JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
7 November 2019 (*)
(Competition — Agreements, decisions and concerted practices — Market for lead-acid car battery recycling — Decision finding an infringement of Article 101 TFEU — Fines — Value of purchases — Point 37 of the Guidelines on the method of setting fines — Obligation to state reasons — Rights of the defence — Evidence of the infringement — Concept of single or repeated infringement — Duration of the infringement — Interruption of participation in the infringement – Restriction of competition by object — Mitigating circumstances — Unlimited jurisdiction)
In Case T‑240/17,
Campine NV, established in Beerse (Belgium),
Campine Recycling NV, established in Beerse,
represented by C. Verdonck, S. De Cock, Q. Silvestre and B. Gielen, lawyers,
applicants,
v
European Commission, represented by F. van Schaik, S. Baches Opi and M. Farley, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling), in so far as it concerns the applicants, or, in the alternative, cancellation or a reduction of the amount of the fine imposed on the applicants in that decision,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,
Registrar: N. Schall, Administrator,
having regard to the written part of the procedure and further to the hearing on 21 November 2018,
gives the following
Judgment
I.      Background to the dispute
1        Campine NV and Campine Recycling NV (together ‘the applicants’ or ‘Campine’) are companies established in Belgium, which are active in the production of recycled lead, lead alloys and other products.
2        By Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) (‘the contested decision’), the European Commission found an infringement of Article 101 TFEU in the sector of the purchase of scrap lead-acid car batteries used for the production of recycled lead. Four undertakings participated in this infringement, namely, first, Campine; second, Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitement chimique des métaux SAS (together ‘Eco-Bat’); third, Johnson Controls, Inc., Johnson Controls Tolling GmbH & Co. KG and Johnson Controls Recycling GmbH (together ‘JCI’) and, fourth, Recylex SA, Fonderie et Manufacture de Métaux SA and Harz-Metall GmbH (together ‘Recylex’). The infringement was said to have taken place in the period from 23 September 2009 to 26 September 2012 (recitals 1 and 2 and Article 1(1) of the contested decision).
3        According to the Commission, the infringement is a single and continuous infringement consisting of agreements or concerted practices covering the territories of Belgium, Germany, France and the Netherlands. It consisted in the four undertakings referred to in paragraph 2 above coordinating their pricing behaviour with regard to the price of scrap lead-acid car batteries used for the production of recycled lead (recitals 1 and 2 and Article 1(1) of the contested decision).
4        Having regard to the infringement established, the Commission imposed on the applicants, jointly and severally, a fine of EUR 8 158 000 (Article 2(1)(a) of the contested decision).
A.      The administrative procedure which led to the contested decision
5        The administrative procedure was initiated following an application for immunity, within the meaning of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’), lodged on 22 June 2012 by JCI. On 13 September 2012, the Commission granted JCI conditional immunity under point 18 of that notice (recital 29 of the contested decision).
6        From 26 to 28 September 2012, the Commission carried out unannounced inspections under Article 20(4) 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) at the premises of the undertakings referred to in paragraph 2 above and those of Métal Blanc SAS, a French producer of recycled lead (recital 30 of the contested decision).
7        On 27 September 2012 and 23 October 2012 respectively, Eco-Bat and Recylex applied under the Leniency Notice for immunity or, failing that, for a reduction of the amount of the fine. On 4 December 2012, Campine submitted an application for a reduction of the amount of the fine under the same notice (recital 31 of the contested decision).
8        In the course of its investigation, the Commission sent requests for information pursuant to Article 18(2) of Regulation No 1/2003 to the undertakings referred to in paragraph 2 above and to various other undertakings (recital 32 of the contested decision).
9        On 24 June 2015, the Commission initiated the administrative procedure against the four undertakings referred to in paragraph 2 above, as well as against Métal Blanc and its sister company in the Netherlands, Van Peperzeel BV, and sent a statement of objections to each of them (recital 33 of the contested decision).
10      A CD-ROM containing the accessible parts of the Commission’s file was annexed to the statement of objections. The addressees of the statement of objections made use of their rights of access to the parts of the Commission’s file that were accessible only at the Commission’s premises (recital 34 of the contested decision).
11      By letter of 24 June 2015, the Commission informed Eco-Bat and Recylex of its provisional conclusion that the evidence which they had submitted to it represented significant added value within the meaning of points 24 and 25 of the Leniency Notice and, accordingly, of its intention to reduce the amount of the fine to be imposed on them. By letter of the same date, the Commission informed Campine of its provisional conclusion that Campine did not meet the conditions for a reduction of the amount of the fine under that notice (recital 33 of the contested decision).
12      The addressees of the statement of objections set out in writing to the Commission, within the prescribed period, their views on the objections raised against them. They also exercised their right to make oral submissions at the hearing held on 17 and 18 November 2015 (recital 35 of the contested decision).
13      By letter of 13 December 2016 (‘the letter of 13 December 2016’), the Commission informed Campine, Eco-Bat, JCI and Recylex that it intended to apply a specific increase to the fines to be imposed on them under point 37 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the Guidelines’). Campine submitted observations on that letter on 11 January 2017.
14      On 8 February 2017, the Commission adopted the contested decision, in which, in particular, it alleged that the applicants participated in the infringement, referred to in paragraph 3 above and described in more detail in paragraphs 27 to 41 below, from 23 September 2009 until 26 September 2012 and imposed on them, jointly and severally, a fine of EUR 8 158 000.
15      On 6 April 2017, the Commission adopted Decision C(2017) 2223 final, correcting the contested decision (‘the correcting decision’). The adoption of the correcting decision was justified by the fact that the Commission, first, had omitted to indicate in the contested decision the value of purchases taken into account in determining the basic amount of the fines to be imposed and, second, had made certain material errors in the calculation of the basic amount of the fine to be imposed on JCI (recitals 2 and 4 of the correcting decision). That omission and those material errors had not, however, had any impact on the amount of the fines imposed in the contested decision (recitals 2 and 4 of the correcting decision).
B.      The contested decision
1.      Relevant sector
16      The products concerned by the infringement are scrap lead-acid car batteries intended for treatment and recovery in the production of recycled lead (recital 3 of the contested decision).
17      There are four groups of operators in the lead recycling industry: first, scrap collectors; second, scrap dealers or traders; third, recycling companies; and, fourth, battery manufacturers (recital 13 of the contested decision).
18      Scrap collectors gather scrap batteries from various collection points and sell them either to scrap dealers or traders or directly to recycling companies (recital 13 of the contested decision).
19      Scrap dealers or traders act as intermediaries between scrap collectors and recycling companies. They generally act primarily on behalf of one recycling company (recital 13 of the contested decision).
20      Recycling companies perform the treatment and recovery of scrap batteries, which they either acquire directly from their own collection points or purchase from scrap collectors or from scrap dealers or traders (recital 13 of the contested decision).
21      Recycling companies are often active at several levels of the supply chain. Thus, Eco-Bat and JCI operate both as recycling companies and as scrap battery collectors. JCI is, in addition, a battery manufacturer, while Eco-Bat is also active in the wholesale and retail trade in new lead-acid batteries and other types of batteries. Campine, on the other hand, operates as a recycling company only. Recycling companies therefore interact with each other as suppliers, as customers and as competitors. Campine, Eco-Bat and Recylex supply recycled lead to JCI, but also compete with it for the purchase of lead scrap from scrap collectors or from scrap dealers or traders (recital 18 of the contested decision).
22      During the period of the infringement, the main third-party suppliers of scrap batteries for Campine, Eco-Bat, JCI and Recylex were scrap collectors or scrap dealers or traders established in Belgium, Germany, France and the Netherlands (recital 16 of the contested decision).
23      Battery manufacturers acquire recycled lead from recycling companies (recital 13 of the contested decision).
24      Some battery manufacturers have their own scrap battery collection networks or are vertically integrated with scrap battery collectors, in which case they outsource the recycling of scrap batteries to recycling companies under tolling agreements (recital 13 of the contested decision). Thus, during the period of the infringement, Campine, Eco-Bat and Recylex had each concluded such agreements with JCI. The tolling agreements between JCI and Campine accounted for a significant portion of Campine’s output. Campine purchased scrap batteries both for its own use and on behalf of JCI (recital 22 of the contested decision).
