JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2018  (*)
(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Evidence of the infringement — Products concerned — Public distancing — Duration of participation — Equal treatment)
In Case T‑445/14,
ABB Ltd, established in Zürich (Switzerland),
ABB AB, established in Västerås (Sweden),
represented by I. Vandenborre and S. Dionnet, lawyers,
applicants,
v
European Commission, represented by C. Giolito, H. van Vliet and J. Norris-Usher, acting as Agents, and by A. Bodnar, Barrister,
defendant,
APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 16 March 2017,
gives the following
Judgment
Background to the dispute
The applicants and sector concerned
1        The applicants, the Swedish company ABB AB (‘ABB’) and its Swiss parent company ABB Ltd, are active, inter alia, in the underground and submarine power cable production and supply sector.
2        Underground power cables are used under the ground and submarine power cables are used under water for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.
Administrative procedure
3        On 17 October 2008, the applicants submitted to the Commission of the European Communities an application for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’). On 22 December 2008, they were granted conditional immunity from fines in accordance with point 8(a) of the Leniency Notice. From 17 October 2008 to 18 November 2010, they cooperated with the Commission, providing the institution with 21 oral statements and various documents relating to restrictive commercial practices in the underground and submarine power cable production and supply sector.
4        From 28 January to 3 February 2009, further to the statements made by the applicants, the Commission carried out inspections at the premises of French companies, that is to say Nexans SA and Nexans France SAS, and of Italian companies, that is to say Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl.
5        On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems (‘JPS’) submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.
6        During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector 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 [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.
7        On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group, Inc., Sumitomo Electric Industries, Hitachi Cable, JPS, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicants.
8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France, and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder, including in so far as it concerned high voltage submarine and underground power cables. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.
10      On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’).
Contested decision
The infringement at issue
11      Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. Article 1(1)(a) and (b) of the decision states that the applicants participated in the infringement from 1 April 2000 to 17 October 2008. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
12      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole and were therefore an integral part of a single and continuous infringement. More specifically, according to the Commission, the cartel consisted of two aspects, namely:
–        the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as the ‘R members’ (including the applicants), the Japanese undertakings, referred to as ‘A members’, and, lastly, the South Korean undertakings, referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers;
–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).
13      The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).
14      The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiary undertakings of Pirelli & C, formerly Pirelli SpA, which participated in turn in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia and the Japanese undertakings Furukawa Electric, Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking JPS (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group, it placed the applicants, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of that decision).
15      As regards the product market, the Commission considered that the cartel related to all types of underground power cables with a voltage of 110 kV and above and all types of submarine power cables with a voltage of 33 kV and above, including all products, works and services supplied to customers in connection with a sale of power cables, when such sales were part of a power cable project (recital 13 of the contested decision).
The applicants’ liability and immunity from fines
16      As provided in Article 1 of the contested decision, the applicants were regarded as having participated in the infringement from 1 April 2000 to 17 October 2008. ABB Ltd was held liable as parent company for the conduct of ABB (recitals 911 et 945 of the contested decision).
17      Although a fine, the basic amount of which was EUR 22 806 000, was calculated for the applicants for their participation in the infringement (recital 1016 of the contested decision), the Commission found that they had met the requirements for the grant of immunity under the Leniency Notice (recitals 1058 and 1059 thereof) and exempted them from any fine (recital 1078 and Article 2(1) of that decision).
Procedure and forms of order sought
18      By application lodged at the Registry of the General Court on 16 June 2014, the applicants brought the present action.
19      By order of 16 September 2016, the Court (Eighth Chamber, former composition) adopted, on the basis of Article 91(b) of its Rules of Procedure, a measure of inquiry ordering the Commission to produce, within a period of one month, all the confidential oral statements made by the applicants in the context of their application for immunity. The Commission complied with that request within the prescribed period.
20      As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new formation), to which the present case has therefore been assigned.
21      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 16 March 2017.
22      The applicants claim that the Court should:
–        annul in part Article 1 of the contested decision in so far as it finds that the applicants had participated in a single and continuous infringement in the (extra) high voltage underground and/or submarine power cable sector in so far as that finding extends to all projects involving underground power cables with voltages of 110 kV and above (and not only projects involving underground power cables with voltages of 220 kV and above);
–        annul in part Article 1 of the decision in so far as it finds that the applicants had participated in a single and continuous infringement in the (extra) high voltage underground and/or submarine power cable sector insofar as the finding extends to all accessories relating to projects involving underground power cables with voltages of 110 kV and above (and not only accessories relating to projects involving underground power cables with voltages of 220 kV and above);
–        annul in part Article 1 of the decision insofar as it finds that the applicants’ participation in the infringement started on 1 April 2000;
–        order the Commission to pay the costs;
23      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
Law
24      In support of their action, the applicants put forward five pleas in law.
25      The first three pleas concern the products to which the infringement related. By their first plea, the applicants maintain that the Commission failed to discharge its burden of proof and made a manifest error of assessment in asserting that the infringement related to all projects involving underground power cables with voltages of 110 kV and above, since its case file clearly shows that the infringement did not relate to all projects involving underground power cables with voltages below 220 kV. By their second plea, the applicants claim that, even if the Court were to hold that the Commission was justified in concluding that the infringement related to all projects involving underground power cables with voltages of 110 kV and above, the Commission failed to discharge its burden of proof in concluding that they had participated in such an infringement. By their third plea, the applicants allege that the Commission failed to discharge its burden of proof and made a manifest error of assessment in including within the scope of the infringement all power cable accessories relating to projects involving underground cables with voltages of 110 kV and above, since the evidence in the Commission’s file shows that the infringement extended only to power cable accessories relating to projects involving underground power cables with voltages of 220 kV and above.
26      The final two pleas in law concern the duration of the applicants’ participation in the infringement. By their fourth plea, the applicants argue that the Commission erred in law and breached the principle of equal treatment in taking 1 April 2000 as the date on which their participation in the infringement began, on the basis of conduct involving the applicants and another addressee of the contested decision, Nexans France, to which the Commission did not impute any infringement prior to 13 November 2000, and in thus finding, in effect, that the applicants had committed the infringement of Article 101 TFEU alone, at least during the period from 1 April 2000 to 13 November 2000. By their fifth plea, the applicants claim that, even if the Court should hold that the Commission was justified in finding the same conduct to be an infringement on the applicants’ part but not an infringement on the part of Nexans France, the Commission made a manifest error of assessment and disregarded the presumption of innocence in asserting that their participation in the infringement began on the earliest possible date of any meeting with Nexans France, that is to say, 1 April 2000, inasmuch as the Commission’s file indicates that that meeting took place on some unspecified date between April and mid-June 2000.
27      In addition, the applicants repeatedly complain that the contested decision is vitiated by inadequate reasoning, inasmuch as that decision assumed matters which it was incumbent on the Commission to prove in the context of the five pleas set out above.
28      As a preliminary point, on the scope of the action, it should be noted that the applicants do not dispute the existence of an infringement, or the calculation of the fine, or call into question the information and materials which they submitted to the Commission in the course of the administrative procedure in the context of their application for immunity. However, they do submit that the contested decision contains certain errors which extend the scope of the Commission’s findings relating to the infringement, in terms of both the products covered and the duration of the infringement.
29      At the hearing, the applicants essentially observed that a lack of precision in the determination of the products or the duration of participation could have significant consequences in the context of actions for damages brought before national courts, which they claim are connected to the Commission’s decision.
30      In that regard, the Court recalls that the significance of such consequences is acknowledged in its jurisprudence (see, to that effect, judgments of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 31, and of 16 December 2015, Air Canada v Commission, T‑9/11, not published, EU:T:2015:994, paragraphs 35 to 43).
The first plea in law, alleging an insufficiency of evidence and a manifest error of assessment in the determination of the products in so far as concerns projects involving underground power cables with voltages between 110 kV and 220 kV
31      By their first plea, the applicants maintain that the Commission failed to discharge its burden of proof and made a manifest error of assessment in asserting that the infringement related to all projects involving underground power cables with voltages of 110 kV and above, rather than of 220 kV and above. The applicants state that, according to the documents in the Commission’s case file, (i) projects involving underground power cables with voltages below 220 kV were discussed only exceptionally or on an ad hoc basis and (ii) only certain projects involving voltages below 220 kV were allocated, on an ad hoc basis. In essence, the applicants allege that the Commission’s conclusions regarding the products covered by the cartel are based on an incorrect presumption that the cartel arrangements covered all projects involving underground power cables with voltages of between 110 kV and 220 kV and not merely underground cable power projects involving a voltage below 220 kV for which evidence exists that they were the subject of allocation. The applicants allege, in particular, that the evidence referred to in recital 508 of the contested decision is insufficient. They also rely on several documents which they claim show that voltage limits applied both to the ‘home territories’ and to the ‘export territories’. In addition, the applicants allege that the contested decision is vitiated by a failure to state reasons in this regard.
