62006TJ0362
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
27 September 2012 (
*1
)
‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Fines — Proof of the infringement — Gravity of the infringement — Imputability of the unlawful conduct — Rights of the defence — Production of new pleas in the course of proceedings — Unlimited jurisdiction’
In Case T-362/06,
Ballast Nedam Infra BV, established in Nieuwegein (Netherlands), represented initially by A. Bosman and J. van de Hel, and subsequently by Bosman and E. Oude Elferink, lawyers,
applicant,
v
European Commission, represented by A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, acting as Agents, assisted initially by F. Wijckmans, F. Tuytschaever and L. Gyselen, and subsequently by Wijckmans and Tuytschaever, lawyers,
defendant,
APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)) in so far as it concerns the applicant, and, in the alternative, first, for annulment in part of that decision and for reduction of the fine imposed on the applicant and, second, for annulment in part of that decision in so far as it sets the duration of the infringement with respect to the applicant and for a corresponding reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 30 June 2011,
gives the following
Judgment
Facts
1
The applicant, Ballast Nedam Infra BV, is a member of the Ballast Nedam group, which operates in the construction sector in the Netherlands and is headed by Ballast Nedam NV, the holder of 100% of the applicant’s capital. Through the acquisition of the road building companies Eemsmond Wegenbouw BV and Bruil Infrastructuur BV in 1995, the group became an important player in the road building sector in the Netherlands, those activities being centralised in Ballast Nedam Grond en Wegen BV (‘BNGW’), the applicant’s wholly-owned subsidiary. From 1 October 2000, the group’s road building activities were carried out directly by the applicant. Since 14 February 2003, Ballast Nedam Nederland BV has been the intermediary company between Ballast Nedam and the applicant.
2
By letter of 20 June 2002, British Petroleum (‘BP’) informed the Commission of the European Communities of the alleged existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).
3
On 1 and 2 October 2002, the Commission carried out surprise inspections at the premises of certain companies. On 30 June 2003, the Commission sent requests for information to several companies, including the applicant, to which the latter replied on 4 and 12 September 2003.
4
On 18 October 2004, the Commission initiated the administrative procedure and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including the applicant. The applicant replied to this on 20 May 2005.
5
On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands), ‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40), and which was notified to the applicant on 25 September 2006.
6
In the contested decision, the Commission stated that the companies to which it was addressed had participated in a single and continuous infringement of Article 81(1) EC by regularly fixing collectively, for the periods indicated, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for participating road builders (‘the W5’ or ‘the large builders’) and a smaller maximum rebate on the gross price for other road builders (‘the small builders’).
7
The applicant and Ballast Nedam were held liable for that infringement for the period from 21 June 1996 to 15 April 2002. The Commission presumed that the applicant has exercised decisive influence over BNGW, which participated in the meetings relating to the cartel until 1 October 2000. The contested decision states that the applicant itself participated in those meetings from that date onwards and until the end of the infringement. A fine of EUR 4.65 million was imposed jointly and severally on the applicant and Ballast Nedam
Procedure and forms of order sought by the parties
8
By application lodged at the Registry of the Court on 5 December 2006, the applicant brought the present action.
9
On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put a number of questions in writing to the parties. The parties replied to those questions within the prescribed period.
10
The parties presented oral argument and replied to the Court’s oral questions at the hearing on 30 June 2011.
11
As a member of the Sixth Chamber was unable to sit, the President of the General Court designated himself to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure of the Court.
12
By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
13
By letters of 25 and 28 November 2011 respectively, the Commission and the applicant informed the Court that they were waiving their right to be heard afresh.
14
Consequently, the President of the Court decided to close the oral procedure.
15
The applicant claims that the Court should:
—
principally, annul the contested decision in so far as it concerns it;
—
in the alternative, either annul Article 2 of the contested decision in so far as it concerns it or, at least, reduce the fine imposed on it by that article;
—
or, also in the alternative; annul in part Article 1 of the contested decision in so far as it concerns the duration of the infringement until October 2000, and reduce accordingly the fine imposed on the applicant by Article 2;
—
order the Commission to pay the costs.
16
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
Law
17
In support of its application, the applicant puts forward four pleas in law: The first plea alleges an infringement of Article 81 EC and of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), the second, an infringement of Article 23(3) of Regulation No 1/2003 and of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3, ‘the 1998 Guidelines’), the third, an infringement of Article 81 EC resulting from the erroneous assessment of the actual exercise of decisive influence over the commercial conduct of BNGW and, the fourth, infringement of Article 27(1) of Regulation No 1/2003 and of the rights of the defence.
18
It is appropriate to begin by examining the fourth plea.
Fourth plea in law, alleging infringement of Article 27(1) of Regulation No 1/2003 and of the rights of the defence
Arguments of the parties
19
The applicant claims that the Commission failed to observe its rights of defence and also infringed Article 27(1) of Regulation No 1/2003 by informing it, in the contested decision, that it was holding it liable for the infringement committed by BNGW, without having mentioned this in the statement of objections.
20
The Commission states that it had indicated in the statement of objections that the applicant was previously known as BNGW and that Ballast Nedam and the applicant had been liable for participation in the cartel since 1995. It had also indicated in the statement of objections that it considered that the parent companies of each group were in a position in fact to exercise decisive influence over the conduct of their subsidiaries. Since the applicant had mentioned in its reply to the statement of objections that it was the parent company of BNGW, it could not have been unaware that it would be held liable for the conduct of the latter. That reply, stating that BNGW was not the predecessor of the applicant, but its wholly-owned subsidiary, had led the Commission to hold the applicant liable for the conduct of its subsidiary. Furthermore, following the statement of objections, the applicant had also submitted BNGW’s defence, covering the period prior to 1 October 2000. Moreover, by not responding to the Commission’s request to provide it with an organisation chart of the Ballast Nedam group prior to 1 October 2000, the applicant had maintained the confusion concerning its relationship with BNGW before that date.
Findings of the Court
21
Article 27(1) of Regulation (EC) No 1/2003 is worded as follows:
‘Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted [it] the opportunity of being heard on the matters to which [it] has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings.’
22
Thus, according to the case-law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10, and Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 67). Likewise, according to settled case-law, given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (Joined Cases C-395/96 P and C-396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I-1365, paragraphs 143 and 146, and Case C-176/99 P ARBED v Commission [2003] ECR I-10687, paragraph 21). It is also necessary that the statement of objections indicate in which capacity a legal person is called on to answer the allegations (Joined Cases C-322/07 P, C-327/07 P and C-338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I-7191, paragraph 39).
23
It should be borne in mind in that regard that, according to the case-law, the decision is not necessarily required to be an exact replica of the statement of objections (Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 68). Consequently, only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts must the rights of the defence be found to have been infringed (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraphs 26 and 94, and Joined Cases T-39/92 and T-40/92 CB and Europay v Commission [1994] ECR II 49, paragraphs 49 to 52). That is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint (Joined Cases T-191/98, T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, paragraph 191).
24
In that regard, it must be pointed out that, in order to assert that there was an infringement of the rights of the defence with regard to the complaints made in the contested decision, it is not sufficient for the undertakings concerned to point to the mere existence of differences between the statement of objections and the contested decision without explaining precisely and specifically why each of those differences constitutes, in the circumstances, a new complaint upon which they were not given the opportunity to comment (Atlantic Container Line and Others v Commission, cited in paragraph 23 above, paragraph 192). According to the case-law, a breach of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertakings concerned are alleged to have committed (Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 70).
