued’. That complaint is inadmissible under Article 44(1)(c) of the Rules of Procedure. Findings of the Court 378 It follows from the case‑law that the taking into account of aggravating circumstances when setting the amount of the fine is consistent with the Commission’s task of ensuring compliance with the competition rules (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 71). 379 Thus, 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, paragraph 36 above, paragraph 91). 380 The applicant’s argument that the Commission did not correctly take account of all the circumstances of the earlier infringement must be rejected. 381 First of all, as regards the period of time which elapsed between the two infringements, it is common ground that the first infringement was penalised after the beginning of the infringement at issue. 382 In accordance with settled case-law, the Commission has a discretion as regards the choice of factors to be taken into account for the purposes of determining the amount of fines, such as the particular circumstances of the case, its context and the dissuasive effect of fines, there being no need to refer to a binding or exhaustive list of the criteria which must be taken into account (order in Case C‑137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54, and Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33). 383 It must be emphasised that the finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and that the Commission cannot be bound by any limitation period when making such a finding. Repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a tendency, including the time that has elapsed between the infringements in question. 384 In this respect, it should be noted that the Court has held that a time lapse of less than 10 years between the findings of two infringements showed a tendency on the part of an undertaking not to draw the appropriate conclusions from a finding that it had infringed the competition rules (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraphs 354 and 355). 385 A fortiori, in the present case, the history of the infringements found against the applicant shows a tendency on its part not to draw the appropriate conclusions from a finding that it had infringed the competition rules, given that, having already been the subject of Commission measures imposed previously by the decision in the Cartonboard case, the applicant continued for more than four years to participate actively in the cartel at issue in the present case after that decision had been notified to it. 386 In those circumstances, it is not necessary to examine the admissibility of the applicant’s argument relating to the period of time which elapsed between the sanctioning of the first infringement and the issuing of the contested decision. 387 Next, with regard to the characteristics of the previous conduct, 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 of Community competition law has been made in the past (Groupe Danone v Commission, paragraph 384 above, paragraph 363). 388 The purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct when it transpires that a previous finding of infringement on its part has not been sufficient to prevent the repetition of unlawful conduct. Thus, it is not the previous imposition of a fine, and a fortiori not the amount thereof, which is determinative of repeated infringement, but the fact that a previous finding of infringement has been made. 389 Lastly, the applicant does not even claim that the infringement for which its subsidiary was penalised in the Cartonboard case is not of the same type as that in question in this case. 390 Consequently, the Commission did not err in finding, in the present case, that the specific circumstances of the case, in particular the fact that the same undertaking had already been the subject of a finding of infringement and that, despite that finding and the penalty imposed, it had continued to participate in a similar infringement of the same Treaty provision, were proof of repeated infringement. 391 Concerning the applicant’s argument that where the first offence is contemporaneous with the second offence the Commission is entitled to increase the amount of the fine on account of repeated infringement only from the time of the adoption of the first decision penalising one of those offences, it must be rejected. 392 It is true that a policy of penalising repeated infringement can have no practical effect on the perpetrator of an infringement unless the threat of a more severe penalty for a new infringement is capable of inducing him to change his conduct. The taking into account of a repeated infringement is justified by the need to ensure a higher level of deterrence, as demonstrated by the fact that a previous finding of an infringement had not been sufficient to prevent the repetition of the infringement. Thus, a repeated infringement necessarily arises after the finding and the sanctioning of the first infringement, since it is explained by the fact that that penalty was not a sufficient deterrent. 393 In this respect, in Thyssen Stahl v Commission, paragraph 270 above, the Court of First Instance held that the Commission’s decision was vitiated by an error of law in so far as the increase of the amount of the fine imposed on Thyssen Stahl AG was based on the consideration that the Commission had already penalised it for similar infringements by Decision 90/417/ECSC of 18 July 1990 relating to a proceeding under Article 65 of the ECSC Treaty concerning an agreement and concerted practices engaged in by European producers of cold‑rolled stainless steel flat products (OJ 1990 L 220, p. 28), whilst, in the case then before the Court, the greater part of the infringement period, from 30 June 1988 to the end of 1990, taken into account against Thyssen Stahl, pre-dated that decision (paragraphs 617 to 625). 394 However, unlike in Thyssen Stahl v Commission, paragraph 270 above, in which the greater part of the infringement took place before the first decision, in the present case, BPB continued to participate in the cartel in question for more than four years after the decision adopted in the Cartonboard case. 395 As stated in paragraph 382 above, the assessment of the specific characteristics of a repeated infringement depends on an appraisal of the circumstances of the case by the Commission in the course of its discretion. 396 In the circumstances of the present case, the Court holds that the Commission did not exceed its discretion in finding that the fact that BPB had continued to participate, after the first finding of an infringement, in a similar infringement of the same Treaty provision for more than four years was proof of repeated infringement, and in therefore increasing the amount of the fine for that reason. 397 With regard to the level of that increase, the Court recalls that, when fixing the amount of the fine, the Commission has discretion. In this respect, it is not required to apply specific mathematical formulae (Michelin v Commission, paragraph 273 above, paragraph 292). 