62009TJ0068_EN
Parties
Grounds
Operative part
Parties
In Case T‑68/09,
Soliver NV,
established in Roulers (Belgium), represented by H. Gilliams, J. Bocken and T. Baumé, lawyers,
applicant,
v
European Commission,
represented by A. Bouquet, M. Kellerbauer and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA agreement (Case COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009, in so far as it concerns the applicant and, in the alternative, for a reduction in the amount of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Second Chamber),
composed of N.J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 12 November 2013,
gives the following
Judgment
Grounds
1. By Decision of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 — Carglass), as amended by Decision C(2009) 863 final of 11 February 2009 (summarised in OJ 2009 C 173, p. 13) (‘the contested decision’), the Commission of the European Communities found, inter alia, that a number of companies, including the applicant, had infringed Article 81 EC and Article 53 of the EEA agreement, by participating, during various periods between March 1998 and March 2003, in a set of agreements and concerted practices in the automotive glass sector in the European Economic Area (EEA) (Article 1 of the contested decision).
2. The applicant, Soliver NV, is a small glass manufacturer, active in, amongst other areas, the automobile sector. Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG and Saint-Gobain Sekurit France SAS (‘Saint-Gobain’), which have also brought an action for annulment of the contested decision (Case T‑56/09), are companies active in the production, processing and distribution of materials, including carglass. They are wholly-owned subsidiaries of Compagnie de Saint-Gobain (‘Compagnie’), which also seeks annulment of the contested decision (Case T‑73/09). Pilkington Group Ltd consists, inter alia, of Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA (‘Pilkington’). Pilkington, which has also brought an action for annulment of the contested decision (Case T‑72/09), is one of the largest manufacturers of glass and glazing products in the world, in particular in the automobile sector.
3. Asahi Glass Co. Ltd (‘Asahi’) is a producer of glass, chemicals and electronic components, established in Japan. Ashai holds all the shares in the Belgian glass manufacturer Glaverbel SA/NV (‘Glaverbel’), which itself holds 100% of AGC Automotive France (‘AGC’ or ‘AGC/Splintex’). Before 1 January 2004 AGC was known as Splintex Europe SA (‘Splintex’ or ‘AGC/Splintex’). Ashai, which is one of the addressees of the contested decision, has not brought an action against it .
4. The investigation which led to the adoption of the contested decision was initiated after the Commission received letters from a German lawyer, acting on behalf of an unidentified client, containing information relating to agreements and concerted practices between various undertakings active in the production and distribution of carglass.
5. In February and March 2005 the Commission carried out inspections at various premises of the applicant and also of Saint-Gobin, Compagnie, Pilkington and AGC. The Commission seized several documents and files in the course of those inspections.
6. Following those inspections, Asahi, Glaverbel and their relevant subsidiaries (together, ‘the leniency applicant’) submitted an application for immunity from or a reduction of the amount of the fine, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p.3; ‘the 2002 Leniency Notice’). The application for conditional immunity from fines was rejected by the Commission on 19 July 2006, although the Commission informed the leniency applicant that, pursuant to point 26 of the 2002 Leniency Notice, it intended to apply to it a reduction of 30 to 50% of the fine which would normally have been imposed on it.
7. The Commission sent various requests for information to the applicant and to Saint-Gobain, Compagnie, Pilkington, Asahi, Glaverbel and AGC between 26 January 2006 and 2 February 2007, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). The undertakings concerned replied to those various requests.
8. In addition, the Commission sent requests for information, on the same basis, to a number of car manufacturers, to an Italian coach manufacturer and also to two glass industry trade associations, which replied to those requests.
9. On 18 April 2007 the Commission adopted a statement of objections relating to a single and continuous infringement consisting in agreements or concerted practices between manufacturers with a view to the allocation of contracts for the supply of carglass. That statement of objections was served on the applicant and also on Saint-Gobain, Compagnie, Pilkington, Asahi, Glaverbel and AGC. Each of the undertakings to which that statement of objections was addressed had access to the file and was invited by the Commission to submit observations in that respect. A hearing, in which all of those addressees took part, was held on 24 September 2007.
The contested decision
10. The Commission adopted the contested decision on 12 November 2008. The Commission considered that the applicant had participated in the infringement from 19 November 2001 to 11 March 2003 (Article 1(d) of the contested decision) and imposed on it a fine of EUR 4 396 000 (Article 2(d) of the contested decision).
11. As regards Saint-Gobain and Compagnie, the Commission found that they had participated in the agreements and concerted practices referred to in paragraph 1 above from 10 March 1998 to 11 March 2003 (Article l(b) of the contested decision) and imposed on them a fine of EUR 896 million, for which they were held jointly and severally liable (Article 2(b) of the contested decision).
12. Asahi, together with its subsidiaries active in the carglass sector, which were found to have participated in the infringement during the period between 18 May 1998 and 11 March 2003, were ordered to pay a fine of EUR 113.5 million for which they were held jointly and severally liable (Article 1(a) and Article 2(a) of the contested decision).
13. As regards, lastly, Pilkington, the Commission decided that it had participated in the agreements and concerted practices from 10 March 1998 to 3 September 2002 (Article 1(c) of the contested decision) and imposed on it a fine of EUR 370 million (Article 2(c) of the contested decision).
14. In the contested decision, the Commission proceeds on the basis that the characteristics of the carglass market, namely, in particular, significant technical requirements and a high degree of innovation, favour large integrated suppliers with a global reach. AGC, Pilkington and Saint-Gobain are among the main carglass manufacturers in the world and covered, at the time of the contested decision, around 76% of world demand for glass for the original equipment market (carglass fitted in the factory while the vehicle is being assembled). The Commission also found a significant volume of trade in carglass between Member States and European Free Trade Association (EFTA) Member States forming part of the EEA. Furthermore, according to the Commission, car manufacturers negotiate contracts for the purchase of carglass at EEA level.
15. According to the contested decision, the carglass suppliers investigated by the Commission continuously monitored their respective market shares during the period under consideration, not only per ‘vehicle account’ — that is say, having regard to the amount of sales per vehicle model — but also globally, all vehicle accounts together.
16. The Commission observes, in that respect, that Pilkington, Saint-Gobain and AGC (or AGC/Splintex) (‘the club’) participated in trilateral meetings, sometimes called ‘club meetings’. Those meetings, organised by each of those undertakings in turn, were held in hotels in various towns, in the private homes of employees of those undertakings and also at the premises of the trade association ‘Groupement europeen de producteurs de verre plat’ (European Flat Glass Producers’ Group) (‘GEPVP’) and at the premises of the ‘Associazione nazionale degli industriali del vetro’ (National Association of Glass Producers) (‘Assovetro’).
