62009TJ0154_EN
Parties
Grounds
Operative part
Parties
In Case T-154/09,
Manuli Rubber Industries SpA (MRI),
established in Milan (Italy), represented by L. Radicati di Brozolo, M. Pappalardo and E. Marasà, lawyers,
applicant,
v
European Commission,
represented by V. Di Bucci, S. Noë and L. Prete, acting as Agents,
defendant,
APPLICATION, primarily, for annulment in part of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine Hoses), in so far as that decision relates to the applicant, and, in the alternative, for annulment or a substantial reduction of the fine imposed on the applicant in that decision,
THE GENERAL COURT (First Chamber),
composed of J. Azizi, President, M. Prek and S. Frimodt Nielsen (Rapporteur), Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 26 April 2012,
gives the following
Judgment
Grounds
Facts giving rise to the dispute
A – The oil and gas marine hoses sector
1. Marine hoses are used to load sweet or processed crude oil and other petroleum products from offshore facilities (for example, buoys – normally anchored offshore and serving as a mooring point for tankers – or floating production, storage and offloading platforms – which are floating tank systems used to take the oil or gas from a nearby platform, process it and store it until it is offloaded on to a tanker) on to vessels and then to offload those products from those vessels to offshore (for example buoys) or onshore facilities.
2. Marine hoses are used offshore – that is to say, in or near the water – while industrial or onshore hoses are used on land.
3. Each marine hose installation is composed, according to customers’ specific needs, of a number of standard hoses, specific hoses with connections at both ends and ancillary equipment, such as valves, end gear or floating equipment. In this case, the expression ‘marine hoses’ encompasses those complementary mechanisms.
4. Marine hoses are used by petroleum companies, buoy manufacturers, port terminals, the oil industry and governments, and are purchased either for new projects or for replacement purposes.
5. With respect to new projects, oil terminals or other end users usually engage an engineering company (also known as an ‘original equipment manufacturer’ or ‘OEM’) to construct or install new oil distribution facilities, such as single buoy moorings or floating production, storage and unloading platforms. For such projects, the manufacturer purchases an entire marine hoses installation from a marine hoses producer.
6. Once those marine hoses are installed, the individual parts must be replaced within a period of between one and seven years. Purchases of marine hoses for replacement purchases (also known as ‘spares business’) are often made directly by end users. In some cases, however, end users outsource and centralise their purchases to subsidiaries or external companies. Replacement sales account for a greater proportion of the worldwide marine hoses market than sales of new products.
7. Demand for marine hoses largely depends on the development of the oil sector, and in particular on oil exploitation in areas remote from the place of consumption. Demand has expanded over time. It is cyclical and to a certain extent linked with the development of oil prices. It started to become significant in the late 1960s and rose in the early 1970s, in particular from oil-producing regions in the Persian Gulf, the North Sea and North Africa. During the 1980s demand from national oil companies in South America increased. In the late 1990s demand moved towards West Africa.
8. Marine hoses are manufactured by undertakings known for the manufacture of tyres and rubber or by their spin-offs. They are produced on demand, according to the specific needs of customers. As demand for marine hoses is widely dispersed, most marine hose producers engage a significant number of agents who, for specific markets, provide general marketing services and offer their products in the context of published calls for tenders.
9. Marine hoses are marketed throughout the world and the main producers are active at international level. The regulatory requirements for marine hoses are not fundamentally different from one country to another and while technical requirements differ according to the specific environment and conditions of use, that is not seen as an obstacle to selling marine hoses throughout the world.
10. Last, during the period taken into consideration in the contested decision, the participants in the cartel sold marine hoses produced in Japan, the United Kingdom, Italy and France to end users and also to OEMs established in different countries of the European Union and the European Economic Area (EEA). While the final destination of most marine hoses systems is in non-European regions, some of the main worldwide OEMs are based in the different countries of the European Union and the EEA.
B – The applicant
11. The applicant, Manuli Rubber Industries SpA (MRI), is a company active in the design, manufacture and distribution of machines and fluid-conveying rubber/metal components and systems for high pressure hydraulics and oil and marine applications worldwide.
12. The applicant is the ultimate parent company of the Manuli group. Its headquarters are in Milan (Italy).
13. On 2 December 1984 Manuli founded Uniroyal Manuli (USA) Inc., which was established in Delaware (United States) and wholly owned by MRI. That company was subsequently named Uniroyal Manuli Rubber (USA) Inc. in 1986, Manuli Rubber Industries (USA) Inc. in 1990, then Manuli Oil & Marine (USA) Inc. (‘MOM’) in 1997. The company was liquidated on 31 December 2006.
14. After the creation of MOM, the international sales and marketing of MRI’s marine hoses were conducted by MOM.
15. [ Confidential ]. (1)
16. [ Confidential ].
17. [ Confidential ].
18. In January 2006 the marine hoses sector was placed under the authority of the Ingénerie group of undertakings and MOM reported to the head of that group.
19. On 1 January 2007, following the liquidation of MOM, the marine hoses operational activity was resumed by MRI.
C – Administrative procedure
20. When an investigation was opened by the United States Department of Justice and the Japanese and United Kingdom competition authorities for similar facts, [ confidential ], relying on the leniency programme set out in the Commission Notice on immunity from and the reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’), submitted an application for immunity to the Commission of the European Communities on 20 December 2006, reporting the existence of a cartel on the marine hoses market.
21. The Commission then initiated an investigation for infringement of Article 81 EC and Article 53 EEA and on 2 May 2007 carried out a series of inspections at the premises of Parker ITR, other producers concerned and also of [ confidential ] and Mr W.
22. Manuli, Parker ITR and Bridgestone submitted applications for leniency to the Commission on 4 May, 17 July and 7 December 2007 respectively.
23. On 28 April 2008 the Commission adopted a statement of objections, which it notified to the various companies concerned between 29 April and 1 May 2008.
24. All the companies concerned replied to the statement of objections within the prescribed period and, with the exception of [ confidential ] /DOM, ContiTech AG and Continental AG, requested to be heard at an oral hearing, which was held on 23 July 2008.
D – The contested decision
25. On 28 January 2009 the Commission adopted Decision C(2009) 428 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine Hoses; ‘the contested decision’). It follows, in substance, from the contested decision that:
– the decision was addressed to 11 companies, including the applicant;
– the companies to which the contested decision was addressed participated, sometimes in different ways, in a single, complex infringement, having had as its object:
– the allocation of tenders;
– price-fixing;
– quota-fixing;
– the fixing of sales conditions;
– the sharing of geographic markets;
– the exchange of sensitive information on prices, sales volumes and procurement tenders;
– the cartel began at least on 1 April 1986 (although it is likely that it dates from the early 1970s) and ended on 2 May 2007;
– between 13 May 1997 and 11 June 1999, for some companies, 21 June 1999, for other companies, and 9 May 2000 for MRI, the cartel’s activities were limited and there was friction between the members; however, according to the Commission, that did not entail a real interruption of the infringement; the organised structure of the cartel was re-established in full from June 1999, according to the same procedures and with the same participants, apart from the applicant, which was wholly re-integrated in the cartel on 9 June 2000; it must therefore be considered that the producers committed a single and continuous infringement which lasted from 1 April 1986 until 2 May 2007, or, at least, if in spite of everything it should be considered that there was an interruption, a single repeated infringement; however, the period from 13 May 1997 until, so far as the applicant is concerned, 9 June 2000 is not taken into consideration in the calculation of the fine, in view of the limited amount of evidence of the infringement for that period;
– the applicant’s participation in the infringement was established for the periods 1 April 1986 to 1 August 1992 and 3 September 1996 to 2 May 2007;
– in application of the criteria laid down in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’), the basic amount of the fine to be imposed on each of the companies was determined as follows:
– the Commission relied on the average annual worldwide sales of each of the companies between 2004 and 2006, with the exception of Yokohama Rubber, for which it applied the period 2003 to 2005; in that regard, the Commission used sales invoiced to purchasers established in the EEA;
– the Commission determined the relevant sales of each undertaking by applying their worldwide market share to aggregate sales within the EEA, in accordance with point 18 of the Guidelines;
– it took 25% of that value (instead of the 30% maximum provided for in the Guidelines) in consideration of the gravity of the infringement;
– it multiplied the value thus obtained by the number of years of each undertaking’s participation in the infringement;
– last, in accordance with point 25 of the Guidelines, it applied an additional sum equal to 25% of the relevant sales, for the purposes of deterrence;
– the Commission then applied aggravating circumstances against Parker ITR and Bridgestone and rejected all mitigating circumstances for the other undertakings;
– last, pursuant to the Leniency Notice, the Commission reduced the fines imposed on [ confidential ] (by 100%) and MRI (by 30%), but rejected the applications for a reduction submitted by Bridgestone and Parker ITR.
26. [ Confidential ].
27. There are no attenuating circumstances relating to the infringement in MRI’s case.
28. However, a reduction of 30% was granted to the applicant under the Leniency Notice, thus bringing the fine imposed on it to EUR 4 900 000.
Procedure and forms of order sought by the parties
29. By application lodged at the Court Registry on 10 April 2009, the applicant brought the present action.
30. As a member of the Chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Court’s Rules of Procedure.
31. Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, requested the parties to produce certain documents and put a number of questions to them in writing. The parties complied with that request.
32. By letter of 25 April 2012, the applicant submitted a request that the hearing be held in private.
33. The parties presented oral argument and replied to the oral questions put to them by the Court at the hearing on 26 April 2012.
34. The applicant withdrew its request that the hearing be held in private on that occasion.
35. The applicant claims that the Court should:
– primarily:
– annul Article 1 of the contested decision in that the applicant is stated to have participated in a single and continuous infringement in the marine hose sector from 1 April 1986 until 1 August 1992 and from 3 September 1996 to 2 May 2007, in particular for the period 3 September 1996 to 3 May 2000;
– annul Article 2 of the contested decision in so far as it imposes a fine of EUR 4 900 000 on the applicant;
– reject all objections and claims to the contrary;
– in the alternative:
– reduce, in accordance with Article 229 EC, the fine of EUR 4 900 000 imposed on the applicant by Article 2 of the contested decision;
– order the Commission to pay the costs.
36. The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
A – The claims for annulment
37. The applicant puts forward three pleas in support of its action for annulment.
38. The first plea alleges an error in the characterisation of the infringement and an infringement of Article 253 EC.
39. The second plea alleges various errors of assessment in the determination of the duration of the infringement, and also infringement of Articles 81 EC and 253 EC and of Article 2 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).
40. The plea is divided into six parts, alleging, respectively, errors in the assessment of the evidence used by the Commission (first part); that the Commission did not adduce the requisite evidence (second part); that the applicant adduced evidence to the contrary and a different plausible explanation (third part); breach of the principle of equal treatment and failure to state reasons, owing to errors of assessment in the comparison of MRI’s conduct between September 1996 and May 1997 and its conduct between May 1997 and May 2000 (fourth part); that the limitation period ought to have been applied to any separate infringements committed during the period 1996 to 2000 (fifth part); and that the use of the documents which MRI supplied in the context of the leniency programme to establish the existence of an infringement for the period from 3 September 1996 to 13 May 1997 is contrary to the Leniency Notice and constitutes a breach of the applicant’s legitimate expectation (sixth part).
41. The third plea is divided into five parts, alleging, respectively, an error of assessment of the gravity of the infringement and breach of the principle of equal treatment (first part); an error in the calculation of the fine by reference to the duration of the infringement, and breach of the principle of legitimate expectations (second part); incorrect application of the increase for deterrence and breach of the obligation to state reasons and of the principle of equal treatment (third part); incorrect rejection of mitigating circumstances and breach of the obligation to state reasons (fourth part); and insufficient reduction of the fine for cooperation in the context of the leniency programme (fifth part).
42. It is appropriate to examine the first plea and the six parts of the second plea together.
B – First plea, alleging error in the characterisation of the infringement and infringement of Article 253 EC, and second plea, alleging manifest errors of assessment in the determination of the duration of the infringement, infringement of Articles 81 EC and 253 EC and of Article 2 of Regulation No 1/2003
1. The contested decision
43. As regards the first plea, it follows, in essence, from recital 412 to the contested decision that the Commission considered that MRI had interrupted its participation in the infringement between 1 August 1992 and 3 September 1996, that the limitation period might apply for the infringement period between 1 April 1986 and 1 August 1992 and that the Commission therefore decided not to impose a fine on MRI for that period. It follows from Article 1 of the contested decision, moreover, that the Commission considered that a continuous infringement had been committed between 1 April 1986 and 2 May 2007, in which MRI took part between 1 April 1986 and 1 August 1992 and between 3 September 1996 and 2 May 2007; and from recitals 187, 201 to 208 and 446 to 448 to the contested decision that the infringement period taken into account by the Commission for the purposes of calculating the fine runs from 3 September 1996 to 13 May 1997 and from 9 May 2000 to 2 May 2007, the period between 13 May 1997 and 9 May 2000 being regarded, so far as the applicant is concerned, as a period of reduced cartel activity that did not warrant the imposition of a fine.
44. As regards the second plea, it follows from recitals 141 to 147 to the contested decision that that Commission, relying on various documents, including certain internal notes communicated by MRI in the context of its leniency application (recitals 143 to 145 to the contested decision), considered that the applicant had actively rejoined the cartel with effect from 3 September 1996.