398 Furthermore, in the context of deterrence, repeated infringement justifies a significant increase in the basic amount of the fine. It is evidence that the sanction previously imposed was not sufficiently deterrent (Michelin v Commission, paragraph 273 above, paragraph 293). 399 As regards the rate of increase applied in the present case, the Court considers that it is proportionate. In this respect, it should be noted that the decision adopted in the Cartonboard case and the contested decision concern similar infringements. The consequences of that finding cannot be called in question by the applicant’s assertion that the role played by its subsidiary in the Cartonboard case was minor and passive. What matters is the fact that, despite the finding that there has been an infringement of Community competition law, the undertaking in question continued to infringe it. Accordingly, the Commission was entitled to increase the basic amount of the fine by 50% in order to channel the conduct of the applicant towards observance of the Treaty competition rules. 400 In so far as the applicant’s argument that the increase on account of repeated infringement was not proportionate relies, in essence, on the fact that the increase in absolute terms (EUR 66 million) is disproportionate, it must be rejected. 401 When setting an increase for repeated infringement, the Commission may confine itself to examining what would be the proportional percentage and does not need to take into account the amount, in absolute terms, of the increase of the basic amount of the fine as a result of the application of that percentage. As long as the percentage increase is not excessive, the increase in absolute terms is only the mathematical consequence of the application of that percentage to the basic amount, whose proportionality in relation to the gravity and duration of the infringement in question was examined separately. 402 Consequently, the increase of 50% of the basic amount of the applicant’s fine on account of repeated infringement is not disproportionate. 403 So far as concerns the Commission’s previous practice, the applicant claims that there is only one Commission decision, in the British Sugar case, in which the increase was higher (75%), and that, in that case, the increase was based on British Sugar’s role as instigator of the first infringement. The applicant considers that, in the light of the circumstances of that case, the increase of 50% applied to it is excessive. 404 As regards the comparisons with other Commission decisions imposing fines for infringements of the competition rules, those decisions can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions are identical to those of the present case (see, to that effect, JCB Service v Commission, paragraph 343 above, paragraph 187). 405 However, the applicant has failed to adduce sufficient evidence that those conditions have been met in the present case. In particular, the applicant does not refer to any decisions contemporaneous with that of the present case in which the Commission applied a lower percentage increase for circumstances similar to those of the present case. As regards the reference to the Michelin decision, in which Michelin was penalised for repeated infringement in respect of a rebate system designed to secure customers’ loyalty, that is clearly a different set of circumstances from those of the present case, since such a rebate system cannot be deemed equivalent, in terms of the gravity of the Community competition law infringement, to a secret cartel concerning prices and the stabilisation of a market of considerable value. 406 In any event, the mere fact that, in another decision, the Commission increased the basic amount for a repeated infringement differently does not mean that it was required to apply the same percentage increase in the contested decision. The Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 17 (Michelin v Commission, paragraph 273 above, paragraph 292). 407 The applicant also maintains that the increase is excessive and disproportionate because it exceeds the starting amount of the fine imposed for the gravity of the infringement on Knauf, Lafarge and Gyproc. 408 That argument is irrelevant. Since BPB’s fine was determined correctly and the increase for repeated infringement is proportionate, the fact that the increase in absolute terms is higher than the starting fines imposed on the other cartel participants is just a mathematical consequence of the increase which is unrelated to the amount of the other fines. 409 The applicant also claims that the increase was more than the 30% decrease in the fine awarded in recognition of its cooperation with the Commission in this case. 410 That argument is also irrelevant, since they are two separate stages in determining the amount of the fine. 411 Finally, the applicant claims that the Commission applied to it the same increase for repeated infringement as to Lafarge even though the infringement committed by Lafarge in the Cement case was more serious than that penalised in the Cartonboard case. 412 That argument is also unfounded. As explained above, since the increase for repeated infringement relates to an aggravating circumstance specific to the undertaking in question, the fact that the characteristics of the earlier infringement committed by Lafarge are not analogous to those of the earlier infringement attributed to the applicant is irrelevant. What is relevant is the fact that both undertakings were previously involved in very serious infringements, but that, despite the finding of those infringements, they did not bring to an end their involvement in the infringement penalised in the case in point. 413 It follows from all the foregoing that the applicant’s arguments relating to the taking into account of the repeated infringement must be rejected. Attenuating circumstances Arguments of the parties 414 The applicant considers that the Commission should have reduced the amount of the fine by virtue of the measures taken before and after the Commission’s investigation. It submits that the Commission was wrong to regard its efforts as ineffective. The Commission’s refusal to recognise its efforts is contrary to the principles of equal treatment and protection of legitimate expectations. 415 First, the applicant claims that, on the basis of allegations contained in the anonymous letter, it engaged the services of independent lawyers to carry out its own investigations (‘Project Alpha’). On the basis of the conclusions of Project Alpha, the applicant’s Board of Directors implemented a more formal competition law compliance programme, under which it adopted a more formal policy statement on compliance which the directors, the other officers and members of staff concerned were required to sign. The applicant also decided to cease all information exchanges and instructed a firm of lawyers to help it design and implement various further elements of its formal compliance programme. 