17. Bilateral meetings or contacts were also arranged between those competitors, in order to discuss supplies of carglass for current or future models. Those various meetings concerned the evaluation and monitoring of market shares, the allocation of supplies of carglass to manufacturers and the exchange of information on prices, as well as the exchange of other commercially sensitive information and the coordination of the pricing and supply strategies of those various competitors.
18. The first of those bilateral meetings, attended by Saint-Gobain and Pilkington, took place on 10 March 1998 at the Hyatt Regency hotel at Charles de Gaulle Airport, in Paris (France). The first trilateral meeting took place in the spring of 1998, at the private home of the large account manager of Splintex (AGC) at that time, at Königswinter (Germany). Those meetings were preceded, in 1997, by exploratory contacts between Saint-Gobain and Pilkington, the aim of which was the technical harmonisation of the privacy glass manufactured by those undertakings, in terms of colour, thickness and light transmission. The Commission did not include those contacts in the cartel, however, since they essentially related to an advanced stage in the manufacture of flat glass, before it is transformed into carglass.
19. In the contested decision, the Commission lists almost 90 meetings and contacts between the spring of 1998 and March 2003. The last trilateral contact, in which the applicant, amongst others, participated, took place on 21 January 2003, while the last bilateral contact took place during the second half of March 2003, between Saint-Gobain and AGC. The participants used abbreviations or code names to identify themselves at those meetings and contacts.
20. According to the contested decision, the applicant’s participation in the cartel began on 19 November 2001. The applicant had been contacted by Saint-Gobain in 2000 in an attempt to involve it in the cartel. The initial participants (Saint-Gobain, Pilkington and AGC) exploited, for that purpose, the fact that the applicant was dependent on the producers of the raw material, as it lacked in-house production of flat glass.
21. According to the contested decision, the cartel’s overall plan was to allocate supplies of carglass between the participants, with respect to both existing supply contracts and new contracts. That plan was designed to maintain the stability of the participants’ market shares. In order to achieve that objective, the participants, during the meetings and contacts referred to at paragraphs 16 to 20 above, exchanged price information and other sensitive information and coordinated their pricing and supply policies. In particular, they co-ordinated their replies to requests for price quotations from car manufacturers, in such a way as to influence the car manufacturers’ choice of a glass supplier, or indeed of more than one in the event of multiple supplies. In that respect, the participants had two means of favouring the award of a supply contract to the agreed producer, namely by not quoting at all or by quoting higher prices than that producer. Where necessary, correcting measures, taking the form of compensation granted to one or more participants, were decided on in order to ensure that the global supply situation at EEA level remained in accordance with the agreed allocation. Where correcting measures had to affect current supply contracts, the process used by competitors to adjust the balance of market shares consisted in warning car manufacturers that a technical problem or shortage of raw materials would disrupt deliveries of items ordered and suggesting a replacement supplier.
22. In order to maintain the agreed allocation of contracts, on several occasions the participants in the cartel agreed on price reductions to be granted to car manufacturers by reference to increased productivity, or even on price increases applied to car models where production was lower than forecast. They also agreed, where necessary, to limit the disclosure of information on their actual production costs to car manufacturers, in order to avoid too frequent requests for price reductions from those manufacturers.
23. The coordination aimed at the stability of market shares was made possible, notably, by the transparency on the carglass supply market. The evolution of market shares was calculated on the basis of production costs and sales forecasts, taking pre-existing supply contracts into consideration.
24. The Commission indicates, in the contested decision, that the leniency applicant confirmed that, from 1998 at the latest, representatives of Splintex participated, with certain competitors, in activities that were unlawful from the aspect of competition law. In addition, the fact that Saint-Gobain did not contest the material facts set out in the statement of objections had to be understood to be an endorsement by that undertaking of the Commission’s description of the meetings and contacts at issue.
25. Lastly, the Commission indicates that Pilkington, Saint-Gobain and AGC agreed at a meeting held on 6 December 2001 on a new calculation method for the purpose of allocating and re-allocating supply contracts.
26. It is on the basis of that body of evidence that the Commission holds the applicant, and also Saint-Gobain, Compagnie, Pilkington, and the leniency applicant liable for a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement.
27. The arrangements concluded between those parties constitute, according to the Commission, agreements or concerted practices within the meaning of those provisions which distorted competition on the carglass market. That collusion was single and continuous since the participants in the cartel expressed their joint intention to behave on the market in a certain way and adopted a common plan to limit their individual commercial autonomy by allocating supplies of carglass for cars and light commercial vehicles and by distorting glass prices with the aim of ensuring overall stability and maintaining artificially high prices on the market. According to the contested decision, the frequency and the uninterrupted nature of those meetings and contacts, over a period of five years, had the consequence that all large manufacturers producing passenger cars and light commercial vehicles in the EEA were covered by the cartel.
28. The Commission also considered that there was no indication that the agreements and concerted practices between carglass suppliers resulted in efficiency benefits or promoted technical or economic progress in the carglass sector that might justify the application of Article 81(3) EC.
29. As regards the duration of the infringement, the Commission considered that the applicant had participated in the infringement from 19 November 2001 to 11 March 2003. The participation of Saint-Gobain and Compagnie was held to have lasted from 10 March 1998 to 11 March 2003. Pilkington was found to have participated in the infringement from 10 March 1998 to 3 September 2002.
30. As regards the calculation of the fines, the Commission first of all determined the value of each participating undertaking’s carglass sales within the EEA that were directly or indirectly connected with the infringement. In doing so, it drew a distinction between several periods of the infringement. For the period beginning in March 1998 and ending on 30 June 2000, described as the ‘roll out’ period, the Commission considered that it had evidence of the infringement for only a proportion of European car manufacturers. It therefore took into account, for that period, only carglass sales to manufacturers for which it had direct proof of the cartel. As regards the period between 1 July 2000 and 3 September 2002, the Commission observed that the accounts which formed the object of the cartel concerned at least 90% of sales within the EEA. It therefore concluded that, for that period, all sales of carglass within the EEA by the addressees of the decision should be taken into consideration. Lastly, at the end of the infringement period, between 3 September 2002 and March 2003, the cartel’s activities slowed down following the departure of Pilkington. Consequently, the Commission decided to take into account, for that period, only sales to car manufacturers for which it had direct proof of the cartel. A weighted annual average of those figures was then determined for each carglass supplier concerned, by dividing the values of sales referred to above by the number of months of the supplier’s participation in the infringement and multiplying the result of that division by 12.