45. Recitals 148 to 187 to the contested decision, moreover, set out the evidence, including a number of documents communicated by MRI in the context of its leniency application, on which the Commission relied when it considered that between 13 May 1997 and May 1999 the cartel had gone through a period of limited activity, during which contacts were maintained, involving the applicant, with the object, in particular, of relaunching the cartel and negotiating the conditions of the participation of its various members. The Commission considered, however, that, in view of the limited nature of the activity of the cartel members, no fine should be imposed on them for that period, which was extended, in MRI’s case, until 9 May 2000 (recital 447 to the contested decision).
46. Recitals 289 to 307 to the contested decision then explain the reasons why the Commission considered that the infringement was continuous or, in the alternative, repeated, in spite of the fact that it considered that the cartel’s activities had been limited between 13 May 1997 and May 1999 and that no fine should be imposed for that period.
47. Recitals 480 to 488 to the contested decision set out, last, the reasons why the Commission granted MRI a 30% reduction of its fine under the leniency application but rejected MRI’s argument that, under paragraph 26 of that notice, evidence which it supplied to the Commission for the period 1996/1997 should not be used against it.
2. Arguments of the parties
(a) The first plea
48. The applicant maintains, in essence, that, since the Commission acknowledged, first, that the applicant had withdrawn from the cartel between 1 August 1992 and 3 September 1996; second, that this was a genuine interruption and not a suspension of its participation in the cartel, in the sense in which the case-law distinguishes those two concepts (recitals 129, 130 and 402 to the contested decision); and, third, that the applicant should therefore benefit from the provisions on limitation for the period before 1992 (recital 412 to the contested decision), with the consequence that that period should not be taken into consideration for the purposes of calculating the fine, the Commission could not at the same time decide that the applicant had participated in a complex and continuous infringement from 1 April 1986 until 2 May 2007, which is contrary to Article 25(2) of Regulation No 1/2003. The period following the resumption of the applicant’s participation in the cartel can therefore be regarded only as a new infringement, distinct from the preceding infringement.
49. The applicant also denies, in essence, that the application of the limitation period to it involved the Commission’s ‘discretion’, as the latter asserts (recital 412 to the contested decision).
50. Such reasoning also seems to be contradictory and incomplete, in the applicant’s submission.
51. The applicant maintains, moreover, that having regard to that interruption of its participation in the cartel, its situation cannot be compared with that of the other cartel members.
52. The Commission disputes those assertions and contends that it was not required to find that the limitation period was applicable and that it therefore merely indicated that it could be applied.
(b) Second plea
First part
53. The applicant maintains that, in order to find that it participated in the infringement during the period 1996 to 2000, the Commission relies on certain documents that reveal the contacts between the applicant and its competitors and which indicated that, ‘as of late 1996, [the applicant] returned to coordinate some marine hoses tenders with cartel members’ (recital 141 to the contested decision) and that in that period it ‘benefited from the comprehensive market information exchanged for the purpose of supervising the market allocation arrangements among cartel members’ (recital 147 to the contested decision).
54. In essence, however, the evidence on which the Commission relies [ confidential ] does not support such a finding and the applicant disputes both the Commission’s reading and its interpretation of the evidence, even on the assumption that the Commission might validly rely on the evidence which the applicant itself provided in the context of its leniency application to establish that the applicant was involved in the cartel during the period from 3 September 1996 until 13 May 1997, which was taken into consideration in the calculation of the fine imposed on it.
55. The Commission disputes that argument and observes that the applicant acknowledges at several points in its written pleadings that it had numerous prohibited contacts with its competitors between 1997 and 2000, although it attempts to play down their scope and significance.
Second part
56. The applicant claims, in essence, that the evidence adduced by the Commission is not sufficient to show that the applicant participated anew in a common plan during the period in question. It submits that it was for the Commission to prove that the applicant had participated in a new infringement, since it had wholly left the cartel in 1992 and the infringement for the period before 1992 was time barred. The Commission could therefore not be satisfied with indicia on the basis of which it presumed that the applicant’s participation in the cartel had continued: yet that is what it did by wrongly relying on the argument that the infringement was continuous from 1986.
57. The applicant further maintains that, in any event, the indicia gathered by the Commission show that it explicitly refused to respond favourably to the proposals for collaboration made by the other participants in the cartel.
58. The Commission disputes those arguments.
Third part
59. First, the applicant denies, in essence, having failed to provide a plausible explanation other than participation in the collusive agreement for the evidence adduced by the Commission (recital 142 to the contested decision) and, in addition, disputes the Commission’s argument that the infringement may be inferred from mere presumptions provided that exchanges of information and unlawful contacts with competitors have been demonstrated, with the consequence that it is then for the undertaking to supply another plausible explanation (recital 262 to the contested decision).
60. In effect, the applicant maintains that it supplied another explanation that was not only plausible but was supported by various items of evidence – the first oral statement of [ confidential ] –, on which it might be considered that the applicant had not participated in the cartel between 3 September 1986 and 9 May 2000 and that it rejoined the cartel only on that date.
61. The applicant claims, in that regard, that the documents to which the Commission refers in the contested decision show that the contacts that took place were in reality the outcome of the other undertakings’ efforts to try to persuade the applicant to join the cartel and show that one of its managers adopted the strategy of ‘feigning a vague disposition to collaborate with competitors’ in order to encourage them not to implement concerted boycotting actions that might have proved dangerous for the applicant, such as those implemented by Dunlop and Bridgestone, while continuing to adopt an independent and indeed offensive approach to competition on the market.
62. Second, the applicant maintains in essence that the Commission is wrong to disregard various documents that substantiate that explanation and to deny that they had probative value.
63. The applicant maintains, in that regard, that, while acknowledging that the documents in question ‘confirm that [the applicant] was not part of the formal “Club” structure before that date [9 May 2000]’, the Commission none the less maintains that those documents ‘do not contradict the finding … that [the applicant] continued to be in some kind of illicit contacts with other cartel members and was updated by them about ongoing collusion’ and that those contacts related to ‘cooperation on the marine hoses market’, which led the Commission to take the view that the applicant had also formed part of the cartel between 1997 and 9 May 2000 (recitals 146, 209 and 210 to the contested decision).
64. The applicant submits that the Commission thus seems to rely on the case-law according to which the fact that each member of the cartel played its own specific role, by adopting conduct which embraces only some of the constituent elements of the infringement, does not mean that each of the undertakings is not responsible for the infringement considered as a whole, including the acts committed by other participants (recitals 284 to 288 to the contested decision).
65. The applicant maintains that that case-law is not applicable in the present case, since it relates to proof of the participation in a cartel of undertakings whose presence at meetings held for the purpose of concluding anti-competitive agreements has been established and who did not manifest their disagreement with the cartel in question.
66. The applicant claims that it is common ground that it left the cartel in 1992 and the contacts between 1996 and 2000 should therefore be assessed by reference to their ability to demonstrate that the applicant again acceded to a common plan.
67. The Commission cannot therefore be satisfied with mere presumptions.
68. In addition, the applicant submits that, in accordance with the case-law, it is not sufficient for the Commission, in order to demonstrate that the applicant adhered to the common plan pursued by the other cartel members, to prove that the applicant was aware of the existence of the cartel or that it pursued the general objective of restricting competition on the marine hoses market – which the applicant in any event denies –, but it is also necessary to establish that the applicant’s conduct was ‘closely linked’ to the achievement of ‘all the anti-competitive effects intended by those responsible, within the framework of a global plan aimed at a single objective’. In the applicant’s submission, the documents on which the Commission relies show in reality not only that the applicant had no intention of adhering to a common plan pursued by the other producers but that it preferred even to act contrary to that plan, while understandably seeking to avoid reprisals on the part of its competitors, since they were able to take concerted action to exclude the applicant from the market or to cause it serious harm.
69. The applicant maintains, moreover, in essence that, in disregard of the case-law of the Court of Justice, the Commission failed to take account of the fact that, in order to assess the actual participation of an undertaking in a cartel, the knowledge of the members of the cartel of whether the undertaking in question is inside or outside the cartel is decisive. The applicant maintains that it has shown that, in its contacts with competitors, on their initiative, it had always expressly refused any proposal for collaboration, albeit in hypothetical terms and for the future, and that the competitors themselves had the clear impression that the applicant in fact opposed their overall plan.
70. The applicant denies, last, that the evidence which it adduces has less probative value than that adduced by the Commission and maintains that the distinction which the Commission draws between the formal structure of the club and participation outside that structure is incorrect, since that distinction did not exist for club members who were aware only of the formal structure. It is precisely for that reason that the other members of the club, in the applicant’s submission, considered that the applicant was outside the club.
71. The Commission disputes those claims.
Fourth part
72. The applicant submits that the Commission considered that, for the period between 13 May 1997 and 9 May 2000, it was not appropriate to impose a penalty on the applicant, owing to the fact that the gravity and degree of the cartel was lower. It therefore imposed a penalty on the applicant only for the period 1996-1997. In the applicant’s submission, its conduct did not change between 1996 and 2000, which, it claims, is apparent from the documents to which it has previously referred in the context of the second plea, as the evidence for the period between September 1996 and May 1997 is no more conclusive than that relating to the period between May 1997 and June 1999. No penalty therefore ought to have been imposed on the applicant for the period September 1996 to May 1997.
73. The applicant maintains, moreover, that the inconsistency in the Commission’s findings and reasoning is demonstrated by the fact that, unlike the other undertakings, the applicant did not receive a penalty for the period June 1999 to May 2000, as its participation in the cartel was not regarded as serious, whereas the other undertakings did receive a penalty for that period.
74. The Commission disputes those claims.
Fifth part
75. First, the applicant maintains that, irrespective of whether the cartel was characterised as an agreement or as a concerted practice, the limited contacts and exchanges of information between it and its competitors during the period 1996 to 2000 took place outside the mechanism of the cartel in which the other undertakings participated.
76. In its submission, even if that conduct could constitute an infringement of Article 81 EC, it was of a different nature and gravity from participation in the cartel, since it is not connected with the single objective of the cartel; furthermore, the Commission has failed to prove the contrary.
77. The conduct in question should therefore be regarded, at most, as separate and distinct episodes of infringements of Article 81 EC and be assessed separately, both from the infringement committed by the applicant between 1986 and 1992 and from its renewed adherence to the cartel after 2000.
78. It follows, in the applicant’s submission, that since they do not form part of a single and continuous or repeated infringement, those infringements, on the assumption that they are established, were completed at the actual time when they were perpetrated. As in each case more than five years had elapsed between the time when the infringement was committed and the time when it was pursued by the Commission, the infringements were in any event time barred, pursuant to Article 25(1)(b) of Regulation No 1/2003.
79. Second, the applicant claims that, in view of the fact that the interruption between the facts committed until 1992 and the facts committed after 2000 lasted eight years, those facts cannot be regarded as sufficiently proximate in time to show that the cartel was uninterrupted.
80. The same would apply even if the duration of the interruption were only four years (1992 to 1996).
81. Third, the applicant submits that, in any event, it ceased to participate in the cartel in 1992 and that its participation was therefore interrupted and not suspended, which, moreover, is acknowledged by the Commission, which considered that the facts before 1992 were time barred.
82. Fourth, it also follows that, having accepted that the interruption in 1992 could mean that the rule on limitation was applicable, the Commission could not leave that question open and assert that the fact that no penalty was imposed for the earlier period was merely the result of the exercise of its discretion. It follows that there is a failure to state the reasons on which the characterisation of the infringement is based.
83. Fifth, and last, the applicant maintains that the Commission has not adduced the slightest evidence to show that it adopted one of the forms of conduct which, according to the contested decision (recital 300), would show that the cartel was continuous between 1996-1997 and 2000.
84. The applicant claims that it did not participate in any meeting with the other members of the cartel; that it provided no information to the coordinator about future invitations to tender; that it did not participate in discussions of the proposals to designate ‘champions’ in application of alleged global agreements; and that it did not receive any penalty for not having complied with alleged earlier agreements.
85. The Commission has therefore not shown that the applicant was again a party to the cartel, even on a limited basis, during the period 1996 to 2000.
86. The Commission disputes those claims.
Sixth part
87. The applicant claims that all the evidence – apart from one item, namely [ confidential ] – used by the Commission to prove its guilt during the period 3 September 1996 to 13 May 1997, and then in order to calculate the fine imposed on the applicant, was provided by the applicant itself in the context of the leniency programme.
88. The applicant observes that the Commission thus significantly extended the duration of the infringement, which resulted in a significant increase in the fine (recitals 243 and 448 to the contested decision).
89. The applicant adds that it cooperated in the administrative investigation and maintains that it was justified in considering that that would not prove harmful to it. However, the outcome of that cooperation was, in the applicant’s submission, used by the Commission in order to make a finding against the applicant although it had no proof relating to the period at issue before the applicant supplied such proof to the Commission. The Commission thus breached the applicant’s legitimate expectation.
90. The applicant also disputes the Commission’s interpretation where it considers that the reduction of the fine and partial immunity cannot both be granted in the context of the application of the Leniency Notice.
91. In the Commission’s submission, the applicant’s arguments relate in reality to the calculation of the fine and not to the finding of infringement.
92. In addition, it claims that documents supplied in the context of the Leniency Notice can always be used by the Commission for the purpose of finding an infringement.
93. The Commission submits that the applicant was rewarded for its cooperation by being granted a 30% reduction of its fine, which, in absolute terms, is appreciably higher than the reduction that would result from any partial immunity. In the system governed by the Leniency Notice, the two advantages cannot both be granted.
94. Furthermore, in the Commission’s submission, point 26 of the Leniency Notice states only that, as regards the first undertaking eligible for a reduction of the fine, the ‘compelling evidence’ (within the meaning of point 25 of that notice, that is to say, evidence which does not required corroboration if contested) serving to ‘establish additional facts increasing the gravity or the duration of the infringement’ will not be used in setting any fine to be imposed on that undertaking.