25      Other battery manufacturers have their own recycling facilities (recital 13 of the contested decision).
26      The price of scrap lead-acid batteries is the main cost component in the recycling of lead. Primary lead is traded on the London Metal Exchange (LME) (United Kingdom). The LME lead prices are the basis for determining both primary lead and recycled lead prices (recital 24 of the contested decision). Scrap battery prices generally follow the LME prices and may be expressed as a percentage of those prices (recital 25 of the contested decision).
2.      Description of the infringement
27      The Commission described the infringement at issue in recitals 40 to 182 of the contested decision.
28      In the first place, the Commission set out the basic principles of the cartel and how it was organised (recitals 40 to 58 of the contested decision).
29      First of all, the Commission stated that the objective of the cartel was to coordinate prices (target prices, maximum prices or fixed-amount price reductions) for the purchase of scrap lead-acid car batteries and to restrict competition for their purchase. According to the Commission, by achieving a reduction of the purchase prices of such scrap or preventing an increase in those prices, the participants in the cartel sought to increase their profit margin (recital 40 of the contested decision).
30      The Commission stated that the participants in the cartel coordinated their behaviour through contacts relating to prices, future market conduct and negotiations with suppliers (recital 41 of the contested decision).
31      Thus, according to the Commission, as regards prices, the participants in the cartel agreed among themselves to maintain at a certain level the prices offered to third-party scrap battery suppliers or to reduce those prices by a certain amount, sometimes in phased reductions over a set period of time. In addition to exchanging information and agreeing prices offered to specific suppliers, the participants agreed maximum price levels and target prices, expected price evolutions and purchasing intentions regarding Belgium, Germany, France and the Netherlands. They also tried to ensure that purchase prices did not fall below a certain level, which would have encouraged the suppliers to sell their scrap to third-party companies (recital 42 of the contested decision).
32      As regards future market conduct, besides exchanging information on current or future prices offered to suppliers, the participants in the cartel also occasionally exchanged information on expected volumes of purchases, on current levels of stocks and levels of activity (recital 43 of the contested decision).
33      As regards negotiations on prices with suppliers, the participants in the cartel informed each other about the prices offered to their respective third-party scrap collectors or scrap dealers, who were in direct competition with them for the purchase of scrap batteries (recital 44 of the contested decision).
34      Next, the Commission identified the individuals who had participated in the cartel, stating, in each case, the name of the company to which they belonged, the position of responsibility held there, primarily within senior management, and the period of their employment within the company concerned during the period of the infringement (recitals 45 to 48 of the contested decision). Thus, in the case of Campine, it provided the names of Mr C. (General Manager at Campine Recycling) and Mr G. (Senior Purchase Manager, then Commercial Manager at Campine Recycling). In addition, the Commission noted inter alia that Mr M., the Purchasing Director at JCI, frequently acted as an intermediary between the cartel participants (recital 47 of the contested decision).
35      Lastly, the Commission described the way in which the cartel was organised (recitals 49 to 58 of the contested decision).
36      In that regard, the Commission noted that JCI, Eco-Bat and Recylex had confirmed that, during the period from at least 23 September 2009 to 26 September 2012, a series of meetings and contacts had taken place between the participants in the cartel. They had kept each other informed, directly or indirectly, of what they had discussed with others. The Commission stated that the majority of the anticompetitive contacts took place on a bilateral basis, mainly through telephone calls, emails or text messages. Contacts also took place in person, either through bilateral meetings or, less frequently, through multilateral meetings. Some of the contacts took place at international trade events or events held by national trade associations. During those various contacts, the individuals involved typically exchanged information on the prices they were offering for the purchase of scrap batteries and on the prices they were intending to offer in the near future in Belgium, Germany, France and the Netherlands. They then agreed on target prices or maximum prices to pay to their suppliers, or on fixed-amount price reductions (recitals 49 and 50 of the contested decision).
37      The Commission also explained the pattern of bilateral contacts which generally took place, stating in particular that the frequency and intensity of those contacts was driven by fluctuations in LME lead prices (recitals 53 and 54 of the contested decision).
38      The Commission further stated that the participants in the cartel monitored the effective implementation of the agreed prices (recital 55 of the contested decision). It also noted that they were aware of the unlawful nature of the contacts and that they tried to limit any written communication. Some of the individuals involved even used coded language referring to weather conditions,
in their communications (recital 56 of the contested decision).
39      Lastly, the Commission provided a table setting out the date of each anticompetitive contact, the nature of those contacts (meeting, email, telephone call, text message, telephone conference or unspecified contact) and the undertakings and their representatives who had taken part in them (recital 58 of the contested decision).
40      As regards Campine, it was found to have been involved in six contacts: first, participation by Mr C. (Campine) at a meeting with representatives of the three other undertakings concerned in Windhagen (Germany) on 23 September 2009; second, an email of 10 February 2010 from Mr C. to Mr M. (JCI) (‘the email of 10 February 2010’); third, participation by Mr C. in a meeting with representatives of the three other undertakings concerned in Cologne (Germany) on 4 April 2011; fourth, a text message of 7 March 2012 from Mr M. to Mr C.; fifth, an unspecified contact and an exchange of text messages between Mr C. and Mr M. on 30 and 31 May 2012 and, sixth, a telephone conversation between Mr C. and Mr M. that occurred around 27 June 2012 concerning exchanges which had taken place a few days earlier between other participants in the cartel.
41      In the second place, the Commission set out the ‘chronology of events’, describing the various anticompetitive contacts that had taken place between the participants in the cartel and certain other relevant events related to those contacts (recitals 59 to 182 of the contested decision).
3.      The Commission’s legal assessment of the infringement
42      In recitals 183 to 243 of the contested decision, the Commission set out its legal assessment of the conduct of the undertakings concerned.
43      In the first place, the Commission described the nature of the infringement at issue (recitals 185 to 230 of the contested decision).
44      In that regard, first, the Commission set out a series of considerations in order to establish, by reference to the facts described in the ‘chronology of events’, that the alleged conduct of the undertakings concerned had all the characteristics of an agreement or of a concerted practice for the purposes of Article 101(1) TFEU (recitals 185 to 196 of the contested decision).
45      Second, the Commission stated that each of the aspects of the alleged conduct of the undertakings concerned had the object of restricting competition and, therefore, constituted an infringement of Article 101(1) TFEU. The Commission considered that it could nevertheless be concluded that the various individual infringements of Article 101(1) TFEU together constituted a single and continuous infringement for which each of those undertakings could be held liable, since, first of all, their conduct was part of an overall plan pursuing a common anticompetitive objective, second, they all intended to contribute to that overall plan and, lastly, they were aware of the unlawful conduct planned or put into effect by each of the others in pursuit of the same objectives or could reasonably have foreseen it and were prepared to take the risk (recitals 197 to 230 of the contested decision).
46      In the second place, the Commission considered that the alleged conduct of the cartel participants constituted a restriction of competition by object for the purposes of Article 101(1) TFEU (recitals 231 to 238 of the contested decision).
47      In the third place, the Commission found that that conduct was capable of affecting trade between Member States, after having indicated, in essence, that the relevant market was characterised by a substantial volume of trade between Member States, that that conduct covered at least Belgium, Germany, France and the Netherlands and that it concerned both imports and exports (recitals 239 to 241 of the contested decision).
48      In the fourth place, the Commission noted that there were no indications in the present case that the conditions of Article 101(3) TFEU could be fulfilled and that, moreover, none of the participants in the cartel had claimed that they had been (recitals 242 and 243 of the contested decision).
4.      Duration of participation in the infringement
49      In recitals 244 to 264 of the contested decision, the Commission examined the question of the duration of the relevant undertakings’ participation in the infringement.
50      In the first place, the Commission took 23 September 2009 as the commencement date of the infringement, that being the date of the meeting in Windhagen (Germany) in which all the undertakings concerned had participated. With regard to the end date of the infringement, the Commission took 26 September 2012 for Campine, Eco-Bat and Recylex, that being the date of the commencement of its inspections, and 22 June 2012 for JCI, the date on which JCI lodged its application for immunity (recitals 244 and 245 of the contested decision).