31. The Commission then observed that the infringement in question, which consisted in customer allocation, is among the most serious restrictions of competition. In the light of the nature of the infringement, its geographic scope and the combined market share of the undertakings which had participated, the Commission took, when calculating the basic amount of the fine, a proportion of 16% of the value of sales of each undertaking involved, multiplied by the number of years of its participation in the infringement. In addition, the basic amount of the fines was increased, for the purposes of deterrence, by an ‘entry-fee’ equivalent to 16% of the value of sales.
32. On 11 February 2009 the Commission adopted Decision C(2009) 863 final, correcting the contested decision on a small number of points.
Procedure and forms of order sought
33. By application lodged at the Registry of the Court on 18 February 2009, the applicant brought the present action.
34. Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Second Chamber, to which the present case was therefore allocated.
35. The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 12 November 2013.
36. The applicant claims that the Court should:
– annul Article 1 of the contested decision in so far as it relates to the applicant;
– annul Article 2 of the contested decision in so far as it relates to the applicant;
– in the alternative, substantially reduce the amount of the fine imposed on the applicant;
– order the Commission to pay the costs.
37. The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
38. The applicant raises several pleas in law, the first of which alleges that the Commission erred in finding that it participated in the single and continuous infringement which forms the subject-matter of the contested decision. It is appropriate, in the present case, to examine that plea in law.
Arguments of the parties
39. According to the applicant, the Commission has failed to show, on the basis of a body of precise and consistent evidence, that the applicant intended to contribute by its own conduct to the common objectives pursued by all the participants in the cartel at issue and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk.
40. Not only did the infringement begin more than four years before the first contacts the applicant is alleged to have had with AGC/Splintex, but the Commission acknowledged that the applicant neither attended nor was represented at any of the numerous bilateral or trilateral meetings of the club. In addition, the Commission has not shown that the applicant knew that its conduct formed part of the overall plan previously conceived of by the other participants.
41. The applicant submits in that respect that, at the beginning of 2001, Saint-Gobain, Pilkington and AGC simultaneously significantly increased the prices sought from the applicant for the supply of flat glass, which is the raw material from which carglass is produced. According to the applicant, that alone did not, however, allow it either to understand that those companies had concluded detailed and organised agreements concerning the allocation of contracts, the prices to offer and the discounts to grant, and the elaboration and application of monitoring and compensation mechanisms, in respect of all the car manufacturers, or to realise that the big three producers held regular meetings in relation to those agreements. At most, the documents found on the applicant’s premises show that it was aware of the fact that other companies, such as Saint-Gobain and AGC, maintained certain contacts that were inappropriate as regards competition law.
42. Thus, according to the applicant, the Commission erred in relying — in order to prove the applicant’s participation in the cartel — on references to the applicant in the notes taken by employees of Saint-Gobain, Pilkington and AGC. Those references can be explained by the fact that those three large producers supplied flat glass to the applicant and therefore had a good knowledge of its production capacities, and by the fact that they had information concerning the car manufacturers to which the applicant supplied carglass, such as Volkswagen and Fiat.
43. None of the evidence relied on by the Commission, in the contested decision or before the Court, is capable of lessening the seriousness of those criticisms. That is the case, inter alia, as regards the handwritten record of a telephone conversation between the applicant’s sales manager and a representative of Saint-Gobain in May 2002. Neither that document nor certain telephone contacts with AGC are capable of proving that the applicant entered into an agreement with other carglass producers concerning the allocation of contracts for the delivery of various pieces of carglass for the Volkswagen Passat. However, it can be seen from the Commission file that Saint-Gobain, Pilkington and AGC had decided that the contract in question would be subject to an allocation of supplies identical to that which had taken place for the previous model of that car, including, therefore, the supply of carglass by the applicant. The fact that Volkswagen awarded the applicant a supply contract for certain pieces of carglass intended for the new Volkswagen Passat can be explained simply by the excellent quality of glass the applicant had delivered, at a competitive price, for the previous model. That decision therefore had nothing to do with any allocation of the market in which the applicant is alleged to have taken part. Moreover, that record indicates that the applicant did not participate in any agreement as regards the contract relating to the new Opel Frontera. As regards, lastly, the contract relating to Lancia Lybra (a vehicle manufactured by the Fiat group), that record shows only that Saint-Gobain reacted negatively to the applicant’s attempts to obtain that contract. However, that intimidation in no way demonstrates that the applicant was party to any agreement relating to that contract.
44. As regards the contacts it had with AGC concerning the manufacturers Fiat and Iveco in November and December 2001, the applicant, while acknowledging the inappropriate nature of those contacts, maintains that they did not give rise to the conclusion of any unlawful agreement. The applicant adds that, in any event, those contacts were not connected with the cartel which is the subject of the contested decision. It emphasises, moreover, that it was presented by AGC, in the declarations made by the latter under the Commission’s leniency program, as a third party to the agreement between the big three carglass producers.
45. Lastly, the applicant concludes that, in the present case, the Commission cannot rely on the case-law requiring that an undertaking which attends meetings during which secret anti-competitive agreements are concluded must publically distance itself from the content of those meetings in order to avoid liability incurred on the basis of the agreements in question. The applicant submits that, since it did not participate in any of the club meetings, it was not aware of the existence of systematic and detailed agreements between Saint-Gobain, Pilkington and AGC covering the entire market for carglass in the EEA, which excludes the application of the case-law in question.
46. The Commission contests those arguments. In its view, the applicant was aware of the general context of which its bilateral contacts with Saint-Gobain and AGC formed part and of the cartel participants’ objective of coordination on the market.
47. The Commission emphasises that the applicant had several contacts capable of establishing its participation in the single and continuous infringement. Those contacts took place at the end of 2001 (with AGC), in May 2002 (with Saint-Gobain) and during the first quarter of 2003 (with AGC).
48. As regards 2001, the Commission indicates that it can be seen from the explanatory notes drawn up by the former director of the applicant’s ‘Production’ department that an agent of the applicant, Mr D., had meetings with AGC concerning the allocation of contracts for the supply of carglass to Fiat and to its subsidiary Iveco. According to the Commission, those notes show that the applicant agreed not to compete with AGC for the award of the Fiat supply contracts, but demanded, in exchange, that AGC increase its prices in respect of Iveco.
49. As regards 2002, the Commission produces the record of a telephone conversation of 29 May 2002 between K.H., the applicant’s sales manager, and employees of Saint-Gobain, from which, according to the Commission, it can be seen that the applicant was informed of the cartel between the big three producers.