416 Second, the applicant claims that, after the opening of the Commission investigation, the measures taken by it evinced a high level of cooperation. It gave the inspectors unhindered access to its business records and computers. It also provided the documents requested and Mr [D] accurately answered the questions put by the Commission. Moreover, it provided the Commission, in its reply to the second request for information, with information of which the Commission had no previous knowledge. The applicant considers that, because of its efforts to bring the infringement to an end even before the start of the Commission’s investigations and its willing cooperation during the investigations, the amount of its fine should be further reduced. 417 The applicant rejects the Commission’s argument that it destroyed or concealed evidence. The applicant states that those allegations are not supported by any evidence. It states that, although documents were removed in connection with Project Alpha, a note recording their removal was left in the file. 418 Third, with regard to the fact that its CEO, Mr [D], disobeyed the instructions of its Board of Directors and continued the information exchanges without the knowledge of the Board or that of any of the staff, the applicant considers that it cannot be held responsible for Mr [D]’s activities, particularly because of his independent position. The applicant also claims that when Mr [D]’s continued information exchanges came to light, he had to leave his position immediately without any compensation. The applicant states that Mr [D]’s failure to obey its instructions was the only occasion on which its efforts to terminate the infringement failed. Consequently, the Commission cannot say that the measures taken by the applicant were ineffective. 419 Fourth, the applicant maintains that it withdrew from the information exchange system in April 1998. Thus, had it not been for Mr [D]’s wilful disregard of the instructions from the Board of Directors, there would have been total compliance from March 1998. Furthermore, it submits that it is entitled to a reduction of the fine for having terminated the infringement immediately after the Commission’s intervention. 420 Fifth, the applicant submits that it did not profit from the infringement. Prices remained at the same level in real terms in the United Kingdom and fell in Germany whilst its costs were rising. Moreover, its market share in each of the four markets concerned was less in 1998 than in 1992 and its turnover did not reach its 1991–1992 level until 1997–1998. Furthermore, prices would have recovered in any event following the end of the price war. The applicant considers that if the Commission can increase the amount of a fine on account of profits obtained following an infringement, it should also take account of the absence of any profit from the infringement and reduce the amount of the fine. 421 The Commission disputes the applicant’s arguments. 422 The Commission considers that, in its reply, BPB sets out a new argument seeking a reduction of the amount of the fine for ceasing the infringement after the Commission’s investigations at the end of 1998. That new argument is inadmissible at this stage of the procedure. It is also unfounded since the Commission is not required, as a general rule, either to regard the continuation of an infringement as an aggravating circumstance or to regard the termination of an infringement as a mitigating circumstance. Findings of the Court 423 First, with regard to the measures adopted by the applicant in order to prevent a repeated infringement on its part (the dismissal of its senior executive officers involved in the offending conduct and the adoption of internal programmes to ensure compliance with the competition rules and awareness‑raising initiatives for the staff in that connection), it should be noted that, whilst it is indeed important that an undertaking takes steps to prevent fresh infringements of Community competition law from being committed by members of its staff in the future, that circumstance cannot affect the fact that an infringement was found to have been committed. It follows that the mere fact that in certain cases the Commission took the implementation of a competition law compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in any given case (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 280). 424 The Commission is therefore not required to take a circumstance such as that into account as a mitigating factor, provides that it adheres to the principle of equality of treatment, which requires that it should not assess the matter differently for any undertaking addressed by the same decision (judgment of the Court of First Instance in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 423 above, paragraph 281). There is no indication whatsoever in the contested decision that the Commission’s assessment differentiated in this respect as between the four undertakings in question, and the applicant does not claim that that was the case. 425 Second, the applicant claims that the measures that it took after the opening of the Commission investigation evinced a high level of cooperation and that, consequently, its fine should be further reduced. Those arguments overlap with the question whether the Commission correctly took account of the applicant’s cooperation in the context of the Leniency Notice. Accordingly, the applicant’s cooperation during the administrative procedure will be examined below, but does not constitute an attenuating circumstance justifying a reduction separate from that granted under the Leniency Notice. 426 It should, however, be borne in mind that the possibility of granting to an undertaking which has cooperated with the Commission during proceedings for infringement of the competition rules a reduction of the fine outside the framework laid down by the Leniency Notice is recognised by the Guidelines, the sixth indent of Section 3 of which provides for the taking into account, as an attenuating circumstance, of ‘effective cooperation by the undertaking in the proceedings, outside the scope of the [Leniency Notice]’. 427 However, to the extent that this complaint must be interpreted as seeking a finding that the Commission should have granted the applicant another reduction of its fine under that provision, it must be pointed out that the infringements in the present case fall well within the scope of application of the Leniency Notice, Section A.1, first subparagraph, of which refers to secret cartels between undertakings aimed at fixing prices, production or sales quotas, sharing markets or banning imports or exports. The applicant cannot therefore validly complain that the Commission failed to take into account the extent of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 586). 