25
The applicant submits that, in the present case, the Commission did not satisfy its obligations by omitting to mention in the statement of objections that, in addition to its direct participation in the infringement from 1 October 2000 onwards, it also presumed its liability for the period from 21 June 1996 to 30 September 2000 by relying on the fact that it had in fact exercised decisive influence over the commercial conduct of BNGW.
26
It is apparent from the statement of objections that the Commission first of all pointed out, in general terms, that each group of companies concerned constituted a single undertaking and that the parent company of the group was in a position to exercise decisive influence over the conduct of its subsidiaries (point 324). With regard more specifically to the applicant, it then stated that the latter was the legal successor of BNGW (point 49 and footnote No 28) and that Ballast Nedam, Ballast Nedam Nederland, the applicant and the various other road building subsidiaries all formed part of the Ballast Nedam group and constituted a single undertaking (point 50). Finally, it pointed out that the applicant (previously BNGW) had participated directly in the unlawful practice in question (point 339). It therefore chose to send that statement to the applicant, for ‘its direct participation (and the participation of its predecessors) in the collusive arrangements’, and to Ballast Nedam ‘for its participation through the exercise of decisive influence over the conduct of its “infrastructure” subsidiary, Ballast Nedam Infra …’ (point 342).
27
The Commission thus sent the statement of objections to the applicant on account of its direct participation in the infringement and on account of its capacity as the successor of BNGW, which had also participated directly in the infringement before October 2000. It did not, on the other hand, make any mention of the possibility of an imputation to the applicant of liability for the infringement committed by BNGW in its capacity as the latter’s parent company.
28
Since the applicant mentioned, in point 17 of its reply to the statement of objections, that it was not the legal successor of BNGW, the Commission stated, in the contested decision, that the participation in the cartel meetings until 1 October 2000 had taken place via an employee of BNGW, the applicant’s wholly-owned subsidiary. Consequently, it held the applicant liable for the infringement committed by BNGW, for the period from 21 June 1996 to 30 September 2000, in its capacity as its 100% parent company. It also held it liable for the infringement for the period from 1 October 2000 to 15 April 2002 on account of its direct participation in that infringement (recitals 293 and 294 of the contested decision).
29
It is apparent from all those circumstances that the Commission did not indicate in the statement of objections, in the present case, in which capacity the applicant was being called on to answer the allegations. Consequently, the applicant could not infer from the wording of the statement of objections that the Commission intended to impute the infringement to it in its final decision by relying on its direct involvement in the activities of the cartel and on its capacity as the 100% parent company of BNGW, on the basis of the presumption of actual exercise of decisive influence over the conduct of the latter, which it was for the applicant to rebut.
30
Since the statement of objections did not enable the applicant to become aware of the objection alleging its indirect involvement in the activities of the cartel, it was not put in a position to conduct its defence properly in that regard during the administrative procedure.
31
The mere fact that, on the one hand, the Commission had indicated in general terms in the statement of objections that it holds parent companies liable for the conduct of their subsidiaries (points 324 and 278) and, on the other, the applicant knew that BNGW had been its wholly-owned subsidiary and not its legal predecessor cannot suffice for the Commission to be considered to have discharged its obligation to indicate in the statement of objections in which capacity the applicant was being called on to answer the allegations.
32
It must indeed be observed that, in its reply to the statement of objections, although the applicant advanced arguments to demonstrate the absence of any infringement of Article 81 EC by referring consistently to ‘BNGW and BN Infra (after October 2000)’, it did not put forward any argument to establish the autonomy of BNGW vis-à-vis itself in order to rebut the presumption of actual exercise of decisive influence on its part over the commercial policy of the latter company.
33
The Commission maintains that the error in the statement of objections as regards the link between BNGW and the applicant is imputable to the latter, since it did not submit the organisation chart of the structure of its group prior to 1 October 2000 as it had been requested to do on 30 June 2003. That circumstance cannot however exempt the Commission from its obligation to indicate in which capacity the applicant was being called on to answer the allegations in the statement of objections, since, on the one hand, if the Commission had been clear on that aspect in the statement of objections, the applicant would have been in a position to put forward its defence on this point by supplying, on its own initiative, such an organisation chart and, on the other hand, Article 18(1) and (3) and Article 23(1)(b) of Regulation No 1/2003 provide the Commission with means to force the disclosure of that type of information.
34
Finally, since the applicant had stated in its reply to the statement of objections that it was not the legal successor of BNGW, the onus was on the Commission to adopt an additional statement of objections in order to be able to impute to it liability for the infringement committed by BNGW in its capacity as the 100% parent company of the latter (see, to that effect, Case 52/69 Geigy v Commission [1972] ECR 787, paragraph 14, and Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 192).
35
It must therefore be held that the applicant was not put in a position to conduct its defence properly during the administrative procedure as regards its participation in the infringement in its capacity as the 100% parent company of BNGW.
36
Accordingly, it is necessary for the Court, on the one hand, to annul Article 1(a) of the contested decision in so far as it concerns the imputation of the conduct of BNGW to the applicant for the period from 21 June 1996 to 30 September 2000 and, on the other, to exercise the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003 in order, in accordance with the form of order sought by the applicant, to attach to that annulment the appropriate consequences regarding the amount of the fine imposed on it. Those consequences will be examined in paragraph 136 et seq. below.
First plea in law, alleging failure to prove the existence of an infringement of Article 81 EC
Arguments of the parties
37
Although the burden of proving the existence of an infringement of Article 81 EC rests on the Commission, the applicant submits that, in this case, it has not adduced sufficient evidence.
38
In the first place, the applicant submits that the Commission has not established satisfactorily the involvement of the large builders in fixing the gross bitumen price. The only proof adduced by the Commission in that regard consists of the statements of the bitumen suppliers (‘the suppliers’), which are not credible. Moreover, it denies having acknowledged its own involvement in that regard. It claims that the suppliers fixed, during pre-meetings, the gross bitumen price, which they then communicated to the large builders at meetings. Furthermore, the suppliers, which had already established a bitumen price cartel, had no reason to share that power with companies of lesser size and dependent on them. Finally, the mere fact that the large builders accepted the gross price level fixed by the suppliers cannot be characterised as a cartel.
39
In the second place, the applicant claims that the W5 obtained larger rebates than those granted to the small builders because of the quantities purchased. Moreover, the small builders often obtained a larger rebate than that given to the W5. The fact that a large builder requests an additional rebate on learning that a small builder has obtained a rebate that is larger than its own and not justified by the volume purchased is normal commercial practice and must not be regarded as a ‘sanction’. An additional rebate was only once negotiated collectively by the large builders. Consequently, there is no proof of the existence of a system of sanctions imposed by the large builders whenever the suppliers gave a rebate larger than theirs to one of the small builders. Moreover, the applicant adds that the agreement concerning the standard rebate granted to the W5 does not constitute an infringement of Article 81 EC and that that rebate was only a minimum rebate which served as a basis in the bilateral negotiations.
40
In the third place, the applicant states that the large builders had no interest in fixing the gross price with the suppliers. Indeed, the two groups had opposing interests, since the large builders were seeking price stability which the suppliers did not want. Moreover, the applicant disputes the Commission’s assertion that the large builders had no interest in a decrease in the bitumen price because of the risk settlement mechanism which made it possible to pass on price increases to clients, since that mechanism was applicable to only a negligible fraction of projects.
41
In the fourth place, the applicant claims that, according to point 116 of the Commission’s Guidelines on the applicability of Article 81 [EC] to horizontal cooperation agreements (OJ 2001 C 3, p. 2, ‘the Guidelines on horizontal cooperation agreements’), collective purchasing can be regarded as promoting competition. The Commission refused to apply that provision without even having investigated the structure of the market and measured the effects of the agreements on the market.