32      The Commission disputes the applicants’ arguments.
The requirements laid down by case-law in relation to evidence
33      According to settled case-law, the burden of proving an infringement of Article 101 TFEU rests on the Commission (see judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 86 and the case-law cited). The Commission is required to produce sufficiently precise and consistent evidence to support the conviction that the infringement was committed (see judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 217 and the case-law cited).
34      However, it is not necessary for every item of evidence produced to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (judgments of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47, and of 24 March 2011, Aalberts Industries and Others v Commission, T‑385/06, EU:T:2011:114, paragraph 45).
35      It is also necessary to take account of the fact that anticompetitive activities take place clandestinely, that meetings are held in secret, that the associated documentation is reduced to a minimum, that the documents discovered by the Commission are normally only fragmentary and sparse, and accordingly, in most cases, the existence of an anticompetitive 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 (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraphs 55 to 57; of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 23 and the case-law cited; and of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 42).
36      Moreover, as anticompetitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the economic operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 82 and the case-law cited).
37      Similarly, given that the Commission is often required to prove the existence of an infringement several years after the events in circumstances where several of the undertakings involved have not actively cooperated in the investigation process, it would be excessive to require the Commission to produce evidence of the specific mechanism by which the anticompetitive object was attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced with regard to the operation of an illegal agreement in circumstances in which the existence and anticompetitive purpose of the agreement had none the less been sufficiently established (judgment of 12 December 2014, Eni v Commission, T‑558/08, EU:T:2014:1080, paragraph 36).
38      Moreover, to determine the products covered by a cartel, the Commission is not required to define the relevant market on the basis of economic criteria. It is the members of the cartel themselves who determine the products which are the subject of their discussions and concerted practices (see, to that effect, judgment of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 90). The products covered by a cartel are determined by reference to the documentary evidence of actual anticompetitive conduct in respect of specific products (see, to that effect, judgment of 11 December 2003, Adriatica di Navigazione v Commission, T‑61/99, EU:T:2003:335, paragraph 27).
39      Lastly, any doubt on the Court’s part must benefit the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 48 of the Charter of Fundamental Rights 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 applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 50 and the case-law cited).
The evidence in the contested decision relating to the products covered by the cartel
40      It should be recalled that the contested decision refers to various items of evidence from which it is apparent, according to the Commission, that the cartel, both in relation of the ‘home territory’ and the ‘export territories’, also covered underground power cable projects with voltages of between 110 kV and 220 kV, in addition to higher voltages. The items of evidence in question are, inter alia, as follows.
41      First, recital 102 of the contested decision refers to position sheets in which underground power cable projects in the ‘export territories’ are listed with voltages ranging from 33kV to 500 kV.
42      Second, recital 141 of the contested decision cites the notes of an A/R meeting organised on 26 July 1999 in London (United Kingdom), during which the parties are recorded as having stated, with regard to projects in the ‘export territories’, that projects with voltages below 220 kV would in principle be ‘free’, although ‘Allo[cation]’ would take place ‘as much as possible’. Thus, it must be held that allocation was not excluded in the ‘export territories’ but rather that an inclusive approach was adopted.
43      Third, recitals 227 and 228 of the contested decision indicate that the application of the home territory principle was explicitly discussed during a trilateral A/K/R meeting on 15 November 2002. According to the notes of this meeting which were found at Nexans France and provided by JPS, the discussion focussed on the territories included in the ‘home territory’ agreement. It should be pointed out that those notes make no mention of a limitation to voltage level.
44      Fourth, recital 231(g) of the contested decision refers to a report from Exsym relating to an invitation for a 64/110 kV project from a German customer. A similar report from LG Cable, which became LS Cable & System, for a 110 kV project of a Finnish client, is mentioned in recital 279(e) of that decision. It must be held that if the ‘home territory’ agreement was limited to projects above 220 kV there would have been no need to report these invitations to the cartel coordinators.
45      Fifth, recital 279(c) and entry 163 of Annex I to the contested decision refer to a request from the South Korean companies to the other cartel participants to refrain from tendering for a South Korean underground project of 154kV.
46      Sixth, recital 255 of the contested decision cites the notes of the A/R meeting in Tokyo (Japan) on 11 September 2003, where the parties discussed the activities of the South Korean company LG Cable, which had acted in violation of the ‘home territory’ agreement. The notes state that ‘K (LG) attacked in Italy: Spain 400 kV, Italy 400 kV Brazil 220 kV and 150 kV, [United Kingdom] 132KV’. Again, it must be held that, if the ‘home territory’ agreement had been limited to projects above 220 kV, there would have been no need to report ‘attacks’ below this voltage limit.
47      Moreover, other evidence indicates that the allocations that took place in the European cartel configuration were not limited to projects above 220 kV (recital 280(d), recital 322(c), recitals 332, 372, 377 and 414, and entries 122, 131 and 142 of Annex I to the contested decision).
48      It is apparent from the evidence mentioned in the contested decision and cited in paragraphs 41 to 47 above that, for underground cable projects in the ‘home territories’, no distinction was made on the basis of voltage and that the distinctions that were drawn in respect of the ‘export territories’ were more limited than the applicants submit. In particular, in the ‘export territories’, whilst there is some evidence that the parties to the cartel at times indicated that they would treat such projects differently depending on whether they involved voltages of more or less than 220 kV, such projects involving voltages below 220 kV were nevertheless still subject to the cartel arrangements as a whole. Projects in the ‘export territories’ involving voltages below 220 kV were still reported, sometimes discussed and possibly allocated. It follows that they were subject to the cartel arrangements; otherwise there would never have been any need for them to be reported or to be discussed and allocated.
49      It must therefore be held, in the light of the case-law cited in paragraphs 33 to 39 above, that the Commission did not err in taking the view that that evidence demonstrated to the requisite legal standard that the cartel also covered underground power cable projects with voltages of between 110 kV and 220 kV and could therefore be used to support the finding relating to the products covered by the cartel.
50      That conclusion cannot be called into question by the arguments put forward by the applicants in the context of this plea.
The scope of recital 508 of the contested decision
51      The applicants dispute that the statements referred to in recital 508 of the contested decision provide a sufficient basis for the Commission’s finding relating to the products covered by the cartel.
52      In that regard, it is necessary to cite recital 508 of the contested decision in its context. In recitals 507 to 509 of that decision, the Commission examined arguments raised by certain cartel participants in the course of the administrative procedure and which related to the scope of the application of the ‘home territory’ agreement. Those recitals are worded as follows:
‘(507) The Commission has not found any evidence that the application of the home territory principle and the allocation of projects in the EEA were limited to only a narrow category of sales, as Nexans, Brugg and nkt claim. Nexans, Brugg and nkt also fail to supply evidence to this effect. Instead, there is ample evidence that these practices were of general application, irrespective of the type of customer or the amount of sales (see, notably, recitals 141, 214, 228, 258, 268, 269, 374). This evidence also concerns a range of different customers and sales channels (see, for instance, recitals 245, 315, 353, 354).
(508) Moreover, there is no evidence that the application of the home territory principle was limited to specific categories of voltages. While the parties may have discussed initially to limit the allocation of projects in the “export territories” to cables of 220 kV and above (recital 141), such discussion never took place with regard to projects located in the home territories. All the evidence demonstrates that this principle was of general application. With regard to the “export territories”, the allocation of projects below 220 kV would take place “as much as possible” (recitals 141 and 225) so the allocation of projects below 220 kV was certainly not per se excluded.
(509) The evidence provided in Section 3 indicates that the parties did not intend to exclude specific countries from the application of their agreement or concerted practice, except for the United States (see recital 93).’
53      It is apparent from the wording of recital 508 that the statements cited therein address two specific points. The first was whether or not the discussions relating to the ‘home territory’ agreement included references to voltage limits and the second was whether the evidence that voltage limits were initially discussed in relation to the ‘export territories’ suggested that the allocation of projects below 220 kV in the ‘export territories’ was per se excluded. The Commission replied to both those questions in the negative.
54      Thus, it must be held that the finding set out in recital 508 according to which the evidence in the Commission’s file did not indicate that the participants had discussed any limitation of voltages in the ‘home territory’ agreement, constitutes a response to a specific argument raised by the cartel participants during the administrative procedure. It indicates that the available body of evidence, in which express reference is made to underground cable projects with voltages of 110 kV and above, and the inferences which may be drawn from that evidence in relation to the products covered by the cartel, were neither rebutted nor undermined by the submissions that those participants made prior to the adoption of the contested decision.
55      Contrary to the applicant’s claim that recital 508 refers to projects relating generally to cables with voltages below 220 kV being subject to discussion as much as possible, it should be pointed out that recital 508 supports the finding that there were no limitations based on voltage in the ‘home territories’, and that in the ‘export territories’ the allocation of projects relating to cables with voltages below 220 kV would take place as much as possible.
