Judgment — ECLI:EU:T:2011:345
Date: 2011-07-12
Language of the case: English
Court formation: Second Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - successful

summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by Hitachi, suggests that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently, which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese producers on the EEA market. 142 However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that specific aspect, but not to the situation in Western Europe. 143 It should also be noted that Alstom’s presentation of the proposal at issue calls into question the applicant’s and Hitachi’s arguments in relation to competition on the EEA market. If, as claimed by the applicant and Hitachi, the Japanese producers were not perceived as credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it is apparent from the summary provided by Hitachi that Alstom’s proposal concerned the EEA market as well as the Central and Eastern European market. 144 Accordingly, it is necessary to uphold the interpretation that, at the meeting of 10 July 2002, Alstom proposed extending the common understanding, as alleged by the Commission, to include Central and Eastern European countries. 145 First, that interpretation implies that Alstom’s proposal constitutes proof that the common understanding existed at the time that it was made. Second, the rejection of that proposal by Hitachi does not amount to a rejection of the common understanding as such, but represents merely a refusal to extend it. Consequently, the applicant’s claim that the GQ Agreement should have ‘collapsed’ following the meeting of 15 July 2002 is based on a false premiss. 146 In the light of all of the above, it must be found that the proposal made by Alstom at the meeting of 10 July 2002 corroborates the evidence furnished by ABB. 147 Third, as has been noted in paragraph 50 above, the alleged neutral position of Alstom and Areva cannot be interpreted as proof of the existence of the common understanding. Consequently, that factor cannot corroborate the evidence furnished by ABB. The notification and project loading mechanism – Arguments of the parties 148 The applicant submits that the existence of the notification and project loading mechanism is implausible and has not been established. 149 First, the Japanese producers were not perceived to be a competitive threat on the European market, so that it would not have been necessary to offer them compensation via that mechanism. In the applicant’s view, if notifications had been made for the purpose of project loading, the European producers would not have had any incentive to notify. 150 Second, given the precise nature of the GQ Agreement, it is unrealistic that the agreement itself or subsequent documents would not mention the notification and project loading mechanism. 151 Third, the theory put forward by the Commission is based on mandatory and systematic notification, since only a mechanism covering at least a significant proportion of the GIS projects concerned could enable the Japanese producers to monitor and verify the loading procedure. In the present case, the Commission has not established to the requisite legal standard the existence of the notification and project loading mechanism nor the systematic nature of that mechanism. 152 In that regard, in their witness statements, Mr M and Mr P indicated that the lists of European GIS projects and the allocation of them were not discussed with the Japanese undertakings. Moreover, the lists at issue cannot establish the existence of systematic notification. 153 The statements made by Hitachi in its leniency application and in its reply to the statement of objections are merely an interpretation of the facts by that undertaking. In any event, such statements did not relate to the period subsequent to Hitachi’s withdrawal from the cartel in 1999. Moreover, Hitachi provided a supplementary reply to the statement of objections, which detracts from the value of the statements in question. Similarly, given the detail of Hitachi’s leniency application, the statements in question, which were submitted later, lack any credibility. 154 Furthermore, the Commission itself acknowledged, in recitals 148 and 162 of the contested decision, that notification could not have been carried out on a regular basis. Fuji confirmed this in its response to the statement of objections and Hitachi did not dispute it in its statements concerning notification and loading. As regards the content of the EQ Agreement, the applicant states, first, that it was unaware of the existence of that document and the latter is therefore not relevant so far as it is concerned. Second, according to Annex 2 to the said agreement, the notification of European GIS projects to Japanese producers was voluntary and not mandatory. 155 The Commission considers the applicant’s arguments to be unfounded. – Findings of the Court 156 The Court notes, first, that the Commission’s claims relating to the notification and project loading mechanism are not based exclusively on the assumption that the Japanese producers were perceived as credible competitors on the EEA market. The Commission considers that it gathered positive evidence of the existence of that mechanism. Accordingly, the probative value of the evidence put forward by the Commission must be examined in order to assess whether it establishes, to the requisite legal standard, the existence of the notification and project loading mechanism. 157 In that regard, the applicant’s argument that, if notification aimed to enable project loading, the European producers would not have had any incentive to notify is not substantiated. That argument is based solely on an assessment of the notification and project loading mechanism as an isolated element. However, that approach is not in line with the Commission’s position, as resumed in paragraph 90 above, that that mechanism formed part of the general context of the common understanding. 158 Second, although the notification and project loading mechanism required certain measures for its implementation, those measures were not particularly complicated, since they essentially consisted in the disclosure of certain information by the European group to the Japanese group, a disclosure which, in addition, took place in parallel with the information disclosed under the GQ Agreement concerning GIS projects outside of the EEA. Consequently, it is not apparent that those measures or the notification and project loading mechanism itself necessarily required written rules, also given the will of parties to the cartel, attested by the organisational and technical precautions referred to in recitals 170 to 176 of the contested decision, to reduce the risk of that agreement being discovered. 159 Third, in his witness statement, Mr M explicitly affirmed the existence of the notification and project loading mechanism. He also stated that that mechanism did not concern the GIS projects in the home countries, that is to say in Japan and in certain European countries. 160 The existence of a mechanism whereby the value of GIS projects in the EEA was charged to the worldwide quota laid down in the GQ Agreement was also confirmed in ABB’s statements. 