42
Finally, in the fifth place, the applicant complains that the Commission did not examine, on the one hand, whether the alleged conduct had as its object or effect the restriction of competition and, on the other hand, whether final consumers had been deprived of the advantages of competition, as required by the case-law (Case T-168/01 GlaxoSmithKline Services v Commission [2006] ECR II-2969, paragraph 121).
43
The Commission disputes all of the applicant’s arguments.
Findings of the Court
44
It must first of all be recalled that, in accordance with the provisions of Article 2 of Regulation No 1/2003 and with the earlier case-law (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 86), the burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement, that authority being required to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. The Courts of the European Union have, moreover, held that, where there is doubt, the benefit of that doubt must be given to the undertaking accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continental v Commission [1978] ECR 207, paragraph 265) and that, under the presumption of innocence, the Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 177). However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering and Others v Commission, cited above, paragraph 180). In the context of the examination of this first plea, it is therefore for the Court to examine, in the light of those principles, whether the Commission had sufficient evidence of the existence of facts constituting an infringement of Article 81(1) EC.
45
Furthermore, the Court of Justice has stated that, where the Commission has succeeded in gathering documentary evidence of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine whether the undertaking concerned had a commercial interest in the agreement (Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 46). Should the General Court hold that the Commission has established the existence of agreements of an anti-competitive nature, the Court would not then be required to deal with the argument relating to the applicant’s interest in the cartel.
46
It must, moreover, be pointed out that it follows from paragraph 36 above that the evidence to be taken into account by the Court relates only to the period from 1 October 2000 to 15 April 2002, during which the applicant is alleged to have participated directly in the infringement. Furthermore, it is necessary to assess the agreements concluded between the W5 and the suppliers as a whole, since they concern three aspects, namely the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders.
– Involvement of the large builders in the fixing of the gross price
47
The applicant maintains that the statements of former employees of the suppliers, its reply to the statement of objections and that of another large builder are insufficient to demonstrate the involvement of the large builders in the fixing of the gross bitumen price. It claims that the gross bitumen price was fixed only by the suppliers during pre-meetings.
48
The applicant’s reply to the statement of objections shows that the applicant, on the one hand, admitted its participation in the bitumen consultation but, on the other hand, denied price fixing jointly with the suppliers, even though the W5 had a say regarding the rebates.
49
In point 105 of that reply to the statement of objections, the applicant stated the following:
‘BN Infra (Ballast Nedam) acknowledges having participated with other large builders in a bitumen consultation meeting in which the suppliers were represented (“bitumen consultation meetings”). The matters discussed on that occasion were prices and rebates.’
50
However, in points 127 and 128 of that document, the applicant claims that ‘the suggestion … that the amount of the standard bitumen price was fixed jointly by the suppliers collectively and the large builders collectively in the bitumen consultation meeting and that the builders defined a position in that regard before the bitumen consultation meeting, is incorrect’ and that ‘price changes were agreed beforehand by the suppliers, out of the presence of the large builders, and in cases where a bitumen consultation meeting took place, those changes were communicated to, and in fact imposed on, the large road builders’. In point 106 of its reply, the applicant states the following:
‘[T]here was no question of any real influence on the part of the large builders over pricing. Bitumen prices were set by the suppliers prior to the consultation meeting. However, as regards the rebates, the suppliers were open to discussion.’
51
In order to establish whether the applicant participated, with the W5, in the fixing of prices and rebates, the other evidence in the file relating to the period from 1 October 2000 to 15 April 2002 must be examined.
52
In the first place, several documents cited in the contested decision confirm the conclusion of agreements between the suppliers and the W5 on the gross price, which was not fixed unilaterally by the suppliers and imposed on the W5, as the applicant maintains.
53
Thus, an internal Hollandsche Beton Groep (‘HBG’) fax of 3 October and the Heijmans Infrastructuur BV (‘Heijmans’) agenda notes relating to the meeting on 19 October 2000 state that the parties ‘discussed’ a price increase (recital 114 of the contested decision). HBG and Koninklijke Wegenbouw Stevin (‘KWS’) notes on the W5 pre-meeting which preceded the consultation meeting on 16 February 2001 also show that the W5 proposed a price for bitumen and a rebate for the W5 (recital 115 of the contested decision). Furthermore, HBG and KWS notes refer to a meeting on 1 March 2001, during which the suppliers wanted to lower the gross price whereas the W5 preferred to keep the gross price in force (recitals 115 and 116 of the contested decision). A BP statement of 12 July 2002 also indicates that the bitumen price proposed by the suppliers was not automatically accepted by the W5 (recital 61 of the contested decision and footnote No 156). Moreover, the Kuwait Petroleum (Nederland) (‘KPN’) statement of 12 September 2003 shows that the suppliers proposed a certain price level, which was discussed with the large builders, in precisely the same way as the rebate which they were granted. Finally, in its reply of 20 May 2005 to the statement of objections, KWS admitted that the suppliers and the W5 had concluded agreements on the basis of gross price proposals made by the suppliers (recital 97 of the contested decision).
54
In the second place, the contested decision makes reference to numerous documents which confirm that the negotiations between the suppliers and the W5 also covered the rebate granted to the W5. Thus, in its reply of 12 September 2003 to a Commission request for information, KWS stated that the discussions between the suppliers and the large builders covered both the ‘list prices’ and the ‘standard rebates’ (recital 72 of the contested decision). HBG and KWS notes refer, moreover, to the meeting on 1 March 2001, specifying the gross price agreed, the rebate granted to the W5 and that granted to the small builders (recital 116 of the contested decision). An internal KWS note of 23 May 2001, confirmed by its reply of 12 September 2003 to a request for information, also mentions the gross price and the rebate granted to the W5 (recital 119 of the contested decision). Finally, in its reply to the statement of objections, KWS, quoting one of its employees, likewise stated that ‘[i]ncreases of the standard price were not a problem, as long as the rebates did not remain behind’ (recital 149 of the contested decision).
55
In the third place, several parts of the contested decision confirm the applicant’s participation in the bitumen consultation. Thus, in its reply to the statement of objections, the applicant admits ‘that together with other large road builders it has participated in consultation regarding bitumen, with a representation of the joint suppliers’, on which occasion ‘prices and rebates were discussed’ (recital 56 of the contested decision and point 105 of that reply). Likewise, the contested decision mentions the fact that the director of BNGW who became director of the applicant in 2000 had participated in the cartel on behalf of the Ballast Nedam group, basing its finding in particular on two documents seized during the inspections of KWS, on the reply of the undertaking Nynas of 2 October 2003 to a request for information, and on a document seized during the inspections carried out at the premises of BAM NBM (recital 77 of the contested decision). Other documents also show that the applicant participated in the cartel meeting on 16 February 2001, at which the bitumen price and the rebates were discussed (recital 115 and footnote No 291 of the contested decision). Likewise, a number of documents confirm the applicant’s participation in the cartel meeting on 29 January 2002 (recital 122 of the contested decision).
56
Those elements prove that the agreements concluded between the W5 and the suppliers covered both the gross price and the specific rebate granted to the W5. The fact, if proved, that differences of opinion and disputes may have arisen during those negotiations between the suppliers and the W5 is not sufficient to establish that the suppliers had imposed the gross price increases on the W5.
57
Likewise, the fact that the suppliers held pre-meetings to discuss prices cannot suffice to confirm the applicant’s assertion that the large builders had no involvement in decisions on the gross price level or on the rebates. It must, in that context, be pointed out that the W5 also held meetings before or after the bitumen consultation meetings, at which its members discussed the list prices and the standard rebates which the suppliers had indicated they wished to adopt or, as the case may be, had adopted with the W5 (KWS reply of 12 September 2003 to a request for information and recital 72 of the contested decision).