56      Moreover, it must be stated that recital 508 is not the sole basis on which the products covered by the cartel were determined, and nor does it exhaustively set out the Commission’s reasoning in that regard. As was stated in recitals 10 and 11 of the contested decision, the finding that the cartel encompassed underground projects concerning cables with voltages of at least 110 kV in the European Economic Area (EEA) was based on the body of evidence in the Commission’s file (see section 3 of the contested decision and paragraphs 41 to 47 above). That evidence amounts to sufficient evidence to support the conclusion in recital 13 of the contested decision that the cartel arrangements covered all types of underground power cable projects in the EEA of 110 kV and above. The Commission thus relied on that evidence rather than, as the applicants claim, a ‘presumption’ or an ‘assumption’ set out in recital 508 of the contested decision.
The need to share or allocate projects in the definition of the infringement
57      The applicants claim that, in both the ‘home territories’ and the ‘export territories’, only certain projects involving voltages below 220 kV were allocated and that the contested decision is based on the incorrect assumption that the cartel arrangements covered all underground power cable projects of 110 kV and above. They therefore seek annulment of Article 1 of the contested decision in so far as the finding extends to all projects involving underground power cables with voltages of 110 kV and above and not only projects involving underground power cables with voltages of 220 kV and above. In particular, they claim that the Commission was not entitled to find an infringement only in respect of cable projects with voltages below 220 kV for which it possessed evidence that there had been sharing or allocation. They further submit that the evidence that they were aware of or intended to discuss all cable projects with voltages of at least 110 kV does not suffice to substantiate the finding of their participation in the single and continuous infringement.
58      It is therefore necessary to determine whether the criterion of sharing or allocating projects constitutes the relevant criterion in order to assess whether the projects in question were covered by the cartel and whether, therefore, the Commission was required to limit its finding of infringement of Article 101 TFEU exclusively to the specific projects in respect of which there was evidence that they were allocated or shared among the parties to the cartel.
59      In that regard, it must be held that, in the first place, the applicants’ claim disregards the very concept of restriction of competition within the meaning of the FEU Treaty, in the second place, conflicts with the principles governing the burden of proof as recalled in paragraphs 33 to 38 above and, in the third place, differs from the assertions made in their reply to the statement of objections.
60      In the first place, it should be borne in mind that Article 101 TFEU and Article 53(1) of the EEA Agreement include expressly as restricting competition agreements and concerted practices which directly or indirectly fix purchase or selling prices or any other trading conditions, limit or control production, markets or technical development and to share markets or sources of supply. Thus, it is inherent in the Treaty provisions on competition that every economic operator must determine autonomously the policy which it intends to pursue on the internal market (see judgment of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraph 86 and the case-law cited).
61      In the present case, the Commission found that the complex of agreements and concerted practices identified in recital 643 of the contested decision, as well as its individual parts, had as its object the restriction of competition within the meaning of the aforementioned provisions of Article 101 TFEU and Article 53(1) of the EEA Agreement.
62      According to settled case-law cited in recital 645 of the contested decision, for the purpose of applying Article 101(1) TFEU, and of Article 53(1) of the EEA Agreement, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition (see judgment of 13 December 2012, Expedia, C‑226/11, EU:C:2012:795, paragraph 35 and the case-law cited).
63      As regards the applicants, they were aware that power cable projects below 220 kV might be the subject of discussions or even in some circumstances of sharing or allocation in the context of the cartel. However, even when they were not allocated, the fact that projects were discussed in the context of the cartel was sufficient to affect the commercial independence of the cartel participants, including the commercial independence of the applicants, in contravention of the competition rules, as indeed was the exchange of commercially sensitive information concerning how the cartel participants intended to position themselves.
64      In the second place, the applicants’ claim misrepresents the evidential burden of proof incumbent on the Commission. It runs counter to settled and well-established case-law in accordance with which evidence in cartel matters is of a fragmentary nature, so that it would be excessive to require the Commission to produce evidence of the specific mechanism by which the anticompetitive object was attained (see paragraphs 35 and 37 above).
65      In the present case, given the evidence as to the mechanism of the ‘home territory’ agreement, the Commission was not required to adduce evidence that each specific project had actually been allocated among the participants in order to find that projects with voltages below 220 kV were subject to the cartel arrangements.
66      As is apparent from paragraphs 40 to 49 above, the Commission showed to the requisite legal standard that there was a body of precise and consistent evidence establishing that, first, the cartel participants discussed and allocated power cable projects, second, in the ‘home territories’ those cartel arrangements made no distinction on the basis of voltage and, third, the discussions and possible allocations included underground cable projects with voltages between 110 kV and 220 kV.
67      In the third place, moreover, it should be pointed out that that claim of the applicants differs from the assertions made in their reply to the statement of objections. In the latter, the applicants submitted inter alia that the evidence of the cartel did not cover all voltages in each period, that is to say during each year of cartel activity. Thus, in paragraph 24 of their reply to the statement of objections, the applicants stated:
‘This limitation of the scope of the cartel at least for part of the time frame during which the cartel was in operation is further confirmed by the reference in the [statement of objections] to a document indicating, in the context of the [European] R configuration of the cartel in 2006, that power cables of a voltage level below 220 kV would be discussed “case to case”. This indicates that power cable projects with a voltage lower than 220 kV would not automatically be subject to the cartel, at least as of 2006 ... This principle had already been applicable to projects in the “export territories”, as is referenced in the A[/]R meetings going back to 1999.’
68      It must be stated that that assertion differs from the claims put forward in support of this plea in paragraphs 34 and 38 of the application, according to which ‘projects involving underground power cables with a voltage below 220 kV were discussed only exceptionally or on an ad hoc basis’ and ‘the [contested d]ecision’s findings can extend only to those specific projects for which evidence exists that they were the subject of allocation among the cartel participants’.
69      In their reply to the statement of objections, the applicants asserted, in respect of the application of the ‘home territory’ agreement that, from 2006, such projects were not automatically subject to the cartel. However, they did not submit, as they did in the application, that such projects were discussed only exceptionally or on an ad hoc basis or indeed that they were excluded from the cartel arrangements, save where they were expressly included. In addition, in the reply to the statement of objections, there are temporal limitations (‘at least as of 2006’), contrary to the claims made in the application.
70      In the light of the foregoing considerations, it is necessary to reject the incorrect premiss on which the applicants’ line of argument is based, and according to which, for the purpose of establishing a restriction of competition, the Commission should have demonstrated that projects were actually allocated among the cartel participants.
71      It follows that, in order to show that the products covered by the cartel extended to power cables with voltages below 220 kV, the Commission was not required to establish that all projects involving voltages below 220 kV had been allocated by the cartel members.
72      By contrast, given that it is the scope of the parties’ discussions which determines the products covered by the cartel (see paragraph 38 above), the relevant criterion, in order to review the Commission’s assessment in that regard, is whether there is sufficient documentary evidence to support the finding that the anticompetitive concerted practices, which included not only the allocation, but also the discussion, of projects, extended to power cable projects with voltages between 110 kV and 220 kV.
73      Moreover, as regards the applicants’ related claim that the Commission, by introducing the concept of reporting in the defence, materially departs from the definition of the infringement set out in the contested decision, it must be stated, as the Commission observes, that the reporting of cable projects with voltages of between 110 kV and 220 kV for the ‘export territories’ formed part of the cartel arrangements as defined in the contested decision. In particular, the reporting of such projects formed an integral part of monitoring (as referred to in recital 643(g) of the contested decision) and also formed an integral part of the allocation of territories and customers (as referred to in recital 643(a) thereof) and of the implementation of practices to reinforce the cartel (as referred to in recital 643(f) thereof). Such reporting ensured that all projects, including those with voltages below 220 kV for the ‘export territories’, were considered by the cartel participants. That reporting was aimed at ensuring that only those projects which the cartel participants were satisfied to classify as ‘free’ were not allocated and that projects in the ‘export territories’ with voltages below 220 kV would be allocated where the cartel participants so desired following discussion.
The additional evidence relied on by the applicants
74      The applicants rely on several documents which they claim show that voltage limits applied to both the ‘home territories’ and the ‘export territories’. They mention in that regard the documents cited in recitals 225, 260, 265, 268, 269, 296 and 390 of the contested decision.
75      It is necessary to examine the content of those documents.
76      First, the document cited in recital 225 of the contested decision comprises the notes of an A/R meeting on 14 November 2002 in Tokyo. From the reference to the ‘40/60 quota’ it is clear that this document concerned the allocation of projects in the ‘export territories’. In the notes it is mentioned that the ‘scheme’ operates for voltage classes of 220 kV and above for ‘CV cables’, namely cross-linked polyethylene insulated with vinyl-sheathed cables, also referred to as ‘XLPE cables’, and for all voltage classes for oil-filled cables. Moreover, the document mentions that, ‘in addition to the above, for projects for which arrangements can be made, as [many] arrangements as possible will be made’. It follows that no voltage levels were expressly excluded for the products covered by the cartel, contrary to the applicants’ submission.