161 By contrast, as the applicant submits, it is not apparent from the lists of projects provided by ABB that GIS projects in Europe were regularly notified to the Japanese producers. Therefore, those lists do not constitute evidence of the notification and project loading mechanism. 162 In so far as concerns the evidence furnished by Hitachi, it should be noted that, read in the context of the sentences which immediately precede it, the statement that Siemens would regularly circulate tables summarising a share of the GIS projects allocated to the various members of the cartel refers to GIS projects outside of the EEA. Consequently, that statement is also not relevant as evidence of the notification and project loading mechanism, as alleged by the Commission, concerning GIS projects in the EEA. 163 By contrast, in its reply to the statement of objections, Hitachi stated that, before it discontinued its participation in the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside of the EEA allocated to the two groups of producers under the GQ Agreement. 164 That statement expressly confirms the existence of the notification and project loading mechanism referred to by the Commission until 1999. In addition, it is of a high probative value for two reasons. First, that statement goes against Hitachi’s interests, since it implies the existence of a link between the collusive activities within the EEA and the Japanese producers and constitutes, as a result, incriminating evidence. Second, it is apparent from reading the relevant passage of the reply to the statement of objections that Hitachi was not aware of the inferences which could be made from that statement. 165 In addition, as noted in paragraph 54 above, Hitachi did not alter the factual content of its statements relating to the notification and project loading mechanism in its supplementary reply to the statement of objections. 166 Furthermore, the fact that the notification and project loading mechanism was not referred to in Hitachi’s leniency application, which predated the reply to the statement of objections, does not reduce the probative value of that undertaking’s statements relating to that mechanism. It is normal, during the procedure, for an undertaking to specify its position in relation to certain circumstances of the case, in particular following the communication of the statement of objections, which formalises the complaints and the evidence put forward by the Commission. 167 Fuji, for its part, stated in its reply to the statement of objections that the information concerning the allocation of GIS projects in the European countries excluded from the scope of the GQ Agreement was not systematically provided to the Japanese producers and that, consequently, Fuji did not know about the operation of the EQ Agreement. 168 It should be noted none the less that Fuji’s position is not contrary to its own interests since it seeks to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. It is thus of a lower probative value than the relevant evidence furnished by ABB and Hitachi. Moreover, Fuji’s secondary role within the cartel, noted in paragraph 137 above, may explain the fact that Fuji was not privy to all the information exchanged by the group of European producers. That also calls into question the reliability of Fuji’s statements in that regard compared with that of the evidence furnished by ABB and Hitachi, which were members of the committees of their respective groups and were, for that reason, more closely associated with the detailed operation of the alleged cartel. 169 As regards the EQ Agreement, in accordance with point 4 of part ‘E (E‑Members)’ of Annex 2 to the EQ Agreement, the European producers ‘decide about notification of [E]uropean projects to [the group of Japanese producers]’. It is apparent from the context of Annex 2 that the information was to be communicated prior to the allocation of the GIS projects concerned. 170 By contrast, the provision referred to above did not relate to the monitoring of projects which had already been allocated. Consequently, although its content suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA (see paragraphs 184 to 191 below), the measures which it provided for are not part of the notification and project loading mechanism as claimed by the Commission. Therefore, both Annex 2 to the EQ Agreement and the references to the content of that annex made in recitals 148 and 162 of the contested decision are of no use for proving that mechanism. 171 In the light of all of the foregoing, it must be concluded that the existence of the notification and project loading mechanism has been established to the requisite legal standard by the evidence furnished by ABB, as corroborated by Hitachi’s statements in its reply to the statement of objections. 172 Contrary to what the applicant claims, it is not apparent from the evidence referred to in the preceding paragraph that the notification and project loading mechanism was implemented occasionally and in a discretionary manner. Although ABB’s and Hitachi’s statements and Mr M’s witness statement do not address that subject explicitly, it is clear from the wording used in the documents at issue that notification was carried out regularly and applied to all of the participants and projects concerned. As explained in paragraph 168 above, Fuji’s statements are less reliable in that respect than the evidence provided by ABB and Hitachi. In addition, it has been noted in paragraph 170 above that Annex 2 to the EQ Agreement is not relevant in that regard. 173 As regards the implementation period of the notification and project loading mechanism, ABB’s statements do not refer to a specific period and may therefore, a priori, be interpreted as referring to the entire duration of the infringement. As for Mr M’s statements, they refer to the period during which he was involved in the cartel, that is to say from 1988 to June 2002. However, in so far as it has been noted in paragraph 84 above that the evidence provided by ABB had to be corroborated by other evidence, it must be pointed out that Hitachi’s statements concern the period preceding the date when it discontinued its participation in the cartel in 1999. Therefore, it must be considered that the existence of the notification and project loading mechanism was established for that latter period. 174 As regards the relevance of that mechanism, it must be found that it constitutes a serious indicator that the Japanese producers were perceived by the European producers as potential credible competitors on the EEA market. If the European market was actually impenetrable for the Japanese producers because of the barriers to entry, the European producers would have no reason to notify the results of the allocation of certain GIS projects in the EEA and, a fortiori, to load those projects into the joint ‘European’ quota provided for in the GQ Agreement, since such loading would deprive them of a share of the GIS projects in the regions covered by the GQ Agreement. Consequently, the existence of such a notification and project loading mechanism implies that the Japanese undertakings could have entered the European market. If they did not do so it is because they committed themselves not to, in exchange for a larger share of the GIS projects outside of the EEA. Thus, the mechanism at issue constitutes a link between the collusive activities within the EEA and the Japanese producers and, as a result, indirect evidence of the existence of the common understanding. 