95. While the evidence supplied by the applicant was indeed important for the purpose of corroborating the evidence obtained in the leniency application submitted by [ confidential ] and the on-the-spot investigations carried out on 2 May 2007, that, in the Commission’s submission, is not sufficient to satisfy the conditions set out at point 26 of the Leniency Notice, which requires that the evidence should make it possible to ‘establish additional facts increasing the gravity or the duration of the infringement’ and, the Commission emphasises, of the infringement as a whole and not only in consideration of one or more participating undertakings taken in isolation.
96. The Commission maintains that the purpose of that provision is to enable it to grant partial immunity to an undertaking which provides new evidence allowing it to increase the gravity or the duration of an infringement of which it was already aware and in respect of which it had already granted total immunity to another participating undertaking. On the other hand, an undertaking which has merely improved the Commission’s existing knowledge of a certain period or a certain aspect of the infringement could not benefit from that provision, even where its collaboration enables its own participation in the cartel to be better established.
97. In the Commission’s submission, however, the evidence supplied by the applicant did not enable either the greater gravity or the longer duration of the infringement of which the Commission was aware to be established.
98. Last, the Commission maintains that the applicant did not inform it of new facts also relating to its participation in the cartel during the period from 1996 to 1997. In effect, [ confidential ] – which confirms that both undertakings agree that the applicant should be awarded a lot in a call for tenders and which proves unequivocally that MRI collaborated in the unlawful activity at that time – had been discovered during the inspections carried out on 2 May 2007 and was already in the Commission’s possession when MRI submitted its leniency application on 4 May 2007.
99. The Commission therefore claims that the sixth part of the second plea should be rejected.
3. Findings of the Court
(a) Principles relating to the burden of proof
100. According to consistent case-law on the burden of proof, it is for the party or the authority alleging an infringement of competition law to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such a defence are satisfied, so that the authority will then have to resort to other evidence (Case T-120/04 Peróxidos Orgánicos
v Commission [2006] ECR II-4441, paragraph 50; see also, to that effect, Case C-185/95 P Baustahlgewebe
v Commission [1998] ECR I-8417, paragraph 58, 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 78). The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission (Case T-43/92 Dunlop Slazenger
v Commission
[1994] ECR II-441, paragraph 79, and Peróxidos Orgánicos
v Commission, paragraph 51).
101. That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 100 above, paragraph 79, and Peróxidos Orgánicos
v Commission, paragraph 100 above, paragraph 53).
102. As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered evaluation of evidence (Case C-407/04 P Dalmine
v Commission [2007] ECR I-829, paragraph 63, and 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 273). Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between operators, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others
v Commission, paragraph 100 above, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law (Case C-113/04 P Technische Unie
v Commission [2006] ECR I-8831, paragraph 166).
103. The Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (see Case T-62/98 Volkswagen
v Commission
[2000] ECR II-2707, paragraphs 43 and 72 and the case-law cited, and Case T-38/02 Groupe Danone
v Commission
[2005] ECR II-4407, paragraph 217). 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 that the body of evidence on which the Commission relies (see paragraph 102 above), assessed globally, satisfies that requirement ( JFE Engineering and Others
v Commission, paragraph 102 above, paragraph 180, and Groupe Danone
v Commission, paragraph 218; see also, to that effect, Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others
v Commission
(‘ PVC II ’) [1999] ECR II-931, paragraphs 768 to 778, and in particular paragraph 777). As regards the duration of the infringement, the case-law 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 ( Technische Unie
v Commission, paragraph 102 above, paragraph 169; Dunlop Slazenger
v Commission, paragraph 100 above, paragraph 79; and Peróxidos Orgánicos
v Commission, paragraph 100 above, paragraph 51).
104. As regards the probative value that should be placed on different types of evidence, it should be emphasised that the only relevant criterion for the purpose of assessing evidence freely adduced relates to its credibility ( Dalmine
v Commission, paragraph 102 above, paragraph 63; see Case T-44/00 Mannesmannröhren-Werke
v Commission
[2004] ECR II-2223, paragraph 84 and the case-law cited, and JFE Engineering and Others
v Commission, paragraph 102 above, paragraph 273). According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T-25/15, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, 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, paragraph 1053; Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc
v Commission [1991] ECR II-867, II-869, at II-956). It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events (Case T-157/94 Ensidesa
v Commission [1999] ECR II-707, paragraph 312), or by a direct witness of those events (see, to that effect, JFE Engineering
v Commission, paragraph 102 above, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others
v Commission
[1975] ECR 1663, paragraphs 175 and 179). Furthermore, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see, to that effect, JFE Engineering
v Commission, paragraph 102 above, paragraphs 207, 211 and 212).
105. Furthermore, it has consistently been held that the disclosure by an undertaking of information to its competitors in preparation for an anti-competitive agreement is sufficient to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T-148/89 Tréfilunion
v Commission
[1995] ECR II-1063, paragraph 82, and Case T-53/03 BPB
v Commission [2008] ECR II-1333, paragraph 178).
106. Last, it should be borne in mind that the role of a Court hearing an application for annulment brought under Article 230 EC against a Commission decision finding the existence of an infringement of competition law and imposing fines on the addressees consists in assessing whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the infringement ( JFE Engineering and Others
v Commission, paragraph 102 above, paragraphs 174 and 175; see also, to that effect, PVC II, paragraph 103 above, paragraph 891). Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point ( JFE Engineering
v Commission, paragraph 102 above, paragraph 177, and Groupe Danone
v Commission, paragraph 103 above, paragraph 215). In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments (see Case C-199/92 P Hüls
v Commission
[1999] ECR I-4287, paragraphs 149 and 150; Case C-235/92 P Montecatini
v Commission
[1999] ECR I-4539, paragraphs 175 and 176; and Groupe Danone
v Commission, paragraph 103 above, paragraph 216).
107. The existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement has been proved by that evidence ( Cimenteries CBR and Others
v Commission, paragraph 104 above, paragraph 726).
108. Last, the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Case C-367/95 Commission
v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63; Case C-301/96 Germany
v Commission [2003] ECR I-9919, paragraph 87; and Case C-42/01 Portugal
v Commission [2004] ECR I-6079, paragraph 66).
109. The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission adopted pursuant to that article.
110. It is by reference to the rules set out at paragraphs 100 to 109 above that the Court must ascertain whether, in the contested decision, the Commission adduced sufficiently credible, precise and consistent evidence to substantiate, in the context of a global assessment and after consideration of the explanations or alternative reasons supplied by the applicant, the firm conviction that the applicant rejoined the cartel with effect from 3 September 1996 and the extent to which it participated in the infringement between that date and 9 May 2000, in so far as it does not dispute having participated in the cartel either during the earlier period, between 1986 and 1992, or during the subsequent period, from 9 May 2000 until 2 May 2007.
(b) The applicant’s participation in the infringement between 3 September 1996 and 9 May 2000
111. The applicant’s arguments require that two periods be distingu ished: first, the period between 3 September 1996 and 13 May 1997, for which a fine was imposed on the applicant and for which it disputes, in essence, that the Commission relied, in the applicant’s case, on evidence which the applicant had supplied to the Commission and which enabled it to take the view that the infringement had continued until 13 May 1997; and, second, the period between 13 May 1997 and 9 May 2000 (‘the intermediate period’), for which no fine was imposed on the applicant by the Commission and in respect of which the applicants claims, in essence, that the evidence used by the Commission in its case shows only that it intended to give the other members of the cartel the impression that it was to a certain extent prepared to talk, but in order to deceive them and to avoid reprisals on their part, and not that that it was involved in the cartel, even during that period of reduced activity.
The period between 3 September 1996 and 13 May 1997
112. It is appropriate, in that regard, first of all to examine the sixth part of the second plea.
113. The Court must determine whether the applicant is correct to claim that, in the light of the terms of the final paragraph of point 26 of the Leniency Notice, the Commission could not use against it, for the period between 3 September 1996 and 13 May 1997, the evidence which the applicant itself had supplied to the Commission in the context of its leniency application.
– The scope of point 26 of the Leniency Notice
114. Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.
115. It has consistently been held, moreover, that within the limits set by Regulation No 1/2003 the Commission enjoys a wide discretion when exercising its power to impose such fines (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 172, and Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-125/07 P Erste Group Bank and Others
v Commission
[2009] ECR I-8681, paragraph 123). That power is however limited; where the Commission adopts guidelines which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, it then limits that discretion in that it must comply with the guidelines which it has imposed upon itself (see, to that effect, Case C-413/08 P Lafarge
v Commission [2010] ECR I-5361, paragraph 95, and Case T-73/04 Carbone-Lorraine
v Commission [2008] ECR II-2661, paragraph 192 and the case-law cited). It may not depart from those guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment or protection of legitimate expectations ( Dansk Rørindustri and Others
v Commission, paragraph 209).
116. It is within that framework that it is necessary to have regard to points 23 to 26 of the Leniency Notice, which provide:
‘23. Undertakings disclosing their participation in an alleged cartel affecting the Community that do not meet the conditions under Section II above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.
24. In order to qualify, an undertaking must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must meet the cumulative conditions set out in points (12)(a) to (12)(c) above.
25. The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Incriminating evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance. Similarly, the degree of corroboration from other sources required for the evidence submitted to be relied upon against other undertakings involved in the case will have an impact on the value of that evidence, so that compelling evidence will be attributed a greater value than evidence such as statements which require corroboration if contested.
26. The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:
– first undertaking to provide significant added value: a reduction of 30-50%,
…
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 24 was submitted and the extent to which it represents added value.
If the applicant for a reduction of a fine is the first to submit compelling evidence in the sense of point 25 which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence.’
117. In other words, in order to be able to benefit from the provisions of the final paragraph of point 26 of the Leniency Notice, a number of conditions must be satisfied: the undertaking must supply compelling evidence within the meaning of point 25 of the Leniency Notice, which means that such evidence must have significant added value and must not require corroboration; the evidence must make it possible to establish facts in addition to those which the Commission is in a position to establish, which increase either the gravity or the duration of the infringement.
118. Where those conditions are satisfied, the Commission will not take those facts into account when setting the amount of the fine – which depends on the gravity and the duration of the fine, in accordance with Article 23(3) of Regulation No 1/2003 – that will be imposed on the undertaking which enable those facts to be established by the evidence which it supplied to the Commission, as stated in the final paragraph of point 26 of the Leniency Notice.
119. It therefore follows from the final sentence of the final paragraph of point 26 of the Leniency Notice that the Commission will not rely on that evidence in order to determine the gravity or the duration of the infringement of the leniency applicant, provided that the latter satisfies the conditions laid down in point 26 of that notice, while enabling the leniency applicant to benefit, for the remainder, from the reduction provided for in that notice for the rest of the infringement period found against it.
120. It should be emphasised that the fact that the mechanism for the protection of the leniency applicant was provided for in point 26, dealing with the reduction of the fine, confirms that the two measures may be applied simultaneously by the Commission, contrary to the latter’s contention.
121. The percentage of the reduction of the fine must therefore be proportionate to the added value of the evidence supplied by the leniency applicant, as the final paragraph of point 26 has, in addition, as its object to ensure that an undertaking is not penalised solely on the basis of the evidence which it has itself supplied to the Commission.
122. The Commission’s argument must therefore be rejected on that point.
– The establishment, in the present case, of additional facts increasing either the gravity of the duration of the infringement
123. The Court will examine, next, the objection put forward by the Commission that the evidence supplied by the applicant did not enable it to establish new facts, whereas that is one of the conditions for the application of the final paragraph of point 26 of the Leniency Notice.
124. It should be observed that the Leniency Notice refers to ‘additional facts’ that increase the duration or the gravity of the infringement.
125. In the present case, in order to prove the activity of the cartel between September 1996 and May 1997, the Commission essentially relied on:
– [ confidential ] (recital 142 to the contested decision);
– [ confidential ] (recitals 143 to 145 to the contested decision);
– ‘[f]our samples of communications with other cartel members between May 1995 and March 1996 and between September 1996 and January 1997 saved on floppy disks found at the premises of Mr W. …’ (recital 139 to the contested decision); it states however, in footnote 216 to the contested decision, that ‘while the directories of those floppy disks show many more files from that period with similar names and this suggests that they consist of further faxes sent among cartel members, the Commission will not use the content of these files in evidence, as they were not part of the accessible Commission file’;
– Bridgestone’s reply to the statement of objections (‘Bridgestone claimed that the cartel established in 1986 had ceased in the spring of 1997’) (recital 291 to the contested decision);
– DOM’s responses to the statement of objections (‘DOM argued that there [was] clear evidence that the cartel [had] ceased to operate in the period from March 1997 to 1999’) (recital 292 to the contested decision);
– the history of activities drawn up by Mr W. (‘3.97: Stop all cooperation’) (recital 157 to the contested decision);
– the statements of [ confidential ] (‘the marine hose club had almost collapsed in 1998’) (recital 151 to the contested decision);
– responses to the request for information lodged by P. on 29 June 2007 and by Trelleborg on 15 June 2007 and also documents discovered at Trelleborg’s and Dunlop’s premises (paragraph 163 of the defence); and, last
– the tables prepared by Mr W. relating to the period November 1996 to December 1997 and also 1998 and 1999 (recital 165 to the contested decision).
126. The Commission therefore did indeed have a body of indicia, but it had in its possession only a single piece of contemporary documentary evidence, namely [ confidential ], and also the tables prepared by Mr W. – which it acknowledges being unable to date precisely – and the statements of the various cartel members, apart from the evidence supplied by MRI in the context of its leniency application.