50. As regards, lastly, 2003, the Commission relies on the explanatory notes of an employee of AGC, from which it can be seen that AGC and the applicant contacted each other in order to discuss the supply contract of side windows for the new model of the Volkswagen Passat.
51. Those various indicia are, in the Commission’s view, sufficient to establish the applicant’s participation in the cartel, in particular in a context in which it is often necessary to reconstitute certain details by inferences. The fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of its participation in an infringement. That is all the more so in the present case, since the applicant is an actor of minor importance on the market concerned and that, accordingly, it was not necessary to coordinate expressly all of the contract allocations with that undertaking in the framework of the cartel.
52. According to the Commission, in the absence of the cartel, the applicant would not have been able to enter into an agreement with AGC/Splintex concerning the supply of carglass to Fiat. It follows that the applicant, in concluding that agreement, as well as the agreement with Saint-Gobain concerning the Volkswagen Passat, could at the very least reasonably assume that those agreements were part of a larger overall plan consisting in sharing the supply of carglass and maintaining the stability of the market shares of the participating companies. The circumstances in which the applicant made the decision to participate in the infringement are irrelevant in that respect.
53. Moreover, the present case can be distinguished from that which gave rise to the judgment of the Court in Case T‑28/99 Sigma Tecnologie v Commission
[2002] ECR II‑1845, in which the cartel had a complex structure, with national levels and a European level. The Commission also claims that, although it is true that in one of the leniency applicant’s statements, the latter referred to the applicant as a third party to the cartel, that statement was made in relation to the allocation of one particular contract and, accordingly, it does not prove that the applicant was entirely outside the cartel.
54. Lastly, the Commission notes that, as it indicated in recital 89 to the contested decision, since before the date at which the applicant’s participation in the cartel was found to have begun, the big three carglass producers had envisaged allocating carglass supply contracts to it and, accordingly, envisaged a role for it in the implementation of the cartel’s overall plan. The Commission illustrated that point by referring, first, to a meeting between employees of Saint-Gobain and of AGC held on 27 October 2000 in a hotel at Brussels Airport (Belgium), concerning, inter alia, the allocation of carglass supply for the Audi A6 vehicle, and, secondly, a meeting between employees of Saint-Gobain, of Pilkington and of AGC/Splintex which took place on 9 November 2000 in a hotel at Charles-de-Gaulle airport in Paris, concerning, inter alia, the allocation of the contract for the supply of side windows for the Fiat Punto. The Commission added, at the hearing, that those references to the applicant, though prior to the date at which the applicant’s participation in the cartel was considered to have begun, confirm that it knew, or should have known, of the overall cartel between the big three carglass producers.
Findings of the Court
The merits of the applicant’s line of argument
– Preliminary observations and outline of principles
55. It can be seen from the contested decision that the cartel at issue consisted in a concerted allocation of contracts concerning the supply of carglass for almost all car manufacturers in the EEA, through the coordination of pricing and discount policies and customer supply strategies. The objective of that cartel, which took place between March 1998 and March 2003, was, according to the contested decision, to maintain an overall stability of the various participants’ market shares. Meetings were held regularly between the participants, not only to discuss the allocation of future supply contracts, but also to monitor the implementation of decisions taken during previous meetings and contacts. Correcting measures, in the form of mutual compensation, were agreed when previously agreed allocations proved insufficient in practice to ensure an overall degree of stability in the participants’ respective market shares. Since, inter alia, they were motivated by that common financial objective, those various collusive contacts constituted, in the Commission’s view, a single and continuous infringement of Article 81(1) EC.
56. The applicant, which is a much smaller actor on the car-glass market than Saint-Gobain, Pilkington and AGC, contests, primarily, the finding that it participated in that single and continuous infringement. Although it indeed admits that it had certain inappropriate contacts with competitors, it submits, in essence, that it did not participate in any of the club meetings between those producers, at which it could have been informed of the cartel’s overall plan and its constituent elements.
57. In that respect, it must be pointed out that, 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 — resulting in particular from Article 48(1) of the Charter of Fundamental Rights of the European Union and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) — applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, 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 judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats
v Commission, not published in the ECR, paragraph 70).
58. It follows, first, that the Commission must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 81 EC (Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 86), and, secondly, that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed (see judgment of 24 March 2011 in Case T‑379/06 Kaimer and Others
v Commission, not published in the ECR, paragraph 47 and the case-law cited). In that context, the Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it ( Commission v Anic Partecipazioni, paragraph 86). It follows that the participation of an undertaking in a cartel cannot be inferred from speculation based on imprecise evidence (see, to that effect, Kaimer and Others
v Commission, paragraphs 69 to 71).
59. In addition, it is normal, in the context of anti-competitive practices and agreements, for the activities to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, 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 (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, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel
v Commission
[2007] ECR I‑729, paragraph 51). Those findings also apply, by analogy, to the proof of an undertaking’s participation in an infringement of competition law.
60. It must also be noted that the agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collaboration by several undertakings, who are all co-perpetrators of the infringement but whose participation can take different forms according, in particular, to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. Accordingly, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect ( Commission
v Anic Partecipazioni, paragraph 58 above, paragraphs 79 and 80, and judgment of 6 March 2012 in Case T‑53/06 UPM-Kymmene
v Commission, not published in the ECR, paragraph 53).
61. Thus, an undertaking which has participated in a single and complex infringement through conduct of its own which falls within the concept of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and is intended to help bring about the infringement as a whole may also be liable for conduct put into effect by other undertakings in the context of the same infringement throughout the period of its participation in the infringement ( Commission
v Anic Partecipazioni, paragraph 58 above, paragraph 83, and UPM-Kymmene
v Commission, paragraph 60 above, paragraph 52).
62. However, the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more aspects can be held liable for the infringement as a whole. The Commission still has to establish that that undertaking was aware of the other undertakings’ anti-competitive activities at European level or that it could reasonably have foreseen them. The mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel. It should be recalled that Article 81(1) EC does not apply unless there exists a concurrence of wills between the parties concerned (see Case T‑18/05 IMI and Others
v Commission
[2010] ECR II‑1769, paragraph 88 and the case-law cited).
63. Accordingly, it is only if the undertaking knew or should have known when it participated in an agreement that in doing so it was joining in the cartel as a whole that its participation in the agreement concerned can constitute the expression of its accession to that cartel ( Sigma Tecnologie v Commission, paragraph 53 above, paragraph 45; judgment of 16 November 2011 in Case T‑59/06 Low & Bonar and Bonar Technical Fabrics v Commission, not published in the ECR, paragraph 61; and Case T‑208/06 Quinn Barlo and Others
v Commission
[2011] ECR II‑7953, paragraph 144). In other words, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission
v Anic Partecipazioni, paragraph 58 above, paragraphs 83, 87 and 203; Case C‑441/11 P Commission
v Verhuizingen Coppens
[2012] ECR, paragraph 42; and judgment of 11 July 2013 in Case C‑444/11 P Team Relocations and Others
v Commission, not published in the ECR, paragraph 50).