428 Moreover, such a complaint cannot be levelled at the Commission, even if it were necessary to accept that cooperation with an investigation into horizontal cartels which fix prices and share sales is capable of being rewarded under the sixth indent of Section 3 of the Guidelines. If that were to be the case, a reduction under that provision would necessarily mean that the cooperation in question was not capable of reward under the Leniency Notice and that it was effective, that is to say, that it facilitated the Commission’s task of finding and putting an end to infringements of the competition rules (BASF v Commission, paragraph 427 above, paragraphs 587 and 588). 429 Third, the applicant considers that it cannot be held responsible for the fact that Mr [D], its CEO, disobeyed the instructions of its Board of Directors and continued the information exchanges without the knowledge of the Board or of any of the staff. 430 That argument is irrelevant. An undertaking – that is to say an economic unit comprising personal, tangible and intangible elements (Case 19/61 Mannesmann v High Authority, paragraph 360 above, 357, 371) – is directed by the organs provided for in its articles of association and any decision imposing a fine on it may be addressed to the management as provided for in those articles of association (management board, management committee, chairman, manager, and so on). The rules of competition would be easily circumvented if the Commission, faced with unlawful conduct on the part of an undertaking, were required to ascertain and to prove who is the author of the various activities, which could have the effect of preventing it from penalising the undertaking which benefited from the cartel. 431 Although BPB claims to have been betrayed by its former CEO, who failed to follow the explicit instructions of his Board of Directors, the solution to that conflict must be sought in the relationship between Mr [D] and BPB, and not at the level of the Commission’s application of competition law. Thus, even if Mr [D] did in actual fact disobey the instructions of BPB’s Board of Directors and continue the information exchanges without the latter’s knowledge, the Commission was entitled to impose a fine on the undertaking, whilst BPB and/or its owners were free to pursue any action deemed appropriate against Mr [D]. 432 Fourth, the applicant maintains that it withdrew from the information exchange system in April 1998. Thus, had it not been for Mr [D]’s wilful disregard of the instructions from the Board of Directors, there would have been total compliance from March 1998. 433 That argument overlaps in part with the previous one and is no more relevant. Since the applicant is responsible for Mr [D]’s activities, the infringement continued until November 1998. 434 Furthermore, the Commission rightly found that, even if the withdrawal from the information exchange system demonstrated a willingness to avoid conduct which could give rise to suspicion, it was not accompanied by other measures designed to put an end to the collusive arrangements, as illustrated by the continued exchange of information or the discussions which took place between competitors at The Hague. 435 As regards the applicant’s argument relating to the termination of the infringement after the Commission’s investigation, which the Commission regards as inadmissible, it must be stated that the applicant already referred, in its application, to ‘prompt termination of the infringement as a mitigating factor’. Thus, that argument does not constitute a new plea for the purposes of Article 48(2) of the Rules of Procedure but the amplification of a plea made previously, whether directly or by implication, in the original application and must be considered admissible (see Case C‑66/02 Italy v Commission [2005] ECR I‑10901, paragraph 86, and the case-law cited). 436 Under the third indent of Section 3 of the Guidelines, ‘termination of the infringement as soon as the Commission intervenes (in particular when it carries out checks)’ is an attenuating circumstance. However, a reduction of the fine by reason of the termination of an infringement as soon as the Commission intervenes cannot be automatic but depends on an appraisal of the circumstances of the case by the Commission in the course of its discretion. In that regard, the application of that provision of the Guidelines in favour of an undertaking will be particularly appropriate where the conduct in question is not manifestly anti‑competitive. Conversely, its application will be less appropriate, as a general rule, where the conduct is clearly anti‑competitive, on the assumption that it is proven (Case T‑44/00 Mannesmannröhren‑Werke v Commission [2004] ECR II‑2223, paragraph 281; see also, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission [2005], not published in the ECR, paragraphs 292 and 294). 437 Even if, in the past, the Commission has regarded voluntary termination of an infringement as an attenuating circumstance, it is entitled, when applying its Guidelines, to take account of the fact that, even though their illegality was established at the inception of Community competition policy, very serious manifest infringements are relatively frequent and, therefore, to take the view that it is appropriate to abandon that generous practice and no longer reward the termination of such an infringement by a reduction of the fine. 438 In those circumstances, the appropriateness of a reduction of a fine by reason of termination of the infringement depends on whether the applicant could reasonably doubt the illegality of its conduct. 439 In the present case, it should be recalled that the infringement in question relates to a secret cartel whose object was an exchange of information in an oligipolistic market and a stabilisation of markets. That type of cartel constitutes a very serious infringement. The undertakings concerned must therefore have been aware of the unlawful nature of their conduct. The secret nature of the cartel confirms moreover the fact that the undertakings concerned were aware of the unlawful nature of their actions. 440 Accordingly, for the reasons set out above, the failure in the present case to take the termination of the infringement as soon as the Commission intervened into account as an attenuating circumstance cannot be regarded as incorrect. 441 Fifth, with regard to the applicant’s argument that the Commission did not take account of the fact that it had not benefited from the infringement in question, it must be borne in mind that, whilst the amount of the fine imposed on an undertaking must be proportionate to the duration of the infringement and the other factors capable of affecting the assessment of the gravity of the infringement, including the profit that it was able to derive from those practices, the fact that an undertaking did not benefit from an infringement cannot preclude the imposition of a fine since otherwise it would cease to have a deterrent effect (Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 89). 