127. The Court must therefore consider whether the elements of the body of indicia used by the Commission in the contested decision as the basis for its conclusion that the cartel was fully active between 3 September 1996 and 13 May 1997, other than the evidence supplied by MRI in the context of its leniency application, are sufficient on their own to support such a conclusion.
128. It is appropriate, first of all, to have regard to [ confidential ] addressed to DOM (recital 142 to the contested decision).
129. The wording of [ confidential ] at issue reads as follows:
‘I think we have a unique chance to re-establish better price level this year; from what I understand, Sumed should not be prepared for high price increasing.
I agree with your suggestion to let C have a substantial part of this tender and I propose the following figures where the second after champion is at PL x 0.65; we have to try it.
Thank you to confirm if it is OK for all members: if not please send suggestions ASAP.’
130. That text is followed by a table in which the various lots (or shares) of the ‘Sumed’ tender are allocated between various ‘champions’ designated among the six undertakings in the cartel:
>lt>1
131. The references A 1, A 2, B 1, B 2, B 3 and C are the usual code names of the different cartel members (recital 114 to the contested decision). According to those code names, Bridgestone is A 1, Yokohama Rubber A 2, DOM B 1, Trelleborg B 2, Parker ITR B 3 and MRI C.
132. The table shows not only that, for each lot or each share of the contract, a ‘champion’ was designated, but also that the price offered by the ‘second’, which in the table is in bold, italicised and underlined, and also the prices offered by the other participants, were also envisaged.
133. The significance of the role played by the ‘second’ in manipulating the offer may also be inferred from the wording of the fax, which states: ‘I propose the following figures where the second after champion is at PL x 0.65’.
134. It may be stated, moreover, that the price indicated for each lot with respect to the second always corresponds with that calculation: price PL x 0.65. There is only one exception, relating to ‘item 5’, where, according to that calculation, the price of the ‘second’ should be 29 360 (column C, that is to say, MRI) and not 29 860. That is in all likelihood a material error, however, as the author of the table no doubt placed in bold and underlined 29 860 in error.
135. The significance of the role of the ‘second’ is also confirmed by the applicant in its answers to the written questions put to it by the Court. It states that ‘the rule known by the cartel consisted precisely in deciding the price of the “second lowest bidder” while the details of the champion’s offer were … left to its discretion’.
136. It thus follows from the table that the applicant is the designated champion for one offer – which could no t have been orchestrated without its having participated in the discussions or even being aware, as it maintains –, but also that it is designated to come second on two occasions, or even three if the error relating to ‘item 5’ is taken into account.
137. In order for the manipulation of the offer envisaged in that table to work, it was necessary for each company to assume the role assigned to it and, in particular, the second, as otherwise the champion would never have been sure to win it.
138. It follows that it is unlikely that the extremely detailed orchestration of the ‘Sumed’ call for tenders appearing in that table could have worked without the applicant’s active and voluntary participation and that the role of ‘second’ envisaged for it should have been attributed to it by the other cartel members unless it had been fully involved in the cartel’s activities as early as September 1996.
139. It follows that, even though that document originates from a third party, it establishes to the requisite legal standard that MRI participated in the discussions relating to the ‘Sumed’ contract.
140. Consequently, the applicant’s argument that, in essence, it knew nothing about that document or the discussion to which it relates must be rejected.
141. It follows, moreover, from the table prepared by Mr W. (annex 10 to the application, line 87), relating to the contracts actually allocated between the cartel members, that three undertakings shared among themselves a ‘Sumed’ call for tenders awarded in November 1996, a little over two months after the proposal for coordination sent by [ confidential ]. The undertakings in question were Yokohama Rubber (designated as Japan C0.2), Trelleborg (designated as European C0.2) and MRI (designated as European C0.4).
142. Those were the three companies among which the lots of the ‘Sumed’ call for tenders were allocated in the table annexed to the fax from Trelleborg.
143. It should be stated, admittedly, as the applicant claims, that Mr W.’s table contains the word ‘estimates’ with respect to the ‘Sumed’ market, but the fact none the less remains that the three undertakings to which the lots were allocated correspond to the allocation as proposed in the fax from Trelleborg and that, for two of those undertakings, the amounts correspond to the value of the lots multiplied by the unit price of the successful bidder as indicated in that fax.
144. The Court considers that, in those circumstances, this was not a question of mere coincidences or conjectures concerning MRI, as the latter claims.
145. Furthermore, the Court considers that, since Mr W.’s table thus reflects the results of the coordination of the ‘Sumed’ call for tenders as disclosed in the fax from Trelleborg, the probative value of that evidence is thus increased.
146. Mr W.’s tables set out over several pages the results of various coordinations of bids between the various cartel members between 1996 and late 1997.
147. It follows that the Commission was correct to rely on that table not only in order to find that MRI rejoined the cartel from 3 September 1996 and that it participated fully in the cartel until 13 May 1997, but also in order to corroborate, more generally, the elements – and in particular the various statements which it had gathered (see paragraph 125 above) – in its possession concerning the pursuit of the cartel by the other cartel members up to that date.
148. The documents supplied by MRI were therefore not necessary in order for the Commission to arrive at such a conclusion.
149. It follows that the evidence supplied to the Commission by MRI concerning the period from 3 September 1996 to 13 May 1997 did not enable the Commission to establish that the infringement was of longer duration or greater gravity.
150. The applicant cannot therefore claim the benefit of the final paragraph of point 26 of the Leniency Notice.
151. It also follows that that evidence could be used by the Commission against the applicant.
152. Accordingly, the sixth part of the second plea must be rejected.
153. In addition, some of that evidence confirms beyond doubt that MRI was involved in coordinating certain bids.
154. Thus, in [ confidential ], Mr F. stated:
‘I rejected that offer in so far as it altered the initial arrangement given to me by Dunlop and also because, in the context of the first call for tenders, we had received only 18 lengths instead of the 36 envisaged owing to Sumed’s budgetary constraints. We are sure that Kléber has problems with the 24" in Sumed and it is for that reason that they only received 4 lengths instead of the 12 indicated in an earlier call for tenders.’
155. In fact, in the table annexed to the fax from Trelleborg (see paragraph 130 above), MRI is designated for a lot of 36 lengths of FF 20" and ‘Kléber’ – that is to say, Trelleborg – for five lots, including a lot of 12 lengths of FF 24".
156. The references which Mr F. makes to an earlier ‘Sumed’ contract are therefore perfectly consistent with the table annexed to [ confidential ] (see paragraph 130 above), which cannot be a mere coincidence.
157. In addition, the details in that communication explain Mr W.’s reference to ‘estimates’ in his table relating to the ‘Sumed’ call for tenders forming the subject matter of [ confidential ] indicating that MRI eventually received a smaller lot than initially envisaged.
158. Accordingly, the applicant’s argument that, in essence, it is no longer able to determine today whether the ‘Sumed’ tender referred to in that [ confidential ] corresponds to that mentioned in [ confidential ] must be rejected for the remainder.
159. In so far as necessary (see paragraph 147 above), the applicant’s participation in the infringement between 3 September 1996 and 13 May 1997 is thus confirmed.
The intermediate period
160. According to consistent case-law, the concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 115, and Hüls
v Commission, paragraph 106 above, paragraph 158).
161. In that respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission
v Anic Partecipazioni, paragraph 160 above, paragraphs 116 and 117).
162. The disclosure of information to competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC ( Tréfilunion
v Commission, paragraph 105 above, paragraph 82, and BPB
v Commission, paragraph 105 above, paragraph 178).
163. According to settled case-law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves ( Commission
v Anic Partecipazioni, paragraph 160 above, paragraphs 131 and 132, and Case T-9/99 HFB and Others
v Commission [2002] ECR II-1487, paragraph 190).
164. In the context of a complex infringement which involves may producers seeking over a number of years to regulate the market between them the Commission cannot be expected to characterise the infringement precisely as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission
v Anic Partecipazioni, paragraph 160 above, paragraphs 111 to 114, and PVC II, paragraph 103 above, paragraph 696).
165. The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type (Case T-7/89 Hercules Chemicals
v Commission [1991] ECR II-1711, paragraph 264, and HFB and Others
v Commission, paragraph 163 above, paragraph 187).
166. It should be observed that in the present case the Commission decided to penalise the applicant and its competitors for having participated in ‘a series of agreements and concerted practices in the marine hoses sector’ during the period under consideration.
167. It indicated, at recitals 263 to 272 to the contested decision, how it proposed to characterise the unlawful facts of which it was aware and stated, in particular, at recitals 271 and 272 to the contested decision, that the exchanges of information constituted concerted practices.
168. It took issue with the applicant for having exchanged information with certain members of the cartel during the intermediate period with a view, in particular, to relaunching the cartel.
169. The communication of information to competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (see Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraphs 51 and 52, and Opinion of Advocate General Kokott in that case, [2009] ECR I-4523, points 90 and 91 and the case-law cited).
170. The question whether that conduct occurred in the context of the ‘Club structure’ or outside that structure is therefore irrelevant and the argument which the applicant puts forward in that respect in the context of the third part of the second plea must be rejected.
171. It follows from the contested decision, moreover, that the applicant withdrew from the cartel in 1992.
172. Furthermore, it is also established that the applicant rejoined the cartel in 1996 on the occasion of the manipulation of the ‘Sumed’ call for tenders, which was reflected by an allocation of quotas and fixing of prices on the marine hoses market following collusion to that effect in which the applicant must be considered to have taken part (see paragraphs 128 to 159 above).
173. As regards the intermediate period, running, so far as the applicant is concerned, from May 1997 to May 2000, it should be observed that the applicant confirmed at the hearing, in answer to a question put to it by the Court, that its plea was confined solely to the evidence relating to the period between 3 September 1996 and 13 May 1997.
174. That evidence could therefore be used by the Commission in order to establish that the applicant had taken part in certain contacts and certain discussions during the intermediate period.
175. However, the applicant disputes the extent of those contacts and also the Commission’s interpretation of the documents relating to them.
176. It is therefore necessary to examine those documents in order to establish whether the Commission was correct to conclude that the applicant had participated in a continuous infringement during the intermediate period, in spite of the fact that no fine was imposed on it or the other members of the cartel in respect of that period.
177. It should be observed, in the light of the applicant’s documents [ confidential ] (recitals 174 and 176 to the contested decision), that it can be established on the basis of those documents, at least, that Mr W. contacted Mr F., of MRI, concerning three calls for tenders (CPC Taiwan, Ancap Uruguay and Petrobras Brazil), an attempt at coordination that also involved Bridgestone, DOM, Yokohama Rubber and Parker ITR, and, moreover, that although Mr F. rejected the offer made to him, the cartel at least attempted to function during that period. There is thus no doubt that the various undertakings were in contact with each other and with the applicant in order to coordinate certain calls for tenders. The fact that those documents may suggest that all was not well in the cartel and that disagreements existed is, moreover, consistent with the Commission’s analysis of that period in the contested decision. As regards Mr F.’s document dated 4 February 1999, in which he sets out a history of the cartel, but also presents the state of the situation at that time, a document intended for one of the applicant’s commercial agents, it must be stated that even though Mr F. claims in that document that the applicant is not part of the cartel, that document at least shows the contacts in which Mr F. participated with other cartel members. Those documents therefore clearly show that contacts existed between the different undertakings concerned, with the intention, at least, of attempting to coordinate bids.
178. [ Confidential ] (recital 177 to the contested decision) establishes the existence of contacts between various protagonists in the cartel (Mr W., Mr F. and Mr P.), when they exchanged commercial data. The fact that the cartel was going through a period of crisis at that time, as that document also shows, does not mean that those contacts were not unlawful. In addition, the cartel was resumed shortly after those contacts took place, which tends to corroborate the idea that they helped to relaunch the cartel, even though the applicant did not itself again become a full party to the cartel until one year after the other protagonists.
179. [ Confidential ] (recital 201 to the contested decision) shows that contact took place between Mr C. and Mr F. at a time when the cartel had not yet been fully resumed – at least so far as the applicant was concerned. It shows, however, that Mr C. and Mr F. exchanged commercially sensitive information, but also that Mr F. was seeking a new operating method for the cartel from that time, in particular with respect to the coordination of the cartel, while already attempting to fix the applicant’s market share at 12%. As the Commission states, moreover, that piece of evidence must be seen from the aspect of the meetings which began to be held again as from June 1999. While it is true that the applicant’s full involvement in the cartel did not begin until later, the fact none the less remains that, at that time, it was making preparations for its return to the cartel and collaborating at least on the fringe with some of its competitors.
180. Last, the document entitled [ confidential ] (recital 190 to the contested decision) clearly shows the framework of the renewed cooperation. The applicant maintains that it did not take part in the meeting – which the Commission does not dispute – and that the fact that the market share allocated to it is shown in that document does not mean that it was part of the cartel. It is indeed true that the Commission considered that the applicant rejoined the cartel only from 9 May 2000 (see recital 202 to the contested decision, where the Commission states that is has evidence showing that MRI was again granted quotas from that date); however, there is, first, direct evidence that the applicant had reprehensible contacts with a view to rejoining the cartel in June 1999 (the applicant’s internal communication of 30 June 1999); second, a document distributed in December 1999, in the context of a meeting held after the other members of the cartel had resumed the cartel, in which the market share to be allocated to the applicant is fixed; and, third, evidence that it did in fact rejoin the cartel in May 2000, which, moreover, the applicant does not deny. It must therefore be considered that, since the ot her cartel members had resumed their unlawful activities, the market share which they proposed to allocate to the applicant could result only from enhanced coordination with the applicant. It is established that MRI was negotiating the terms of its return in June 1999, or six months before the tables distributed in December 1999 were drawn up. Those tables therefore constitute a particularly cogent indicium of the applicant’s participation, in December 1999, in the discussions relating to the allocation and coordination of the cartel members’ respective market shares.