77      Second, recital 260 refers to another document regarding project allocation in the ‘export territories’ which was saved by Mr J. (Nexans France) on 16 September 2003 and which is entitled ‘Rules in short’. That document contains a table with a heading ‘below 220’ which states that ‘basic’ was ‘report and free’ and ‘exception’ was ‘discuss/allo[cate]’. It is clear from this therefore that, even according to the ‘basic’ position for underground projects with voltages below 220 kV, the participants were obliged to report the project. That reporting process was part of the cartel and the fact that a particular project was not allocated subsequently does not mean that it was not subject to the cartel. Furthermore, this document demonstrates that underground projects with voltages of less than 220 kV could be discussed and allocated. It follows from this that, in both the ‘basic’ and the ‘exception’ situations, underground projects with voltages of less than 220 kV were subject to the cartel.
78      Third, recital 265 refers to notes from JPS of a preparatory meeting on 16 October 2003. Those notes state that the ‘principle’ is ‘no attack each other in domestic … 220 kV and above with exception … [a]s much as possible’. That meeting was held in preparation for the trilateral A/K/R meeting that took place on the afternoon of 17 October 2003 and which was intended to once more impress the rules of the cartel on the South Korean companies. Thus, recital 268 cites the notes from JPS on the trilateral A/K/R meeting of 17 October 2003 which include the phrases ‘basically 220 kV and above’, ‘OF [Oilfilled] and XLPE’, ‘except some cases’, ‘66 kV and 132 kV where possible’, ‘geographical application’ and ‘no interference in domestic market’. Similarly, recital 269 cites the notes of Nexans taken at this meeting, which contain similar wording, namely ‘recall of the rules HV above 220 always + below 132 whenever possible domestic Japan Taiwan Korea / European Community’. Again, it is apparent from those documents that they did not exclude underground power cable projects below 220 kV from the application of the cartel. Furthermore, the protection of the ‘home territories’ is mentioned without reference to any voltage level for projects concerning the EEA.
79      Fourth, recital 296 cites the notes of an R meeting on 10 February 2004 between the European cartel members, excluding the applicants. Those notes contain the phrases ‘obligation to report’, ‘to maintain a list’, ‘[euro] s/s at 400 kV and 220 kV’. However, the notes do not explain what this list entails and appear simply to require the participants to record certain projects in a list. Accordingly, no conclusions with regard to projects below 220 kV can be drawn from this.
80      Fifth, recital 390 of the contested decision cites the notes of a meeting held on 16 February 2006 between ‘Nexans [France] and Prysmian’ in preparation for an R meeting. Those notes apparently relate to a proposal made during that preparatory meeting entitled ‘Eur [marketing] 400/220’ but it is not clear from the notes what that proposal entails precisely. Whilst there is a reference to ‘reste’, ‘below 220’ and ‘case to case’, they contain no information on the application of the ‘home territory’ agreement. At most, the notes provide evidence that the cartel members concerned discussed certain joint marketing efforts on 220 to 400 kV projects within Europe, but no other conclusions can be drawn from them.
81      Moreover, the applicants claim that their oral statement of 26 May 2010 proves that the allocation was limited to cable projects with voltages of 220 kV and above, except in exceptional circumstances.
82      In that regard, it should be pointed out, as the Commission observes, that, in that oral statement of 26 May 2010, the applicants [confidential].(1) Thus, that oral statement shows agreement between the two representatives that the applicants could be contacted in relation to special underground power cable projects, and no reference whatsoever is made to voltages in that regard.
83      It follows from this that the evidence on which the applicants rely cannot invalidate the Commission’s finding on the determination of the products covered by the cartel.
The applicants’ oral statements on which the Commission relies
84      The Commission contends that the applicants’ claim that the evidence in the Commission’s file shows that power cables with a voltage below 220 kV were discussed only exceptionally or on an ad hoc basis is inconsistent with the applicants’ own oral submissions to the Commission in the context of their leniency application. It contends that the applicants had not asserted that the cartel was confined to underground cable projects of 220 kV and above, but had only queried the determination per se of the products covered by the cartel.
85      First of all, it should be borne in mind that the evidence cited in paragraphs 41 to 48 above does not show that projects involving underground power cables with voltages below 220 kV were discussed only ‘exceptionally’ or on an ‘ad hoc basis’, such that they should fall outside the scope of the cartel arrangements.
86      Next, it should be pointed out that, in their oral statement of 21 November 2008, the applicants [confidential]. Moreover, in their reply to the statement of objections, they submitted that the power cable projects with voltages below 220 kV were not automatically subject to the cartel.
87      It must be stated that that statement and that reply are more limited in scope than the claim put forward by the applicants in support of this plea, namely that no underground cable project with a voltage below 220 kV was concerned by the cartel.
88      Furthermore, it should be pointed out, as the Commission observes, that, in the numerous oral statements they gave to the Commission, addressing both the general nature of the cartel and specific instances of allocation, the applicants did not suggest that the cartel applied only to projects with voltages above 220 kV.
89      First, in their oral statement of 17 October 2008, the applicants [confidential]. There was no mention of any limit to the scope of that understanding by reference to voltage levels.
90      Second, in their oral statement of 10 November 2008, the applicants [confidential], again with no reference to a limit on the basis of voltage levels. [confidential]
91      Third, in that oral statement of 10 November 2008, the applicants stated, again with no reference to a limit on the basis of voltage levels, [confidential].
92      Fourth, in their oral statement of 21 November 2008, the applicants [confidential] without mentioning any voltage limitation on the scope of the cartel in place.
93      Lastly, in so far as the applicants did refer to voltage levels, it should be pointed out that they only sought to draw a distinction between high voltage power cable projects (above 33/45 kV), medium voltage projects (below 33/45 kV) and low voltage projects, and therefore the threshold of 220 kV did not feature.
94      Thus, in their oral statement of 1 September 2009, the applicants stated [confidential]
95      It is apparent from those oral statements of the applicants that they did not specifically mention that the ‘home territory’ agreement drew a distinction between voltages below or above 220 kV, so that voltages below 220 kV were excluded from the cartel.
The alleged lack of reasoning
96      The applicants claim that the contested decision is vitiated by lack of reasoning, in so far as the Commission fails to state reasons for its presumption that all underground power cable projects with voltages of between 110 kV and 220 kV were concerned by the cartel.
97      It has consistently been held that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU 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 (see judgment of 27 September 2012, Dura Vermeer Groep v Commission, T‑351/06, not published, EU:T:2012:482, paragraph 54 and the case-law cited). Thus, the Commission is not required to respond to each argument raised by a party in order to comply with that obligation and an all-encompassing answer may suffice (see, to that effect, judgment of 6 February 2014, Elf Aquitaine v Commission, T‑40/10, not published, EU:T:2014:61, paragraphs 168 and 169 and the case-law cited).
98      In the present case, it is sufficient to note that, in recitals 11 to 13 of the contested decision, the Commission determined the products covered by the cartel on the basis of the evidence set out in detail in section 3.4 of that decision, entitled ‘Chronology of key contacts’ and containing recitals 116 to 446, and in Annex I to that decision. Next, in recital 508 of the contested decision, the Commission explicitly rejected the argument that application of the cartel was limited to specific categories of voltages, and referred to the evidence mentioned in section 3.4 of that decision (see in particular paragraphs 41 to 48 above).
99      Consequently, the Commission gave proper reasons for its decision in that regard, in accordance with the case-law.
100    It follows from all of the foregoing that the first plea must be rejected.
The second plea in law, alleging that there was insufficient evidence to establish that the applicants participated in the cartel in so far as concerned projects involving underground power cables with voltages between 110 kV and 220 kV
101    By their second plea, the applicants allege that the Commission failed to discharge its burden of proof in establishing that they had participated in an infringement covering all projects involving underground power cables with voltages of 110 kV and above, rather than of 220 kV and above. First of all, they claim that they were not aware that the single and continuous infringement extended to underground cable projects with voltages between 110 kV and 220 kV, that they could not have foreseen that and that they did not intend to contribute to that. Moreover, they maintain that they publicly distanced themselves from the cartel in so far as concerned such projects. They also allege that the contested decision is vitiated by a failure to state reasons in this regard.
102    The Commission disputes the applicants’ arguments.
103    According to settled case-law, for the purpose of proving that an undertaking participated in a cartel, the Commission must establish that that undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the cartel participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or at the very least that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42 and the case-law cited). The undertaking concerned must therefore be aware of the general scope and the essential characteristics of the cartel as a whole. 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 (see judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 65 and the case-law cited).
104    In the present case, the Court points out, as a preliminary point, that, in the context of the examination of the first plea, it was found that the cartel covered all underground power cable projects with voltages of 110 kV and above, and not only those with voltages of 220 kV and above.
105    Moreover, it should be pointed out that the evidence in the Commission file, as cited in section 3.4 of the contested decision, indicates that the applicants’ participation, on the assumption that it is established, relates to the cartel generally rather than specifically to certain voltages. Recital 493 of the contested decision lists most of the evidence relating to the applicants in respect of the ‘home territory’ agreement in the European configuration in relation to both underground and submarine projects. First, recital 152 cites the notes drafted by an employee of one of the applicants which, while demonstrating that they were aware of a market and customer allocation scheme, did not limit that scheme to specific voltages. Second, recital 166 refers to a report provided to the R members of the cartel, which confirms the existence of contact between the applicants and the coordinator of those R members. Third, recital 277 refers to a bilateral meeting held on 24 November 2003 in which a representative of JPS agreed with the applicants that the ‘home territory’ agreement would be applied. That agreement was not limited to any specific type of project.