64. The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole (see, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others
v Commission [2006] ECR II‑5169, paragraphs 191 and 193, and Case T‑385/06 Aalberts Industries and Others
v Commission
[2011] ECR II‑1223, paragraphs 111 to 119).
65. Where that is the case, the fact that an undertaking did not take part in all the constituent elements of a cartel or that it played only a minor role in the elements in which it did participate must be taken into consideration only when the gravity of the infringement is assessed and, as the case may be, in determining the amount of the fine ( Commission
v Anic Partecipazioni, paragraph 58 above, paragraph 90, and Case T‑295/94 Buchmann
v Commission [1998] ECR II‑813, paragraph 121).
66. In the present case, it is undisputed that the applicant did not take part in all the constituent elements of the infringement. Moreover, the Commission acknowledged that the applicant had not participated in any of the actual meetings of the representatives of the club, either prior to the period in which, according to the Commission, the applicant participated in the cartel or during that period itself.
67. It follows, in accordance with the principles set out in paragraphs 60 to 64 above, that, in order to establish the applicant’s participation in the single and continuous infringement to which the contested decision relates, the Commission must show not only the anti-competitive nature of the applicant’s contacts with AGC/Splintex and with Saint-Gobain between November 2001 and March 2003, but also that the applicant was aware or could reasonably be expected to be aware of, first, the fact that those contacts were intended to contribute to achieving the cartel’s overall plan and, secondly, the general scope and the essential characteristics of the cartel, as described in paragraph 55 above.
– The anti-competitive nature of the contacts between the applicant and some of its competitors
68. According to the contested decision, it can be seen from various documents and indicia that the applicant contributed by its own conduct to achieving the overall objective of the cartel. The Commission emphasises, in particular, that the applicant had contacts that showed its participation in the single and continuous infringement at the end of 2001 (with AGC/Splintex), in May 2002 (with Saint-Gobain) and during the first quarter of 2003 (with AGC/Splintex).
69. As regards 2001, according to the contested decision, it can be seen from explanatory notes drawn up by the former director of the applicant’s ‘Production’ department that an agent of the applicant, Mr D., had meetings with AGC/Splintex concerning the allocation of contracts for the supply of carglass to Fiat and to its subsidiary Iveco. According to the Commission, those notes show that the applicant agreed not to compete with AGC/Splintex for the award of the Fiat supply contracts. The applicant demanded, in exchange, that AGC/Splintex increase its prices in respect of the utility vehicle manufacturer Iveco. As regards 2002, the Commission produces the record of a telephone conversation of 22 May 2002 between employees of Saint-Gobain and Mr K.H., the applicant’s sales manager at the time, from which, according to the Commission, it can be seen that the applicant was informed of the cartel between the big three producers. As regards, lastly, 2003, the Commission relies on the explanatory notes of an employee of AGC, Mr G., from which it can be seen that AGC and the applicant contacted each other in order to discuss the contract for the supply of side windows for the new model of the Volkswagen Passat. According to the Commission, the applicant’s participation in the overall cartel is also attested to by oral statements made by the leniency applicant.
70. In that respect, it must first of all be observed that, although the document referred to in footnote No 249 of the contested decision — bearing the reference number PDR12 and annexed to the defence — indeed contains a reference to the applicant and to several of its competitors as regards the supply of door windows for the Volkswagen Polo, that document is dated 29 July 1999. Accordingly, that document dates back to more than two years before the date on which the Commission considered that the applicant’s participation in the cartel began, namely 19 November 2001. It follows that, even if that document reflects an anti-competitive contact in which the applicant took part, but for which the Commission chose not to hold it liable, it is not capable of showing the applicant’s participation in the single and continuous infringement to which the contested decision relates, between 19 November 2001 and 11 March 2003.
71. Secondly, although several passages of the leniency applicant’s statements of 25 February and 14 March 2005 refer to certain contacts between Saint-Gobain and the applicant in the course of 2000, the Commission did not consider, in the contested decision, that those contacts were capable of establishing the applicant’s participation in the overall plan of the cartel between the club members. It can be seen from the contested decision that, although the applicant’s situation was discussed by the club members before November 2001 — when they had tried to involve it in the discussions by taking advantage of the fact that the applicant, in contrast to them, did not have in-house production of flat glass — the Commission did not consider that the applicant’s participation in the cartel had begun until 19 November 2001, on which date certain contacts took place between the applicant and AGC/Splintex.
72. In addition, it can be seen from the notes taken between 19 November 2001 and 12 December 2001 by Mr H., the director of the applicant’s ‘Production’ department at that time, that the applicant, through its agent for Italy, Mr D., had certain collusive contacts with AGC/Splintex. Thus, while the existence of an unlawful agreement for the purpose of Article 81(1) EC cannot be inferred from those notes, they suggest at the very least that Mr D. and Mr M., the CEO of Splintex at that time, had discussions of an anti-competitive nature during that period, concerning the Iveco and Fiat accounts. Moreover, the applicant, in its response to the statement of objections, acknowledged the inappropriate nature of its agent’s actions in that respect.
73. The Commission also produces the record of a telephone call of 22 May 2002 between Mr D.W. and Mr V.G., then large account managers for Saint-Gobain, and Mr K.H., the applicant’s sales director at the time. That one-page record was found on the applicant’s premises.
74. It can be seen from that record that Mr D.W. and Mr V.G. indicated to Mr K.H. that Fiat had informed Saint-Gobain that it had received a ‘very good offer’ from a ‘smaller supplier’ as regards the carglass for the Lancia Lybra and that Fiat had told Saint-Gobain that the latter would not retain that contract unless it made new offers and proposed new prices. Then, according to that record, Saint-Gobain’s large account managers referred to the existence of a ‘clear agreement on carglass’ with the applicant, according to which the parties to that agreement would not propose ‘absurd prices, and certainly not for projects acquired by the other party’. Saint-Gobain’s large account managers added that they considered that the applicant had, by its conduct, ‘committed an error … without any discussion’. Saint-Gobain, in that respect, emphasised the existing cooperation between the big three carglass producers in relation to the Opel Frontera, Audi A3, Audi A6 and Volkswagen Passat models. It can also be seen from that record that Saint-Gobain requested that a meeting be held in Aachen (Germany) in order to discuss ‘the Lybra and subsequent projects’, which Mr K.H. interpreted as referring to the Volkswagen Passat. The record ends with the following remark: ‘Please do not keep this document, conversation must not be traceable.’