51      In the second place, the Commission considered whether there was evidence of facts sufficiently close in time for it to be reasonable to conclude that the infringement had continued without interruption between two specific dates (recitals 246 to 264 of the contested decision). As regards Campine specifically, the Commission found that Campine had participated in the infringement without interruption from 23 September 2009 until 26 September 2012, that is for a period of ‘3 years and 4 days’, despite the fact that there was no direct evidence of its participation in anticompetitive contacts during an initial period of 11 months and a second period of 10 months (recitals 248 to 253 of the contested decision).
5.      Liability for the infringement
52      In recitals 265 to 287 of the contested decision, the Commission examined the issue of the attribution of liability for the infringement.
53      With regard, in particular, to the applicants, the Commission noted that Campine Recycling had participated directly in the infringement through Mr C. and Mr G. and that, throughout the infringement period, 100% of its shares were held by Campine NV. Accordingly, it held those two companies jointly and severally liable for the infringement (recitals 272 to 275 of the contested decision).
6.      Calculation of the amount of the fines
54      In recitals 288 to 420 of the contested decision, the Commission examined the issue of the fines to be imposed on the addressees of that decision, after having found that they should be ordered, first, to bring the infringement to an immediate end, if they had not already done so, and, second, to refrain thenceforth from any restrictive practice having the same or a similar object or effect. Moreover, the Commission rejected Campine’s claims that it had not intentionally participated in the infringement and that it was not proven that it was aware of any overall plan relating to the single and continuous infringement (recitals 290 to 293 of the contested decision).
55      As regards the calculation of the amount of the fines, the Commission applied, in the contested decision, the methodology set out in the Guidelines and the Leniency Notice.
(a)    Starting point for setting the basic amount of the fines
56      In determining the basic amount of the fines, the Commission took into account the value of the purchases of scrap lead-acid car batteries made by each of the undertakings concerned, in the course of the full business year 2011, from scrap collectors, scrap dealers or traders established in Belgium, in Germany, in France and in the Netherlands, including purchases made directly from collection points where used batteries were deposited (recitals 297 to 319 of the contested decision).
(b)    Basic amount of the fines
57      The Commission noted that, in accordance with the Guidelines, the basic amount of the fine consisted of an amount of up to 30% of an undertaking’s relevant value of purchases, depending on the degree of gravity of the infringement, multiplied by the number of years of the undertaking’s participation in the infringement, and an additional amount of between 15 and 25% of the value of an undertaking’s relevant value of purchases, irrespective of duration (recital 320 of the contested decision).
58      In order to determine the percentage of the value of purchases by reference to the degree of gravity of the infringement, the Commission examined and took into consideration the nature of the infringement (recitals 321 to 334 of the contested decision). In that regard, it set the percentage at 15% for all the undertakings concerned, stating that the infringement consisted in a horizontal price-fixing agreement which was, by its very nature, among the most harmful restrictions of competition.
59      Since the duration of Campine’s, Eco-Bat’s and Recylex’s participation in the infringement was 1 100 days, the Commission set the multiplier to be applied to those undertakings for the duration of the infringement at 3.01 (recital 344 of the contested decision). It used a multiplier of 2.74 for JCI, which had participated in the infringement for 1 004 days (recital 344 of the contested decision).
60      In order to deter undertakings from participating in agreements or concerted practices prohibited as incompatible with the internal market, the Commission, on the basis of the provisions of point 25 of the Guidelines and in the light of its assessment of the nature of the infringement (see paragraph 58 above), included in the basic amount of the fines an additional amount of 15% of the value of their purchases (recitals 345 to 347 of the contested decision).
61      At the end of that first stage, the Commission set the basic amount of the fine to be imposed on Campine at EUR 7 807 000 (recital 348 of the contested decision).
(c)    Adjustments to the basic amount of the fines
62      The Commission did not find that there were any aggravating circumstances in the case of the addressees of the contested decision (recitals 349 and 350 of the contested decision).
63      The Commission granted Campine a reduction of 5% of the basic amount due to mitigating circumstances, on the ground, in essence, that Campine had played only a minor or peripheral role in the infringement (recitals 351, 352, 355 and 358 of the contested decision).
64      Nor, moreover, did the Commission consider it necessary to impose an increase in the basic amount of the fine on any of the addressees of the contested decision under point 30 of the Guidelines (recitals 360 and 361 of the contested decision).
65      Lastly, on the basis of point 37 of the Guidelines, the Commission decided to increase by 10% the amount of the fine to be imposed on each of the addressees of the contested decision in order to take into account the particularities of the case and to achieve deterrence (recitals 363 to 380 of the contested decision). In essence, it justified that increase on the basis that, in the present case, what was at issue was a purchase cartel and the value of purchases in itself was unlikely to be an appropriate proxy for reflecting the economic importance of the infringement. It explained, in that regard, that in the case of a cartel whose objective it is to reduce purchase prices or to prevent their increase, the more successful it is, the lower the amount of the value of purchases and thus the amount of the fine.
(d)    Application of the 10% of turnover limit
66      The Commission applied the 10% of turnover limit, pursuant to Article 23(2) of Regulation No 1/2003. The amount of the fine imposed on Campine after that limit was applied was EUR 8 158 315 (recitals 381 to 383 of the contested decision).
(e)    Application of the Leniency Notice and the final amount of the fines
67      In recitals 384 to 411 of the contested decision, the Commission decided on the application of the Leniency Notice.
68      As regards Campine, first of all, the Commission noted that, in its application for a reduction of the amount of the fine of 4 December 2012, it had not ‘disclosed’ its participation in the cartel within the meaning of point 23 of that notice (recitals 406 and 407 of the contested decision). Next, the Commission stated that that request mainly consisted of comments on the documents found during the inspections carried out at Campine’s premises and which did not represent any significant added value in relation to the information already in its possession (recital 408 of the contested decision). In addition, it observed that Campine had been the last undertaking concerned to apply for leniency and that, on the date on which Campine had submitted its request, the Commission could already rely on the information and evidence submitted by JCI, Eco-Bat and Recylex, in addition to the documents obtained during the inspections (recital 409 of the contested decision). Lastly, the Commission found that, in addition to the documents found during the inspections carried out at Campine’s premises, the only documents originating from Campine that had been used to describe the infringement were those included in its replies to the requests for information (recital 410 of the contested decision).
69      In the light of those various points, the Commission considered that Campine should not be granted a reduction of the fine under the Leniency Notice (recital 411 of the contested decision).
70      The final amounts of the fines imposed were EUR 8 158 000 for Campine, EUR 32 712 000 for Eco-Bat, EUR 0 for JCI and EUR 26 739 000 for Recylex (recital 420 and Article 2 of the contested decision).
II.    Procedure and forms of order sought
71      The applicants brought the present action by application lodged at the Court Registry on 20 April 2017.
72      On a proposal from the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure pursuant to Article 89 of its Rules of Procedure, requested the Commission to respond in writing to certain questions and to produce certain documents. The Commission responded to those questions and produced the documents requested within the prescribed period, with the exception of the full version of the email of 10 February 2010
(see paragraph 40 above), which, in its view, contained confidential data relating to a third party, namely JCI.
73      By document lodged at the Court Registry on 19 October 2018, the applicants asked the Court to request the Commission, in the context of a measure of inquiry taken pursuant to Article 91(b) of the Rules of Procedure, to produce the full version of the email of 10 February 2010. The Commission having, by letter lodged at the Court Registry on 5 November 2018 and notified to the applicants on 7 November 2018, communicated that full version spontaneously, the request for a measure of inquiry became devoid of purpose.
74      The parties presented oral argument and replied to the Court’s oral questions at the hearing on 21 November 2018.
75      At the hearing, the applicants submitted a copy of a letter of 9 April 2010 that Mr M. (JCI) sent to Mr C. (Campine), to which a copy of a contract dated 16 December 2009 was annexed relating to Campine’s sale to JCI of soft lead or lead alloys in respect of 2010. The Court decided to place those documents in the case file after providing the Commission with a copy thereof and hearing the Commission, while reserving its decision on their admissibility.