181. To conclude, it must be held that the Commission adduced sufficient evidence showing, for the intermediate period, the existence of unlawful conduct on the applicant’s part, less serious, admittedly, by comparison with the earlier and later periods, which, moreover, induced the Commission not to impose a fine on the applicant with respect to that period.
182. The Court must reject, for the remainder, the applicant’s allegations that it thus sought to give the other cartel members the impression that it had a certain interest in the relaunching of the cartel while using that strategy to protect itself against any commercial reprisals on their part.
183. Not only are the applicant’s intentions irrelevant in that regard, but it must also be held that the applicant thereby recognises that, in maintaining contacts with the other cartel members, it attempted to protect itself from their competition, which is sufficient to establish the existence of an infringement.
184. In addition, the abovementioned documents prove that the essential object of those contacts was to relaunch the cartel and that the applicant took part in them, in particular, in order to negotiate its future place at the centre of the cartel.
185. The applicant’s argument that it took part in those discussions solely in order to deceive its former – and future – partners in the cartel and that it provided a plausible alternative explanation for the various documents used by the Commission to establish its participation in the cartel during the intermediate period must therefore be rejected.
186. Nor is that conclusion in any way called into question by the various items of evidence – [ confidential ] – on which the applicant relies in support of its argument.
187. Those various documents establish beyond doubt that MRI became fully reintegrated in the cartel in May 2000 but do not disprove the existence of its manoeuvres in preparation for that reintegration during the preceding years.
188. The applicant’s argument must therefore be rejected for the remainder.
(c) The existence of a continuous infringement
189. The applicant denies, in essence, first, that the infringement continued between 3 September 1996 and 13 May 1997, maintaining that if infringements must be used against it during that period they would be isolated infringements unconnected with the earlier and later periods, and, second, that the infringement was continuous between 13 May 1997 and 9 May 2000, since it did not take part in the discussions with an anti-competitive intention, but, on the contrary, did so in order to protect itself against any reprisals on the part of the other cartel members and since, in any event, the Commission cannot find the existence of a continuous infringement while at the same time finding the existence of reduced activity owing to a situation of crisis among the cartel members, which, moreover, induced it not to impose a fine for that period.
The concept of a continuous infringement and a repeated infringement
190. Under Article 25(2) of Regulation No 1/2003, time is to begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases.
191. The case-law has made clear, in that regard, that, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. When evaluated globally, such indicia and coincidences may provide information not just about the mere existence of anti-competitive conduct or agreements, but also about the duration of continuous anti-competitive conduct and the period of application of an anti-competitive agreement (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 100 above, paragraph 57, and Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission [2006] ECR I-8725, paragraphs 94 to 96 and the case-law cited).
192. Furthermore, such an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. Where the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others
v Commission, paragraph 100 above, paragraph 258, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission, paragraph 191 above, paragraph 110).
193. As regards the lack of evidence of an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, it should be recalled that the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement ( Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission, paragraph 191 above, paragraphs 97 and 98; see also, to that effect, Aalborg Portland and Others
v Commission, paragraph 100 above, paragraph 260).
194. In that regard, a number of criteria have been identified in the case-law as being relevant for the assessment of the single nature of an infringement, namely the identity of the objectives of the practices in question (see, to that effect, Technische Unie
v Commission, paragraph 102 above, paragraphs 170 and 171; Case T-21/99 Dansk Rørindustri
v Commission [2002] ECR II-1681, paragraph 67; and Case T-43/02 Jungbunzlauer
v Commission [2006] ECR II-3435, paragraph 312); the identity of the goods and services concerned (see, to that effect, Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others
v Commission
(‘ Tokai II ’), not published in the ECR, paragraphs 118, 119 and 124, and Jungbunzlauer
v Commission, paragraph 312); the identity of the undertakings that took part in the practices ( Jungbunzlauer
v Commission, paragraph 312); and the identity of the means of implementing it ( Dansk Rørindustri
v Commission, paragraph 68). Furthermore, the identity of the natural persons involved on behalf of the undertakings and the identity of the geographic scope of the practices at issue may also be taken into consideration for the purposes of that examination.
195. The case-law thus allows the Commission to presume that the infringement – or an undertaking’s participation in the infringement – has not been interrupted, even where it does not have evidence of the infringement for certain specific periods, provided that the different actions forming part of the infringement pursue a single aim and may come within the framework of a single and continuous infringement; and such a finding must be supported by objective and consistent indicia that show the existence of an overall plan.
196. Where those conditions are satisfied, the concept of a continuous infringement thus allows the Commission to impose a fine for the whole of the infringement period taken into consideration and determines the date on which time begins to run for the purpose of limitation, that is to say, the date on which the continuous infringement ceased.
197. However, the undertakings accused of collusion may rebut that presumption, by putting forward indicia or evidence showing that, on the contrary, the infringement – or their participation therein – did not continue during those periods.
198. Furthermore, it is necessary to distinguish the concept of repeated infringement from the concept of continuous infringement (see, to that effect, Case T-18/05 IMI and Others
v Commission [2010] ECR II-1769, paragraphs 96 and 97), that distinction being confirmed, moreover, by the use of the conjunction ‘or’ in Article 25(2) of Regulation No 1/2003.
199. Where it can be established that an undertaking’s participation in the infringement was interrupted and that the infringement committed by the undertaking before and after that period has the same features, to be assessed, in particular, by reference to the identity of the objectives and practices at issue, the products concerned, the undertakings which took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices, the infringement in question must be characterised as a single infringement and as a repeated infringement.
200. In that case, the Commission cannot impose a fine in respect of the period during which the infringement was interrupted.
201. Furthermore, in accordance with Article 25(1)(b) of Regulation No 1/2003, the duration of the interruption cannot exceed five years, since in such a case the imposition of a fine for the infringement period before that interruption would be time barred.
The existence of a continuous infringement in the present case
202. It is therefore necessary to determine whether, in such circumstances, the Commission was entitled to find that the applicant had committed a continuous infringement between 1 April 1986 and 1 August 1992 and between 3 September 1996 and 2 May 2007.
203. It should be borne in mind that in the present case it is apparent from the contested decision that the undertakings to which it is addressed participated, according to what were sometimes different procedures, in an infringement taking the form of the allocation of invitations to tender, price-fixing, quota-fixing, the establishment of sales conditions, the allocation of geographic markets and the exchange of sensitive information on prices, sales volumes and invitations to tender, on the worldwide market for marine hoses.
204. It should be observed, in that regard, that the existence of an overall plan is clearly established by the contested decision. That overall plan results from the identity, before and after the intermediate period, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices.
205. Furthermore, the conduct aimed at smoothing out the disagreements between the cartel members and relaunching the cartel during the intermediate period, as shown by the documents supplied by the applicant and analysed at paragraphs 177 to 180 above, must be regarded as forming an integral part of the overall plan pursued by the members of the cartel.
206. In addition, when heard on that point at the hearing, the applicant did not deny having taken part in the infringement between 1 April 1986 and 1 August 1992 and then between 9 May 2000 and 2 May 2007.
207. The applicant submits, admittedly, that the infringements in question were separate infringements and that they cannot be characterised as a continuous or repeated infringement, which it confirmed at the hearing, but it must be held that the existence of an overall plan emerges clearly from the contested decision, given the identity, between 1986 and 2007, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal ways of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of the practices.
208. It is also established that the applicant rejoined the cartel from 3 September 1996 and participated in the infringement until 13 May 1997 (see paragraph 147 et seq. above) and that it took an active part in the discussions held during the intermediate period with a view to relaunching the cartel and rejoining it (see paragraph 181 et seq. above).
209. The alternative explanations which the applicant put forward concerning its conduct during that period have also been rejected by the Court (see paragraph 181 et seq. above).
210. It is also acknowledged by the Commission, and it follows from Article 1 of the contested decision, that the applicant interrupted its participation in the cartel between 1 August 1992 and 3 September 1996.
211. The Commission did indeed find that there had been a continuous infringement by MRI although at the same time it found that MRI’s participation in the cartel had been interrupted between 1 August 1992 and 3 September 1996.
212. However, the Commission did not err in finding that the applicant had participated in the cartel during two separate infringement periods, from 1 April 1986 until 1 August 1992 and from 3 September 1996 until 2 May 2007.
213. The error of assessment by the Commission referred to at paragraph 211 above therefore has no impact on the legality of the contested decision, since the Commission was entitled to find that the infringement committed by the applicant was a repeated infringement within the meaning of Article 25 of Regulation No 1/2003 – as the two infringement periods are to be characterised by the existence of an overall plan (see paragraphs 203 and 204 above) – and that the interruption of MRI’s participation in the infringement between 1 August 1992 and 3 September 1996 lasted less than five years (see paragraph 201 above).
214. In conclusion, since it must be held that the infringement committed between 1 April 1986 and 1 August 1992 was not time barred, the first plea, alleging, in essence, that the Commission could not find an infringement that was time barred, must be rejected. The complaint alleging failure to state reasons must also be rejected, since it is clear from the contested decision that the applicant had participated in the infringement during two separate infringement periods, from 1 April 1986 until 1 August 1992 and from 3 September 1996 until 2 May 2007.
215. Furthermore, the argument put forward by the applicant in support of its second plea, concerning the fact that the infringement period between 3 September 1996 and 9 May 2000 is time barred, must also be rejected, since it has been established that the applicant rejoined the cartel as from 3 September 1996 and that it participated during the intermediate period in discussions aimed at relaunching the cartel and at determining the applicant’s position within it.
216. It follows from the foregoing that the first, second and third parts of the second plea must be rejected, in so far as the applicant claims therein, in essence, first, that the Commission misinterpreted the evidence in its possession and did not supply proof of the applicant’s involvement in the cartel between 3 September 1996 and 9 May 2000 and, second, that the applicant gave a plausible alternative explanation for the evidence used by the Commission and for its conduct during that period.
(d) The merits of the other parts of the second plea
217. Furthermore, as regards the argument put forward by the applicant in the context of the second part of its second plea, claiming that the Commission ought to have proved that the applicant had participated in a new infringement, since the infringement before 1992 was time barred and the Commission could not rely in that regard on the existence of a continuous infringement from 1 April 1986, it must be borne in mind that the Commission did not err in finding that the applicant had participated in the cartel during two infringement periods, which were indeed separate, but during which the applicant had participated in a joint plan characterised by the identity, before and after the intermediate infringement period, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices (see points 203 and 204 above). The applicant is therefore incorrect to maintain that it participated in a new infringement and its argument must, accordingly, be rejected.
218. As for t he argument put forward by the applicant in support of the third part of the second plea, alleging that the Commission has failed to establish that the applicant’s conduct between 3 September 1996 and 9 May 2000 was closely linked to the attainment of all the anti-competitive effects intended by the other parties to the infringement, in the context of an overall plan with a single objective, it must be held that, first, having rejoined the coordination organised by the cartel on 3 September 1996 and having obtained a share of the ‘Sumed’ invitation to tender on that occasion and, second, having actively participated in the contacts designed to relaunch the cartel during the intermediate period, the applicant is clearly shown to have been closely linked to the attainment of all the anti-competitive effects desired by the other parties to the infringement. Its argument must therefore be rejected.
219. The Court must also reject the argument which the applicant puts forward in the context of the fourth part of the second plea, alleging that it was fined only in respect of the period between 3 September 1996 and 13 May 1997, although its conduct had been the same during the intermediate period and that difference in treatment was unwarranted. It follows from the foregoing that the applicant again participated in the cartel between 3 September 1996 and 13 May 1997 by obtaining a part of the ‘Sumed’ contract following coordination for that purpose with the other cartel members and that, during the intermediate period, it participated in contacts designed to relaunch the cartel and negotiated its place within the cartel. The types of conduct in question were therefore different and the Commission’s decision to impose a fine in respect of the period 3 September 1996 to 13 May 1997 and not to impose a fine in respect of the intermediate period was justified.
220. Nor is that conclusion called into question by the applicant’s argument that it did not receive a penalty for the period May 1999 to May 2000 although the other members of the cartel did, as that distinction is justified by the fact that the applicant did not actively rejoin the cartel until one year after the other cartel members, having extended its contacts with them in order to renegotiate the terms of its participation.
221. The fourth part of the second plea must therefore be rejected in its entirety.
222. As for the fifth part of the second plea, in which the applicant claims, in essence, that the unlawful acts during the period 1996 to 2000 are distinct from the unlawful conduct committed in the context of the cartel properly so-called and should therefore be penalised separately, on the assumption that they are not time barred, reference is made to the reasoning set out at paragraphs 123 to 187 and 202 to 214 above and both the applicant’s substantive argument and the complaint alleging failure to state reasons must therefore be rejected.
223. In conclusion, the first and second pleas must be rejected.
C – Third plea, alleging various errors in the determination of the amount of the fine; breach of the principle of proportionality, the principle that the penalty must be appropriate, the principle of equal treatment and the principle of protection of legitimate expectations; and failure to state reasons
224. It should be observed at the outset that the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 56 and the case-law cited).