106    Consequently, it is necessary to assess the applicants’ arguments regarding their lack of awareness of, and their public distancing from, the cartel in the light of the fact that, in the context of this plea, they do not dispute the existence of an infringement per se, the scope of which was established during the examination of the first plea, and in the light of the items of evidence, which do not indicate the existence of any distinction on the basis of voltage.
Actual or reasonably foreseeable awareness of the whole cartel in relation to underground cables
107    The applicants claim that they lacked a sufficient degree of awareness of the cartel, so far as concerns projects involving underground power cables with voltages below 220 kV, to support the finding that they participated in a single and continuous infringement. They argue that they were, taken together, a non-core player in the cartel, did not generally attend A/R meetings and had clearly informed Nexans France that, except in exceptional circumstances, they would not participate in the allocation of such projects, and that Nexans France had agreed with that position.
108    It should be pointed out, at the outset, that the applicants’ claim is undermined by a contradiction inasmuch as, on the one hand, in paragraph 44 of the application, they concede that they were aware of projects below 220 kV and even submit that they communicated their non-participation to the cartel coordinator, ‘save for exceptional cases’, and, on the other, in paragraph 45, they assert that they ‘[were not] aware of … all the other unlawful conduct planned’. Indeed, the fact that the applicants were able to communicate a position suggests that they were aware of that part of the cartel and even participated in it in certain cases, however exceptional they might have been.
109    Next, the fact that the applicants did not systematically attend A/R meetings does not mean that they were unaware of the products covered by the cartel and, in particular, that they were unaware that the cartel extended to underground cable projects with voltages below 220 kV. That is explained by the organisation of the cartel, in which certain undertakings acted as coordinators so that the number of participants in A/R meetings was kept to a minimum. Even though the applicants’ mode of participation consisted predominantly in bilateral contacts, including with the coordinators, they were not however unaware of the existence of the meetings. Moreover, they attended part of the A/R meeting of 6 and 7 September 2002, as is reported in recitals 220 and 606 of the contested decision. In addition, they were aware of the structure and general manner in which the cartel operated, in respect of which they provided evidence in the context of their application for immunity.
110    In so far as the applicants rely on the case which gave rise to the judgment of 10 October 2014, Soliver v Commission (T‑68/09, EU:T:2014:867), to submit that an undertaking may be found to lack awareness of the general scope and essential characteristics of the cartel if it is absent from meetings and only involved in bilateral exchanges, it should be borne in mind that there is no general principle that the mere fact that an undertaking was not present in cartel meetings would be sufficient to conclude that it lacked the requisite degree of awareness to establish its participation in a single and continuous infringement. It must also be stated that the facts of the abovementioned case are materially distinct from those in the present case, notably the structure of the cartel itself. In the present case, it was fundamental to the organisation of the cartel that the number of participants at A/R meetings was kept to a minimum. Communications were also conducted via email, telephone or fax, often being bilateral contacts. Consequently, the fact that the applicants did not attend more than one A/R meeting, particularly in circumstances where their employees deliberately limited their participation to essentially bilateral contacts, is explained by the structure of the cartel. This is insufficient in itself to show that the applicants lacked the requisite degree of awareness.
111    Furthermore, the evidence in the file and referred to in the contested decision indicates that the organisation of the cartel was the same irrespective of whether projects related to voltages above or below 220 kV. For example, projects relating to voltages below 220 kV were discussed in exactly the same forums as projects relating to voltages above 220 kV, namely at the A/R and R meetings and in the framework of bilateral contacts outside of these meetings. It does not appear that different rules were systematically applied for projects relating to underground cables with voltages between 110 kV and 220 kV.
112    As regards the evidence put forward by the applicants to demonstrate their lack of participation, or even their lack of awareness, and suggesting, in their submission, that they were perceived to be uncooperative and unpredictable, it must be observed that that evidence is framed in general terms, and makes no reference at all to projects involving particular voltages. In addition, some of that evidence demonstrates the applicants’ cooperation with the cartel participants. Thus, recital 212 of the contested decision cites the notes of an A/R meeting of 5 April 2002, which state that ‘access to ABB has also become easier than previously’. For its part, recital 349 of that decision mentions an email from Mr J. (Nexans France), which states as follows:
‘We have [made] all efforts to control ABD [project in the “export territories”] in advance, and [you] know well we have [many] more participants on our side than on yours making it more time consuming than on your side and you were informed. We have concluded satisfactorily with AB [ABB], BC [Brugg], RP [Prysmian], RN [Nexans], SG [Sagem].’
113    Moreover, it is necessary to reject the analogy drawn by the applicants with the case which gave rise to the judgment of 20 March 2002, Sigma Tecnologie v Commission (T‑28/99, EU:T:2002:76, paragraphs 44 and 45), 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 liable for the overall cartel, in so far as it is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the overall cartel that its participation in the agreement concerned can constitute the expression of its accession to that overall cartel. In the present case, the applicants were aware of the single and continuous infringement at the worldwide level, as is apparent in particular from paragraph 92 above.
114    Lastly, it is necessary to reject the applicants’ implicit claim that the fact that they informed Nexans France that they would not participate other than in exceptional circumstances in the allocation of projects involving underground power cables with voltages below 220 kV indicates that it did not intend to contribute to the common objectives of the cartel. The evidence suggests at most that the applicants informed Nexans France that they agreed to be contacted in respect of ‘special projects’ which were not defined by reference to voltage. In any event, merely by indicating their willingness to be contacted, and thereby to continue to benefit from the allocation scheme, the applicants clearly intended to contribute to the objective of restricting competition in specific territories by agreeing on market and customer allocation.
115    It follows from the foregoing considerations that the applicants possessed the requisite degree of awareness to establish their participation in the cartel, including in relation to underground cables with voltages below 220 kV, and that they contributed to that cartel.
116    Since the applicants’ participation in the cartel has been established, it is now necessary to examine whether, as they claim, they publicly distanced themselves from it.
Absence of public distancing from the cartel in relation to underground cables
117    The applicants submit that the evidence referred to in recitals 301 and 374 of the contested decision shows that they informed Nexans France that they would not participate ‘other than in exceptional circumstances’ in the allocation of projects involving underground power cables with voltages below 220 kV, and that Nexans France had agreed with that position. In their view, that meets the test of ‘public distancing’ from the cartel.
118    According to settled case-law, where a cartel operates by means of periodic meetings between its members, the only way in which it can be concluded that an undertaking has definitively ceased to belong to a cartel is if it has publicly distanced itself from the content of the cartel (see, to that effect, judgment of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 241 and the case-law cited).
119    It is for an undertaking to prove its firm and unambiguous disapproval of the cartel by distancing itself publicly from it and, since it is a means of excluding liability, that concept must be interpreted restrictively. A party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery (see, to that effect, judgments of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 53, and of 27 June 2012, YKK and Others v Commission, T‑448/07, not published, EU:T:2012:322, paragraphs 113 to 116 and the case-law cited).
120    The understanding which the other participants in a cartel have of the intention of the undertaking concerned is of critical importance when assessing whether that undertaking sought to distance itself from the unlawful agreement (judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 62, and of 11 July 2014, Esso and Others v Commission, T‑540/08, EU:T:2014:630, paragraph 40).
121    In the present case, it should be noted, at the outset, as the Commission observes, that the applicants’ claim that they publicly distanced themselves from the cartel contains an internal contradiction inasmuch as, on the one hand, they assert that they specifically, consciously and clearly communicated their lack of participation, yet on the other hand concede that they continued to participate in it, albeit in ‘exceptional cases’. Thus, by stating that they nevertheless continued to participate in the cartel, at least in ‘exceptional cases’, the applicants acknowledge they did not communicate their lack of participation for the purposes of the case-law.
122    Moreover and in any event, the evidence referred to in recitals 301 and 374 of the contested decision does not support the applicants’ claim. None of the evidence referred to in those recitals includes any reference to the applicants having ceased to participate in the cartel in so far as it related to projects involving voltages below 220 kV, nor to its continued participation being strictly confined to exceptional cases only. Furthermore, the applicants have not pointed to any evidence which shows that this was understood and accepted by the other cartel participants.
123    On the one hand, recital 301 of the contested decision refers to an A/R meeting which took place on 9 June 2004 in Tokyo and which was not attended by the applicants. The notes of that meeting state:
‘ABB … Unfair trade action on Switchgear. Previous boss fired. Brought to EUR. ABB getting become more and more difficult. One month, three weeks. Can discuss only very important projects. Not for small projects. Can discuss with only one person. Internet site of ABB. Relationship becoming more difficult.’
124    First of all, that evidence does not demonstrate a specific, conscious and clear communication by the applicants of their lack of participation in the cartel. On the contrary, the references to the relationship becoming more difficult and discussions about important projects demonstrate persistent and continuous participation.