175 In the light of all of the above, it must be held that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, has been established in so far as concerns the period from 1988 to Hitachi’s withdrawal from the cartel in 1999 by ABB’s statements, those of Hitachi and Mr M’s witness statement. In addition, the mechanism at issue constitutes indirect evidence of the existence of the common understanding alleged by the Commission. The evidence allegedly contradicting the existence of the common understanding – Arguments of the parties 176 First, the applicant maintains that the contemporaneous documents do not refer to the common understanding. In its view, whilst the GQ and EQ Agreements lay down the detailed rules for the operation of the cartel, they exclude Europe from their scope. It is implausible that the agreements concerned failed to even mention one of the essential elements of the cartel. The applicant considers that, if the GIS producers had intended to create a global cartel by reserving the markets of the home countries to themselves, they would have included defence clauses in their written agreement, rather than excluding the territories in question from its scope and relying on an unwritten understanding. 177 Thus, the applicant claims that the GQ and EQ Agreements cannot be regarded as documentary evidence of the existence of the common understanding. That is all the more so since the Japanese producers did not participate in the EQ Agreement and were not aware of it. 178 Moreover, the EQ Agreement corroborates the fact that the Japanese producers did not represent a credible threat on the European market, since it provides that, with regard to European projects, only the European producers were to submit supporting bids. That implies that European customers would not have regarded a bid from a Japanese producer as credible. 179 Second, the applicant adds that its employees were unaware of the common understanding and that none of them participated in activities related thereto. 180 Similarly, the applicant states that the Commission did not take account of evidence, including witness statements, provided by the applicant, Hitachi, Siemens, Toshiba and VA TECH, which shows that the common understanding never existed. 181 In that context, the probative value of Siemens’s and VA TECH’s statements is all the more important because those two undertakings had no incentive to deny the existence of the common understanding, in so far as their participation in an infringement was established by other evidence. 182 The Commission considers the applicant’s arguments to be unfounded. – Findings of the Court 183 First, it is common ground between the parties that the GQ Agreement sets out the organisation of a cartel for worldwide GIS projects. However, first, as the applicant submits, that agreement does not refer to a common understanding and, second, according to Annex 2 to that agreement, Japan, the twelve Member States of the European Community at that time and five other Western European countries were excluded from its scope of application. 184 The EQ Agreement, for its part, is an agreement implementing the GQ Agreement, which concerns, inter alia, the distribution of the joint ‘European’ quota provided for in the GQ Agreement. The EQ Agreement was concluded solely by the European undertakings. The applicant was thus not a party to it. In addition, that agreement does not explicitly mention the common understanding. 185 Accordingly, the GQ and EQ Agreements cannot be regarded as constituting documentary evidence of the existence of a common understanding. 186 However, the lack of explicit reference to that understanding in the GQ and EQ Agreements does not imply that such an understanding did not exist. The commitment of a group of producers not to enter a market reserved to the other group, such as the commitment alleged by the Commission against the Japanese producers, is based on a simple concept which may be implemented easily. Also, its implementation does not require, in principle, interaction between the undertakings concerned. Consequently, such a commitment is perfectly capable of existing as an unwritten understanding, which also reduces the likelihood of its discovery. 187 Furthermore, in so far the Japanese producers did not participate in the EQ Agreement, the obligation to submit supporting bids, set out in Article 6(4) of that agreement, could not apply to them. Consequently, that provision does not imply that the Japanese producers were not perceived as potential competitors on the EEA market. 188 The Court also notes that, as pointed out in paragraph 169 above, in accordance with point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, the European producers could decide about notification of certain GIS projects in Europe to the group of Japanese producers, prior to allocating the GIS projects concerned. 189 This makes it possible to dismiss, to a certain extent, the applicant’s arguments, since it suggests that the European producers considered that the Japanese producers might have been interested, at the very least, in the allocation process of certain GIS projects in the EEA, and that they were therefore potential competitors for such projects. 190 However, nothing in the EQ Agreement or in the other evidence adduced by the Commission proves that the mechanism concerned was implemented by the European producers or that the Japanese producers were aware of its existence. 191 Therefore, the EQ Agreement constitutes merely an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, as claimed by the Commission. 192 Second, the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of Hitachi relating to notification and project loading had to be regarded as being of a higher probative value than the claims made by the applicant, Hitachi, Siemens, Toshiba and VA TECH and the evidence furnished by those undertakings that there was no common understanding. 193 Unlike the first group of evidence, the claims at issue are not contrary to the interests of the undertakings concerned, since they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. That finding also applies to the witness statements of the employees and former employees, since, as set out in paragraph 59 above, in principle they are not independent items of evidence. Moreover, as regards the common understanding, the witness statements do not contain any additional evidence to that furnished by the addressees of the statement of objections. 194 In addition, it cannot be considered that the European undertakings, including Siemens and VA TECH, had no interest in contesting the existence of the common understanding, since that understanding was interpreted by the Commission in the statement of objections as a collusive agreement between the European producers and the Japanese producers in relation to the EEA market and thus constituted an infringement of Article 81 EC and Article 53 of the EEA Agreement. Indeed, such a finding was detrimental to the interests of the European producers, or at least could potentially have been, if the Commission had not been able to establish the other objections against them to the requisite legal standard. 