442 Lastly, it must be stated that, although the Commission may, under its Guidelines (Section 2, fifth indent) and in respect of aggravating circumstances, increase a fine in order to exceed the amount of gains improperly made as a result of the infringement, that possibility does not mean that the Commission is then under an obligation to establish in every case, for the purpose of determining the amount of the fine, the financial advantage linked to the infringement found to have been committed. In other words, the absence of such an advantage cannot be regarded as an attenuating circumstance (SNCZ v Commission, paragraph 441 above, paragraph 91). 443 Consequently, the applicant’s arguments seeking to obtain a reduction in respect of attenuating circumstances must be rejected. Cooperation Arguments of the parties 444 The applicant maintains that the Commission infringed the principle of the protection of legitimate expectations and the principle of fairness by deciding that the measures taken by it merited a reduction of only 30% of the amount of the fine in accordance with Section D of the Leniency Notice. The applicant considers that it should have been granted a reduction of 50% to 75% of the amount of the fine in accordance with Section C of the Leniency Notice. 445 The applicant submits that it provided decisive information on which the contested decision relied heavily. For example, that the Commission would not have obtained any information concerning the London meeting, which was the factual basis of the start of the infringement, without its admission in response to the second request for information. In that connection, it states that the Commission’s question related only to the information exchanges conducted under the direction of the chief executives of the four companies in question. It could therefore have confined itself strictly to answering that question. However, in the meantime, it had learned from its former Chairman and Chief Executive, Mr [A], that a meeting had taken place in 1992. It chose to disclose that meeting and what took place. That was therefore a major admission. The information exchanges in the United Kingdom and the advance warning of one or two list price rises in the United Kingdom would likewise not have come to light without its cooperation. It states that, on a fully voluntary basis, it admitted that there had been discussions on the attempt to share the German markets in Versailles and also admitted in its reply to the statement of objections that other discussions had taken place in Brussels at the end of 1997 and at a dinner in The Hague, even though it contends that no agreement had been concluded. The applicant states that it also admitted its participation in the information exchange system. Moreover, even though certain information concerning those exchanges was obtained from the inspection of BPB’s head office, the information provided by BPB gave the Commission a better understanding of the exchanges. 446 Although Knauf confirmed the existence of the London meeting and the Commission also relied to some extent on the evidence provided by Knauf concerning that meeting, Knauf acted in that way only because the meeting was referred to in the statement of objections. Knauf would have had nothing to confirm if BPB had not disclosed the existence of the meeting prior to the issue of the statement of objections. Moreover, after its initial inspections, the Commission was not in a position to initiate an administrative procedure because, rather than doing so, it continued the preliminary investigation phase by issuing requests for information to the undertakings concerned. One of those requests, addressed to the applicant, was based entirely on information it had provided voluntarily. It was therefore only after the receipt of the applicant’s information that the Commission was in a position to issue the statement of objections. 447 The applicant claims that, had Mr [D] not disobeyed its instructions, it would have already ended its involvement in any infringement eight months before the Commission’s inspection. 448 The applicant further observes that it did not compel any other undertaking to take part in the cartel, did not instigate it and did not play a determining role in the offending conduct at issue. 449 Finally, the applicant maintains that, even if the Commission were right to grant it a reduction only under Section D of the Leniency Notice, it infringed the principle of equal treatment by granting Gyproc a reduction of 40% and as regards the applicant a reduction of only 30%. The information provided by it was more decisive for the Commission’s arguments on the ground that the information provided by Gyproc related exclusively to the period 1996 to 1998 and to the German market. As regards the Commission’s argument that Gyproc’s participation in the infringement was less serious than the applicant’s, the applicant takes the view that the extent of the reduction of the amount of the fine the Commission grants to an undertaking should depend on the quality of the information provided, and not on the gravity of an undertaking’s participation in the infringement. 450 The applicant adds that the Commission is not entitled to treat it differently from Gyproc on the basis that Gyproc did not contest the facts or their classification as infringements. It emphasises that its objections related mainly to the inferences the Commission drew from the facts rather than the facts themselves. 451 The Commission considers that its findings under the Leniency Notice could only be annulled if they were vitiated by an error of fact or a manifest error of assessment. 452 The Commission claims that, with the exception of paragraphs 5, 6 and 9 of the table set out on pages 151 to 154 of the application, the information referred to by the applicant was provided either in response to requests for information or given orally in response to questions during investigations. The Commission considers itself entitled not to take account of information of that kind when assessing the cooperation of an undertaking. The Commission states that it took account of the fact that the answers were very detailed and on occasion went further than was necessary to give a full answer. 453 As regards the information given spontaneously, the Commission contends that, as regards paragraph 6 of the table, it already had the information indicated at recitals 201 and 205 of the contested decision. It states that, even before BPB’s admissions, it had sufficient information about paragraph 9 (and paragraph 10) of the table. As regards paragraph 5, although the information was useful and the Commission took account of it to determine the reduction of the amount of the fine under the Leniency Notice, it adds that there were two reports to Mr [D] mentioned in paragraph 77 of the statement of objections. They contain detailed information on sales of the other producers, which could have provided the basis for further inquiries on that question, even though it was not decisive in itself. Thus, much of the information provided by BPB was not decisive. 