58
So far as concerns the applicant’s argument that the suppliers’ statements cannot suffice to establish the participation of the large builders in the cartel, it must be recalled that, on the one hand, the Commission is not obliged to produce evidence originating directly from the large builders if other documents in the file are sufficient to show that the latter took part in the agreement (see, to that effect, Joined Cases T-217/03 and T-245/03 FNCBV and Others v Commission [2006] II-4987, paragraph 161) and, on the other hand, in any event, it is apparent from paragraphs 53 to 55 above that the Commission also relied on evidence originating from the large builders themselves.
59
Moreover, so far as the value of the evidence used by the Commission is concerned, the Court would point out that the only relevant assessment criterion lies in the credibility of that evidence and that, in order to assess the evidential value of a document, regard should be had to the credibility of the account it contains, in the light, in particular, of the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears to be sound and reliable (Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491 (‘Cement’), paragraph 1838).
60
As regards the statement of a BP employee who allegedly attended only the suppliers’ pre-meetings, it must be pointed out that the Courts of the European Union have held that the fact that information is reported second hand has no bearing on its evidential value (Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 86). In any event, it is apparent from recitals 53 to 55 above that the Commission used other documents to establish the involvement of the large builders in the fixing of the gross price.
61
As regards the KPN employee’s statement made in 2003 in the context of its application to benefit from the Commission Notice on immunity from fines and reduction of fines in cartel cases, which contained a number of points regarding the participation of ExxonMobil in the cartel, which that employee subsequently retracted, it must be pointed out that it has nevertheless proved accurate on numerous other points. The Court therefore takes the view that that statement can constitute evidence of the involvement of the large builders in the fixing of the gross price, provided that it is supported by other evidence. It is clear from paragraphs 53 to 55 above that the Commission did use other evidence for that purpose.
62
Finally, it must be pointed out that the existence of other possible cartels between the suppliers, if proved, is not incompatible with the existence of a bilateral cartel between those suppliers and the W5.
63
In light of all of the foregoing, the first part of the first plea must be rejected.
– Rebates granted to the W5 and system of sanctions
64
The applicant claims that the rebates granted to the W5 were commercially justified on the basis of the quantities purchased and that the Commission has adduced no proof of sanctions imposed on the suppliers for having granted a larger rebate to the small builders.
65
It is necessary, in the first place, to examine the quantities purchased individually by each member of the W5, and not the total quantity purchased by all of its members. It is thus apparent from the contested decision that the small builders did not benefit from the same rebate as the members of the W5, even though, individually, they sometimes purchased larger quantities of bitumen than the members of the W5. Thus, in a statement made on 12 July 2002, a BP employee stated that the suppliers often failed to apply the agreements concluded with the W5 by granting a larger rebate to certain small builders which purchased larger quantities of bitumen from them. It should be noted that, in recital 157 of the contested decision, the Commission further pointed out that the large builders themselves had admitted that, in general, they negotiated an additional rebate for the quantities purchased individually. The Commission had also pointed out that, even assuming, as the applicant asserts, that that system had been used only once, the existence of a system of sanctions for granting the small builders a higher rebate than that stipulated in the agreements constituted further evidence that the rebate granted to the W5 was not proportionate to the volumes purchased.
66
That evidence and the importance attached by the W5 to the level of their rebate at cartel meetings (see paragraph 54 above) support the conclusion that the Commission correctly took the view that the applicant had not proved that the rebate granted to the W5 was dependent on volumes purchased.
67
It must, in the second place, be noted that, concerning the system of sanctions, the Commission relied on several concordant documents which mention individual or, on at least one occasion, collective financial sanctions imposed by the W5.
68
Thus, so far as the period of infringement in question is concerned, KWS and BP mention a collective fine imposed on all the suppliers in 2000, following the discovery of the rebate given to Krekel, a small builder (recital 84 of the contested decision). KPN also confirmed the system of sanctions in its statement of 9 October 2003 (recital 85 of the contested decision). Settlement of that fine occurred in 2001 in the form of an extra rebate. The Ballast Nedam group thus issued an invoice to Nynas headed ‘project discount as agreed’ and BP granted it an extra rebate (recitals 112 and 113 of the contested decision).
69
BP likewise stated, in its reply of 16 September 2003 to a request for information, that KWS had stopped obtaining supplies from Veba in 2002 following the discovery of a large rebate given to a small builder (recital 86 of the contested decision). In its statement of 12 September 2003, KPN confirmed that, if a supplier granted a small builder a higher rebate than that fixed, the W5 threatened to stop sourcing from that supplier (recital 86 of the contested decision). Finally, in a document relating to the meeting on 4 May 2001, KWS also mentioned a fine imposed on Nynas because of its price policy (recital 117 of the contested decision), which was confirmed by KPN in its statement of 12 September 2003 (recital 118 of the contested decision).
70
The Court is of the view that, although it is true that those documents specifically refer to the system of collective fines imposed on the suppliers only in respect of 2000, they nevertheless show, in their entirety, that there was in existence an individual or collective system of sanctions for non-compliance with the cartel agreements throughout the duration of the cartel, a system which could consist of a cessation of orders from the supplier which had infringed those agreements, or of a fine imposed either on that supplier or on all of the suppliers.
71
Finally, the fact that each large builder negotiated bilaterally an extra rebate in terms of the quantities purchased individually cannot suffice to remedy the anti-competitive nature of the agreements in question. Even though those agreements were followed by bilateral negotiations on the individual rebates for each large builder, they had the effect, on the one hand, of limiting the uncertainties of competition among the large builders and, on the other, of restricting competition to only one component of the price, namely a possible extra individual rebate.
72
It follows from all of the foregoing that the second part of the first plea must be rejected.
– Absence of interest of the W5 in joint fixing of the gross price
73
The applicant maintains that, in contrast to the suppliers, the large builders did not have an interest in jointly fixing the gross price and that the Commission incorrectly assessed how risk settlement clauses operate.
74
As a preliminary point, it must be recalled, in accordance with paragraph 45 above, that there is no need to examine whether the undertaking concerned had a commercial interest in the agreements where the Commission has succeeded in gathering documentary evidence of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature (Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 45 above, paragraph 46). In the present case, it is apparent from the Court’s analysis (see paragraphs 47 to 63 above) that the Commission has demonstrated to the requisite legal standard the applicant’s involvement in the infringement in question. The Court will therefore consider the question of the W5’s interest in the agreements purely as a secondary point.
75
In the present case, the Commission took the view that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and the rebates. In that regard, it must be recalled that the Courts of the European Union have already held that participants in the same cartel may have complementary economic interests (FNCBV and Others v Commission, cited in paragraph 58 above, paragraph 322).
76
It is therefore necessary to examine, on the basis of the material in the file, the operation of the CROW (Centre for Civil Engineering and Traffic Regulations and Research), a non-profit organisation which had been responsible for publishing road pavement bitumen prices monthly since the 1970s (recitals 25 and 26 of the contested decision).