195 In the light of the foregoing, it must be found that the evidence furnished by the applicant does not call into question the value of the evidence furnished by the Commission to establish the existence of the common understanding. The allocation of GIS products in the EEA – Arguments of the parties 196 The applicant submits that the evidence relied on does not constitute proof that it participated in the allocation of GIS projects in the EEA. 197 The applicant admits that it attended meetings with the European producers, but maintains that those meetings concerned only the GQ Agreement and did not therefore constitute an infringement of Article 81 EC or Article 53 of the EEA Agreement. 198 The applicant also contests the allegation that Japanese producers sometimes envisaged responding to European invitations to tender for GIS projects in the EEA. It states that, with the exception of one instance, it never received any invitations to tender from a European company during the cartel period. 199 As regards the various items of evidence referred to in the contested decision, the applicant maintains that it never had any knowledge of the project lists from ABB and Fuji. It expressly denies ever having any knowledge of the Spanish ‘MSP via GC’ project dating back to 1997 in which, according to one of the lists of projects provided by ABB, it expressed an interest. 200 Similarly, the evidence from VA TECH referred to in recital 204 of the contested decision does not in any way link GIS projects in the EEA to the applicant or to any other Japanese producer. 201 The Commission considers that the applicant’s arguments are unfounded. – Findings of the Court 202 The file does not contain any evidence which suggests that GIS projects in the EEA were discussed at GQ Agreement meetings in which the Japanese members of the cartel participated. 203 Similarly, it is not apparent from the lists of projects provided by ABB and Fuji that GIS projects in the EEA were discussed with the Japanese producers, with the exception of the applicant’s alleged interest in the ‘MSP via GC’ project in Spain. It cannot be ruled out that the reference to interest shown by the applicant in the list of projects provided by ABB is a mistake, given the length of the list of projects concerned and the fact that the Commission did not identify other cases in which a Japanese producer showed interest in a GIS project in the EEA. In any event, the content of the list of projects from ABB is not corroborated by other evidence, and in particular by Fuji’s list of projects, in respect of the ‘MSP via GC’ project and cannot therefore be taken into consideration in that regard. 204 In addition, when the Commission stated in recital 125 of the contested decision that the Japanese producers sometimes considered replying to European tenders, but normally declined them and mentioned the projects concerned to the European producers, it based its findings solely on ABB’s statements and on the witness statements given by its employees. Consequently, since that statement is not corroborated by other evidence, it cannot be taken into consideration. 205 Finally, the handwritten notes of a representative of VA TECH, referred to in recital 204 of the contested decision, contain a reference to a GIS project in the EEA and a reminder to discuss a package of GIS projects with the Japanese producers. However, the two passages concerned are separated by several pages containing notes relating to other subjects. In addition, the reference to the Japanese undertakings is immediately preceded by notes relating to a GIS project outside of the EEA. Accordingly, those notes do not enable conclusions to be drawn in respect of the interest of the Japanese undertakings in GIS projects in Europe. 206 In the light of all of the above, it must be found that it has not been established that the Japanese undertakings participated in the allocation of GIS projects in the EEA. Global assessment – Arguments of the parties 207 The applicant submits, at the outset, that, contrary to what the Commission claims, it was not necessary to protect the domestic markets from the two groups of producers. In its view, there was no risk or danger of the Japanese producers being able to compete on the European market, or vice versa. The applicant also adds that it was invited only exceptionally to submit a bid for a GIS project in the EEA during the alleged cartel period. 208 The applicant maintains that the purpose and the content of the common understanding have not been established. The evidence relied on by the Commission does not identify the members of the common understanding, the date on which it was concluded or what happened to it after Siemens and Hitachi withdrew from the cartel in 1999. Thus, the evidence furnished by ABB does not disclose the existence of a collusive agreement but represents a ‘subconscious expression’ that the Japanese producers were not in a position to penetrate the European market and vice versa. 209 In addition, the Commission failed to take account of the consequences of Siemens’s and Hitachi’s withdrawal from the cartel. According to the applicant, even if the parties were a credible competitive threat to each other’s home markets, the common understanding would have been called into question by the withdrawal of two key members of the GQ Agreement. Furthermore, during the two years Siemens and Hitachi were absent from the arrangement, Hitachi would have recorded sales in Europe and Siemens would have recorded sales in Japan. 210 Finally, the applicant submits that account should not be taken of the Commission’s claims relating to the ‘home countries’ and the relevance of the notification and project loading mechanism. In its view, those claims, in particular the claim that the Japanese undertakings were aware of the ‘home countries’, is not supported by any evidence other than Mr M’s witness statement. Moreover, the latter’s statements that the identity and ownership of the home countries were well established, did not need to be discussed and predated the GQ Agreement, are contradicted by other evidence referred to by the Commission, pursuant to which those circumstances changed over time. Consequently, Mr M’s witness statement is not credible in that regard. 211 The Commission argues that the applicant’s arguments are unfounded. – Findings of the Court 212 It is apparent from the examination carried out in paragraphs 107 to 175 above, first, that ABB’s statements and the witness statements of its employees and of its former employee show that an understanding existed whereby the European and Japanese producers undertook mutually not to enter the domestic markets of the other group. Those items of evidence also make it possible to identify the parties to the understanding, among which the applicant, and to conclude that, although it was probably concluded prior to the GQ Agreement, it was concluded, at the latest, at the time the GQ Agreement was concluded. 213 Second, the existence of the mutual understanding referred to above is corroborated by the proposal made by Alstom at the meeting of 10 July 2002. The existence of the commitment of the Japanese undertakings not to enter the European market is also corroborated by Fuji’s statements. 