75. According to the applicant, that record proves only Saint-Gobain’s discontent with the applicant’s competitive prices in the context of the supply of carglass to Fiat, in particular as regards the carglass for the Lancia Lybra.
76. However, that interpretation cannot be followed. It can be inferred from the wording of that record that the discontent of Saint-Gobain’s large account managers towards the applicant was the result of a breach, by the applicant, of an agreement with Saint-Gobain concerning the supply of carglass for the Lancia Lybra. In deciding whether an agreement is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it appears that its object is to prevent, restrict or distort competition within the common market (Case C‑198/99 P Ensidesa
v Commission
[2003] ECR I‑11111, paragraph 60 and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission
[2006] ECR I‑8725, paragraph 136). Thus, an undertaking which participates in a market sharing agreement is not exculpated by the fact that it does not subsequently observe the agreed prices and quotas (Case 246/86 Belasco and Others
v Commission [1989] ECR 2117; Case T‑141/89 Trefileurope
v Commission
[1995] ECR II‑791, point 60; see, to that effect, Case T‑148/89 Trefilunion
v Commission
[1995] ECR II‑1063, paragraph 79).
77. The Commission also refers to the notes drawn up by Mr G., AGC/Splintex’s commercial director at that time, in January and March 2003, in order to illustrate the contacts which took place between the applicant and representatives of AGC/Splintex and of Saint-Gobain concerning the new model of the Volkswagen Passat. Those notes contain, inter alia, a collection of data on various pieces of carglass for the new Volkswagen Passat, including the prices. They refer several times to ‘compensation’ between carglass producers and appear to indicate that the applicant produces 10 000 pieces of laminated glass per year.
78. As the applicant itself admits, it contacted AGC/Splintex by telephone on several occasions, at the beginning of 2003, in order to discuss the supply of carglass for the new Volkswagen Passat. The applicant nevertheless claims that it did not receive any assurance that it could count on obtaining that contract and that the carglass order which it finally received from Volkswagen could be explained by the competitive nature of its offer and by ‘the excellent quality of the product that it had supplied for the previous Passat model at a very competitive price’. The applicant also claims that the big three carglass producers had, already in 2001, decided to share the supply for the new model of the Volkswagen Passat between Saint-Gobain, Pilkington and the applicant in the same manner as for the previous model, without any active choice on the applicant’s part.
79. However, those explanations cannot be accepted. It is true that the notes of Mr G. produced by the Commission do not originate from the applicant itself. It must nevertheless be pointed out that the applicant, in its response to the statement of objections, acknowledged the inappropriate nature of the contacts it had with AGC at the beginning of 2003. Furthermore, several passages of the leniency applicant’s statements support the conclusion that, during the telephone contacts with AGC/Splintex in 2003, the applicant requested that a contract for the supply of side windows for the new Volkswagen Passat be allocated to it, in order to retain the contract it had obtained for the previous model of that car. According to those statements, Saint-Gobain and AGC/Splintex agreed that the applicant would continue to supply the side windows for the new Volkswagen Passat. In addition, it can be seen from the record of the telephone conversation of 22 May 2002 between Mr K.H., Mr D.W. and Mr V.G., referred to in paragraphs 73 to 76 above, that the applicant was aware from that time of Saint-Gobain’s intention to discuss the allocation of carglass supply for the Volkswagen Passat.
80. Accordingly, it must be regarded as established that, at the beginning of 2003, the applicant had collusive contacts with AGC/Splintex concerning the supply of side windows for the new model of the Volkswagen Passat. A decision by the big three producers of carglass in 2001, without consulting the applicant, that the supply of carglass for that new model would be shared between Saint-Gobain, Pilkington and the applicant in the same manner as for the previous model is irrelevant in that respect. Even if that were proven, it can be seen from the file that the release of the new model of the Volkswagen Passat gave rise to specific collusive discussions which, on that occasion, did involve the applicant.
81. It therefore follows from the foregoing that the Commission did not err in finding that the applicant had bilateral contacts of an anti-competitive nature with AGC/Splintex and with Saint-Gobain between November 2001 and the March 2003.
– Whether the applicant participated in the overall cartel on the market for carglass between the members of the club
82. In accordance with the principles set out in paragraphs 60 to 64 above, the finding that the applicant had bilateral contacts of an anti-competitive nature with AGC/Splintex and with Saint-Gobain between November 2001 and the March 2003 is not, however, sufficient to conclude that it participated in the single and continuous infringement which forms the subject-matter of the contested decision. Since it is not disputed that the applicant did not participate in any of the actual club meetings, it must be examined, first, whether it knew, or should have known, that the collusion in which it was invited to participate formed part of the overall plan of that single and continuous infringement, as described in paragraph 55 above, and, secondly, whether it was aware, or should have been aware, of the general scope and the essential characteristics of the cartel as a whole.
83. The Court must therefore examine whether the Commission erred in concluding that the applicant knew, or should have known, that the collusive contacts referred to in paragraphs 68 to 81 above formed part of a cartel covering the entire market for the supply of carglass in the EEA, through the coordination of pricing and discount policies and customer supply strategies in order to maintain an overall stability of the parties’ shares of that market, accompanied by regular monitoring of market shares and a correcting mechanism (see, by analogy, Buchmann
v Commission, paragraph 65 above, paragraphs 118 to 122).
84. In that respect, it must be pointed out, in the first place, that in the letter reporting the cartel at issue, sent to the Commission by a German lawyer on behalf of an unidentified client (see paragraph 4 above), the applicant was not presented as an undertaking which had participated in the cartel.
85. In the second place, it must be emphasised that the Commission, in recitals 113 and 114 to the contested decision, refers to two important meetings of the club which were held on 6 December 2001 and 10 July 2002, during which those undertakings carried out an overall assessment of the operation of the cartel at issue and the changes necessary in order to pursue their collusion on market shares effectively. Tables were drawn up in those meetings indicating certain market share forecasts or objectives for each of the three undertakings.
86. First, it is undisputed that the applicant did not participate in either of those two meetings, even though they took place during the period in which the Commission found it had participated in the infringement. Secondly, the applicant is not mentioned in the draft market share tables drawn up by the big three producers of carglass in those meetings.