76      Also at the hearing, the applicants requested that the email of 10 February 2010 be removed from the case file, claiming that they had had access to the full version of it only on 7 November 2018 and that their rights of defence had therefore been infringed.
77      The applicants claim that the Court should:
–        annul the contested decision in so far as it relates to them;
–        in the alternative, cancel or reduce the amount of the fine in line with the arguments submitted in the application;
–        order the Commission to pay the costs.
78      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
III. Law
79      In support of the action, Campine relies on four pleas in law.
80      In the first place, Campine claims that the Commission infringed the obligation to state reasons, its rights of defence and the principles of good administration, legal certainty, protection of legitimate expectations and non-discrimination, when, on the basis of point 37 of the Guidelines, it increased by 10% the amount of the fine for all the addressees of the contested decision.
81      In the second place, Campine claims that the Commission has not established to the requisite legal standard that Campine infringed Article 101(1) TFEU.
82      In the third place, Campine alleges infringement of Article 23(3) of Regulation No 1/2003 and of the Guidelines, in that the Commission did not correctly assess the gravity of the infringement, its duration or the mitigating circumstances, and infringement of the principle of non-discrimination when calculating the basic amount of the fine.
83      In the fourth place, Campine argues that, if the Court does not annul the contested decision on the basis of the complaints relied on in the context of the first plea for annulment, it should at the very least annul the 10% increase in the amount of the fine applied on the basis of point 37 of the Guidelines.
84      The first two pleas are relied on in support of its principal head of claim, seeking annulment of the contested decision, and the last two pleas in support of its subsidiary head of claim, seeking cancellation or reduction of the amount of the fine.
85      Before examining those various pleas, it is necessary to rule on the admissibility of the documents produced for the first time at the hearing by Campine, and on its request to have the email of 10 February 2010 removed from the case file.
A.      Admissibility of the documents produced by Campine at the hearing and its request to have the email of 10 February 2010 removed from the case file
86      In the first place, with regard to the letter of 9 April 2010 from Mr M. (JCI) to Mr C. (Campine) and the contract annexed thereto, which Campine produced at the hearing, it should be noted that it is apparent from Campine’s oral arguments before the Court that it relies on those documents to corroborate its claim, which it had already made in its pleadings, that the email of 10 February 2010, to which it obtained full access only after the close of the written part of the procedure (see paragraph 73 above), concerns exclusively the relations that it had with JCI in the context of a tolling agreement.
87      At the hearing, the Commission raised no objection to these documents being placed on the case file and adopted a position on their relevance and probative value.
88      In the light of the matters set out in the previous two paragraphs, it must be held that the documents in question are admissible in the present proceedings.
89      In the second place, as regards the request to remove the email of 10 February 2010 from the case file, at the hearing, Campine provided as justification for this the fact that the Commission’s failure to communicate the full version of that email to it had infringed its rights of defence. Campine submits that, if it had had access to the redacted material in the non-confidential version of the email of 10 February 2010, it would have been able to establish that that email, as a whole, that is to say even the elements relied on against it, formed part of the wholly legitimate context of the tolling agreement relationship that it had with JCI. Its rights of defence were all the more infringed because, in its submission, the redacted passages of that email could not be confidential vis-à-vis it, since it was itself the author of that document.
90      In that regard, it should be recalled that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the Union’s Courts ensure (see judgment of 18 June 2013, ICF v Commission, T‑406/08, EU:T:2013:322, paragraph 115 and the case-law cited).
91      Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (judgments of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 10, and 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, paragraph 66).
92      In that connection, Article 27(1) of Regulation No 1/2003 provides (i) that the Commission is to give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity to be heard on the matters to which the Commission has taken objection and (ii) that the Commission is to base its decisions only on objections on which the parties concerned have been able to comment.
93      It should also be recalled that, according to the case-law, the rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission might have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see judgment of 24 May 2012, MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraph 269 and the case-law cited).
94      In that regard, applicants who have raised a plea alleging infringement of their rights of defence cannot be required to set out in the application detailed arguments or a consistent body of evidence to show that the outcome of the administrative procedure might have been different if they had had access to certain documents which were in fact never disclosed to them. Such an approach would in effect amount to requiring a probatio diabolica (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraph 161).
95      It is nevertheless for the applicant to adduce prima facie evidence that the undisclosed documents would be useful for its defence (judgment of 15 March 2000, Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, EU:T:2000:77, paragraphs 409, 415 and 421).
96      In the present case, the document which Campine requests be removed from the file is an email sent on 10 February 2010 by one of its executives, Mr C., to the Purchasing Director at JCI, Mr M. It is not disputed that, during the administrative procedure, JCI applied for and obtained confidential treatment of that email and that, therefore, at least until 7 November 2018 (see paragraph 73 above), Campine had access only to a version of that email in which the material declared confidential had been redacted. In its pleadings, Campine explained that, although it was the author of that email, it had not found the original of it.
97      In that regard, first, it should be pointed out that all the material from the email of 10 February 2010 which was relied on against Campine in the contested decision appears in the non-confidential version of that email to which it had access during the administrative procedure.
98      Second, it should be noted that, as the Commission observed in its pleadings without being contradicted by Campine, Campine did not request the Hearing Officer to grant it access to the redacted passages of the email of 10 February 2010, as it was entitled to do, in accordance with Article 7(1) of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29).
99      Third, it should be pointed out that, although Campine had access to the full version of the email of 10 February 2010 only at an advanced stage of the proceedings before the Court, this did not prevent it from claiming, in the application and the reply, that that email concerned only the relationship that it had with JCI under a tolling agreement. Campine could therefore have put forward the same argument at the stage of the administrative procedure, but did not do so.
100    Fourth, it must be stated that Campine, which was entirely able to give its opinion at the hearing on the redacted passages of the email of 10 February 2010, in particular by producing new documents (see paragraphs 75 and 86 to 88 above), has not adduced any prima facie evidence that those passages would be useful for its defence. Although, as the Commission moreover admitted at the hearing, those passages concern discussions relating to a tolling agreement between Campine and JCI, they nevertheless clearly differ both in form and substance from the passage of the same email relied on against Campine in the contested decision. It should be added that the Commission’s interpretation of that latter passage is corroborated by one of the oral statements that JCI made in its application for immunity (see paragraph 158 below).
101    In the light of the foregoing, it must be held that Campine has not established to the requisite legal standard that the fact that the Commission gave it access to the full version of the email of 10 February 2010 only at a very late stage of the proceedings before the Court prevented it from properly exercising its rights of defence. Accordingly, nothing justifies removing that email from the case file.
B.      The principal head of claim, seeking the annulment of the contested decision
102    It is first of all necessary to examine the second plea, in which Campine submits that the Commission has not established to the requisite legal standard that it infringed Article 101(1) TFEU.
1.      The second plea, alleging that the Commission has not established to the requisite legal standard that Campine infringed Article 101(1) TFEU
(a)    Preliminary observations
103    Campine divides the second plea into two parts. By the first part, it argues that the Commission wrongly assessed the evidence relating to the six collusive contacts alleged against Campine. That evidence does not substantiate the facts as described in the contested decision. By the second part, it submits that that evidence does not demonstrate that it infringed Article 101(1) TFEU. In particular, the Commission failed to prove, first, that Campine had participated in the overall agreement described in the contested decision, second, that the conduct attributed to it constituted a single and continuous infringement and, third, that that conduct had an anticompetitive object or effect.
104    It should be noted at the outset that, in this plea, Campine adopts a selective approach consisting in challenging the merits of the Commission’s findings in relation to its participation in the cartel in question by examining separately each of the six anticompetitive contacts in which it was specifically found to have been involved, while completely disregarding tens of other anticompetitive contacts identified in the contested decision, all the factual elements and evidence relating to those contacts and the general context of the infringement. Moreover, such an approach is incompatible with Campine’s position, which emerges from several passages of its pleadings and which it moreover confirmed at the hearing in response to a question from the Court, according to which, in the contested decision, the Commission demonstrated to the requisite legal standard the existence of the cartel in question in relation to the three other undertakings concerned, namely Eco-Bat, JCI and Recylex.