77
The road pavement bitumen price was published by the CROW, after consultation with the asphalt producers, until 1 November 1995. After that date, the calculation was made by the CBS (Central Bureau for Statistics), a governmental organisation, on the basis of a market scan covering a number of asphalt plants, namely before the application of any rebate to the builders, and that price index, published by the CROW (‘the CROW index’), served as a reference for long-term road construction contracts including a risk settlement clause. It is apparent from the file that, under such contracts, in the event of an increase in the CROW index beyond a certain threshold (1000 Dutch guilders) the contracting authorities were required to compensate the builders. Conversely, in the event of a decrease in the CROW index below that threshold, the builders were to compensate the contracting authorities. It follows that the builders were therefore not disadvantaged by a rise in prices where those prices increased simultaneously and thereby caused the CROW index to increase. On the other hand, the builders had no interest in a fall in prices, which, if it resulted in a fall in the CROW index, obliged them to repay the price differential to the other contracting party.
78
The applicant attempts to minimise the importance of the CROW index by maintaining that it related only to large projects, which accounted for only a negligible proportion of its portfolio, and that it therefore attached more importance to price stability, which benefited the smaller projects. Without there being any need to establish the number of projects covered by that clause, the Court notes that the Commission mentions, in the contested decision, a document relating to the period of infringement from which it is apparent that this question was the subject of discussions at cartel meetings (recital 115 (HBG notes of 16 February 2001) of the contested decision), which makes it possible to regard it as part of the negotiations.
79
It is apparent from all of the foregoing that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and on rebates and that the interest of the large builders is explained both by the mechanism of risk settlement clauses in public contracts and by the specific rebate from which they benefited, which gave them a competitive advantage over the small builders in winning public contracts.
80
It follows from all of the foregoing that the third part of the first plea must be rejected.
– The Commission’s refusal to apply the provisions of the Guidelines on horizontal cooperation agreements
81
The applicant complains that the Commission refused to apply the Guidelines on horizontal cooperation agreements.
82
As a preliminary point, the Court recalls that it is settled law that it is for undertakings seeking an exemption under Article 81(3) EC to establish, on the basis of documentary evidence, that an exemption is justified. Accordingly, the Commission cannot be criticised for failing to put forward alternative solutions or to indicate in what respects it would regard the grant of an exemption as justified (Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 52). In applying the competition rules, all that is incumbent upon the Commission, by virtue of its obligation to state reasons, is to mention the matters of fact and of law and the considerations which prompted it to take a decision rejecting the application for exemption, and the applicant may not require it to discuss all the matters of fact and law raised by it in the administrative procedure (Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraphs 262 and 263). It follows that it is for the applicant to establish that the Commission made an error of law or of fact by refusing to grant it an exemption under Article 81(3) EC.
83
In the present case, the Commission set out, in recitals 162 to 168 of the contested decision, the reasons why it considered that the W5’s participation in the arrangements did not amount to collective purchasing as referred to in the Guidelines on horizontal cooperation agreements. Thus, the Commission points out, in recital 163 of the contested decision, that those provisions are not intended to authorise horizontal cooperation agreements generally, but set out the principles for the assessment under Article 81 EC of such agreements as may lead to competition problems. In this case, it states, in recital 165 of the contested decision, that the agreements in question had as their object the restriction of competition and had consequences for undertakings not involved in them (fixing of prices for all builders in the Netherlands and setting of maximum rebate levels for small builders). In addition, and in any event, as is correctly stated by the Commission in recital 166 of the contested decision, the W5 did not make any purchases during those negotiations with the suppliers, which were intended only to fix prices and rebates, conduct which point 124 of the Guidelines on horizontal cooperation agreements characterises as a disguised cartel. Moreover, it must be pointed out that the W5 concluded those agreements with a group of sellers which was also engaging in collusive behaviour. Finally, the provisions of Article 81(3) EC are in any event not applicable, since, according to point 133 of the Guidelines on horizontal cooperation agreements, purchasing agreements cannot be exempted if they impose restrictions that are not indispensable to the attainment of the economic benefits brought about by the agreements. In this case, the agreements in question imposed restrictions on the small builders in the form of limited rebates, restrictions directed at third parties and not indispensable to the attainment of the economic benefits sought.
84
The applicant complains that the Commission did not carry out, as is provided for by the Guidelines on horizontal cooperation agreements, an analysis of the market power of the members of the W5 in order to determine whether the agreements at issue were in fact capable of restricting competition. It must however be pointed out that, under point 18 of those guidelines, it is not necessary to examine the actual effects on competition and the market of agreements that have as their object a restriction of competition by means of price fixing, output limitation or sharing of markets or customers, since those agreements are presumed to have negative market effects. Since the Commission considered that the agreements in question were by nature aimed at the restriction of competition (recital 165 of the contested decision), it was therefore not required to carry out a detailed analysis of the market power of the members of the W5.
85
Consequently, the fourth part of the first plea must be rejected.
– Absence of an object to restrict competition
86
The applicant complains that the Commission did not examine whether the alleged conduct had as its object the restriction of competition, did not investigate the limitation of competition and did not examine, in accordance with the case-law resulting from the judgment in GlaxoSmithKline Services v Commission, cited in paragraph 42 above, whether final consumers had been deprived of the advantages of competition.
87
It must be recalled that, to come within the prohibition laid down in Article 81(1) EC, an agreement must have ‘as [its] object or effect the prevention, restriction or distortion of competition within the common market’. According to settled case-law, the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. Where, however, an analysis of the clauses of that agreement does not reveal the effect on competition to be sufficiently deleterious, its effects should then be considered and for it to be caught by the prohibition it is necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent (Case C-209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I-8637, paragraph 15, and Case T-450/05 Peugeot and Peugeot Nederland v Commission [2009] ECR II-2533, paragraph 43). In deciding whether an agreement is prohibited by Article 81(1) EC, there is therefore no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market (Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraph 125). That examination must be made in the light of the agreement’s content and economic context (Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 66, and Beef Industry Development Society and Barry Brothers, cited above, paragraph 16). Finally, that method of analysis is of general application and is not confined to a category of agreements (Case T-328/03 O2 (Germany) v Commission [2006] ECR II-1231, paragraph 67).
88
The applicant cannot rely on the judgment in GlaxoSmithKline Services v Commission, cited in paragraph 42 above (paragraph 121), since, according to the Court of Justice, ‘like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such’ and ‘[c]onsequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price’ (Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I-9291, paragraphs 62 to 64).
89
It is therefore necessary to determine in the present case whether the agreements at issue had an anti-competitive object, as the Commission found in the contested decision (recitals 155 to 161).
90
Article 81(1) EC expressly mentions as prohibited agreements any which ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ and ‘apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’. In the present case, it follows from the foregoing, and in particular from paragraphs 51 to 56 above, that the agreements were intended, on the one hand, to fix the purchase and selling prices of bitumen and, on the other, to grant a preferential rebate to the members of the W5. The very nature of those agreements is therefore sufficient for them to be considered to have as their object the prevention, restriction or distortion of competition within the common market.
91
It follows from all of the foregoing that the fifth part and, consequently, the first plea in its entirety must be rejected.
Second plea in law, alleging incorrect setting of the basic amount of the fine
Arguments of the parties
92
The applicant submits that, in accordance with Article 23(3) of Regulation No 1/2003, the Commission ought to have taken account, in calculating the basic amount of the fine, of the gravity of the infringement having regard to its nature and its real impact on the market.
93
The Commission should thus have assessed separately the conduct of the large builders and that of the suppliers. The collective negotiation by the large builders of their purchase conditions cannot be compared with the fixing of the gross price by the suppliers. The Commission should also have taken account of the situation of dependency of the large builders vis-à-vis the suppliers, of the absence of secret arrangements on the part of the large builders, of the fact that the standard rebate represented only a minimum rebate supplemented by individual negotiations and of the fact that no harm to the small builders had been proved.