87. In the third place, it cannot be concluded from the handwritten notes examined in paragraphs 72 to 80 above that the applicant should have known that, by having certain bilateral exchanges of an anti-competitive nature with AGC/Splintex and with Saint-Gobain at the end of 2001, in 2002 and at the beginning of 2003, it was joining in an overall cartel intended to ensure the stability of the market shares of the participants in that cartel throughout the EEA.
88. It is true that several passages in the notes taken by an employee of the applicant in November and in December 2001 provide indicia indicating that the applicant knew of collusion between the big three carglass producers, going beyond the Italian market. Thus, in the note of 19 November 2001, it is indicated that ‘M. is in favour of a concertation Splintex-Soliver, as they have concertations with Saint-Gobain and Pilkington…’ and, in the note of 30 November 2001, that ‘M. certainly wishes to discuss, in such a meeting, carglass in all countries and not only Italy’. It can also be seen from the note of 30 November 2001 that the applicant was aware of the fact that Mr M. likely sought to extend the discussion to Europe, even though the same note shows that the applicant instructed Mr D. ‘to discuss only the Italian market’ in the meeting with Mr M. on 4 December 2001. Moreover, it can be seen from the note of 12 December 2001 that, although that meeting indeed took place, nevertheless Mr D. was ‘very unclear’ concerning it and that, on that occasion, there was ‘no question of a meeting [between Mr S.B., then CEO of the applicant, and Mr M., CEO of Splintex]’. In the same note, Mr H. again mentions his ‘impression that D. had discussed with M. other issues that had nothing to do with the [applicant]’.
89. It is also true that the record of the telephone conversation of 29 May 2002 refers to a ‘cooperation’ between the big three carglass producers in relation to four models of car, manufactured by two groups in the automobile sector, namely General Motors as regards the Opel Frontera and Volkswagen as regards the Audi A3 and A6 and the Volkswagen Passat. In view of the nature of those contacts and the context in which they occurred, the applicant could reasonably assume that the discussion or cooperation in question was anti-competitive. Moreover, the applicant acknowledged, in its response to the statement of objections, that the significant increases in the price it had to pay for flat glass, particularly since the beginning of 2001, had suggested to it the existence of collusive contacts between the big three carglass producers.
90. Nevertheless, that evidence is not sufficient to prove that the applicant was aware, or should have been aware, of the overall objective of stabilising the carglass market pursued by the members of the club, by means of a set of collusive practices affecting almost every car manufacturer. The references to ‘discussions’ or to a ‘cooperation’ do not provide any indication of the nature and scope of the cartel between the big three carglass producers. Likewise, it cannot be inferred from the reference to cooperation in relation to four particular models of car, concerning only two groups in the automobile sector, that the applicant must have understood the overall scope of the cartel, in that it sought to stabilise the entire market, since that reference could have been understood as reflecting specific anti-competitive practices, relating to the allocation of certain supply contracts, without involving an overall objective of maintaining the participants’ market share.
91. For those reasons, the documents produced by the Commission are likewise incapable of demonstrating that that applicant was aware, or should have been aware, of the essential modus operandi of the cartel, namely (i) the coordination of pricing and discount policies and strategies for the supply of car manufacturers, (ii) the regular organisation of bilateral and trilateral meetings between the members of the club in order to monitor market shares and the practical implementation of the collusions, decided during previous meetings, relating to the allocation of particular supply contracts and (iii) the agreement of correcting measures, in the form of compensation in relation to certain supply contracts, where the award of a supply contract had not occurred as foreseen, in order to ensure that the overall supply at EEA level remained in accordance with the agreed allocation.
92. The notes taken in 2003 by an employee of AGC/Splintex do not affect those conclusions since, first, they constitute internal notes of AGC/Splintex and, secondly, they in any event do not contain any information capable of establishing that the applicant was aware, or should have been aware, of the general scope and the essential characteristics of the cartel as described above.
93. In the fourth place, the leniency applicant, in a statement made to the Commission on 19 December 2005, commented on certain notes taken by Mr B., the former sales director of AGC/Splintex. In that statement, the leniency applicant presented the applicant as a third party to the cartel between the members of the club. Contrary to what is claimed by the Commission, that description was not made in relation to the award of a specific contract but rather in relation to the allocation of the market shares of those members as regards the manufacturer Fiat, as is reflected in the notes taken by Mr B. during the club meeting held on 30 April 2002. Accordingly, that description not only concerned the period in which the Commission found that the applicant had participated in the infringement, but, moreover, that description concerned one of the manufacturers in respect of which the Commission identified collusive contacts between the applicant and AGC/Splintex, on the basis of the handwritten notes taken by an employee of the applicant in November and December 2001, several months before the meeting of 30 April 2002.
94. The leniency applicant also indicated, in the same passage of its statement, that when a contract was obtained by a competitor of one of the members of the club — the leniency applicant mentioning the applicant in that respect — such an award of a supply contract did not give rise to compensation. That document seems to indicate that, during the period in which the Commission found that the applicant had participated in the single and continuous infringement that forms the subject matter of the contested decision, the award by a car manufacturer of a supply contract to the applicant did not trigger the compensation mechanism between the members of the club. As noted in, inter alia, paragraphs 21 and 55 above, that mechanism had an essential role in the operation of the cartel since it contributed to achieving the objective of overall stabilisation of the market shares of the participating undertakings, despite cases in which the allocation of supply contracts previously agreed within the club did not come about.
95. In the fifth place, it is necessary to reject the Commission’s argument that references to the applicant contained in the notes taken at meetings held on 27 October and 9 November 2000 confirm not only that the big three carglass producers had foreseen a role for the applicant in implementing the cartel’s overall plan, but also that the applicant was aware, or should have been aware, of that plan.
96. It must be pointed out, in that respect, that the two meetings to which the Commission refers predate by more than a year the period in which the applicant was found to have participated in the infringement at issue. Furthermore, the applicant denied having taken part in those discussions or having been informed by one of the participants of their content. In addition, as regards the meeting of 9 November 2000, the Commission acknowledged, in recital 294 to the contested decision, that there was no evidence that the notes relating to that meeting, which refer to the applicant, were drafted by the latter and communicated by one of the participants in its name.
97. The Court therefore takes the view that those references to the applicant, contained in specific notes taken well before the date at which its alleged participation in the infringement began, and in meetings in which it has not been shown it participated, are not capable of establishing that it was aware, or should have been aware, of the general scope and essential characteristics of the cartel at issue, as summarised in paragraph 55 above.