225. Furthermore, the principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued. When it comes to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In that context, the principle of proportionality implies that the Commission must set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also apply those factors in a way which is consistent and objectively justified (see Case T-43/02 Jungbunzlauer
v Commission
[2006] ECR II-3435, paragraphs 226 to 228 and the case-law cited, and Joined Cases T-456/05 and T-457/05 Gütermann and Zwicky
v Commission
[2010] ECR II-1443, paragraph 264)
226. Last, in accordance with consistent case-law, the right to rely on the principle of protection of legitimate expectations is enjoyed by any individual to whom an institution of the European Union, by giving him precise assurances, has caused him to entertain legitimate expectations (Case C-506/03 Germany
v Commission, not published in the ECR, paragraph 58, and Case C-213/06 P EAR
v Karatzoglou [2007] ECR I-6733, paragraph 33). Precise, unconditional and consistent information, in whatever form it is given, constitutes such an assurance (see, to that effect, Case C-47/07 P Masdar (UK)
v Commission [2008] ECR I-9761, paragraphs 34 and 81).
1. First part of the third plea, alleging error of assessment of the gravity of the infringement and breach of the principle of equal treatment
(a) Contested decision
227. It follows from recitals 437 to 445 to the contested decision that the Commission used a percentage of 25% of relevant sales in order to determine the basic amount of the fine, by reference to the gravity of the infringement.
(b) Arguments of the parties
228. The applicant maintains that the use of a percentage of 25% of relevant sales in order to determine the basic amount of the fine, by reference to the gravity of the infringement, is incorrect and unwarranted, as the Commission thus assimilated the applicant, in a discriminatory manner, to the other producers, since, in its submission, the gravity of the infringement which it committed is significantly less than the gravity of the infringement committed by the other undertakings.
229. It follows from the case-law, in the applicant’s submission, that in order to comply with the principles of equal treatment and proportionality of the penalty, the Commission cannot decline to examine the factors which entail a different assessment of the gravity of the infringement imputable to each of the undertakings, which means that it must determine the fine by taking reasonable account of the specific circumstances that distinguish the situation of one undertaking from that of the others. In the applicant’s submission, the Commission refrained from carrying out any assessment relating to the difference in degree and intensity of its involvement in the cartel, whereas, in the decision, it none the less acknowledged on several occasions the applicant’s special position in the cartel (for example, at recitals 170, 187 and 211 to 214 to the contested decision).
230. The applicant claims that the Commission thus, in particular, failed to take account of the fact that, unlike the other producers, the applicant was never a ‘loyal, enthusiastic and dynamic’ participant in the cartel, as may be seen from the fact that the applicant decided to cease its participation in the cartel on two occasions, that it is the only one to have used its activities to oppose the cartel, that it was consistently subject to pressure, threats and retaliatory measures on the part of its competitors, and that it cannot be imputed with participation in a single and complex infringement throughout the entire period taken into consideration by the Commission.
231. It follows, in the applicant’s submission, that the Commission breached the principles of proportionality and equal treatment, principles which the Guidelines on setting fines cannot reduce to nothing.
232. The Commission disputes those arguments.
(c) Findings of the Court
233. The applicant claims, in essence, that there has been an error of assessment and at the same time a breach of the principles of proportionality and equal treatment.
234. As the Commission correctly recalls, in accordance 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 margin of discretion (Case C-328/05 P SGL Carbon
v Commission
[2007] ECR I-3921, paragraph 43).
235. The factors capable of affecting the assessment of the gravity of infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union. In that context, it is permissible, for the purposes of determining the fine, to take into account both the undertaking’s overall turnover, which is an indication, however approximate and imperfect, of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which is therefore capable of giving an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance which is disproportionate in relation to the other factors to be assessed and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on turnover achieved in sales of the product concerned. Furthermore, European Union law contains no generally-applicable principle that the penalty must be proportionate to the turnover achieved by the undertaking from sales of the product covered by the infringement (Case C-389/10 P KME Germany and Others
v Commission
[2011] ECR, paragraphs 58 to 60).
236. In the present case, it must be held that, while the applicant did admittedly interrupt its participation in the cartel in 1992, the fact none the less remains that it rejoined the cartel on 3 September 1996 and that between May 1997 and December 1999 it maintained unlawful contacts with the cartel before being fully integrated again in May 2000, until May 2007. The applicant claims to have been forced to do so, but that argument cannot be upheld, just as its assertions concerning the fact that it did not participate in a single and complex infringement cannot succeed (see paragraphs 159, 185 and 202 to 214 above).
237. It follows that the applicant was not in a situation that distinguished it from the other participants in the cartel and constituted a ground for using in its case a different percentage of relevant sales in order to determine the basic amount of the fine.
238. It also follows that the Commission has not breached the principle of proportionality.
239. The first part of the third plea must therefore be rejected in its entirety.
2. Second part of the third plea, alleging error in the calculation of the fine by reference to the duration of the infringement, and breach of the principle of legitimate expectations
(a) Contested decision
240. It is apparent from recitals 141 to 147 to the contested decision that the Commission, relying on various documents, including certain internal memos communicated by MRI in the context of its leniency application (recitals 143 to 145 to the contested decision), considered that the applicant had actively rejoined the cartel with effect from 3 September 1996.
241. Recital 487 to the contested decision sets out the reasons why the Commission is opposed to the applicant’s argument requesting that, under point 26 of the Leniency Notice, the evidence which it supplied the Commission for the period 1996-1997 should not be used against it.
242. Recitals 447 and 448 to the contested decision specify, last, the infringement period taken into consideration by the Commission for the purposes of calculating the fine.
(b) Arguments of the parties
243. In essence, the applicant claims that, owing to the inclusion of the period 3 September 1996 to 13 May 1997, the duration of the infringement was incorrectly increased to eight years (as that eight-month period was rounded up to an additional year), which resulted in an increase of the fine of approximately [ confidential ]. The applicant maintains that it was wrongly penalised for that period, and on the sole basis of the evidence which it had itself communicated to the Commission in the context of the leniency programme. That evidence could not be used against it, in accordance with the Leniency Notice, and that breach of its rights also constitutes a breach of the principle of the protection of legitimate expectations. The contested decision also fails to state sufficient reasons in that respect.
244. The Commission merely refers in that regard to the arguments which it submitted in the context of the second plea.
(c) Findings of the Court
245. It follows from the analysis of the second plea that the Commission was entitled to take the view that the applicant had rejoined the cartel on 3 September 1996 and had played a full part in the infringement until 13 May 1997 (see paragraph 159 above).
246. The Commission therefore did not err in taking the infringement period between 3 September 1996 and 13 May 1997 into consideration and increasing the duration of the infringement from seven and half years to eight years, in accordance with its Guidelines.
247. It must be stated, moreover, that the contested decision contains sufficient reasons, which are set out at recitals 141 to 147 and 487 to that decision. The plea alleging failure to state reasons must therefore be rejected.
248. The Court must also reject the complaint alleging breach of the principle of legitimate expectations, in that the Commission used in the applicant’s case certain documents which the applicant had produced in the context of its leniency application, since the Commission was not required to disregard those documents pursuant to the final paragraph of point 26 of the Leniency Notice and since, in any event, those documents were not necessary in order to establish the infringement which the applicant committed between September 1996 and May 1997 (see paragraphs 123 to 159 above).
249. The second part of the third plea must therefore be rejected in its entirety.
3. Third part of the third plea, alleging error in the increase of the fine for deterrence and breach of the obligation to state reasons and of the principle of equal treatment
(a) Contested decision
250. It is apparent from recitals 449 and 450 to the contested decision that the Commission, in application of point 25 of the Guidelines, increased the basic amount by 25% of the value of sales for deterrence.
(b) Arguments of the parties
251. The applicant observes that the increase of 25% for deterrence is the maximum allowed under the Guidelines, which provide that such an increase is to be between 15% and 25% of relevant sales.
252. The applicant submits that by applying that maximum increase the Commission incorrectly treated it in the same way as the other producers, in breach of the applicable principles and without stating its reasons for doing so.
253. In the applicant’s submission, the Commission thus failed to take account of the fact that the applicant was significantly smaller than the other producers. However, the case-law requires that the increase applied for the purpose of ensuring a deterrent effect should take account of the differences in size of the undertakings that have participated in the cartel.
254. The applicant claims that the same applies with respect to the difference in its conduct, in so far as it was not a diligent member of the cartel, it left the cartel in 1992 and did what it could to distance itself from the cartel, and returned only because it was unable to resist the pressure and threats from the other cartel members. In addition, in 2003 its management unequivocally manifested its intention to leave the cartel and, although in spite of everything it remained in the cartel after that date, it did so solely because of the conduct of certain disloyal employees of its subsidiary in the United States, who acted without the applicant’s knowledge and against its will; furthermore, the Commission has never maintained that the applicant was aware of the activities of its United States branch, let alone that it approved of them. Furthermore, as soon as the applicant became aware of their role in the cartel and of their breach of its code of conduct, it immediately severed relations with Mr F., a consultant, and its employment relationship with a former employee of MOM.
255. In addition, the applicant had put in place since 2005 an internal procedure designed to ensure that its employees complied with the rules on competition and, in application of the new code of conduct adopted in that context, it disciplined one of its employees.
256. That, in the applicant’s submission, shows that it was and is wholly convinced of the need not to participate in anti-competitive activities in future and the increase in the fine for deterrent purposes is wholly unnecessary and unsubstantiated by reasons.
257. Last, in any event, the application of the maximum rate of the increase appears to be unjustified, in the light of the role which the applicant played in the cartel.
258. The Commission disputes those arguments.
(c) Findings of the Court
259. First, it should be borne in mind that the Guidelines provide:
‘10. First, the Commission will determine a basic amount for each undertaking or association of undertakings.
11. Second, it may adjust that basic amount upwards or downwards.
…
19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
…
23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. …’
260. Second, it has repeatedly been held that, whereas the starting amount for the fine is set according to the infringement, the relative gravity of the infringement is determined by reference to numerous other factors, in respect of which the Commission has a broad discretion ( KME Germany and Others
v Commission, paragraph 235 above, paragraph 58). Furthermore, it follows from the Guidelines that assessment of the gravity of the infringement is carried out in two stages. In the first stage, the general gravity is assessed solely by reference to factors relating to the infringement itself, such as its nature and its impact on the market; and in the second stage, the assessment of the relative gravity is modified by reference to circumstances particular to the undertaking concerned, which, moreover, leads the Commission to take into account not only possible aggravating circumstances but also, in appropriate cases, mitigating circumstances. That step enables the Commission, particularly in the case of infringements involving a number of undertakings, to take account, in its assessment of the gravity of the infringement, of the different role played by each undertaking and of its attitude towards the Commission during the course of the procedure (Joined Cases T-202/98, T-204/98 and T-207/98 Tate & Lyle and Others
v Commission
[2001] ECR II-2035, paragraph 109, and Case T-452/05 BST
v Commission [2010] ECR II-1373, paragraph 48). Thus, even if the individual role played by the applicant were negligible, that would not call into question the degree of gravity of the infringement.
261. Consequently, the Commission cannot be criticised for having considered that the infringement – which lasted at least from 1986 until 2007 and was characterised both by agreements on prices and by the allocation of geographic markets and quotas – was of significant general gravity.
262. In fact, the applicant played a full part in the unlawful conduct, even though it left the cartel in 1992 and rejoined it only in 1996, which was taken into account in the calculation of the fine imposed on it, as it was not fined in respect of the period before 3 September 1996 (recital 448 to the contested decision).
263. The complaint alleging breach of the principle of equal treatment must therefore be rejected.
264. Third, according to consistent case-law, as the Commission is not obliged to calculate the fine by reference to amounts based on the turnover of the undertakings concerned, it is likewise not required to ensure, where fines are imposed on several undertakings involved in the same infringement, that the final amount of the fines produced by the calculation for the undertakings concerned reflects any distinction between them regarding their total turnover or their turnover in the relevant product market. In that regard, it should be pointed out that Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) and Article 23(3) of Regulation No 1/2003 do not require that, where fines are imposed on several undertakings involved in the same infringement, the amount of the fine imposed on a small or medium-sized undertaking should not be higher, as a percentage of turnover, than the amount of the fines imposed on larger undertakings. It is clear from those provisions that, both for small or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement. Where the Commission imposes on undertakings involved in the same infringement fines which are justified, for each of them, by reference to the gravity and duration of the infringement, it cannot be criticised on the ground that, for some of them, the amount of the fine is greater, by reference to turnover, than that imposed on other undertakings. Thus, the Commission is not required to reduce the fines where the undertakings concerned are small or medium-sized undertakings. The size of the undertaking is already taken into consideration by virtue of the upper limit laid down in Article 15(2) of Regulation No 17 and Article 23(3) of Regulation No 1/2003 and also in the provisions of the Guidelines. Apart from those considerations concerning size, there is no reason to treat small or medium-sized undertakings differently from other undertakings. The fact that the undertakings concerned are small and medium-sized undertakings does not relieve them of their duty to comply with the rules on competition (see Gütermann and Zwicky
v Commission, paragraph 225 above, paragraphs 279 to 281 and the case-law cited, and Case T-446/05 Amann & Söhne and Cousin Filterie
v Commission [2010] ECR II-1255, paragraphs 198 to 200).
265. The applicant is therefore wrong to claim that its small size ought to have ensured that it would be treated differently in terms of the assessment of the gravity of the infringement, in which, moreover, the applicant has been shown to have played a full part.