94
When assessing the impact of the cartel on the market, the Commission merely assumed that the agreement could not fail to have an influence on the market in the Netherlands, without measuring its actual impact. The Commission took into account only the fact that the price of road pavement bitumen was higher in the Netherlands than in neighbouring countries. Furthermore, the Commission wrongly interpreted the individual actions of a large builder as a system of collective sanctions on the part of the large builders vis-à-vis the suppliers. Finally, bitumen accounts for only a negligible percentage of the total cost of a construction project and the relative advantage obtained is negligible.
95
The applicant submits that the Commission cannot exempt itself from its obligation to examine the actual impact of the alleged agreements simply on the basis that they were implemented, since the case-law relied on in that regard (Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169) applies only to traditional horizontal price cartels and not to consultation between suppliers and purchasers concerning purchase conditions.
96
The applicant concludes that the alleged infringement can be classified, at the very most, as a minor infringement and that the amount of the fine, which is in any event disproportionate in the light of the purchase price of bitumen, should be reduced to EUR 1 million.
97
The Commission disputes all of the applicant’s arguments.
Findings of the Court
– Classification as a very serious infringement
98
According to Section 1 of the 1998 Guidelines, the basic amount of the fine is determined according to the gravity and duration of the infringement, and in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. The 1998 Guidelines therefore draw a distinction between minor infringements (for example, trade restrictions, usually of a vertical nature, but with a limited market impact), serious infringements (more often than not, horizontal or vertical restrictions, more rigorously applied, and with a wider impact on the common market), and very serious infringements (generally horizontal restrictions such as price cartels, market-sharing quotas or other practices which jeopardise the proper functioning of the single market).
99
In line with settled case-law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, in respect of which the Commission has a broad discretion (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 241; Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 43; and Case T-69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II-2567, paragraph 153). Moreover, it is settled case-law that, when determining the amount of fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as the role played by each of the parties in the infringement and the threat that infringements of that type pose to the objectives of the Community (Musique Diffusion française and Others v Commission, cited in paragraph 22 above, paragraphs 120 and 129, and Joined Cases T-49/02 to T-51/02 Brasserie nationale and Others v Commission [2005] ECR II-3033, paragraphs 168 to 183). Where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them (Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 110, and Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 207).
100
The Courts of the European Union have also recognised that horizontal price cartels or agreements involving in particular customer-sharing or partitioning of the common market may be classified as inherently very serious infringements (Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 109; Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 147; and Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 279). Such agreements are thus sufficient for the infringement to be classified as very serious, regardless of their geographical coverage or their impact on the market (Brasserie nationale and Others v Commission, cited in paragraph 99 above, paragraph 178). Conversely, a horizontal agreement covering the entire territory of a Member State and with the object both of dividing the market and of partitioning the common market cannot be classified as minor within the meaning of the 1998 Guidelines (Brasserie nationale and Others v Commission, cited in paragraph 99 above, paragraph 181).
101
In the present case, the Commission considered, in recitals 312 to 317 of the contested decision, that the applicant had committed a very serious infringement of Article 81(1) EC. It stated that an infringement consisting of the direct or indirect fixing of selling and purchase prices and the application of dissimilar conditions to equivalent transactions with other parties, thereby placing them at a competitive disadvantage, was amongst the most serious types of infringements by their nature. It further stated that both groups involved in this infringement should have been aware of the illegal nature of the cartel, in particular since the members of the W5 deliberately put the small builders at a competitive disadvantage. The secrecy of the arrangements entered into by the cartel constitutes, in that regard, further proof of their illegal nature.
102
It follows from paragraphs 52 to 54 and 64 to 66 above that the agreements in question had as their object that of directly or indirectly fixing selling or purchase prices and of applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage. The mechanisms thus described by the Commission are among the most serious forms of impairment of competition.
103
In order to contest the classification as a very serious infringement decided on by the Commission, the applicant maintains that the Commission should have carried out a separate assessment of the conduct of the suppliers and of that of the large builders. As the Court has already stated previously (see paragraph 46 above), it is however necessary to take into account the agreements concluded between the W5 and the suppliers as a whole, since they concern the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders. Thus, the circumstances invoked by the applicant in this case are not such as to call in question the validity of the Commission’s assessment of the gravity of the infringement. It follows that the Commission’s conclusion that the agreements and consultations at issue constituted, by their nature, a very serious infringement, cannot be disputed.
104
Furthermore, the applicant cannot rely on a dependency of the large builders vis-à-vis the suppliers. Even if that circumstance is proved, the Courts of the European Union take the view that an undertaking cannot rely on the fact that it participated in the cartel under coercion from the other participants, since it could have reported the pressure to the competent authorities and lodged a complaint with the Commission under Article 7 of Regulation No 1/2003 rather than participate in the activities in question (see, to that effect, Dansk Rørindustri and Others v Commission, cited in paragraph 99 above, paragraphs 367 to 370).
105
Moreover, in accordance with paragraph 71 above, the applicant’s arguments that, on the one hand, the rebates granted to the W5 were justified by the volumes purchased and, on the other, competition between the builders was not, in reality, restricted, because the standard rebates were only minimum rebates, supplemented by individual rebates, must be rejected.
106
Finally, the applicant disputes the secret nature of the agreements in question for the W5. It is however apparent from the contested decision that the W5 did not send out written invitations to the cartel meetings and did not draw up any record of the meetings, and that KWS wanted the meetings to take place before the personnel arrived (recitals 59, 73 and 76). It is settled case-law that the Commission is entitled, in order to determine the gravity of the infringement, to take into consideration the fact that the undertakings took many precautions to prevent a cartel from being discovered (Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 99 above, paragraph 154). In any event, the wording of recital 313 of the contested decision shows that the elements mentioned there were subsidiary to those listed in recital 312 of the contested decision. In those circumstances, even supposing that the applicant’s objection to the taking into account of the secret nature of the cartel could be regarded as founded, that circumstance could not call into question the Commission’s assessment of the nature of the infringement, as it results from the relevant and sufficient reasons contained in recital 312 of the contested decision (see, to that effect, Schunk et Schunk Kohlenstoff-Technik v Commission, cited in paragraph 99 above, paragraph 157).
107
It follows from all of the foregoing that, firstly, the Commission did not make any error of assessment in the classification of the nature of the infringement committed by the applicant and, secondly, the Court finds it appropriate to view that infringement as being particularly serious. There is therefore no reason to alter the basic amount as claimed by the applicant.
108
The first part of the second plea must therefore be rejected.
– Incorrect assessment of the impact on the market of the cartel
109
The applicant complains that the Commission did not measure the impact on the market of the cartel in setting the basic amount of the fine.
110
In recital 314 of the contested decision, the Commission states that the determination of the gravity of the infringement and of the amount of the fine is not dependent on the impact on the market of the cartel. It points out that it is not possible to measure the actual impact of the cartel due to lack of information on bitumen price developments in the absence of the arrangements but that the Commission can confine itself to estimates of the probability of the cartel’s effects. To that end, the Commission pointed out that the arrangements concluded were effectively implemented; that implementation included the application of a preferential rebate solely to W5 members and of the system of sanctions in the event of failure to comply with the agreements, thus creating artificial market conditions. The Commission further stated that the level of the gross price in the Netherlands was higher than that in neighbouring countries and that the specific rebate granted to the W5 had possibly been a decisive factor in obtaining public contracts.
111
As was recalled in paragraph 98 above, Section 1 of the 1998 Guidelines states that, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.
112
It is settled case-law that the Commission is not required to establish the actual impact of the infringement on the market, since the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel is not a decisive factor for determining the level of fines (Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraphs 68 to 77; and judgment of 19 May 2010 in Case T-25/05 KME Germany and Others v Commission, not published in the ECR, paragraph 82).