214 Third, it is apparent from ABB’s statements and its witness statement, corroborated by Hitachi’s statements, that the Japanese producers accepted, at least in so far as concerns the period from 1988 to 1999, the regular notification of the results of the allocation of certain GIS projects in the EEA and their loading into the joint ‘European’ quota provided for in the GQ Agreement. Similarly, under Point 4 of Part ‘E (E (Members)’ of Annex 2 to the EQ Agreement, the European producers foresaw the possibility of providing the Japanese producers with the details of certain GIS projects in the EEA prior to their allocation. Those two factors suggest that, contrary to what the applicant claims, the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, but that they had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions. They thus constitute indirect evidence of the existence of the mutual understanding between the European producers and the Japanese producers. 215 Thus, the evidence produced by the Commission supports its assertions regarding the existence of the common understanding, as summarised in paragraph 90 above. By contrast, the evidence relied on by the applicant and evaluated in paragraphs 183 to 195 above is not capable of calling those statements into question. 216 In that regard, it has not been established that the Japanese undertakings participated, with the European producers, in the allocation of GIS projects in the EEA. However, it should be pointed out that, in the light of the nature of their alleged commitment under the common understanding, their participation in it would not have been necessary. The Japanese producers would have had no interest in intervening in the actual allocation of GIS projects in the EEA which they had committed themselves not to take. Their sole interest would have been to learn the value of the projects concerned and the identity of the undertakings to which they were awarded, in order to be able to monitor the loading into the joint ‘European’ quota provided for in the GQ Agreement. At least in so far as concerns the period from 1988 to 1999, that information was communicated to the Japanese producers via the notification mechanism. 217 As regards the consequences of Siemens’s and Hitachi’s withdrawal from the cartel, first, it is apparent from recital 187 of the contested decision and Mr M’s witness statement that that event had an appreciable repercussion on the effectiveness of the cartel, but the cartel did not ‘collapse’. Second, the period of absence of the two undertakings is insufficient for there to have been a significant entry on to the EEA market, given, first, the existence of certain technical and commercial obstacles, which is not disputed by the Commission, second, the fact that the privileged position of the various producers on their domestic markets was artificially strengthened as a result of the cartel between 1988 and 1999 and finally, the fact that the other producers thought of adopting retaliatory measures against Siemens and Hitachi, as is apparent from Mr M’s witness statement. 218 Finally, pursuant to the reasoning set out in paragraphs 174 and 214 above, it is not necessary to establish that the notification and project loading mechanism did not concern GIS projects in the European home countries or that Japan constituted a home country to be able to regard that mechanism as a relevant indication of the existence of the common understanding. Consequently, the fact that Mr M’s witness statement may not be corroborated in that regard is of no significance. 219 The Court also notes that there is no inconsistency between Mr M’s witness statement and the other evidence referred to by the Commission in so far as concerns the home countries concept. According to Mr M, the very concept of the common understanding, as a mutual commitment not to enter the domestic markets of the other group, was in fact well established, did not need to be discussed and predated the GQ Agreement. That being so, later in his witness statement, Mr M himself notes that, in certain cases, the ownership of a home country changed as a result of mergers between the various operators concerned. 220 In the light of all of the above, it must be found that the existence of the common understanding has been established to the requisite legal standard and that the Commission did not go beyond the limits of its powers in fining the applicant for its participation in that understanding. 221 Therefore, the first plea must be dismissed. 222 In addition, as explained in paragraph 95 above, since the Commission did not base its findings solely on the conduct of the undertakings at issue on the market in concluding that the alleged infringement had been committed, it is not sufficient for the applicant to substitute its own alternative plausible version of the facts for the version given by the Commission. Consequently, the third plea must be dismissed. 223 Similarly, the conclusion that the existence of the common understanding has been established to the requisite legal standard implies that the Commission discharged its burden of proof and thus respected the principle of the presumption of innocence. Therefore, the fourth plea must be dismissed. 224 Finally, it is apparent from the foregoing that the Commission was able to conclude that the common understanding existed without taking account of Fuji’s observations, which were not disclosed to the applicant, and the alleged neutral position of Alstom and Areva, as incriminating evidence. Consequently, in accordance with what has been stated in paragraph 51 above, ultimately it is necessary to dismiss the fourteenth plea, alleging an infringement of the right of access to the file. The second plea, alleging that the Commission failed to establish the existence of an agreement infringing Article 81 EC and Article 53 of the EEA Agreement – Arguments of the parties 225 The applicant maintains that the Commission has not identified any agreement justifying the application of Article 81 EC and Article 53 of the EEA Agreement. In its view, the Commission did not indicate the time at which the parties expressed their joint intention to conduct themselves on the market in a specific way and did not furnish evidence of contacts, discussions or agreements between them. However, without any evidence, the provisions referred to above cannot be used so as to prohibit persons from coming to the same conclusion on a certain issue. 226 The Commission considers the applicant’s arguments to be unfounded. – Findings of the Court 227 According to the case‑law, it is for the Commission to gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement constitutes an agreement or a concerted practice within the meaning of Article 81(1) EC (Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47). The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement. 228 In the contested decision, the Commission did not comment expressly on the issue whether the conduct imputed to the Japanese undertakings constituted an agreement or a concerted practice. In recital 248 of the contested decision, it merely observed that the infringement consisted of several actions which may be classed as agreements or concerted practices. 229 Consequently, it should be assessed, first, whether the common understanding constitutes an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement. 230 In that regard, in order for there to be an agreement within the meaning of those provisions, it is sufficient that the undertakings in question expressed their joint intention to conduct themselves on the market in a specific way (see, by analogy, Cimenteries CBR and Others v Commission, paragraph 86 above, paragraph 958, and the case‑law cited). There is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition (see Cimenteries CBR and Others v Commission, paragraph 86 above, paragraph 837, and the case‑law cited). 