266. The complaint alleging breach of the principle of proportionality must therefore also be rejected.
267. Fourth, since the applicant cannot validly claim that it participated in the cartel only in a marginal way between 1996 and 2000, or that the purpose of its participation was to defend itself against its competitors (see, in particular, paragraph 185 above), the Commission cannot be criticised for not having taken those factors into account when assessing the gravity of the infringement.
268. Furthermore, although the applicant claims that it was not aware of the unlawful actions of its United States subsidiary MOM, it does not deny, in the present case, being wholly responsible for the acts committed by that subsidiary within the meaning of the case-law (Case C-97/08 P Akzo Nobel and Others
v Commission [2009] ECR I-8237). It merely disputes the percentage of the increase applied by the Commission for deterrence, which, it submits, did not take sufficient account of its attitude, notably by comparison with the other undertakings involved in the cartel.
269. In such circumstances, the intention which it may have expressed in 2003 of leaving the cartel is irrelevant, since, at the very least, it is established that the subsidiary continued to participate in the infringement until 2007.
270. The Commission was therefore entitled to take into consideration the fact that the applicant, at least through its subsidiary, had participated in the cartel until May 2007.
271. Consequently, the Commission did not err in its assessment of the gravity of the infringement in that respect.
272. The same applies so far as the applicant’s internal competition law compliance programme is concerned, since it has been held that, while it is important that an undertaking has taken measures to prevent future infringements of European Union competition law by its personnel, that fact does not alter the reality of the infringement that has been found. That fact does not in itself mean that the Commission was obliged to reduce the fine imposed on that undertaking on the basis of a mitigating circumstance (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 115 above, paragraph 373).
273. Consequently, the complaint alleging that the increase in the fine lacked any deterrent effect, on the ground that the applicant had already adopted provisions demonstrating its desire to avoid any involvement in collusive activities, must be rejected.
274. Fifth, and last, it follows from the foregoing considerations that the complaint alleging failure to state reasons must also be rejected.
275. Accordingly, the third part of the third plea must be rejected.
4. Fourth part of the third plea, alleging error in the assessment of the conditions for the application of mitigating circumstances, and breach of the obligation to state reasons
(a) Contested decision
276. It follows from recital 464 to the contested decision that the Commission did not apply to the members of the cartel any mitigating circumstance that might result from a passive or minor role in the cartel.
(b) Arguments of the parties
277. The applicant maintains that, without carrying out a specific examination of the undertakings’ individual situations and without stating reasons, the Commission refused to apply mitigating circumstances, at recital 464 to the contested decision.
278. The Commission thus failed to take any account of the applicant’s particular situation or of a series of circumstances that were decisive for the characterisation of its behaviour towards and within the cartel, and thus breached the principle of equal treatment.
279. The applicant further claims that it is not one of the ‘[s]everal undertakings’ (recital 434 to the contested decision) that relied on the minor nature of their activity in the marine hose sector in order to secure recognition of mitigating circumstances, which means that its defence was assimilated, without distinction and superficially, to that of other products.
280. The Commission also confined itself, in the applicant’s submission, to applying to it the same treatment as to Trelleborg and Dunlop, although neither the conduct nor the weight of those undertakings was comparable with the applicant’s.
281. The applicant maintains, last, that the reduction that ought to have been granted to it ought not in any event to have been below 30%.
282. The Commission disputes those claims.
(c) Findings of the Court
283. It should be borne in mind that the Guidelines provide:
‘29. The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
…
– where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount;
…’
284. Recital 464 to the contested decision, under the heading ‘Passive and/or Minor Role’, is worded as follows:
‘Several undertakings involved claim that their marine hose business is a minor activity. The Commission generally considers that this cannot be the basis for a finding of a passive or minor role which only takes into account what kind of role an undertaking played in a cartel but not the importance of the business in the group. The Commission also observes that despite the minor importance of the business all of the undertakings involved considered the marine hose business important enough to maintain, presumably for reasons of profitability (except Bridgestone that has stopped its business since the end of the infringement). The Commission finally observes that the relative importance of the business is sufficiently reflected in the calculation of the basic amount and does not furthermore need to be taken into account.’
285. The Court will first of all consider whether, as the applicant maintains, the Commission made an error of assessment in concluding that it was not appropriate to grant the applicant the benefit of mitigating circumstances.
286. It should be borne in mind, in that regard, that, according to the case-law, pressure brought to bear by undertakings and designed to induce other undertakings to participate in an infringement of competition law does not, however great it may be, relieve the undertaking concerned of its responsibility for the infringement committed, does not in any way alter the gravity of the cartel and cannot constitute a mitigating circumstance for the purposes of the calculation of the amounts of the fines, since the undertaking concerned could have reported any pressure to the competent authorities and lodged a complaint against the undertakings concerned (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraph 115 above, paragraphs 369 and 370, and Case T-62/02 Union Pigments
v Commission [2005] ECR II-5057, paragraph 63). The Commission was not therefore required to take threats, as alleged in the present case, into account as a mitigating circumstance (see, to that effect, Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others
v Commission
[2007] ECR II-947, paragraph 640).
287. It follows from the case-law, moreover, that one circumstance that may indicate the adoption by an undertaking of a passive role within a cartel is where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the other members of the cartel (Case T-220/00 Cheil Jedang
v Commission [2003] ECR II-2473, paragraph 168; see also 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 331 and the case-law cited), in the same way as its late entry on the market to which the infringement related, irrespective of the duration of its participation in the infringement (see, to that effect, Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettendustrie and Others
v Commission
[1985] ECR 3831, paragraph 100, and Carbone-Lorraine
v Commission, paragraph 115 above, paragraph 164 and the case-law cited), or again the existence of express declarations to that effect made by representatives of other undertakings which participated in the infringement (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, paragraph 331 and the case-law cited). In addition, this Court has held that ‘an exclusively passive role’ of a member of a cartel implied that it adopted a ‘low profile’, that is to say, it did not actively participate in the making of the anti-competitive agreement or agreements (see Jungbunzlauer
v Commission, paragraph 194 above, paragraph 252 and the case-law cited).
288. Moreover, the mere fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself on the market in the manner agreed with its competitors and followed a more or less independent policy on the market does not necessarily have to be taken into account as a mitigating circumstance. It cannot be ruled out that that undertaking was merely trying to exploit the cartel for its own benefit (Case T-191/06 FMC Foret
v Commission
[2011] ECR II-2959, paragraphs 345 and 346).
289. Last, according to consistent case-law, in order to determine whether an undertaking must have the benefit of a mitigating circumstance on the ground that it did not actually apply offending agreements, it is necessary to determine whether the undertaking has put forward arguments capable of establishing that, during the period in which it was a party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (see Case T-26/02 Daiichi Pharmaceutical
v Commission [2006] ECR II-713, paragraph 113, and Carbone-Lorraine
v Commission, paragraph 115 above, paragraph 196).
290. It follows that the applicant cannot validly rely on either the alleged pressure brought to bear on it or the lesser duration of its participation in the infringement.
291. As for what it claims to have been the passive nature of its conduct and its impact on the fine, it should be recalled that the applicant again became a full member of the cartel with effect from 3 September 1996, that it participated in the discussions aimed at relaunching the cartel held between 1997 and 1999 and that, as from May 2000, it fully resumed its activity within the cartel.
292. The applicant cannot therefore claim that it played a passive role within the cartel or, accordingly, claim the benefit of mitigating circumstances on the basis of having done so.
293. Furthermore, following the applicant’s own reasoning, its intention and conduct during that period were designed to give the impression that it was in favour of the cartel and, to that effect, it at the least maintained contacts and exchanged information with some members of the cartel, which means that, on its own admission, it actively participated in the infringement.
294. As for the complaint alleging failure to state reasons, it should be observed that the Commission does not dispute the applicant’s argument that the applicant did not rely, during the administrative procedure, on the smaller size of its activities in the marine hose sector as a ground for being granted the benefit of mitigating circumstances.
295. Nor does the Commission dispute that, in the context of the administrative procedure, the applicant put forward arguments similar to those which it puts forward in these proceedings, namely ‘the lesser duration of its participation in the cartel and … its minor or marginal role in the framework of [the cartel]’.
296. However, although, in the recitals to the contested decision that deal with the analysis of mitigating circumstances, the Commission did not expressly respond to the applicant’s various arguments, it follows from the considerations set out at paragraphs 283 to 293 above that the contested decision, taken as a whole, contains sufficiently detailed reasoning to allow the Court, and also the applicant, to understand the reasons why the applicant cannot be granted the benefit of mitigating circumstances in the present case.
297. Consequently, it must be held that the reasoning on which the contested decision is based satisfies the criteria established in the case-law and set out at paragraph 108 above.
298. It follows that the fourth part of the third plea must be rejected in its entirety.
5. Fifth part of the third plea, relating to the reduction of the fine for cooperation in the context of the leniency programme
(a) Contested decision
299. Recitals 480 to 488 to the contested decision set out the reasons why the Commission considered that the applicant should be granted a 30% reduction of its fine to reflect its contribution to the case.
300. In that respect, the Commission considered, in essence, that the date on which MRI had decided to cooperate in the investigation should certainly be taken into account (recitals 480 et 485 to the contested decision), but that its contribution was of limited value, since the Commission by then already had in its possession a vast amount of evidence on the basis of which it was able to establish the main features of the cartel (recital 485 to the contested decision).
301. The Commission stated, in essence, that MRI provided evidence relating to the cartel from the late 1980s (recital 481 to the contested decision), and in particular a document dating from 1989 which showed that cartel members exchanged statistical data (recital 482 to the contested decision) and also two documents exchanged in 2000 with the cartel coordinator which enabled the Commission to establish that there was a geographic allocation of the markets between members of the cartel (recital 483 to the contested decision) and, last, internal documents from early 1997 concerning the existence of the cartel at that time, showing MRI’s role in the cartel between 1996 and 1997 and strengthening the Commission’s ability to prove the existence of the cartel in the second half of the 1990s (recital 484 to the contested decision).
(b) Arguments of the parties
302. The applicant submits that the Commission erred in determining the reduction of the fine for the cooperation which the applicant supplied in the context of the leniency programme. The Commission granted it the minimum reduction, 30%, although the Leniency Notice provides that the first undertaking to be granted leniency will be entitled to a reduction of up to 50%, under point 26 of the Leniency Notice. The applicant maintains that that error is the consequence of the fact that the Commission did not take sufficient account of the decisive support which the applicant provided to the investigation.
303. The applicant observes that the date on which the evidence in support of its leniency application was supplied, and the added value of that evidence, are the two criteria on which, according to the Leniency Notice, the level of the reduction can be defined.
304. The applicant displayed the maximum diligence, as may be seen from recital 480 to the contested decision, since it supplied the major part of the most important evidence in its possession on the day after the inspections, that is to say, on 4 May 2007.
305. Furthermore, the applicant maintains that its support was very significant. Contrary to the Commission’s assertion at recital 482 to the contested decision, the evidence and information which the applicant supplied not only ‘strengthened’ or ‘refined’ the Commission’s ability to prepare the statement of objections which it sent to the producers but, in the applicant’s submission, it is apparent on reading that statement of objections and the contested decision that the information which the applicant supplied was decisive in supporting the Commission’s objections relating to the characteristics of the cartel, its operation and the duration of the infringement and also the extent of the producers’ participation. In many cases that information was the only material used to support the Commission’s argument.
306. The applicant explains, in that regard, that the information and data which it supplied served to corroborate the oral statements made by the first complainant – which, in the absence of documentary or objective evidence capable of confirming them, were insufficient to substantiate beyond dispute the pertinent objections – and also the information supplied by the other undertakings and, in addition, constituted the only real material to support the Commission’s objection that the other producers had participated in a single and continuous infringement.
307. The applicant further maintains that the evidence which it supplied in relation to the period between March 1997 and June 1999 is the only, or the main, basis for the Commission’s findings in respect of that period. While it is true that other evidence exists, it is none the less, in the applicant’s submission, clearly insufficient to prove any aspect of the cartel during that period. Thus, without that evidence, the Commission would, in the applicant’s submission, have had no alternative but to find two distinct infringements and not a single continuous or repeated infringement.
308. The Commission was therefore wrong to consider, at recital 485 to the contested decision, that ‘it was already in possession of a vast amount of documents, on the basis of which it was able to prove the main elements of the cartel’.
309. Consequently, in the applicant’s contention, the application of the minimum rate of reduction is unwarranted and, furthermore, the reasons for applying that rate are not stated. The applicant further maintains that the contested decision breaches the principle of equal treatment since in other cases the Commission has granted higher reductions for less information.
310. The Commission disputes those claims.
311. The Commission contends that, according to consistent case-law, it has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the Commission investigation. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned. In particular, it has a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. Its assessments are subject to limited judicial review.
312. The Commission denies that MRI was the first and only undertaking whose contribution was deemed to entitle it to admission to the leniency programme. It considers that the case originated in the leniency application submitted by [ confidential ], which ceased to participate in the cartel before submitting that application and which disclosed the existence, the object and the characteristics of the cartel, which enabled the Commission to carry out the investigation and justified [ confidential ] being granted full immunity. Conversely, MRI did not begin to cooperate until after the inspections.
313. As for the importance and usefulness of the cooperation provided by MRI, they undoubtedly facilitated the Commission’s task, but, first, the Commission was already aware of the existence, the object and the operating methods of the cartel; second, it denies that, without MRI, it would have been unable to prove that the cartel persisted; third, none of the participating undertakings received a penalty for the period between 13 May 1997 and 11 June 1999, for which MRI’s cooperation proved most useful; and, fourth, the infringement could, in the Commission’s submission, have been characterised as a repeated infringement even if it had been interrupted for several years and then resumed with the same participants, the same object and similar methods, with a view to implementing the same overall plan. MRI is therefore wrong to claim that its cooperation was necessary in order for the infringement to be characterised as continuous.