113
The Court of Justice has thus stated that it is apparent from the 1998 Guidelines that the very nature of the infringement may suffice for it to be classified as ‘very serious’, regardless of its actual impact on the market and its geographic extent (see paragraph 100 above and Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 103). That conclusion is supported by the fact that, whilst the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (Groupe Danone v Commission, cited in paragraph 100 above, paragraph 150, and KME Germany and Others v Commission, cited in paragraph 112 above, paragraph 83). The Court of Justice has also stated that it is apparent from the first paragraph of Section 1A of the 1998 Guidelines that that impact is to be taken into account only where this can be measured (Case C-511/06 P Archer Daniels Midland v Commission [2009] ECR I-5843, paragraph 125, and Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 74).
114
In that regard, the applicant’s argument that that case-law applies only to horizontal price cartels and not to ‘consultation between suppliers and purchasers concerning purchase conditions’ must be rejected. It follows from paragraphs 81 to 84 and 102 above that the agreements in question had as their object, on the one hand, the fixing of purchase and selling prices for bitumen and, on the other, the granting of preferential rebates to the members of the cartel and that the very nature of those agreements is therefore sufficient for it to be considered that they had as their object the prevention, restriction or distortion of competition within the common market.
115
In the present case, in view of the nature of the infringement in question and of the fact that the Commission stated in the contested decision that the actual impact of the infringement could not be measured (recitals 314 and 316), it follows from the case-law cited above that the Commission was not required to carry out an assessment of that actual impact on the market in order to classify the infringement as very serious.
116
Since the Commission clearly stated in the contested decision that the actual impact of the infringement played no part in the determination of the gravity of the infringement and of the amount of the fine, the Commission cannot be criticised for stating in the recital relating to the actual impact of the cartel on the market that the agreements in question had been implemented. It will therefore not be necessary to examine whether the other evidence which it put forward was sufficient to establish the actual influence that the infringement may have had on competition on that market.
117
The second part of the second plea must therefore be rejected.
– Disproportionate nature of the basic amount
118
The applicant claims that the basic amount of EUR 3 million for the calculation of the fine is disproportionate, taking account of the purchase price of bitumen.
119
According to the sixth paragraph of Section 1A of the 1998 Guidelines, where an infringement involves several undertakings, it might be necessary in some cases to apply weightings to the amounts determined within each category of infringement ‘in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. The seventh paragraph thus states that ‘the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetic calculation’.
120
The Commission stated in recitals 318 to 322 of the contested decision that, in order to take account of the specific importance of the unlawful conduct of each undertaking involved in the cartel and of its real impact on competition, it made a distinction between the undertakings concerned according to their relative importance in the relevant market, measured by their market shares calculated on the basis of the value of road pavement bitumen sales or purchases in the Netherlands in 2001, the last full year of the infringement. It thus divided the undertakings into six categories and placed the applicant in the sixth category, which groups together undertakings with market shares between 3.9 and 4.2%, arriving at a basic amount of EUR 3 million for the applicant. Moreover, it stated in recital 317 of the contested decision that, even though very serious infringements may be subject to fines in excess of EUR 20 million, it had set that amount at only EUR 15 million, in view of the fact that the infringement was limited to road pavement bitumen sold in a single Member State, of the relatively low value of that market (EUR 62 million in 2001) and of the high number of participants.
121
The case-law states that, in the context of Regulation No 1/2003, the Commission has a wide margin of discretion in fixing the amount of fines in order to steer the conduct of undertakings towards compliance with the competition rules, and that the Court is under a duty to verify whether the amount of the fine imposed is proportionate in relation to the gravity and duration of the infringement and to weigh the gravity of the infringement and the circumstances invoked by the applicant (Case T-368/00 General Motors Nederland and Opel Nederland v Commission [2003] ECR II-4491, paragraph 189).
122
It has been held, furthermore, that, although they do not provide that the fines are to be calculated according to the overall turnover of the undertakings concerned or their turnover on the relevant product market, the 1998 Guidelines do not preclude such turnover from being taken into account in determining the amount of the fine in order to comply with the general principles of European Union law and where circumstances demand it, and that the Commission may accordingly group the undertakings concerned into several categories on the basis of the turnover of each of them in the goods concerned by the proceeding (Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 99 above, paragraphs 176 and 177).
123
The method of dividing the members of a cartel into categories in order to apply differential treatment when setting the starting amounts of the fines, the principle of which has been approved by the case-law even though it ignores the differences in size between undertakings in the same category, results in a flat-rate starting amount for all the undertakings in the same category. The Commission may thus, in particular, divide the undertakings concerned into several categories based, for example, on steps of 5 or 10% of market share. However, such a division must respect the principle of equal treatment and the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement, and the Courts of the Union restrict themselves to reviewing whether that division is coherent and objectively justified (Case T-68/04 SGL Carbon v Commission [2008] ECR II-2511, paragraphs 62 to 70, and Case T-161/05 Hoechst v Commission [2009] ECR II-3555, paragraphs 123 and 124).
124
However, the Court of Justice has held that the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, as is pointed out in the sixth paragraph of Section 1A of the 1998 Guidelines, to calculate the fines on the basis of the turnover of the undertaking concerned. It is, admittedly, permissible for the Commission to take account of the turnover of the undertaking in question, but disproportionate importance must not be attributed to that figure by comparison with other relevant factors. The Commission therefore retains a certain margin of discretion as to whether it is appropriate to weight the fines according to the size of each undertaking. Thus, in determining the amount of the fines, the Commission is not required, where fines are imposed on several undertakings involved in the same infringement, to ensure that the final amount of the fines reflects the difference in overall turnover of the undertakings concerned (Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraphs 141 to 144) or in their turnover in the relevant product market (Case T-62/02 Union Pigments v Commission [2005] ECR II-5057, paragraph 159).
125
The General Court has also held that the fact that the method of calculation set out in the 1998 Guidelines is not based on the value of the sales or purchases of the undertakings concerned and therefore allows disparities to appear between the undertakings as regards the relationship between the value of their sales or purchases and the amount of the fines imposed on them is irrelevant to an assessment of whether the Commission infringed the principles of proportionality and equal treatment and that penalties should fit the individual offender (Case T-116/04 Wieland-Werke v Commission [2009] ECR II-1087, paragraphs 86 and 87).
126
It follows from the foregoing that the Commission was not required to take into account the fact, even if proved, that the applicant’s bitumen purchasing costs were only EUR 2.6 million in 2001.
127
Furthermore, in the light of all the considerations set out above, and in particular of the gravity of the infringement and the objective of deterrence of the penalty, the Court finds that the setting of the basic amount of the fine at EUR 3 million is not disproportionate.
128
The third part of the second plea and, consequently, the second plea in its entirety must therefore be rejected.
Third plea in law, alleging errors of law and manifest errors of assessment in imputing liability for the infringement committed by BNGW to the applicant
Arguments of the parties
129
The applicant submits that, by imputing to it the conduct of BNGW and by acting solely on the basis that it held 100% of the latter’s capital, the Commission made an error of law, failed to have regard to the case-law and contravened the presumption of innocence. The applicant asserts, moreover, that it did not exercise decisive influence over the commercial conduct of its subsidiary, of which it was merely the passive holder of the capital.
130
The Commission disputes all of the applicant’s arguments.
Findings of the Court
131
In the light of the reply given to the fourth plea, which has the effect of annulling Article 1(a) of the contested decision in so far as it concerns the imputation of the conduct of BNGW to the applicant for the period from 21 June 1996 to 30 September 2000, there is no need to examine the third plea.