105    In addition, following on from the above and in the light of the approach adopted by Campine, it is appropriate, for the purposes of these proceedings, to regard as established the factual elements and the evidence which Campine does not dispute and the conclusions that the Commission draws from this in the contested decision. Questioned in this regard by the Court at the hearing, Campine stated that it was calling into question the contested decision only as regards the allegations made therein in relation to it and only in so far as any infringement of the competition rules described therein was attributed to it.
106    Lastly, it is appropriate to recall certain principles relating to the burden of proof and the adducing of evidence of anticompetitive conduct.
107    In accordance with well-established case-law, in the field of competition law, it is incumbent on the Commission to prove the infringement found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 58, and of 14 October 2004, Dresdner Bank v Commission, T‑44/02, not published, EU:T:2004:299, paragraph 59).
108    Where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 92 and the case-law cited). The presumption of innocence constitutes a general principle of EU law, laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union, which applies to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments (see, to that effect, judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73).
109    Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement and to support the firm conviction that the alleged infringements constitute a restriction of competition within the meaning of Article 101(1) TFEU (see judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 96 and the case-law cited).
110    However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 40 and the case-law cited).
111    The evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 101(1) TFEU by an undertaking must not be assessed separately, but as a whole (judgments of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 185, and of 12 December 2014, Case T‑558/08, Eni v Commission, EU:T:2014:1080, paragraph 35).
112    It is also necessary to take account of the fact that the activities which anticompetitive practices and agreements entail take place clandestinely, that meetings are held in secret and that the associated documentation is reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an 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 (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, and of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraph 51).
113    Moreover, in the case of an infringement extending over a number of years, the fact that direct evidence of an undertaking’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015: 614, paragraph 27).
114    It should also be noted that, according to the case-law, although it is for the authority alleging an infringement of the competition rules to prove it, it is for the undertaking raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 29).
115    Moreover, even if the burden of proof rests, according to those principles, on the Commission or on the undertaking concerned, the factual elements on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 30).
116    Accordingly, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is insufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was incapable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned because of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls into question the probative value of the evidence relied on by the Commission (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 76).
117    Moreover, it is settled case‑law that no provision or any general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the TFEU (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 46 and the case-law cited).
118    Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. Nonetheless, in view of the logic inherent in the procedure provided for in the Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the undertaking’s cooperation, thereby jeopardising its chances of benefiting fully from the Leniency Notice (see, by analogy, judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 47 and the case-law cited).
119    In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 48 and the case-law cited).
120    Furthermore, the Court of Justice has already pointed out that a statement made by a company admitting the existence of an infringement by that company entails considerable legal and economic risks, including, inter alia, the risk of actions for damages being brought before the national courts, in the context of which the Commission’s establishment of a company’s infringement may be invoked (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, paragraphs 140 and 141 and the case-law cited).
121    Nonetheless, statements made by the undertakings concerned in the context of an application for leniency pursuant to the Leniency Notice must be assessed with caution and, in general, cannot be regarded as particularly reliable evidence if they have not been corroborated by other evidence (judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 49).
122    According to settled case-law, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 50 and the case-law cited), though the degree of corroboration required may be less in view of the reliability of the statements at issue (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 135).
123    It is in the light of those observations that Campine’s arguments and complaints must be examined.
(b)    The first part of the second plea, alleging incorrect assessment of the evidence
(1)    Arguments of the parties
124    Campine asserts that there is no direct evidence of an unlawful agreement concerning purchase prices between it and one of the other addressees of the contested decision. In particular, none of the six contacts alleged against it by the Commission can be classified as anticompetitive or establish that Campine participated in the cartel at issue. In essence, Campine claims to have confined itself to maintaining contact with its main customer JCI, with which it had entered into tolling agreements. The Commission expressly acknowledged in the contested decision that the contacts relating to those agreements were not anticompetitive. Moreover, Campine claims that the statements made by the applicants for immunity or leniency are vague and contradictory, and contain inconsistencies as well as errors. Furthermore, some of those applicants tended to ‘confess too much’ or exaggerate, in order to qualify for leniency. Lastly, Campine submits that the Commission entirely misinterpreted the scant existing documentary evidence, considered it out of its context, ‘generalised its secretive, imprecise and fragmentary wording’ and failed to take into account the exculpatory statements which Campine had provided.
125    In particular, in the first place, Campine claims that there is no evidence that the Windhagen meeting of 23 September 2009 had any anticompetitive purpose and takes the view that it is incorrect to present it as the first cartel meeting, in the course of which the participants concluded an overall agreement concerning their future market behaviour, decided on the means and patterns of communication and developed a coded language.
126    In that regard, first, Campine complains that the Commission failed to take account of the fact that that meeting had been organised on the initiative of JCI in order to discuss the regulatory requirements laid down by Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, and corrigendum OJ 2007 L 136, p. 3), as amended by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’). The representative of Campine at that meeting, namely Mr C., thought that it would be limited to discussions on the REACH Regulation, and nothing in the Commission’s file establishes that he knew that it had any anticompetitive object or that there already existed anticompetitive agreements between the other participants.
127    Second, Campine complains that the Commission misinterpreted the statements made by the applicants for immunity or leniency concerning the Windhagen meeting. Campine asserts that those applicants did not acknowledge that any overall agreement concerning purchase prices was concluded at that meeting or during the dinner which followed. Those statements do not prove that the participants discussed in detail scrap battery purchase prices or agreed on those purchase prices. In actual fact, the participants confined themselves to a general very high-level discussion about high scrap battery prices. Lastly, none of those applicants stated that Campine was involved in an agreement concerning purchase prices.
128    Third, Campine claims that the only documentary evidence on which the Commission relied in establishing the anticompetitive object of the Windhagen meeting is a sheet of paper containing handwritten notes made by Mr G. (Campine) (‘the handwritten notes’), who was not present at that meeting, during a conversation that he had had internally with Mr C. (Campine) a few days after that meeting. After stating that the handwritten notes should be interpreted with the greatest caution, Campine argues that they in no way reflect what was discussed at the Windhagen meeting, but contain only the considerations, speculations and estimates of Mr G. and Mr C. concerning the German market. Campine specifies that, at that time, it had lost its major supplier in Germany following the latter’s acquisition by Eco-Bat and that Mr G. and Mr C. were therefore ‘brainstorming’ about whether there was any sense in setting up a new partnership in the German market. It states that Mr C. met with Mr M. (JCI) on 24 September 2009 to discuss the annual negotiation of the tolling agreement and that the handwritten notes also relate, and above all, to that latter meeting. Those notes do not therefore prove that an anticompetitive multilateral meeting was held in Windhagen.
129    Fourth, Campine argues that, following the Windhagen meeting, it was not involved in any price discussion with the other cartel participants.
130    In the second place, Campine disputes the Commission’s interpretation of the email of 10 February 2010. It rejects the assertion of the Commission that the various participants were trying to conceal the unlawfulness of their contacts by using a coded language referring to weather conditions in their communications. It submits that Eco-Bat indeed expressly stated that there was no agreement on the use of such coded language. It goes on to state that the use of weather-related terminology is not surprising in the battery recycling sector, as sales of new batteries depend to a significant extent on those conditions, with cold winters leading to an increase in demand and mild winters to a decrease in demand. The email in question may thus be understood as referring to low temperatures, with cold winters benefiting JCI’s and Campine’s activities. Another plausible explanation for the references to meteorological conditions in the email is that Mr C. intended to end that email, which concerned the tolling agreement concluded between Campine and JCI, on a positive note, by using humour or irony, given Mr M.’s ‘particular’ personality. Moreover, it is for the Commission to prove that the email of 10 February 2010 has nothing to do with that agreement.
131    Campine adds that, if the participants had really been trying to hide secret illegal communications, they would not have used such coded language, which is so easy to decipher and would attract even more attention. At the hearing, Campine stated that it was clearly apparent from the full version of the email of 10 February 2010, to which it finally had access during the proceedings before the Court (see paragraph 73 above), that it concerned exclusively the tolling relationship that it had with JCI and negotiations relating to the remuneration of that tolling.