231 In the present case, it is apparent from the various items of evidence produced by the Commission, and in particular ABB’s and Fuji’s statements and the witness statements of Mr M and Mr V.-A, that, at the time of conclusion of the GQ Agreement at the latest, the European and Japanese producers mutually agreed not to enter the domestic markets of the other group. The existence of a mutual agreement necessarily implies the existence of a meeting of minds, even if there is no evidence which makes it possible to determine with precision the exact point in time that meeting of minds was manifested or which formalised its expression. In addition, it is apparent from paragraph 116 above that Mr M considered that it was not necessary to refer to the common understanding during the discussions in which he participated, since the content of that understanding was understood, accepted and implemented by all the participants to the cartel without the need for any specific discussion on it. Moreover, as set out in paragraph 123 above, Mr V.‑A stated that he participated in discussions between the European undertakings and the representative of a Japanese undertaking expressly concerning compliance with the common understanding. 232 Similarly, the acceptance over a number of years – confirmed by ABB’s statements and witness statement and by Hitachi’s statements – by the Japanese producers of the notification of the results of the allocation of certain GIS projects in the EEA and the monitoring of their loading into the joint ‘European’ quota provided for in the GQ Agreement is not consistent with the mere parallel conduct of competitors with no meeting of minds. 233 Furthermore, the object of the common understanding was to determine the conduct of the Japanese undertakings in relation to the EEA market, since those undertakings committed themselves not to enter that market. Thus, that understanding effectively amounted to reserving the EEA market for European producers. 234 Consequently, the Commission was right to find that the common understanding constituted an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement. 235 Accordingly, it is not necessary to examine whether the common understanding constituted a concerted practice within the meaning of those provisions. 236 In the light of all the foregoing, the second plea must be dismissed. The thirteenth plea, alleging that the Commission erred in determining the duration of the cartel – Arguments of the parties 237 The applicant maintains, first, that following Siemens’s departure from the cartel in September 1999, the small group comprising the other undertakings developed into a loose discussion forum with no anti‑competitive object or effect with respect to the European Union. 238 Second, Siemens’s return to the cartel in 2002 did not lead to arrangements that had the object or effect of restricting competition in Europe, since Hitachi rejected Alstom’s proposal that the European and Japanese markets should be reserved, respectively, for European and Japanese producers. 239 Consequently, the applicant considers that it was wrong for it to be fined for the period from 1 September 1999 to 11 May 2004 or, at least, from 10 July 2002 to 11 May 2004. 240 The Commission considers the applicant’s arguments to be unfounded. – Findings of the Court 241 According to the case‑law, when there is a dispute concerning the existence of an infringement, the requirement of legal certainty, on which economic operators are entitled to rely, means that the Commission, which bears the burden of proving infringements which it finds, must adduce evidence which will sufficiently establish the existence of the facts constituting the infringement. With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79; Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 188; and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraphs 114 and 153). 242 In addition, the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 169). 243 In the present case, it should be noted, at the outset, that, in so far as the commitment of the Japanese undertakings under the common understanding did not consist in a positive action, but in a failure to act, it is inherently difficult to prove that that understanding was respected continuously. 244 None the less, first, it is apparent from Mr M’s witness statement that, until the end of his involvement in the cartel in June 2002, both the GQ Agreement and the common understanding continued to be implemented together with the Japanese undertakings other than Hitachi, in spite of the fact that the latter’s absence and that of Siemens made its operation less effective. The other witness statements of ABB’s employees confirm that the common understanding continued between July 2002 and May 2004. The content of the witness statements concerned is also reflected in ABB’s statements. 245 Second, in its reply to the statement of objections, Fuji confirms that the Japanese undertakings participated in the infringement, including in the common understanding, until September 2000, the point at which it claims to have left the cartel. 246 Third, it has been concluded in paragraph 144 above that, at the meeting of 10 July 2002, Alstom proposed to extend the common understanding to the countries of Central and Eastern Europe. That implies that, contrary to what the applicant claims, the understanding existed both at the time of the meeting and for a certain amount of time prior to and after the meeting. 247 Fourth, the continuous absence of the Japanese producers from the European GIS market during the period concerned also suggests that the common understanding continued to be implemented. 248 Fifth, in so far as, first, the applicant does not expressly criticise the fact that the Commission concluded that there was a single infringement encompassing inter alia the common understanding and the GQ Agreement and, second, the examination of pleas one to four has not led the Court to find that the Commission erred in that regard, it must be found that evidence of the continuous functioning of the GQ Agreement constitutes a relevant indication that the common understanding was also implemented during that period. Given the single nature of the infringement, it is plausible that the disappearance of the common understanding would have compromised the functioning of the GQ Agreement. 249 Indeed, the applicant does not dispute the findings in recitals 191 to 198 of the contested decision relating to the exchange of a series of faxes concerning the allocation of projects under the GQ Agreement in December 2000 and January 2001, to meetings of the GQ Agreement which were to be held in 2000 and 2001, and to agreements relating to certain GIS projects concluded in 1998 and 1999 and operative until October 2001. 250 Similarly, the applicant does not raise any arguments specifically calling into question the Commission’s findings in recitals 199 to 216 of the contested decision concerning the renewed participation of Hitachi, Siemens and VA TECH in the cartel and the continuation of the cartel from July 2002 to 2004. 