125    Next, whilst that evidence refers to and is consistent with other evidence showing that the applicants’ employees were severely restricted in communicating with competitors for compliance reasons and were thus reluctant to participate actively in meetings, such restrictions do not however equate to non-participation in the allocation of underground power cable projects with voltages below 220 kV.
126    Lastly, the absence of any discussion of the applicant’s participation in the cartel after the meeting of 9 June 2004 mentioned in recital 301 of the contested decision suggests that they continued to participate in it after that date.
127    On the other hand, recital 374 of the contested decision refers to an A/R meeting which took place on 13 January 2006 and in which the applicants did not participate. The notes of that meeting mention that it concerned submarine (‘SM’) projects and state:
‘Contact JPS Mr ...
Osada appointed in HK overall sales JP and Sumit.
Quotas: No quote per se but try to use old 60/40 or 65/35 borderline still in question.
Territoires:
Domestics:
R: Europe[an] community + [Switzerland] and Norway
A: Japan and Taiwan
Exports:
All others + case by case ... by phone only
Meetings:
Quarterly in Asia (KL)
27/4/0[6] NEXT MEETING
Communication: communication through [Nexans France]/[JPS]
2. Market overview
Other manufacturers:
R-AB (ABB) possible case by case
Exsym: Limited technically Greece “history” mentioned. Exsym acquired by Showa (profit lowering).’
128    First of all, it is clear from the use of the term ‘SM’ (submarine) in those notes and from the introductory part of recital 374 of the contested decision that that meeting related to submarine power cables, not underground power cables. Accordingly, that meeting is not directly relevant to this plea, which relates to underground cables.
129    Furthermore, as regards the applicants, the notes state merely ‘R-AB (ABB) possible case by case’. It must be held that such wording is consistent with the finding of the applicants’ continued participation in circumstances where it was known that its compliance procedures restricted its communications, rather than with an unambiguous communication by the applicants that they were publicly distancing themselves from the cartel.
130    It follows that the evidence in recitals 301 and 374 of the contested decision does not substantiate the applicants’ claims and that they have failed to discharge the burden of proof on them to establish that they publicly distanced themselves from the cartel, within the narrow meaning of that notion.
131    Moreover, in accordance with the case-law recalled in paragraph 120 above, as long as the other members of the cartel understood that the applicants were continuing to participate in it, it cannot be asserted that the applicants publicly distanced themselves from it.
132    It must therefore be stated that the applicants did not publicly distance themselves from the cartel and did not indicate any clear intention not to be regarded as participating members in the cartel, including in relation to underground power cable projects with voltages below 220 kV.
The oral statements of the applicants relied on by the Commission
133    The Commission relies on oral statements of the applicants, made in the context of their application for immunity, for the purpose of establishing that they had never suggested that the cartel was limited to underground cable projects with voltages above 220 kV and had never sought to claim that their own participation was limited in that regard. Indeed, in so far as they did make submissions concerning the scope of their own participation, the Commission contends that their reservations were far narrower in scope.
134    It is necessary to examine the content of those oral statements.
135    First, in their oral statement of 21 November 2008, made just over a month after the initial immunity application, the applicants [confidential]. However, they did not indicate that they had not participated in the cartel with regard to high voltage power cables below 220 kV.
136    Second, it is apparent from the applicants’ oral statement of 1 September 2009 (see paragraph 94 above) that, in so far as the applicants expressed reservations about participating in relation to certain projects, they defined the projects they wished to be involved in by reference to the size of the project, rather than the voltages of the cables. They stated as follows: [confidential]
137    On the other hand, it is not apparent from that evidence that the participants intended to equate the importance of a project to a specific voltage below which a project would be not important or would be classified as ‘small’.
138    Third, in their oral statement of 26 May 2010 (see paragraph 82 above), the applicants [confidential].
139    That oral statement of 26 May 2010 confirms that the applicants had the requisite degree of awareness to establish their participation in the cartel in respect of underground cable projects with voltages of 138 kV or below. It also confirms that the applicants actually participated in the allocation of a 138 kV power cable project in the ‘export territories’ in 2001. It further confirms that the applicants agreed to be contacted for special underground cable projects and that no voltage limits were mentioned in that regard. Lastly, it confirms the applicants’ failure to publicly distance themselves from the cartel.
140    Whilst that oral statement of 26 May 2010 does indeed refer to discussions [confidential] on the difficulty of maintaining effective collusion for underground projects with voltages of 138 kV and below, according to the Commission, the same difficulty was identified in respect of such projects with voltages of 220 kV, and this was in any event subject to the applicants being contacted for special underground power cable projects.
141    Consequently, the applicants’ oral statements confirm their participation in the cartel in respect of all high voltage power cable projects, without any voltage limits within those projects.
The alleged lack of reasoning
142    The applicants claim that the contested decision is vitiated by a lack of reasoning, in so far as the Commission failed to state reasons for its conclusion that they participated in an infringement which covered all projects involving underground power cables with voltages between 110 kV and 220 kV.
143    In the present case, it must be stated, in accordance with the case-law recalled in paragraph 97 above, that the contested decision gives proper reasons by reference to the body of evidence which supports the conclusions reached. In particular, the Commission clearly explains in that decision that the applicants participated generally in the cartel activities which covered underground power cable projects involving voltages of 110kV and above (see in particular the recitals referred to in paragraphs 105, 112, 123 and 127 above, and recitals 492, 508, 563 and 655 of the contested decision). The lack of any detailed examination of the claim that the applicants’ participation was limited to cable projects with voltages above 220 kV results from the fact that that claim was not raised as such during the administrative procedure (see in particular paragraphs 67 to 69 above).
144    It follows from all the foregoing that the second plea must be rejected.
The third plea, alleging insufficient evidence and a manifest error of assessment in the determination of the products in so far as concerns power cable accessories relating to projects involving underground cables with voltages of between 110 kV and 220 kV
145    By their third plea, the applicants allege that the Commission made a manifest error of assessment in including within the scope of the infringement all power cable accessories relating to projects involving underground cables with voltages of 110 kV and above, since the evidence in the Commission’s file shows that the infringement extended only to power cable accessories relating to projects involving underground power cables with voltages of 220 kV and above. In addition, they argue that accessories for projects involving power cables with voltages of below 220 kV are commodities bought in bulk by the customer and installed by the customer or a subcontractor. They also allege that the contested decision is vitiated by a failure to state reasons in this regard.
146    The Commission disputes the applicants’ arguments.
147    At the outset, it should be pointed out, as the Commission observes, that the applicants do not seek to argue that all accessories were excluded from the cartel and do not dispute the existence of a collective refusal to supply cable accessories per se. In their oral statement of 1 September 2009, the applicants [confidential]. Consequently, by this plea, the applicants confine themselves to claiming that a specific class of accessories, defined by voltage below 220 kV, was not included in an aspect of the cartel.
148    Furthermore, it is apparent from recital 492 of the contested decision that the projects were normally “packages” that included the cable itself and also the necessary additional equipment such as joints and other accessories and services such as installation works. That recital also states that the cartel included all products and services sold to the customer related to a sale of power cables when such sales are part of a power cable project. Although the Commission recognised that sometimes accessories are sold separately from cables, it found that projects normally involve the sale of both cable and equipment including accessories. Thus, in recital 643(f) of the contested decision, the Commission includes ‘the implementation of practices to reinforce the cartel such as the collective refusal to supply accessories or technical assistance to certain competitors’ among the principal activities of the cartel.
149    It must therefore be stated that the cartel covered power cable accessories for projects below 220 kV, since they were part of the projects regarding which commercially sensitive information was exchanged, or even of those that were allocated. The oral statement of 1 September 2009 cited in paragraph 147 above gives the reason for those exchanges of information.
150    That finding is not invalidated by the evidence mentioned in the recitals of the contested decision which is relied on by the applicants. None of that evidence supports the conclusion that accessories for power cable projects with voltages below 220 kV were excluded from the scope of the infringement.
151    First, recital 171 of the contested decision cites the following information from JPS:
‘Non-Proliferation of Joints: NX [Nexans France] claims that members should control supply of accs of 220 kV and above cables (110 kV cable accs situation too complicated). Proposal from PI [Pirelli]: Accs for 220 kV and above cables. (1) Accs(materials): all members to declare who they to and what control they have (2) Technology: Proposal to promote EPDM design of one piece joint. Each member to consider their design and bring info to the next meeting.’
152    Admittedly, it should be pointed out that recital 171 of the contested decision does refer to a difference between accessories on the grounds of voltage. Although the context of that distinction is not clear, it appears that this concerns a proposal made by Nexans France and Prysmian to fully control the supply of accessories by the addition of a system of regular declarations by the cartel members on accessories and that that proposal was limited to projects with voltages of 220 kV and above.