132    Lastly, Campine notes that no response to that email was found during the investigation or produced by JCI.
133    In the third place, Campine submits that there is no evidence of its participation in any agreement concerning maximum purchase prices concluded at the meeting in Cologne on 4 April 2011. It states that the official reason for that meeting was to discuss the requirements laid down by the REACH Regulation and that Mr C. (Campine) found himself in a difficult situation when the discussions concerning the market began, since he could not publicly distance himself from them, because they were conducted and co-ordinated by JCI, which was its most important customer. In any event, the fact that, subsequently and until at least March 2012, Campine was not invited to participate in any of the anticompetitive contacts in relation to the cartel shows that it had distanced itself from the cartel. Moreover, it claims that JCI, Eco-Bat and Recylex gave inconsistent information concerning that meeting in their immunity or leniency applications and their subsequent statements. Furthermore, the statements made by those undertakings concerning the discussions which took place at that meeting are not corroborated by any evidence. In particular, the Commission did not find any notes taken during the meeting of 4 April 2011. Lastly, Mr C. certainly did not participate in the exchanges which took place between the other participants in the meeting after that meeting.
134    In the fourth place, Campine takes the view that the existence of any anticompetitive contact between itself and JCI cannot be inferred from the text message that Mr M. (JCI) sent to Mr C. (Campine) on 7 March 2012. First, Campine argues that that text message was very vague and that it was probably sent to him by mistake, JCI having moreover acknowledged that Campine was not interested in the prices on the German market. Second, Campine points out that the author of the text message himself stated that he did not recall the context in which it had been sent and did not confirm the anticompetitive nature of that contact. Third, Campine asserts that it is not proved that Mr C. received the text message, that he responded to it or that it was followed up in any other way. Fourth, Campine claims that the three recipients of the text message each gave it a different interpretation.
135    In the fifth place, Campine disputes the Commission’s view that it is apparent from certain contacts which occurred during May 2012 that it had discussed with JCI prices relating to the Netherlands. In that regard, first, Campine argues that the claim that Mr M. (JCI) informed his colleague, Mr Co. (JCI), ‘Open Market’ manager, that he would call Mr C. (Campine) by 16 May 2012 at the latest in order to align the new price level for the Netherlands, is not corroborated by any evidence
with the exception of an oral statement from JCI. Second, it claims that it cannot be inferred from the text messages of 29 and 31 May 2012 that it was engaged in anticompetitive behaviour. On the contrary, those text messages demonstrate that it did not wish to go along with the three other undertakings concerned and that it set its prices independently. Moreover, Mr M. probably suggested that he had Mr C. under his control, even though that was not necessarily the case. Lastly, the messages exchanged in May 2012 all relate to past prices.
136    In the sixth place, as regards the contact that it allegedly had with JCI at the end of June 2012, first of all, Campine alleges an infringement of its rights of defence, in that the Commission, on the one hand, did not indicate in the statement of objections that the internal emails exchanged between Mr C.
(Campine) and Mr G. (Campine) on 27 June and 2 July 2012 constituted evidence of anticompetitive behaviour and, on the other hand, relied on two responses from JCI to requests for information, to which Campine had no access, in order to conclude that Campine had engaged in anticompetitive conduct on 27 June 2012. On that last point, Campine notes that, in its statement of objections, the Commission stated that the last anticompetitive contact for which it had evidence concerning Campine had occurred on 31 May 2012. Next, Campine denies having had any anticompetitive contact with JCI on 27 June 2012. It claims that the internal email of that date from Mr C.
to Mr G.
must be understood as meaning that Mr C.
was discussing with JCI, as a party to the tolling agreement, the purchase price of the scrap batteries which Campine had ‘borrowed’ from JCI’s stocks of scrap that Campine held under that agreement. It adds that it did not take part in the price agreements concluded between the cartel participants during the week of 21 to 27 June 2012. The internal email of 2 July 2012 from Mr G.
does not prove the existence of any unlawful contact or price agreement; Campine was simply able to pick up certain market signals and to adapt to the general price levels on the market.
137    The Commission rejects the arguments put forward by Campine concerning the six anticompetitive contacts in which it was found to have been involved. It criticises Campine’s approach of disputing its participation in the cartel, by examining separately each of those contacts.
(2)    Findings of the Court
(i)    The meeting in Windhagen on 23 September 2009
138    In recitals 65 to 71 of the contested decision, the Commission examined the content of the discussions at a meeting in Windhagen on 23 September 2009, at which, as is apparent from the case file and as is common ground between the parties, each of the addressees of that decision, in this case Campine (in the person of Mr C.), Eco-Bat (in the person of Mr H.), JCI (in the person of Mr M.) and Recylex (in the person of Mr D.) was present. It is also apparent from the case file that the meeting was organised on JCI’s initiative, through Mr M., and that its official purpose was to discuss the regulatory requirements laid down by the REACH Regulation.
139    In the first place, it should be pointed out that, contrary to what Campine claims, the Commission did not consider the Windhagen meeting of 23 September 2009 to be the first cartel meeting, in the course of which its participants concluded an ‘overall agreement’ concerning their future market behaviour, decided on the means and patterns of communication and developed a coded language. As is apparent in particular from recital 244 of the contested decision, the Commission relied on that meeting to determine the date on which the infringement began, since it was the first meeting that had brought together the four undertakings concerned and in relation to which it had clear and convincing evidence. Moreover, as is clear from recital 64 of the contested decision, it was from the Windhagen meeting of 23 September 2009 onwards that the contacts between those undertakings became more concrete.
140    While, for the reasons which will be examined below, the Commission considered that the Windhagen meeting of 23 September 2009 was anticompetitive in nature, at no point in the contested decision did it claim that the participants at that meeting had entered into any ‘overall agreement’ concerning their future market behaviour. However, for the purposes of characterising the various unlawful actions alleged against the undertakings concerned as a single and continuous infringement, the Commission established whether they displayed a link of complementarity, in that each of them was intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contributed to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective (see recitals 197 to 208 of the contested decision). It is on the basis of an overall assessment of all the evidence at its disposal, and not only that relating to the discussions at the Windhagen meeting of 23 September 2009, that the Commission concluded, in recital 209 of the contested decision, that ‘each participant [had] intentionally contributed to the overall plan that was aimed at distorting the normal movement of prices on the market for scrap lead-acid automotive batteries’.
141    Nor did the Commission conclude, at any point in the contested decision, that, at the Windhagen meeting of 23 September 2009, the participants had agreed on the ‘means and patterns of communications’ and had developed a ‘coded language’. On the contrary, in recital 56 of that decision, it found that ‘there were no specific rules on how to communicate among the parties’. With regard in particular to the coded language, it found, in recital 208 of the contested decision, that ‘some of the individuals involved used [such] language in some of their communications, for instance referring to weather conditions’. However, it did not claim that this coded language, used occasionally by some of the individuals concerned, had been explicitly conceived or developed, either at the Windhagen meeting on 23 September 2009 or at any other point, as a feature that was essential to the cartel’s operation. Moreover, none of the evidence to which it refers in support of the abovementioned finding relates to the meeting.
142    In the second place, it must be held that, contrary to what Campine claims, the Commission has demonstrated to the requisite legal standard the anticompetitive nature of the Windhagen meeting of 23 September 2009.
143    In that regard, it must be stated that, in their oral statements, JCI, Eco-Bat and Recylex unequivocally acknowledged the anticompetitive nature of the exchanges that took place at that meeting.