251 In the light of the foregoing, the applicant’s argument that, during the period concerned, the meetings on the GQ Agreement became a discussion forum without any anti‑competitive object or effect cannot be upheld. That is all the more true given that that argument is not corroborated by any evidence other than Toshiba’s unsubstantiated statements. 252 Therefore, it must be found that the evidence relied on by the Commission in respect of the implementation of the common understanding and the GQ Agreement between September 1999 and March 2004 relates to facts sufficiently proximate in time, which means that evidence of a continuous infringement was adduced in relation to the period concerned. 253 Consequently, the thirteenth plea must be dismissed. 254 Since none of the pleas raised in support of the main claim can succeed, that claim must be rejected. 2. The claim in the alternative, seeking the annulment of Article 2(g) of the contested decision and Article 2(h) thereof, to the extent to which it concerns the applicant 255 It is first necessary to address the fifth plea, alleging that the Commission infringed the principles of equal treatment and proportionality in calculating the starting amount of the fine imposed on the applicant on the basis of its 2001 turnover. Arguments of the parties 256 The applicant maintains that, by calculating the starting amount of the fines of the Japanese producers on the basis of their worldwide sales of GIS for 2001, while using 2003 as the reference year for the European producers, the Commission infringed the principles of equal treatment and proportionality. 257 First, the Commission did not provide any objective justification for the unequal treatment of the Japanese producers. According to the applicant, the fact that it chose, as part of a legitimate commercial strategy, to carry on its GIS business through TM T & D, is irrelevant in that regard, since the market fluctuations that occurred as from 2003 would have affected its situation, even if its choice had been different. In this case, the Commission should have used, as a starting amount, a part of TM T & D’s turnover corresponding to the portion of its capital held by the applicant. In addition, that same methodology was applied to Schneider regarding its participation in a joint venture with VA TECH. 258 Second, according to the applicant, the result of the Commission’s approach was that the starting amount applied to it was calculated on the basis of a year during which the market situation was substantially different from that in the year used for the European undertakings, thereby overstating the extent of its participation in the infringement. The applicant submits, in that regard, that between 2001 and 2003, both the European and Japanese GIS markets in general and its turnover in that area suffered a substantial decline. 259 The Commission points out that it has discretion regarding the choice of factors to be taken into account in determining the amount of fines, which in turn influences the intensity of judicial review in that area. It infers that arguments based on general principles of law can only temper that discretion where it has been exercised in flagrant disregard of the facts of the case. 260 The Commission adds that where, as in this case, the infringement is found to be very serious, it is entitled to apply differential treatment in order to reflect the effective capacity of the undertakings concerned to cause significant damage to competition and to ensure proper deterrence. 261 In this case, the starting amount allocated to the applicant was determined on the basis of the abovementioned factors. 2001 was chosen because it was the last year before the transfer of the applicant’s GIS business to TM T & D. That difference of treatment is justified, according to the Commission, by the fact that for most of the duration of the cartel the applicant participated as an individual undertaking, which means that the 2003 sales do not faithfully reflect the applicant’s actual capacity to cause damage to competition. 262 Furthermore, according to the Commission, the mere fact that 2001 was a better year than 2003 for the applicant is not sufficient to argue that the starting amount is disproportionate. 263 Finally, the Commission emphasises that it did not set a separate starting amount for TM T & D so that the applicant did not have to bear an undue burden. Findings of the Court 264 The Court notes, at the outset, that the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see Joined Cases T‑236/01, T-239/01, T-244/01 to T‑246/01, T‑251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 216, and the case‑law cited). 265 The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (Aalborg Portland and Others v Commission, paragraph 39 above, paragraphs 89 to 91). 266 However, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the Community Courts (Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 315). 267 According to settled case‑law, the principle of equal treatment or non‑discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 309, and the case‑law cited). 268 To the extent to which reliance is to be placed on the turnover of undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 122). 269 The principle of proportionality, for its part, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13, and Case C‑180/96 United Kingdom v Commission [1998] ECR I‑2265, paragraph 96). 270 In the present case, it is apparent from recitals 480 to 490 of the contested decision that, when calculating the starting amounts, the Commission decided, in accordance with section 1 A of the Guidelines on the method of setting fines, to apply differential treatment to the cartel participants on the basis of their capacity to harm competition. To that end, it placed the various undertakings into five groups in accordance with the size of their worldwide turnovers obtained from GIS sales. In that regard, the Commission considered that the turnovers relating solely to the EEA market did not constitute a reliable criterion for assessment in so far the common understanding aimed to ensure that the Japanese producers did not enter that market. 271 In so far as concerns the reference year, it is apparent from recitals 481, 482 and 484 of the contested decision that, when determining the value of worldwide sales, the Commission used the figures for 2001 for the applicant, Fuji, Hitachi and Toshiba, while it used 2003, that is the last full year of infringement, as the reference year for the European producers. Similarly, the calculation of the starting amount of the fines for the applicant, Fuji, Hitachi and Toshiba for the period of their participation in the cartel as individual undertakings was made on the basis of their turnovers for 2001, whereas the calculation of the starting amount of the fines of the European producers was made on the basis of their turnovers for 2003. 272 Therefore, the Commission did not treat the Japanese producers, including the applicant, and the European producers equally in terms of its choice of reference year. Consequently, in accordance with the case‑law cited in paragraph 267 above, it needs to be assessed whether there was an objective justification for that difference in treatment. 