314. Furthermore, for the other periods MRI’s cooperation was of limited usefulness, given the information already provided by [ confidential ] and the mass of documents discovered during the inspections.
315. A reduction of the fine set at 30% is therefore fully justified.
316. The Commission contends, moreover, that the comparisons which MRI makes with other undertakings are irrelevant, since, first, comparisons of that type between different cases are extremely difficult and, second, the fact that the Commission has, in its previous practice in taking decisions, granted a certain rate of reduction for specific conduct does not, according to the case-law, mean that it is required to grant the same reduction when assessing similar behaviour in the context of a subsequent administrative procedure.
317. Last, the Commission submits that its reasons for not granting a reduction of more than 30% are set out at recital 485 to the contested decision.
(c) Findings of the Court
318. Point 26 of the Leniency Notice states:
‘The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:
– first undertaking to provide significant added value: a reduction of 30-50%;
– second undertaking to provide significant added value: a reduction of 20-30%;
– subsequent undertakings that provide significant added value: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 24 was submitted and the extent to which it represents added value.’
319. It should be borne in mind that point 24 of the Leniency Notice states that, in order to qualify for such a reduction, the undertaking concerned must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession, the concept of added value itself being determined at point 25 of the Leniency Notice (see paragraph 116 above).
320. The wording of the Leniency Notice therefore assumes that two stages are distinguished:
– first, in order to be able to benefit from a reduction of its fine, the undertaking must provide the Commission with evidence having significant added value; the first undertaking to cooperate in this way will be granted a reduction of the amount of its fine of a minimum of 30% and a maximum of 50% of the basic amount;
– second, in order to establish the rate of reduction within that band, the Commission must take two criteria into account: the date on which the evidence was communicated and the degree of added value which it represents.
321. Furthermore, the concept of significant added value is to be understood, for the purposes of the Leniency Notice, as referring to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel, that value itself being assessed by reference to a number of parameters set out at point 25 of the Leniency Notice.
322. Thus, provided that the evidence supplied to the Commission has significant added value and the undertaking is the first to communicate such evidence, the minimum rate of reduction of the fine will be 30%. Next, the earlier the cooperation and the greater the degree of added value, the more the rate of reduction will increase, up to a maximum of 50% of the amount of the fine.
323. In the present case, it must be observed that, in the contested decision, the Commission recognised that MRI was the first undertaking to satisfy the conditions in order to obtain a reduction of the fine, in so far as the documents which it had supplied to the Commission had significant added value, but it merely granted MRI the minimum reduction of the fine, that is to say, 30%. The only issue between the parties, and to be resolved by the Court, is therefore the size of the reduction granted by the Commission within that band and not the actual principle of that reduction.
324. Although, admittedly, the Commission assesses, in the light of the evidence communicated by MRI, the percentage of reduction that should be applied to the leniency applicant, the fact none the less remains that it is necessary to ascertain whether the Commission defined that percentage in accordance with the criteria which it fixed in the Leniency Notice and whether it stated in the contested decision the reasoning which it followed in doing so, in such a way as to enable the applicant to know the justification for the measure taken against it and the Court to exercise its power of review.
325. As for the date on which the evidence was supplied, it is common ground that the leniency application was submitted, together with evidence, on 4 May 2007 (recital 480 to the contested decision) – that is to say, two days after the inspection carried out by the Commission following the leniency application submitted by [ confidential ] on 20 December 2006.
326. The Commission considers that that collaboration was provided at an early stage in the investigation (recital 486 to the contested decision).
327. However, it must be held that that assessment is not reflected in the rate of reduction applied to the fine imposed on the applicant.
328. As regards the degree of the significant added value of the evidence adduced by MRI, the Court makes the following observations.
329. In the contested decision, the Commission stated that MRI had supplied evidence of the cartel from the late 1980s – in particular a document dating from 1989 showing that the cartel members exchanged statistical data – and also two documents exchanged in 2000 with the coordinator of the cartel showing geographic market-sharing between cartel members and, last, internal documents dating from early 1997 concerning the existence of the cartel at that time, showing MRI’s role in the cartel between 1996 and 1997 and strengthening the Commission’s ability to prove the existence of the cartel in the second half of the 1990s. However, the Commission stated that MRI’s contribution had only limited value, since at the time when it was provided the Commission was already in possession of a vast amount of evidence enabling it to prove the main elements of the cartel (see paragraphs 300 and 301 above).
330. It should be observed, however, that recitals 148 to 187 to the contested decision set out the evidence on which the Commission relied in order to find that, between 13 May 1997 and June 1999, the cartel had gone through a period of limited activity, during which contacts were maintained in which the applicant was involved and the object of which was, in particular, to attempt to relaunch the cartel.
331. That evidence is as follows: [ confidential ].
332. The Commission states, moreover, that various documents – namely two faxes from [ confidential ], dated 11 June 1999, and a fax from Parker ITR, dated 21 June 1999 – show that the disagreements between cartel members had ceased from 11 June 1999 (recital 178 to the contested decision).
333. Essentially, the documentary evidence gathered by the Commission and relating to the intermediate period, between 13 May 1997 and June 1999, therefore came from MRI and was produced by the latter in the context of its leniency application.
334. In addition, it must be noted that the Commission relies only on the relative value of the documents supplied by MRI and not on their intrinsic value, although they enabled the Commission to corroborate a number of statements and indicia which it merely had in its possession.
335. In fact, the evidence supplied by MRI to the Commission and relating to the period 13 May 1997 to June 1999 – unlike the evidence which it produced for the period 3 September 1996 to 13 May 1997 (see paragraphs 148 and 149 above) – is documentary evidence which increased the Commission’s ability to demonstrate the existence of the cartel between May 1997 and June 1999 and enabled it to show that certain allegations of the other cartel members concerning the fact that the cartel was fully interrupted between May 1997 and June 1999 were inaccurate.
336. Furthermore, that evidence enabled the Commission to support its argument that the infringement was continuous from April 1986 until May 2007, in spite of the crisis experienced by the cartel between May 1997 and June 1999 (see recitals 289, 293 and 294 to the contested decision), although it did not impose a fine for that intermediate period. In that regard, it should be observed that the Commission merely refers to footnote 733 to the contested decision and to other footnotes to that decision, which refer to three documents relating to the intermediate period, but that recitals 481 to 484 to the contested decision do not mention that period or MRI’s contribution.
337. In that regard, it should be observed that, according to point 25 of the Leniency Notice, the concept of added value refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel. Point 25 of the Leniency Notice states that the degree of corroboration from other sources required for the evidence submitted to be relied upon against other undertakings involved in the case will have an impact on the value of that evidence, so that compelling evidence will be attributed a greater value than evidence such as statements which require corroboration if contested.
338. Consequently, it must be held that the degree of added value of the evidence supplied to the Commission by the applicant is not reflected in the rate of reduction of the fine, which the Commission set at the minimum level of 30%.
339. The Commission thus failed to have regard to the criteria which it had imposed on itself in point 26 of the Leniency Notice.
340. As regards the complaint alleging failure to state reasons, the Commission merely states, at recital 486 to the contested decision, that, ‘[c]onsidering the value of its contribution to this case, the early stage at which it provided that contribution and the extent of its cooperation following its submissions, [MRI] should be granted a 30% reduction of the fine that would otherwise have been imposed on it’.
341. It must therefore be considered, in the alternative, that if the Commission had special reasons for limiting to 30% the rate of reduction of the fine granted to the applicant and not increasing that reduction in spite of the early stage at which it cooperated and the significant degree of the added value of the evidence provided, it was incumbent on it to state its reasons for doing so in the contested decision, which, however, it failed to do, with the consequence that the Court is unable to determine with certainty whether the Commission also made a manifest error of assessment in that respect.
342. In view of the fact that neither the early stage at which the applicant cooperated nor the degree of added value of the evidence which it supplied is reflected in the rate of reduction applied by the Commission in the contested decision, and of the failure to state reasons in that decision, the fifth part of the third plea must be upheld in part and Article 2(f) of the contested decision must be annulled.
343. As regards the complaint alleging breach of the principle of equal treatment, it is sufficient to observe that the applicant has failed to put forward sufficient evidence to establish that its situation was similar to the situation of the other undertakings in identical circumstances. That complaint must therefore be rejected.
344. The fifth part of the third plea is therefore rejected as to the remainder.
D – The claim for a reduction of the fine
345. It must be borne in mind that, in accordance with Article 229 EC, regulations adopted jointly by the European Parliament and the Council of the European Union, pursuant to the provisions of the Treaty, may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in such regulations. Such jurisdiction was conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003. Those Courts are therefore authorised, in addition to merely reviewing the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed. It follows that the Courts of the European Union are authorised to exercise their unlimited jurisdiction when the question of the amount of the fine is raised before them and that that jurisdiction may be exercised both in order to reduce that amount and to increase it (see Case C-3/06 P Groupe Danone
v Commission [2007] ECR I-1331, paragraphs 60 to 62 and the case-law cited).
346. Furthermore, under Article 23(3) of Regulation No 1/2003, when the amount of the fine is fixed, regard is to be had both to the gravity and to the duration of the infringement. The amount of the fine cannot exceed 10% of the undertaking’s total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003.
347. In addition, as stated in Article 49 of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the offence.
348. It should be borne in mind, moreover, that the fixing of a fine by the Court, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise. Furthermore, the Court is not bound by the Commission’s calculations, but must carry out its own assessment, taking all the circumstances of the case into account (Case T-156/94 Aristrain
v Commission, not published in the ECR, paragraph 43).
349. The Court of Justice has held that, in order to determine the amount of a fine, it was necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union (see Case C-386/10 P Chalkor
v Commission
[2011] ECR I-13085, paragraph 56 and the case-law cited).
350. The Court of Justice has also stated that 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 ( Chalkor
v Commission, paragraph 349 above, paragraph 57).
351. It has also been consistently held that it was necessary to bear in mind that the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the provision 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. It follows that fines must not be disproportionate by reference to the objectives pursued, that is to say by reference to compliance with the competition rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see Case T-11/06 Romana Tabacchi
v Commission
[2011] ECR II-6681, paragraph 280 and the case-law cited).
352. In the present case, in the light of the assessment carried out by the Court in the context of the fifth part of the third plea and of the errors found on that occasion (see paragraph 342 above), the Court considers it appropriate to exercise its unlimited jurisdiction under Article 31 of Regulation No 1/2003 and to substitute its assessment for the Commission’s as regards the amount of the fine that should be imposed on the applicant.
353. It should be borne in mind, first of all, in the present case, first, that MRI’s consolidated worldwide turnover for all of its products was, in 2006, [ confidential ] and, in 2007, [ confidential ] (recital 44 to the contested decision) and, second, that the undertaking’s share of the global market was assessed by the Commission at [ confidential ], which the applicant did not dispute (recital 433 to the contested decision).
354. It should be observed, next, that the cartel assumed undeniable gravity, having regard to the duration of the infringement and also to the fact that the unlawful conduct, in which the applicant played a full part, was characterised by the allocation of invitations to tender, price-fixing, quota-fixing, the establishment of conditions of sale, sharing of geographic markets and also the exchange of sensitive information on prices, sales volumes and invitations to tender. The cartel also operated on a worldwide scale.
355. Furthermore, it is established that the applicant participated in the infringement between 1 April 1986 and 1 August 1992 – a period to which limitation does not apply (see paragraphs 212 to 214 above) – and then between 3 September 1996 and 2 May 2007, with, admittedly, during that second part of the infringement, a period of restricted activities during the intermediate period, but in which Mr F. played a full part from the aspect, in particular, of the relaunch of the cartel and the negotiation of the applicant’s place within the cartel.
356. It is certainly appropriate to have regard to the applicant’s cooperation in the Commission’s investigation. Owing to the evidence which it supplied to the Commission at an early stage, the applicant enabled the Commission to establish the existence of a continuous infringement as against the other members of the cartel, in spite the existence of a period of crisis which, without that evidence, would in all likelihood have induced the Commission to consider that the cartel had been interrupted for a period of two years – or even three years in the applicant’s case.
357. However, it is necessary to take into consideration that fact that, even without that evidence, the Commission could have established the existence of a repeated infringement against the members of the cartel (see, in that regard, the evidence put forward by the Commission at recitals 304 and 307 to the contested decision), which tends to qualify the significance of the added value of MRI’s cooperation.
358. The Court considers that, in such circumstances, the rate of reduction of the fine ought to have been 40%.
359. None the less, in view of the foregoing considerations and of the need to weigh up the various factors to be taken into consideration for the purpose of setting the amount of the fine (see paragraphs 349 and 350 above), the Court considers that the amount of the fine imposed on the applicant, having regard, in particular, to the gravity of the infringement and the duration of MRI’s participation in the infringement, is appropriate and that it should therefore not be reduced.
360. Accordingly, the applicant’s claim for variation of the penalty, in that it seeks a reduction of the fine of EUR 4 900 000 imposed on it, should be rejected.
Costs
361. 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 of First Instance may order that costs be shared or that each party bear its own costs.
362. As the applicant and the Council have each been partially unsuccessful in their claims, they must each be ordered to bear their own costs.
(1) .
(1)
–	Confidential data removed.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Article 2(f) of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine Hoses);
2. Sets the amount of the fine imposed on MRI at EUR 4 900 000;
3. Dismisses the action as to the remainder;
4. Orders the parties to bear their own costs.