153    However, nothing proves that the cartel participants adopted that proposal, as the remainder of the evidence on the Commission’s file contains moreover no reference to voltage or other differentiating factors. In any event, even on the assumption that that proposal was actually adopted, it is in no way apparent from such a specific proposal, limited to a system of declarations, that there was no arrangement whatsoever relating to accessories with voltages below 220 kV. The specific content of recital 171 of the contested decision is not therefore capable of substantiating the applicants’ general claim that the wording of that recital unambiguously indicates that the cartel essentially related to accessories with voltages of at least 220 kV. In addition, irrespective of whether or not that proposal was adopted, the Commission’s other findings regarding all accessories, including those involving lower voltages, remain well founded.
154    Second, recital 172 of the contested decision explains that the cartel members discussed the possible refusal to supply accessories in order to hinder certain competitors or persuade other competitors to join the cartel and thus sets out the reason why access to power cable accessories was restricted. However, that evidence makes no distinction on the basis of voltage.
155    Third, recital 223 of the contested decision refers to evidence showing that the K participants, namely the South Korean participants, had to be disciplined for non-compliance with the cartel in respect of accessories. Again, that evidence makes no distinction on the basis of voltage.
156    Fourth, recital 225 of the contested decision cites the notes of an A/R meeting held in Tokyo on 14 November 2002 attended by various participants, including Exsym, to whom the general rules of the A/R cartel configuration on the allocation of projects in the ‘export territories’ was explained. Those notes, which were already referred to in paragraph 76 above, mention ‘disclosure of GPL (Guiding Price List) table for accessories’ and specify that ‘each company will compare it with its cost prices and confirm’. That remark relates to accessories generally, and there is no indication that this agreement was limited to accessories for specific voltages.
157    Fifth, recital 238 of the contested decision refers to an email of 10 January 2003 from a Nexans France employee to two employees of Brugg Kabel, in response to a notification about a 132 kV underground cable project, stipulating, without distinction on the basis of voltage, that, ‘in case of accessories enquiry for those projects we expect you would also report so that we could define jointly a strategy suitable with the complete bids for those projects’.
158    Sixth, recital 338 of the contested decision refers to an email exchange relating to a project in China and to detailed guidance being provided by one of the cartel participants as to the minimum prices to quote, including in respect of accessories, but without any distinction on the basis of voltage.
159    In that respect, as regards the applicants’ claim that the lack of any specification of the voltage in respect of the power cable accessories in the documents cited in paragraphs 154 to 158 above does not necessarily support the finding that the participants made no distinction between the various voltages of the power cable accessories, it should be recalled that the cartel participants in some instances expressly referred, in relation to the ‘export territories’, to a difference in treatment in the context of the cartel of underground power cables on the basis of voltage. Consequently, it must be held that it is sufficiently plausible that the participants would have done the same had they intended to differentiate between accessories based on voltage.
160    In addition, as regards the applicants’ claim, based on their reply to the Commission’s request for information of 20 October 2009 and reiterated in their reply to the statement of objections, that power cable accessories with voltages below 220 kV are commodities bought in bulk by the customer and then self-installed or subcontracted for installation, it is sufficient to note that that claim is ineffective. The contested decision covers accessories only in so far as they form part of a power cable project, and not in themselves.
161    Moreover, as regards the complaint alleging a lack of reasoning, it must be held, in the light of the recitals of the contested decision cited in paragraphs 147 to 160 above, that the Commission responded sufficiently to the claim raised during the administrative procedure that accessories below 220 kV were not covered by the cartel.
162    It follows from all the foregoing that the third plea must be rejected.
The fourth plea in law, alleging an error of law and breach of the principle of equal treatment in the determination of the starting point of the applicants’ participation in the infringement
163    By their fourth plea, the applicants argue that the Commission erred in law and breached the principle of equal treatment in taking 1 April 2000 as the date on which their participation in the infringement began, on the basis of a meeting in Copenhagen (Denmark) which implicated them together with another addressee of the contested decision, namely Nexans France, to which the Commission did not impute any infringement prior to 13 November 2000, and in thus finding, in effect, that the applicants had committed the infringement of Article 101 TFEU alone, at least during the period from 1 April to 13 November 2000. According to the applicants, given than an infringement of Article 101 TFEU cannot be committed by a single undertaking alone, and requires a concurrence of wills, the Commission’s finding is unlawful. In addition, there is no objective justification for the Commission’s different treatment of Nexus, since the contribution of assets of 13 November 2000 was a simple corporate restructuring within the ‘Nexans’ group. Given that a change in the legal form and name of an undertaking does not create a new undertaking free of liability for the anticompetitive conduct of its predecessor where, from an economic viewpoint, those two undertakings are identical, the anticompetitive conduct the predecessor of Nexans France could have been imputed to its successor Nexans France, and consequently the situations of Nexans France and of the applicants were sufficiently comparable. In addition, the applicants allege that the contested decision is vitiated by a failure to state reasons in this regard.
164    The Commission disputes the applicants’ arguments.
165    It should be recalled at the outset that Nexans France did not exist before 13 November 2000, but that there was a wholly-owned subsidiary of [confidential] called Vivalec. On 13 November 2000, pursuant to an asset contribution agreement, [confidential] contributed most of its underground power cable activities to Vivalec, which changed its name to Nexans France (recital 709 of the contested decision).
166    In the contested decision, the Commission found that employees of [confidential], which subsequently became Vivalec, and then Nexans France, participated directly in the infringements from 18 February 1999 to 28 January 2009 in relation to both underground and submarine cable projects (recital 710 of the contested decision); this was not contested by the applicants. Nexans France was held liable solely for the period after 13 November 2000, the period during which it participated directly in the infringement, including under the name of Vivalec (Article 1 and recitals 711 and 912 of the contested decision).
167    According to settled case-law, the Commission must prove not only an undertaking’s participation in an infringement, but also the duration of that participation. With regard to the determination of the duration of a given undertaking’s participation in an infringement, 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 (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 235 and the case-law cited).
The evidence establishing the start of the applicants’ participation in the infringement
168    The applicants claim first of all that their liability is based exclusively on the Copenhagen meeting, mentioned in recital 149 of the contested decision.
169    It should be observed at the outset that that claim has no factual basis.
170    The Commission based its finding that the applicants were liable for their participation in the infringements from 1 April 2000 on multiple pieces of evidence set out in recitals 149 to 152 of the contested decision and, for the most part, provided by the applicants themselves in the context of their application for immunity.
171    First, recital 149 of the contested decision mentions a meeting [confidential] ‘between April and June 2000’, according to the applicants’ statements, and at which those representatives discussed project allocation.
172    Second, recital 150 of the contested decision refers to an oral statement of the applicants [confidential].
173    Third, recital 151 of the contested decision refers to an internal email of 10 April 2000 which was provided to the Commission by the applicants in the context of their application for immunity. It contains a phrase by which its author [confidential]. The content of that email proves to the requisite legal standard that the applicants were already aware of the allocation mechanism within the cartel on 10 April 2000.
174    Fourth, recital 152 of the contested decision mentions an oral statement of 3 December 2009 in which the applicants refer to a record of a meeting which the applicants traced as having taken place on 14 April 2000. [confidential] That demonstrates that, on that date of 14 April 2000, the applicants were aware of the application of a market and customer allocation scheme within Europe.
175    It must be held that that precise and consistent evidence satisfies the evidentiary threshold that the Commission was required to meet when it established the beginning of the applicants’ participation in the infringement as 1 April 2000, shortly before the dates of 10 and 14 April 2000 mentioned above, on which it has been shown that the applicants had already been participating in the cartel for some time, in the light of their proven awareness of the allocation mechanism within the cartel (see paragraphs 173 and 174 above).
The possibility of holding the applicants liable for the infringement from a date earlier than that used for Nexans France and the alleged infringement of the principle of equal treatment
176    The applicants claim next that an infringement of Article 101 TFEU cannot be committed by a single undertaking alone and requires a concurrence of wills. In their submission, it is not possible to hold them liable for the infringement from a date earlier than that applied in respect of Nexans France.
177    However, it must be stated, as the Commission observes, that that claim is based on an incorrect premiss, inasmuch as it confuses the finding of direct participation in a cartel and the finding of liability for that participation.
178    In that regard, whilst it is admittedly common ground that an infringement of Article 101 TFEU cannot be committed by a single undertaking, the fact remains that, according to the case-law, the Commission has a discretion as to the scope of the proceedings which it initiates. It cannot be obliged to find and penalise all anticompetitive conduct, nor could the Courts of the European Union hold — if only for the purposes of reducing the fine — that the Commission, in the light of the evidence available to it, should have found that there was an infringement during a particular period by a particular undertaking (see, to that effect and by analogy, judgment of 27 February 2014, LG Display and LG Display Taiwan v Commission, T‑128/11, EU:T:2014:88, paragraph 223 and the case-law cited).
179    In the present case, it follows that the Commission had a discretion for the purposes of imputing anticompetitive conduct to undertakings and for determining during which period that anticompetitive conduct had taken place, subject to the requirement that the minimum evidentiary standard be met for the entirety of the period in respect of which liability was imposed.
180    For the reasons set out paragraphs 168 to 175 above, there was a sufficient body of evidence which justified holding the applicants liable for their participation from 1 April 2000 onwards.