144    Thus, in its oral statement of 5 May 2014, JCI stated inter alia that the individuals mentioned in paragraph 138 above, including Mr C. (Campine), had ‘discussed and agreed to maximum purchase price[s] for scrap batteries’. In the same vein, in its oral statement of 26 November 2012, Eco-Bat stated that ‘the purpose of this meeting was discussions about the REACH regulation, but that ‘Mr [H’s (Eco-Bat)] best recollection is that he ([as] for the Cologne dinner …) used the reference (REACH) [a]s a cover for discussions involving used battery [purchase] prices’. As for Recylex, it stated inter alia in its oral statement of 23 October 2012 that a meeting entitled ‘REACH-Infoveranstaltung’ had been held in a hotel in Windhagen ‘in order to discuss scrap battery prices’ and, in its oral statement of 17 December 2012, after noting that Mr C. had attended that meeting, that ‘the goal of the multilateral meeting was to call in other prices for [s]crap [b]atteries in Germany, Belgium and The Netherlands’, and that Mr [D. (Recylex)] felt [attacked] because Recylex, in [the] view of the others, offered prices to their suppliers which were too high’. In that latter statement, Recylex also stated that, [i]n 2009, the prices for [s]crap [b]atteries [were] so high in relation to the LME lead quotations that it became very difficult for all companies recycling [s]crap [b]atteries to make a living’ and that, ‘against this backdrop, it was the purpose of the REACH-information meeting to bring together the market participants … and to find an agreement to bring down the prices offered for [s]crap [b]atteries’.
145    Campine’s claim that Recylex indicated in its oral statement of 23 October that the parties ‘did not usually agree on prices during meetings’ is incorrect. Indeed, what Recylex stated is that the anticompetitive contacts did not usually take place at annual meetings of associations or professional events where all competitors or suppliers were present. On the contrary, in that statement, Recylex stated that, at the bilateral and multilateral meetings, the participants exchanged information on the prices they were offering for scrap batteries and on those that they intended to offer in the near future, and that the purpose of these meetings was to reach a ‘common understanding’ aimed at maintaining the prices offered to suppliers at a certain level, reducing those prices to a certain level or by a certain amount and protecting ‘natural/reserved territories’ from competition.
146    Moreover, contrary to what Campine suggests, the credibility of the oral statements made by JCI, Eco-Bat and Recylex cannot be called into question. In that regard, it should be noted that, as is apparent from the case-law referred to in paragraphs 117 to 120 above, statements which run counter to the declarant must in principle be regarded as particularly reliable evidence.
147    The information relating to the Windhagen meeting of 23 September 2009 contained in the oral statements of JCI, Eco-Bat and Recylex are all the more reliable as they are corroborated by the handwritten notes, which report on the content of the discussions that took place at that meeting.
148    In that regard, first of all, it is necessary to reject Campine’s claim that those notes do not relate to the multilateral Windhagen meeting of 23 September 2009, but mainly to a meeting held the following day between itself, in the person of Mr C., and JCI, in the person of Mr M., at JCI’s premises, located near Windhagen, the purpose of which was the annual negotiation of the tolling agreement, and which contain the considerations, speculations and estimates of Mr G. (Campine) and Mr C. concerning the German market.
149    It is true that it is common ground between the parties that a bilateral meeting, distinct from the multilateral meeting of 23 September 2009, took place between Campine and JCI on 24 September 2009. Thus, in its oral statement of 5 May 2014, JCI stated that ‘[Mr C. (Campine) and Mr M. (JCI)] also met [on] the morning of 24 September 2009 “for a quick hour” to “discuss a bit of business together”‘. It is also true that the handwritten notes stated, at the top, ‘REACH meeting of [Thursday] 24/09/2009’. However, several factors contradict Campine’s claim that those notes relate primarily to the bilateral meeting of 24 September 2009. In that regard, first, it should be noted that those notes mention the first names of all the representatives of Campine, JCI, Eco-Bat and Recylex who had specifically attended the meeting of 23 September 2009. Second, it is apparent from a comparison of the notes taken at the bilateral meeting of 24 September 2009, which were seized by the Commission during its inspection at Campine’s premises, and from the handwritten notes, that their content clearly differs so that the handwritten notes clearly do not reflect the content of the discussions held at that meeting. Third, as will be explained in more detail in the following paragraph, the handwritten notes refer to sensitive commercial information, relating in particular to undertakings concerned other than Campine or JCI, which do not constitute mere considerations or speculations concerning the German market or relate to a negotiation concerning the renewal of a tolling agreement between Campine and JCI.
150    Next, it must be stated that the handwritten notes contain various items of information establishing that they relate to a report of anticompetitive discussions that took place at the multilateral meeting of 23 September 2009. They provide information inter alia on Eco-Bat’s prices and margins, JCI’s, Eco-Bat’s and Recylex’s market shares by volume in Germany, as well as on Recylex’s ‘ex-works’ prices and the ‘DDP [delivered duty paid]’ prices of the other undertakings on the market. In addition, it is mentioned in the handwritten notes that Recylex’s strategy on the German market is ‘aggressive’ — in the sense, according to the explanations which Recylex gave in its oral statement of 17 December 2012, that, in the eyes of its competitors, it purchased scrap batteries there at excessively high prices — and that, therefore, it was sending a ‘signal’ to the Belgian and Netherlands markets. That note also includes information on pricing intentions for the following week, namely a downward revision in order to maintain a ‘status quo’ in Germany with regard to market shares, as well as a reference to JCI’s intention to expand its activities on the French market.
151    Moreover, Campine’s explanations regarding the content of the handwritten notes must be rejected. In addition to what is stated in the previous paragraph, it should be pointed out that Campine provides no evidence to support its claim that the figures identified in that paragraph as relating to Eco-Bat’s prices and margins were based on public information or to support the claim that the information relating to Recylex’s ‘ex-works prices’ and to the ‘DDP’ prices of the other undertakings on the market was obtained in the context of legitimate contacts with suppliers. As regards the figures relating to the market shares of JCI, Eco-Bat and Recylex in Germany, they cannot be inferred from Recylex’s press release on its 2009 half-year results, on which Campine relies in that respect.
152    Lastly, it must be added that it is to no avail that Campine claims that the handwritten notes are the only item of evidence that the Commission was able to find to corroborate the oral statements, as regards the anticompetitive nature of the Windhagen meeting of 23 September 2009. That assertion is based on Campine’s fundamentally flawed approach of examining separately the six contacts specifically alleged against it, while disregarding tens of other anticompetitive contacts identified in the contested decision as well as all the factual elements and evidence relating to those contacts (see paragraph 104 above). A large number of anticompetitive contacts described by the Commission in Section 4 of the contested decision, and which Campine does not in any way call into question (see paragraph 105 above), establish that, following the Windhagen meeting of 23 September 2009, the participants in the cartel actually implemented the objective of coordinating their policy on the purchase price of scrap car batteries agreed there. While it is true that Campine’s participation in those other anticompetitive contacts was very limited, the fact remains that they constitute additional relevant evidence of the nature of the discussions that took place at that meeting.
153    In the third place, Campine’s claim that Mr C. (Campine) thought that the Windhagen meeting of 23 September 2009 would be limited to a discussion on the REACH Regulation and was not aware of its anticompetitive object or of any pre-existing anticompetitive agreements or concerted practices between the three other participants clearly cannot succeed. Indeed, even if these circumstances were proved, it would have been for Campine to publicly distance itself from the content of the meeting as soon as it became aware of its anticompetitive nature, which it did not do in the present case. In that regard, it must be noted that, in accordance with the case-law of the Court, a public distancing is necessary in order that an undertaking which participated in collusive meetings can prove that its participation was without any anticompetitive intention. For that purpose, the undertaking at issue must demonstrate that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see, to that effect, judgment 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 81 and 82 and the case-law cited). The Court has also held that an undertaking’s participation in an anticompetitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (see, to that effect, judgment of 3 May 2012, Comap v Commission, C‑290/11 P, not published, EU:C:2012:271, paragraphs 74 to 76 and the case-law cited).
154    In view of the foregoing considerations, it must be concluded that the Commission has demonstrated to the requisite legal standard that the Windhagen meeting of 23 September 2009, in which Campine participated, had an anticompetitive object.
(ii) The email of 10 February 2010
155    In recitals 73 to 76 of the contested decision, the Commission examined the content of the email of 10 February 2010, the last paragraph of which reads as follows:
‘In Belgium and [the Netherlands], the temperature is still going down. But we still have warm air coming from Germany which contributes to a general heating up of the planet!
Perhaps [you can] try to blow fresher air on your side to contribute to the environment also?’