273 In that regard, in recital 482 of the contested decision, the Commission stated that the use of 2001 as the reference year for the applicant was justified by the fact that, for the most part of the period of infringement, the applicant participated in the cartel as an individual undertaking, and not through the joint venture TM T & D which took over the applicant’s and Toshiba’s GIS activities in 2002. 274 At the hearing, the Commission stated that its objective was to take account of the uneven competitive position of the two shareholders of TM T & D at the time the latter was created, due to the fact that the applicant held a considerably larger share of the worldwide GIS market than Toshiba. According to the Commission, by referring to the last full year of the applicant’s and Toshiba’s participation in the cartel as individual undertakings, that is to say 2001, it was able to reflect that disparity when calculating the fines, which would not have been possible with the method consisting in dividing TM T & D’s turnover for 2003 between the two shareholders in accordance with their respective shareholdings in the joint venture. 275 The objective referred to by the Commission is legitimate since it makes it possible to compare the capacity of the shareholders of a joint venture to harm competition during the period prior to the creation of the joint venture. In addition, it is apparent from recital 489 of the contested decision that the same objective was pursued in the case of Schneider, yet the lack of relevant turnover figures for that undertaking for 2001 or 2003 led the Commission to take Schneider’s shareholding in the share capital of the joint venture as the starting amount for its fine. By contrast, relevant turnover figures are available for both 2001 and 2003 in respect of the applicant. 276 However, it is evident that the Commission could have used other methods to achieve its objective without treating the Japanese producers and the European producers unequally in its choice of reference year. By way of example, when determining the fines for the applicant and Toshiba for the period prior to the creation of TM T & D, the Commission could have taken the starting amount of TM T & D’s fine, calculated on the basis of its turnover for 2003 and divided it between the applicant and Toshiba in accordance with the proportion of GIS sales made by them during the year prior to the creation of the joint venture, namely 2001. 277 Consequently, it must be found that, in the present case, the Commission’s wish, in calculating the fines, to faithfully reproduce the relative positions of the applicant and Toshiba does not justify the unequal treatment of the applicant. 278 In the light of the foregoing, it must be concluded that, in choosing 2001 as the reference year for the determination of the value of the worldwide sales of the Japanese producers and for the calculation of the fine imposed on the applicant for its individual participation in the cartel, the Commission infringed the principle of equal treatment. 279 That infringement directly invalidates the calculation of the fine imposed on the applicant in Article 2(g) of the contested decision for its participation in the cartel as an individual undertaking. Indirectly, through the determination of the value of worldwide sales and market shares, it affects the calculation of the fine imposed on the applicant in Article 2(h) of the contested decision, relating to the period of TM T & D’s existence. 280 Therefore, the fifth plea must be upheld and consequently, Article 2 (g) and (h) of the contested decision must be annulled. 281 In addition, there is no need to examine pleas six to twelve raised by the applicant. Even if those pleas were upheld, the contested decision could not be annulled to any further extent than in the preceding paragraph. 282 Finally, given that the applicant’s claim in the alternative has been upheld, it is no longer necessary to give judgment on either its claim in the further alternative or on its application for measures of organisation of procedure. Costs 283 Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs. 284 In so far as the application seeking annulment of Article 1 of the contested decision has been rejected, the applicant has been unsuccessful in a significant part of its pleadings, even though it has been successful in respect of a part of them. 285 Accordingly, the applicant must be ordered to bear three quarters of the costs incurred by the parties before the Court and the Commission ordered to bear a quarter of those costs. On those grounds, THE GENERAL COURT (Second Chamber) hereby: 1. Annuls Article 2(g) and (h) of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) in so far as it concerns Mitsubishi Electric Corp; 2. Dismisses the action as to the remainder; 3. Orders Mitsubishi Electric to bear three quarters of the costs incurred by the parties before the Court; 4. Orders the European Commission to bear a quarter of the costs incurred by the parties before the Court. Pelikánová Jürimäe Soldevila Fragoso Delivered in open court in Luxembourg on 12 July 2011. [Signatures] Table of contents Background to the dispute 1. Applicant 2. Goods 3. Administrative procedure 4. Contested decision Procedure and forms of order sought Law 1. The main application, seeking the annulment of the contested decision to the extent to which it applies to the applicant and TM T & D The fourteenth plea, alleging that the Commission infringed the applicant’s right of defence and its right to a fair hearing by not granting it access to incriminating and exculpatory evidence Arguments of the parties Findings of the Court The fifteenth plea, alleging that the Commission infringed the applicant’s rights of defence by not putting forward to it its conclusions on the theory of compensation inherent in the common understanding Arguments of the parties Findings of the Court The first, third and fourth pleas, alleging that the Commission has not established that the applicant participated in the alleged cartel, that the Commission erred in dismissing the evidence explaining the applicant’s absence from the European market and the impossibility of entering that market, and that the Commission infringed the rules governing evidence by reversing the burden of proof, thereby infringing the presumption of innocence The evidence furnished by ABB – Arguments of the parties – Findings of the Court The corroboration of the evidence furnished by ABB – Arguments of the parties – Findings of the Court The notification and project loading mechanism – Arguments of the parties – Findings of the Court The evidence allegedly contradicting the existence of the common understanding – Arguments of the parties – Findings of the Court The allocation of GIS products in the EEA – Arguments of the parties – Findings of the Court Global assessment – Arguments of the parties – Findings of the Court The second plea, alleging that the Commission failed to establish the existence of an agreement infringing Article 81 EC and Article 53 of the EEA Agreement – Arguments of the parties – Findings of the Court The thirteenth plea, alleging that the Commission erred in determining the duration of the cartel – Arguments of the parties – Findings of the Court 2. The claim in the alternative, seeking the annulment of Article 2(g) of the contested decision and Article 2(h) thereof, to the extent to which it concerns the applicant Arguments of the parties Findings of the Court Costs * Language of the case: English.