181    In particular, it was found that more than one undertaking was participating in the infringement as of 1 April 2000, including both attendees at the meeting in Copenhagen referred to in recital 149 of the contested decision (see paragraph 171 above). That contact between a representative of [confidential], Nexans France’s predecessor, and a representative of the applicants fell within the period during which the Commission found that [confidential] and the applicants had each participated directly in the cartel. Moreover, in their pleadings, the applicants do not dispute that that contact was anticompetitive.
182    The applicants further submit that, in finding them liable for the infringement from 1 April 2000, the Commission discriminated against them in relation to Nexans France, which was held liable only from 13 November 2000.
183    According to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgments of 27 June 2012, Bolloré v Commission, T‑372/10, EU:T:2012:325, paragraph 85 and the case-law cited, and of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 108 and the case-law cited).
184    The Court has recalled that, when an undertaking has, by its conduct, infringed Article 101 TFEU, it cannot escape being penalised on the ground that another economic operator has not been fined. An undertaking on which a fine has been imposed for its participation in a cartel in breach of the competition rules cannot request the annulment or reduction of that fine on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraphs 37 and 38 and the case-law cited).
185    The Court of Justice has thus confirmed the case-law, cited by the parties, that the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot lead to a finding by the EU judicature that it is discriminatory and, therefore, unlawful with regard to the applicants (see, to that effect, judgment of 16 November 2006, Peróxidos Orgánicos v Commission, T‑120/04, EU:T:2006:350, paragraph 77).
186    In the present case, even if the Commission committed a possible unlawful act by not holding Nexans France liable, as successor of [confidential], for the period prior to 13 November 2000, the Court considers, in the light of the case-law cited in paragraphs 184 and 185 above, that such a possible unlawful act, which is not the subject of these proceedings, cannot under any circumstances lead it to find that the applicants have been the subject of discrimination and therefore an unlawful act.
187    Accordingly, it must be held (i) that the fact that Nexans France, as successor of [confidential], was not held liable for the conduct of its predecessor from 1 April 2000 does not constitute an impediment to the applicants’ being found liable for their direct participation in an infringement of Article 101 TFEU and (ii) that the principle of equal treatment cannot usefully be relied on by the applicants in the present case.
The alleged lack of reasoning
188    The applicants claim lastly that, in so far as the Commission fails to state reasons for its differential treatment of the applicants and Nexans France, the contested decision is vitiated by lack of reasoning.
189    It is apparent from the foregoing that the contested decision explains the starting date of the applicants’ participation, fixed as 1 April 2000 (recital 911), the basis of the determination of that date (recitals 149 to 152), and the evidence regarding the starting date of Nexans France’s participation in the infringement and its liability with respect to the infringement (recitals 709 to 711).
190    In that regard, it should also be pointed out, as the Commission observes, that the applicants, which were aware of those dates throughout the administrative procedure, did not challenge them at any stage of that procedure. Accordingly, the Commission was not required to explain in additional detail its reasons for setting the beginning of the applicants’ participation as 1 April 2000.
191    Similarly, the Commission gave proper reasons for the difference of treatment between Nexans France and applicants. Since the applicants did not challenge this point during the administrative procedure, the Commission was not required to provide further reasons in this regard.
192    Consequently, the claim that the Commission failed to provide sufficient reasons for its decision in that regard must be rejected.
193    It follows from all the foregoing that the fourth plea must be rejected.
The fifth plea in law, alleging a manifest error of assessment and disregard for the presumption of innocence in the Commission’s determination of the date on which the applicants’ participation in the infringement began
194    By their fifth plea, the applicants allege that the Commission made a manifest error of assessment and disregarded the presumption of innocence in asserting that their participation in the infringement began on the earliest possible date of any meeting between ABB and Nexans France, that is to say, 1 April 2000, inasmuch as the Commission’s file indicates that that meeting took place on some unspecified date between April and mid-June 2000. In addition, the applicants allege that the contested decision is vitiated by a failure to state reasons in this regard.
195    The Commission disputes the applicants’ arguments.
196    It should be recalled that, according to the case-law, the presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (see judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission, T‑474/04, EU:T:2007:306, paragraph 76 and the case-law cited).
197    In the present case, it should be pointed out that the Commission held the applicants liable from the earliest date on which it had sufficient evidence to show participation in the cartel, namely 1 April 2000 (see paragraphs 170 to 175 above). Thus, the starting date of the applicants’ liability for participation in the cartel was based on the applicants’ own submissions in the context of their application for immunity, in particular the submission relied on in recital 149 of the contested decision (see paragraph 171 above).
198    In addition, it should be recalled that, in recitals 649, 650, 741, 756 and 757 of the statement of objections, the Commission announced that it intended to hold the applicants liable from 1 April 2000.
199    It should be pointed out, as the Commission observes, that the applicants, which were fully aware, from the time of the statement of objections, of the date of 1 April 2000 established as the beginning of their participation, did not challenge that date during the administrative procedure. Thus, in their reply to the statement of objections, the applicants expressly referred to the finding in the statement of objections that their participation had begun on that date and raised no objection.
200    In addition, as is stated in recital 563 of the contested decision, in their application for immunity, the applicants themselves confirmed that, overall, the statement of objections accurately reflected the information that they had provided. That lack of any earlier challenge by the applicants makes the date used by the Commission to mark the beginning of their participation in the infringement all the more credible.
201    It is true that, according to the case-law, no provision of EU law requires that during the administrative procedure the addressee of a statement of objections must contest the individual matters of fact or of law in it, failing which it will no longer be able to do so subsequently during the judicial proceedings. However, an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure may constitute additional evidence when determining whether an action is well founded, even if it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraphs 89 and 90), on the basis that the scope of judicial review provided for in that article extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicants and taking into account all the evidence submitted by the latter, whether that evidence be presented prior to or after the decision taken, whether it was submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as that evidence is relevant to the review of the legality of the Commission decision (see judgment of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 43 and the case-law cited).
202    It is apparent from paragraphs 199 and 200 above that, both in their reply to the statement of objections and in their application for immunity, the applicants implicitly acknowledged the accuracy of the date used by the Commission as the beginning of their participation in the infringement.
203    In accordance with the case-law cited in paragraph 201 above, it must be held that such an implicit acknowledgement may constitute additional evidence when determining whether this plea is well founded, besides the evidence to which reference is made in paragraph 197 above.
204    It follows that, by using as the beginning of the applicants’ participation in the infringement the earliest date in respect of which it had sufficient evidence, the Commission did not err and did not infringe the presumption of innocence.
205    Moreover, as regards the complaint alleging a lack of reasoning, it is sufficient to observe, in accordance with paragraph 189 above, that the contested decision explains the starting date of the applicants’ participation, fixed as 1 April 2000 (recital 911) and the basis of the determination of that date (recitals 149 to 152).
206    It follows from all of the foregoing that the fifth plea must be rejected and that the action must therefore be dismissed in its entirety.
Costs
207    Under Article 134(1) 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.
208    Since the applicants have been unsuccessful, they must be ordered to bear their own costs and, in addition, to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders ABB Ltd and ABB AB to pay the costs.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
A.M. Collins
Registrar
President
Table of contents
Background to the dispute
The applicants and sector concerned
Administrative procedure
Contested decision
The infringement at issue
The applicants’ liability and immunity from fines
Procedure and forms of order sought
Law
The first plea in law, alleging an insufficiency of evidence and a manifest error of assessment in the determination of the products in so far as concerns projects involving underground power cables with voltages between 110 kV and 220 kV
The requirements laid down by case-law in relation to evidence
The evidence in the contested decision relating to the products covered by the cartel
The scope of recital 508 of the contested decision
The need to share or allocate projects in the definition of the infringement
The additional evidence relied on by the applicants
The applicants’ oral statements on which the Commission relies
The alleged lack of reasoning
The second plea in law, alleging that there was insufficient evidence to establish that the applicants participated in the cartel in so far as concerned projects involving underground power cables with voltages between 110 kV and 220 kV
Actual or reasonably foreseeable awareness of the whole cartel in relation to underground cables
Absence of public distancing from the cartel in relation to underground cables
The oral statements of the applicants relied on by the Commission
The alleged lack of reasoning
The third plea, alleging insufficient evidence and a manifest error of assessment in the determination of the products in so far as concerns power cable accessories relating to projects involving underground cables with voltages of between 110 kV and 220 kV
The fourth plea in law, alleging an error of law and breach of the principle of equal treatment in the determination of the starting point of the applicants’ participation in the infringement
The evidence establishing the start of the applicants’ participation in the infringement
The possibility of holding the applicants liable for the infringement from a date earlier than that used for Nexans France and the alleged infringement of the principle of equal treatment
The alleged lack of reasoning
The fifth plea in law, alleging a manifest error of assessment and disregard for the presumption of innocence in the Commission’s determination of the date on which the applicants’ participation in the infringement began
Costs
* Language of the case: English.
1 Confidential information omitted.