454 As regards the London meeting, the Commission does not deny that that meeting is an important element of the infringement, but states that, without the information provided on that subject, it would still have been able to establish the existence of a single, complex and continuous infringement on the basis of the anti-competitive conduct as a whole, including the information exchanges regarding which it had direct contemporary proof. Moreover, the information concerning the London meeting was provided in response to a specific question in the second request for information concerning the origins of the exchange of information, so that its disclosure was not absolutely spontaneous. Also, the Commission’s second request for information was not based entirely on the information provided voluntarily by BPB. In fact, the second part of that request related to information provided orally by Mr [D] following the discovery of the two series of tables setting out details of sales by the four major European producers on BPB’s premises on the first day of the Commission’s investigation on 25 November 1998. 455 Consequently, the Commission contends that none of the information provided by BPB was decisive evidence of the cartel’s existence. 456 The Commission emphasises that Gyproc’s participation in the infringement was less serious than that of BPB. On the other hand, in relation to those elements of the cartel in which it participated actively, Gyproc provided important information. Thus, the findings concerning the German market are heavily based on Gyproc’s contribution. The Commission maintains that the information given by that undertaking was as valid for the finding of the infringement as that provided by BPB. Moreover, Gyproc’s statement of 1 September 1999 was not a reply to a request for information. In addition, Gyproc has never contested that those activities constituted an infringement of Article 81(1) EC. Findings of the Court 457 In the Leniency Notice, the Commission set out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from a fine or be granted a reduction in the fine which would otherwise have been imposed on them (see Section A, paragraph 3 of the Leniency Notice). 458 As is stated in Section E, paragraph 3, of the Leniency Notice, the notice has created legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are able to derive from the notice, the Commission must therefore adhere to the notice when, for the purpose of determining the fine to be imposed on an undertaking, it assesses the latter’s cooperation (Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 147). 459 In accordance with Section B of the notice, an undertaking ‘will benefit from a reduction of at least 75% of the fine or even from total exemption from the fine that would have been imposed if [it] had not cooperated’ if it: ‘(a) informs the Commission about a secret cartel before the Commission has undertaken an investigation, ordered by decision, of the [undertakings] involved, provided that it does not already have sufficient information to establish the existence of the alleged cartel; (b) is the first to adduce decisive evidence of the cartel’s existence; (c) puts an end to its involvement in the illegal activity no later than the time at which it discloses the cartel; (d) provides the Commission with all the relevant information and all the documents and evidence available to it regarding the cartel and maintains continuous and complete cooperation throughout the investigation; (e) has not compelled another [undertaking] to take part in the cartel and has not acted as an instigator or played a determining role in the illegal activity’. 460 Furthermore, pursuant to Section C of the notice, ‘[undertakings] which both satisfy the conditions set out in Section B, paragraphs (b) to (e) and disclose the secret cartel after the Commission has undertaken an investigation ordered by decision on the premises of the parties to the cartel which has failed to provide sufficient grounds for initiating the [administrative] procedure leading to a decision, will benefit from a reduction of 50% to 75% of the fine’. 461 The applicant submits, principally, that the Commission was wrong to deny it the reduction of 50% to 75% referred to in Section C of the Leniency Notice. It is thus necessary to ascertain whether the Commission failed to have regard to the conditions for applying that provision. 462 In the present case, the relevant question for deciding whether Section C was applicable in the determination of the amount of the fine imposed on the applicant is whether the investigations carried out by the Commission provided it with sufficient grounds for initiating the administrative procedure leading to the contested decision. 463 The Commission states at recitals 593 and 594 of the contested decision that following its investigations, it had enough information to prove the existence of the cartel and that since BPB did not meet the conditions of Section B(b) of the Leniency Notice, it was therefore not eligible for a major reduction in the amount of its fine under Section C of the Notice. 464 In this respect, it is important to note that the applicant does not claim that it provided decisive evidence in relation to all the manifestations of the cartel or that the Commission would not have been able to demonstrate the existence of the cartel without the evidence that it provided the Commission. It asserts, in essence, that the Commission would not have been able to prove the existence of a single and complex cartel in the way that it did. 465 Consequently, it is necessary to ascertain whether, following its investigations, the Commission had enough information to prove the existence of the cartel which was ultimately penalised. 466 As regards the London meeting, BPB disclosed information about that meeting only in its reply to the second request for information (of 21 September 1999) in response to a specific question: ‘Please state at whose suggestion or initiative the exercise of exchanging data amongst the CEO’s was initiated.’ 467 Thus, since it already knew about the exchanges of information on sales volumes on the four markets concerned, the Commission had, on the basis of the investigations carried out in November 1998, sufficient grounds for initiating the administrative procedure leading to a decision. 