Amount of the fine
Arguments of the parties
132
The applicant maintains that, if the contested decision is partially annulled as regards the period from 21 June 1996 to 30 September 2000, its fine should be reduced proportionately to EUR 1 213 650.
133
At the hearing, the applicant further stated that, since Regulation No 1/2003 accords the same importance to the gravity and to the duration of the infringement, the fine set should reflect the duration of the infringement in a proportional manner, as provided for by the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines’). It pointed out that, in any event, the Commission was required to observe the increase limit of 10% per year laid down by the 1998 Guidelines.
134
The Commission submits that, should the Court uphold the fourth plea in so far as it relates to the period from 21 June 1996 to 30 September 2000, the initial amount of the fine should be reduced to EUR 3.45 million, while the basic amount should remain at EUR 3 million and the increase relating to the duration should be reduced from 55 to 15%. Ballast Nedam would, in any event, remain liable for the whole of the period of infringement.
135
The Commission is, moreover, of the view that the pleas raised by the applicant at the hearing, alleging failure to observe the increase limit of 10% per year laid down by the 1998 Guidelines and regarding the need to set a fine in strict proportion to the duration of the infringement, constitute new and, therefore, inadmissible pleas. It further points out that application of the 2006 Guidelines by the Court would be contrary to the principle of equality between the participants in the cartel and that, in any event, it would then be necessary to take into account the fact that the applicant took over all the group’s building activity.
Findings of the Court
136
It is clear from paragraphs 21 to 36 above that the applicant was not enabled to conduct its defence properly during the administrative procedure as regards its participation in the infringement as the 100% parent company of BNGW and that the Court has therefore annulled Article 1(a) of the contested decision as regards the imputation of BNGW’s conduct to the applicant for the period from 21 June 1996 to 30 September 2000. The Court considers that it must attach to that annulment the appropriate consequences as regards the amount of the fine imposed on the applicant.
137
As a preliminary point, it must be recalled that it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the original application must contain the subject-matter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure.
138
However, in the exercise of its unlimited jurisdiction, the Courts of the European Union may allow new pleas and arguments where those pleas and arguments are effective for the purposes of that jurisdiction, and where they are not based on grounds of illegality different from those raised in the application (see, to that effect, Case C-104/97 P Atlanta v European Community [1999] ECR I-6983, paragraphs 27 to 29).
139
Consequently, so far as concerns the objection of inadmissibility raised by the Commission against the arguments put forward by the applicant at the hearing, it must be observed that, in the application, the applicant simply requested the Court to reduce the amount of its fine in consequence of the annulment of that fine for the period from 21 June 1996 to 30 September 2000, on the ground of breach of its rights of defence. In the reply, the applicant calculated the new amount by applying a reduction of the fine in strict proportion to the reduction in the duration of the infringement. In the rejoinder, the Commission disputed the calculation made by the applicant and requested the Court, where appropriate, to calculate the new amount of the fine by retaining the basic amount of EUR 3 million and reducing the increase in the fine from 55 to 15% based on its duration, in accordance with the 1998 Guidelines used in the contested decision.
140
Consequently, the arguments relating, on the one hand, to the method of calculation proposed by the Commission in the rejoinder, which, it is claimed, fails to observe the increase limit of 10% per year laid down by the 1998 Guidelines and, on the other, to the need to set a fine in strict proportion to the duration of the infringement, in accordance with the 2006 Guidelines – arguments which are not based on a ground of illegality different from those raised in the application – are effective for the purpose of allowing the Court to set the amount of the fine in the exercise of its unlimited jurisdiction. They must therefore be declared admissible.
141
On the substance, as regards the argument that the method of calculation proposed by the Commission in the rejoinder fails to observe the increase limit of 10% per year laid down in the 1998 Guidelines, it must be disregarded while pointing out that, in accordance with Section B of those Guidelines and as stated in the contested decision (recital 328), the Commission proposed increasing the basic amount of the fine imposed on the applicant on account of its duration by 10% per year for each full year and 5% for any period of between six months and a year, that is, 15% for the period from 1 October 2000 to 15 April 2002.
142
As regards the applicant’s argument relating to the need to set the amount of the fine at a level strictly proportionate to the duration of its participation in the infringement, it should be recalled that EU law does not impose such a requirement (Joined Cases T-122/07 to T-124/07 Siemens Österreich and Others v Commission [2011] ECR II-793, paragraph 182). Article 23(3) of Regulation No 1/2003 merely provides that, in fixing the amount of the fine, regard must be had both to the gravity and to the duration of the infringement.
143
As regards the possibility for the Court to calculate the amount of the fine imposed on the applicant using the methodology of the 2006 Guidelines rather than that of the 1998 Guidelines in force at the time of the adoption of the contested decision, it is important to point out that the Court is not bound by the Commission’s calculations or by its guidelines when it exercises its unlimited jurisdiction (see, to that effect, Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II-4949, paragraph 213 and the case-law cited), but that it must carry out its own assessment in the light of all the circumstances of the particular case. However, when the amount of the fines to be imposed on them is determined, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81 EC. If the Court thus intends, in the case of one undertaking, to depart specifically from the method of calculation used by the Commission with regard to all those undertakings, it must give reasons for that choice (Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 97 and 98).
144
In the present case, the particularly serious nature of the infringement committed and the proportionate nature of the basic amount determined by the Commission, as shown in paragraphs 107 and 127 above, justify a reduction of the increase in the fine pursuant to the methodology of the 1998 Guidelines.
145
In the light of all of the abovementioned circumstances and considerations, the Court, giving judgment in the exercise of its unlimited jurisdiction, thus considers a reduction of the increase in the fine on account of the duration of the infringement from 55 to 15% and that the amount of the fine imposed jointly and severally on the applicant should be set at EUR 3.45 million.
Costs
146
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, where each party succeeds on some and fails on other heads, the Court may order that costs be shared or that each party bear its own costs.
147
In this case, as the applicant has been unsuccessful in part of its pleadings, the Court will make an equitable assessment of the case in ruling that each party must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Annuls Article 1(a) of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)) in so far as it concerns the participation of Ballast Nedam Infra BV in the infringement between 21 June 1996 and 30 September 2000;
2.
Limits the amount of the fine imposed jointly and severally on Ballast Nedam Infra in Article 2(a) of the decision mentioned in paragraph 1 above to EUR 3.45 million;
3.
Orders each party to bear its own costs.
Jaeger
Wahl
Soldevila Fragoso
Delivered in open court in Luxembourg on 27 September 2012.
[Signatures]
Table of contents
Facts
Procedure and forms of order sought by the parties
Law
Fourth plea in law, alleging infringement of Article 27(1) of Regulation No 1/2003 and of the rights of the defence
Arguments of the parties
Findings of the Court
First plea in law, alleging failure to prove the existence of an infringement of Article 81 EC
Arguments of the parties
Findings of the Court
– Involvement of the large builders in the fixing of the gross price
– Rebates granted to the W5 and system of sanctions
– Absence of interest of the W5 in joint fixing of the gross price
– The Commission’s refusal to apply the provisions of the Guidelines on horizontal cooperation agreements
– Absence of an object to restrict competition
Second plea in law, alleging incorrect setting of the basic amount of the fine
Arguments of the parties
Findings of the Court
– Classification as a very serious infringement
– Incorrect assessment of the impact on the market of the cartel
– Disproportionate nature of the basic amount
Third plea in law, alleging errors of law and manifest errors of assessment in imputing liability for the infringement committed by BNGW to the applicant
Arguments of the parties
Findings of the Court
Amount of the fine
Arguments of the parties
Findings of the Court
Costs
(
*1
)	Language of the case: Dutch.