98. As regards, in the sixth place, references made by the Commission, at the hearing, to various extracts from the leniency applicant’s statements, it must be noted that those extracts are not capable of calling that conclusion into question. First, the contested decision does not contain any specific reasoning to explain why those extracts are capable, whether or not they are read in conjunction with the handwritten notes examined in paragraphs 72 to 80 and 87 to 92 above, of establishing that the applicant was aware, or should have been aware, of the general scope and essential characteristics of the cartel as a whole and that the contacts it had with competitors between the end of 2001 and March 2003 formed part of the implementation of that cartel. Moreover, and in any event, those extracts do not support such a finding.
99. Lastly, in the seventh place, the difference between the context of the present case and that of the case that gave rise to the judgment in Sigma Tecnologie v Commission, paragraph 53 above, as emphasised by the Commission, is not decisive in the present case.
100. It is true that, unlike the present case, Sigma Tecnologie v Commission, which concerned collusive practices in the pre-insulated pipes sector, was characterised, as the Commission noted, by a two-tier structure, namely a national and a European level. The Court held, in that context, that the Commission had not shown that Sigma Tecnologie, when participating in the agreement on the Italian market, was aware of the anti-competitive conduct at the European level of the other undertakings, or that it could reasonably have foreseen such conduct ( Sigma Tecnologie
v Commission, paragraph 53 above, paragraph 44).
101. However, there is no reason that the principle applied in Sigma Tecnologie
v Commission, paragraph 53 above — according to which the mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the overall cartel — must be limited to the case of cartels in which agreements are concluded at different geographic levels (see, to that effect, Buchmann
v Commission, paragraph 65 above, paragraphs 118 to 122 ; see also, by analogy, Quinn Barlo and Others
v Commission, paragraph 63 above, paragraphs 142 to 151). The only decisive criterion in order to establish the participation of an undertaking in an overall cartel is whether that undertaking, when it participated in a particular agreement or concerted practice, knew or should have known that in doing so it was joining in the cartel as a whole, thereby expressing its accession to that cartel.
102. It follows from the reasons stated in paragraphs 84 to 98 above that such evidence has not been adduced by the Commission in the present case. It is irrelevant, in that respect, that the cartel at issue was organised only at the EEA level.
103. It must be added, in that regard, that the Commission has not supported its allegation that — in contrast to the cartel on the Italian market in the case that gave rise to the judgment in Sigma Tecnologie v Commission, paragraph 53 above — it is unlikely that bilateral discussions of an anti-competitive nature between the applicant and two of its competitors would have made sense if they were not part of a larger overall plan. On the contrary, as indicated in paragraph 90 above, it was conceivable that collusive practices might be decided in specific cases with a view to the allocation of certain supply contracts, without involving an overall objective of maintaining the market share of the participants in such practices on the carglass market in the EEA.
104. The evidence relied on by the Commission therefore does not constitute a sufficient body of evidence to conclude that the applicant participated in the single and continuous infringement involving the big three carglass producers, which forms the subject matter of the contested decision.
105. In that context, it is also necessary to reject the Commission’s argument that the applicant did not publically distance itself from the content of the meetings of members of the club in order to avoid liability allegedly incurred through its participation in the single and continuous infringement committed by those members. Such a finding would be relevant only if the Commission had discharged the burden of proof on it, which it has not done in the present case (see, to that effect, Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission
v Bayer
[2004] ECR I‑23, paragraphs 62 and 63).
106. It follows that the first plea in law must be upheld.
The consequences, as regards annulment, of the unlawfulness identified in the context of the first plea in law
107. Given that, as set out in paragraphs 68 to 81 above, it has been found that the applicant indeed participated in certain bilateral discussions of an anti-competitive nature with AGC/Splintex and Saint-Gobain between November 2001 and March 2003, it is also necessary to examine the consequences, as regards annulment, of the unlawfulness identified in the analysis of the first plea in law.
108. The first paragraph of Article 264 TFEU is to be interpreted as meaning that the measure contested by the action for annulment must be declared to be void only to the extent that the action is well founded ( Commission
v Verhuizingen Coppens, paragraph 63 above, paragraph 36). The mere fact that the Court finds that a plea relied on in support of an action for annulment is well founded does not automatically enable it to annul the contested measure in its entirety. The measure may not be annulled in its entirety where it is obvious that, being directed only at a specific part of the contested measure, that plea can provide a basis only for partial annulment ( Commission
v Verhuizingen Coppens, paragraph 63 above, paragraph 37 and the case-law cited).
109. Accordingly, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk ( Commission
v Verhuizingen Coppens, paragraph 63 above, paragraph 44). That cannot, however, relieve the undertaking of liability for conduct in which its participation is established or for conduct for which it can in fact be held responsible ( Commission
v Verhuizingen Coppens, paragraph 63 above, paragraph 45).
110. However, a Commission decision categorising an overall cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is alleged, not only to have participated in that infringement, but also to have engaged in certain forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (see, to that effect, Commission
v Verhuizingen Coppens, paragraph 63 above, paragraph 46).
111. In the present case, the Commission submits, in the rejoinder, that the evidence gathered concerning bilateral contacts between the applicant and AGC/Splintex as well as Saint-Gobain show the existence of concerted practices prohibited under EU competition law.
112. Irrespective of whether that allegation is well-founded, it must be pointed out that the contested decision does not qualify the applicant’s bilateral contacts with AGC/Splintex and Saint-Gobain between the end of 2001 and March 2003 as a separate infringement of Article 81 EC. Moreover, the Commission considered, in recital 498 to the contested decision, that ‘[i]t would have been artificial to split up [the] continuous conduct [of the undertakings concerned], characterised by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement which progressively would manifest itself in both agreements and concerted practices’ (see, by analogy, Case C‑287/11 P Commission
v Aalberts Industries and Others
[2013] ECR, paragraph 65).
113. In accordance with the principles set out in paragraph 110 above, the European Union judicature cannot, in such circumstances, carry out such a qualification itself, as this would have the effect of encroaching on the powers conferred on the Commission by Article 85 EC as regards the investigation and punishment of infringements of EU competition law.
114. In those circumstances, without it being necessary to examine the other pleas in law, Article 1(d) and Article 2(d) of the contested decision, as amended by Decision C(2009) 863 final must be annulled, in so far as the applicant was thereby found to have participated, from 19 November 2001 to 11 March 2003, in an unlawful cartel on the carglass market in the EEA and a fine of EUR 4 396 000 was imposed on it on that basis.
Costs
115. Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
116. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicant.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Annuls Article 1(d) and Article 2(d) of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009, in so far as Soliver NV was thereby found to have participated, from 19 November 2001 to 11 March 2003, in an unlawful cartel on the carglass market in the European Economic Area (EEA) and a fine of EUR 4 396 000 was imposed on it on that basis;
2. Orders the European Commission to pay the costs.