468 In this respect, it must be borne in mind that in Case C‑301/04 P Commission v SGL Carbon [2006] ECR I‑5915 the Court held that replies given pursuant to Article 11(1) of Regulation No 17 did not constitute voluntary cooperation but the performance of an obligation. It recalled that, in carrying out the duties assigned to it in the matter, the Commission could obtain all necessary information from the governments and competent authorities of the Member States and from undertakings and associations of undertakings. The Commission is therefore entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in that undertaking’s possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti‑competitive conduct (paragraphs 34, 39, 41 and 44). 469 As regards the exchanges of information on sales volumes on the four markets concerned, it is not contested by the applicant, as is indeed apparent from paragraph 334 of the application, that the Commission found direct evidence of those exchanges during the investigations which it carried out in November 1998. 470 As for the exchanges of information on sales volumes and market shares in the United Kingdom, the Commission states that two reports to Mr [D], mentioned in paragraph 77 of the statement of objections, contained detailed information on sales of the other producers, which could have provided the basis for further inquiries on that question, even though it was not sufficient in itself. 471 In that connection, it is noteworthy that the documents mentioned in paragraph 77 of the statement of objections are reports by Mr [M], managing director of BG before Mr [N], on developments in the United Kingdom market sent to Mr [D]. Thus, those internal documents do not show that the information in question was disclosed to persons outside BPB. However, in its note of 17 March 1996 and, in a more detailed manner, in its statement of 28 May 1999, BPB admitted that an exchange of information on sales volumes on the United Kingdom had taken place between the competitors during the period 1992 to the beginning of 1998. 472 So far as concerns the exchanges of data on price rises on the United Kingdom market, the Commission claims that it already had the information set out in recitals 201 and 205 of the contested decision. As is apparent from those recitals, not only do the two BPB internal memoranda found during the investigations prove only that the price rises were discussed, but the Commission relies on the parallelism of the price rises to demonstrate that aspect of the infringement. In those circumstances, the fact that BPB admitted in its note of 17 March 1996 and in a more detailed manner in its statement of 28 May 1999, as is clear from recital 207 of the contested decision, that there had been ‘isolated instances’ when Mr [N] had telephoned the representatives of Lafarge and Knauf in the United Kingdom to inform them of BG’s pricing intentions and the planned range of increases, significantly strengthened the Commission’s reasoning. 473 Concerning the Versailles and The Hague meetings, only in its reply to the statement of objections did the applicant admit that it took part in those meetings. With regard to the Brussels meeting, it admitted that it participated in it only in response to an explicit question by the Commission in the context of the first request for information. 474 Lastly, as regards the information exchange system, it is apparent from recital 271 of the contested decision that the Commission knew of its existence on the basis of the information found during the inspections. 475 Consequently, the Court finds that, to the extent that the information provided by BPB can be regarded as voluntary in the light of the case‑law of the Court of Justice referred to in paragraph 468 above, it does not constitute decisive evidence of the cartel’s existence and that, in fact, the Commission had sufficient information to establish its existence following those inspections. 476 In the light of the cumulative nature of the conditions set out in Section B(b) to (e) of the Leniency Notice, as referred to in Section C thereof, and since at least one of those conditions, namely that laid down in Section B(b), in conjunction with Section C of that notice, is not satisfied, it is not necessary to consider whether BPB satisfied the other conditions laid down in those provisions. 477 It follows that the Commission did not err in denying the applicant a reduction in the amount of its fine under Section C of the Leniency Notice. 478 None the less, it is still necessary to ascertain, in the exercise of the Court’s unlimited jurisdiction, whether the reduction granted by the Commission in respect of BPB’s cooperation under Section D of the Leniency Notice was sufficient. 479 In this connection, it must be pointed out, as recitals 592 and 596 of the contested decision make clear, that BPB was the first cartel participant to send, after the Commission’s request for information but in a way that went beyond what was requested, evidence in addition to that discovered during the inspections, confirming the existence of the cartel. The Commission admits that this information includes details regarding the meetings in question, especially that in London, and the sharing of information on the major European markets, and the United Kingdom market in particular. 480 Further, as is apparent from the examination of the second plea, although the Commission could, without knowledge of the London meeting, have proved the existence of the cartel, its perception of it would have been different. The Court has found that the information provided by BPB, in particular regarding the London meeting, substantially strengthened the Commission’s arguments concerning the existence of an overall plan and, consequently, made it possible to substantially increase the amount of the fines in respect of the gravity of the infringement. The same reasoning applies to the detailed information that BPB provided on the exchanges of information on sales volumes and price rises on the United Kingdom market. That conclusion is supported by the numerous references in the contested decision to evidence provided by BPB. 481 Lastly, as is apparent from point 2.2.2 of its reply to the statement of objections and from the examination of the second plea, BPB also admitted most of the facts set out in the statement of objections. Similarly, as is apparent from points 1.1.4, 2.2.2 and 6.2.27 of its reply to the statement of objections, from the examination of the second plea and from the reply to the written question of the Court, BPB does not dispute the classification of some of the evidence as infringements of Community law. Thus, BPB acknowledged that the London meeting, the exchange of data on the four markets concerned and in particular on the United Kingdom market together with an exchange, on one or two occasions, on price rises on the United Kingdom market constituted infringements of Article 81 EC. 482 In the exercise of its unlimited jurisdiction, the Court holds that is appropriate to grant the applicant an additional reduction of 10% of the amount of its fine, as calculated before the application of the Leniency Notice, in addition to the 30% already granted by the Commission. 483 In those circumstances, it is no longer necessary to examine the applicant’s arguments that the Commission infringed the principle of equal treatment in granting a 40% reduction in respect of Gyproc’s cooperation. 5. The claim that the Commission should be ordered to repay the amount of the fine or, in the alternative, the amount by which the fine is reduced, plus interest Arguments of the parties 484 The applicant claims that it has already paid the fine. However, it deplores the fact that the rate of interest applicable in the event that the Commission is required to repay it wholly or in part is not mentioned in the contested decision. It considers that that interest rate should, at the minimum, be the same as that which would have been applied if BPB had provided a bank guarantee, namely 4.79%. However, it relies on the wisdom of the Court with regard to the applicable interest rate and asks the Court to give a decision on that point if its fine is annulled or the amount thereof is reduced. It also requests that default interest be paid from the date of the present judgment until full reimbursement of the sums due by the Commission. 485 The Commission considers that those arguments are premature. Moreover, the third head of claim is inadmissible in so far as the Court of First Instance cannot order that type of measure. Findings of the Court 486 It has been held on numerous occasions that as a consequence of a judgment of annulment, which takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system, the defendant institution is required, by virtue of Article 233 EC, to take the necessary measures to reverse the effects of the illegalities as found in the judgment of annulment, and, in the case of a measure that has already been executed, this may take the form of restoring the applicant to the position he was in prior to that measure (Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 222). 487 Foremost amongst the measures referred to in Article 233 EC, in the case of a judgment annulling or reducing the fine imposed on an undertaking for infringement of the Treaty competition rules, is the Commission’s obligation to repay all or part of the fine paid by the undertaking in question in so far as that payment must be characterised as a sum unduly paid following the annulment decision. That obligation applies not only to the principal amount of the fine overpaid but also to default interest on that amount (Corus UK v Commission, paragraph 486 above, paragraph 223). 488 It follows that, if the Commission did not consent to any default interest on the principal amount of the fine reimbursed following such a judgment, it would be failing to take a measure necessary to comply with that judgment and would thereby be in breach of its obligations under Article 233 EC. 489 Thus, the claim that the Commission should be ordered to repay the amount by which the fine is reduced, plus interest, is inadmissible. 6. The application for measures of organisation of procedure 490 The applicant stated in its application that ‘[t]he Court may wish to consider a measure of inquiry, in the form of an independent expert’s report, to determine which of the parties is correct regarding the economic context’. 491 In so far as that application must be interpreted as an application for measures of organisation of procedure, the Court considers that it is not necessary to act on it, given that the examination of the case has demonstrated the clearly anti‑competitive nature of the cartel in question. Costs 492 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 the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. 493 In the present case, the Commission has been unsuccessful only in so far as the reduction that it granted in respect of BPB’s cooperation was not sufficient. 494 In such a situation, the Court will make an equitable assessment of the case in holding that the Commission is to pay one tenth of its own costs and one tenth of the costs incurred by BPB and that BPB will pay nine tenths of its own costs and nine tenths of the costs incurred by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby: 1. Sets the amount of the fine imposed on BPB plc by Article 3 of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E‑1/37.152 – Plasterboard) at EUR 118.8 million; 2. Dismisses the action as to the remainder; 3. Orders the Commission to pay one tenth of its own costs and one tenth of the costs incurred by BPB; 4. Orders BPB to pay nine tenths of its own costs and nine tenths of the costs incurred by the Commission. Jaeger Tiili Czúcz Delivered in open court in Luxembourg on 8 July 2008. E. Coulon M. Jaeger Registrar President Table of contents Facts Procedure and forms of order sought Law 1. The first plea: breach of the rights of the defence Arguments of the parties Findings of the Court 2. The second plea: manifest errors and/or inadequacy of the statement of reasons concerning the application of Article 81(1)EC The standard of proof Arguments of the parties Findings of the Court The London meeting Arguments of the parties Findings of the Court Exchanges of information concerning quantities sold in Germany, France, the Benelux and the United Kingdom Arguments of the parties Findings of the Court The exchanges of information on sales volumes in the United Kingdom Arguments of the parties Findings of the Court Exchanges of information on price rises in the United Kingdom from 1992 to 1998 Arguments of the parties Findings of the Court The stabilisation of German market shares Arguments of the parties Findings of the Court Exchanges of information on price rises in Germany Arguments of the parties Findings of the Court The geographic scope of the cartel 3. The third plea: misapplication of the concept of single infringement Arguments of the parties Findings of the Court 4. The fourth plea: infringement of Articles 253 EC and 15(2) of Regulation No 17 and breach of general principles in the calculation of the amount of the fine The disproportionate nature of the starting amount of the fine determined according to the gravity of the infringement The gravity of the infringement – Arguments of the parties – Findings of the Court The actual impact of the infringement on the market – Arguments of the parties – Findings of the Court The determination of the starting amount of the fine according to the gravity of the infringement – Arguments of the parties – Findings of the Court – Duration of the infringement Arguments of the parties Findings of the Court Repeated infringement Arguments of the parties Findings of the Court Attenuating circumstances Arguments of the parties Findings of the Court Cooperation Arguments of the parties Findings of the Court 5. The claim that the Commission should be ordered to repay the amount of the fine or, in the alternative, the amount by which the fine is reduced, plus interest Arguments of the parties Findings of the Court 6. The application for measures of organisation of procedure Costs * Language of the case: English.