156    According to the Commission, through this information written in coded language, Campine was pointing out to JCI that purchase prices were falling in Belgium and the Netherlands, but that there was no sign of a decrease in Germany, and requested JCI to reduce the prices that it was willing to pay in Germany.
157    This interpretation by the Commission of that passage of the email of 10 February 2010 is convincing and proves Campine’s participation in an anticompetitive contact.
158    In that regard, first of all, it must be noted that that interpretation is confirmed by JCI itself, which, in its oral statement of 13 November 2012, stated that, ‘consistent with use of the weather analogies in other situations, this was an invitation to Mr [M. (JCI)] to lower purchase prices in line with the efforts of Campine or other smelters’.
159    Next, it must be held that the use of coded language referring to weather conditions demonstrates that Campine and JCI were fully aware of the anticompetitive nature of their exchange. Campine’s explanation that the use of weather-related terminology is not surprising in the battery recycling sector, in that sales of new batteries depend to a significant extent on these conditions, is simply not credible. Its alternative explanation that Mr C. (Campine) intended in this way to conclude his email, which allegedly related to the tolling agreement between Campine and JCI, with humour or irony, is also not credible. As the Commission rightly observes, there is nothing in the context of the email or in the language used in the relevant passage of the email that makes it possible to understand that passage in this manner.
160    Campine’s explanations are all the less convincing because, in other anticompetitive communications among participants in the cartel other than itself, such coded language was also used to conceal information relating to price coordination. That is the case, in particular, of the exchanges of emails between Eco-Bat and JCI on 27 April, 5 August and 26 September 2011, passages of which are reproduced in recitals 96, 97, 114 and 128 of the contested decision. In the same vein, it should be noted that, in its oral statement of 24 July 2014, JCI stated that the participants tried to keep their discussions on purchase prices secret, in particular by using ‘camouflage language’ in their emails.
161    The fact, on which Campine relies, that the participants in the cartel had not formally agreed to use coded language referring to weather conditions in their communications is irrelevant since there is no doubt that the relevant passage of the email of 10 February 2010 has an anticompetitive content. As the Commission rightly contends, a message intended to induce a competitor to alter its pricing policy is anticompetitive, whether or not it is written in coded language. Moreover, it should be recalled that the Commission has never claimed that the use of coded language was an essential feature of the pattern of anticompetitive contacts (see paragraph 141 above).
162    Lastly, Campine’s claim that the whole of the email of 10 February 2010, namely even the relevant passage of it, falls exclusively within the legitimate context of its tolling agreement relationship with JCI cannot be accepted. As already noted at
paragraph 100 above, although it is true that the redacted passages of that email concern apparently legitimate discussions relating to a tolling agreement between JCI and Campine, they clearly differ both in form and substance from the passage of the same email relied on against Campine in the contested decision. That latter passage is therefore unrelated to any tolling agreement between Campine and JCI.
163    It follows from the foregoing considerations that the Commission has demonstrated to the requisite legal standard the anticompetitive nature of the relevant passage of the email of 10 February 2010.
(iii) The meeting in Cologne on 4 April 2011
164    In recitals 90 to 92 of the contested decision, the Commission examined the content of the discussions which took place at a multilateral meeting in Cologne on 4 April 2011 in the context of a dinner. It observed, in essence, that the real purpose of that meeting was to have exchanges on scrap battery prices in the Netherlands and to draw up a list of the suppliers of each participant. The Commission stated that Mr M. (JCI) coordinated subsequent contacts between the participants which were conducted primarily though text messages.
165    In the first place, it must be noted that it is apparent from the documents before the Court and it is common ground between the parties that, at that meeting, representatives of each of the addressees of the contested decision, namely Campine (in the person of Mr C.), Eco-Bat (in the person of Mr H.), JCI (in the person of Mr M.) and Recylex (in the person of Mr R.), were present.
166    In the second place, it must be held that the Commission has demonstrated to the requisite legal standard that, although the official purpose of that meeting was to discuss the regulatory requirements laid down by the REACH Regulation, it nevertheless had an anticompetitive content.
167    In that regard, it must be noted that, in their oral statements, JCI, Eco-Bat and Recylex each acknowledged the anticompetitive nature of the exchanges at the meeting in Cologne on 4 April 2011. Thus, in its oral statement of 13 November 2012, JCI stated that the purpose of that meeting was to ‘discuss price coordination’ and that ‘the participants discussed current price levels in the respective regions and also maximum purchase price[s] for scrap batteries’. In JCI’s oral statement of 20 December 2013, it confirmed that the purpose of that multilateral meeting was to ‘discuss prices’. In its oral statement of 8 October 2012, Eco-Bat stated that the persons mentioned in paragraph 165 above ‘met for dinner in Cologne … to collectively discuss the problem of the high and increasing prices for the purchase of lead batteries’, and that they ‘agreed to target the maximum purchase price that would be a specific Euro amount below the applicable market price at the time for purchases in Germany, in the Netherlands and in Belgium’. In its oral statement of 19 October 2012, Eco-Bat added that, ‘during the dinner the sector for used batteries in Germany and the Netherlands was discussed at length’, that ‘[Mr C. (Campine)] also brought up the Belgian market’ and that ‘the discussion also included furthering of a common approach, to lower prices for used batteries’. As for Recylex, in its oral statement of 17 December 2012, it specified that ‘the goal of the meeting was to control the market price for [s]crap [b]atteries in [t]he Netherlands and to compile a list with the respective suppliers’, that ‘the meeting also dealt with the market in Belgium and Germany’, that, ‘during the meeting, the parties discussed about the purchase prices for [s]crap [b]atteries’ and that, ‘after the meeting, exchanges between the parties were mainly done by SMS (approximately 2-6 per month)’.
168    Contrary to Campine’s claims, the information that JCI, Eco-Bat and Recylex provided in their oral statements regarding the meeting in Cologne on 4 April 2011 is consistent and unequivocally demonstrates the anticompetitive nature of the discussions at that meeting. Although it is true that that information contains some discrepancies, they are minor and only concern details relating to the practical organisation of the meeting.
169    In addition, it should be noted that the anticompetitive nature of the meeting of 4 April 2011 is corroborated by the exchanges of text messages and emails following that meeting between some of the undertakings concerned, and which are described in recitals 93 et seq. of the contested decision and referred to by Recylex in its oral statement of 17 December 2012 (see paragraph 167 above). It is clearly apparent from those exchanges, in respect of which Campine does not put forward any arguments, that they were intended to implement the purchase price cartel discussed at that meeting. Thus, in particular, as is explained in recital 93 of the contested decision, on 8 April 2011, Mr H. (Eco-Bat) sent the following text message to Mr M. (JCI):
‘[M.], [p]lenty are cheating … Still above 700. We are going to have problems, if you don’t put the pressure. For the other cheaters, I will tell you when you call me tomorrow.’
170    The fact that Mr C. (Campine) did not take part in those exchanges subsequent to the meeting of 4 April 2011 is irrelevant, as they are relied on to support the Commission’s finding of the anticompetitive nature of that meeting, at which Campine acknowledges having been present and from the content of which it did not publicly distance itself (see paragraph 172 below).
171    The fact that the Commission did not find any notes taken during the meeting of 4 April 2011 cannot, in view of the principles laid down by the case-law referred to in paragraph 112 above, suffice to call into question the finding of the anticompetitive nature of that meeting, which is based on consistent and reliable oral statements of the three other participants in the cartel and on subsequent exchanges of text messages and emails.
172    In the third place, Campine’s argument that there is no evidence that Mr C. (Campine) participated actively in the discussions at the Cologne meeting on 4 April 2011 must be rejected. It should be recalled that the agreements and concerted practices referred to in Article 101(1) TFEU are necessarily the result of collusion on the part of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. Accordingly, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anticompetitive object or effect (judgments of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraphs 79 and 80, and of 6 March 2012, UPM-Kymmene v Commission, T‑53/06, not published, EU:T:2012:101, paragraph 53). Moreover, Campine, whose participation in the meeting in question is not disputed, did not, by its own admission (see paragraph 133 above), publicly distance itself from the content of that meeting. However, as already stated at
paragraph 153 above, according to the case-law, an undertaking’s participation in an anticompetitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel.
173    It follows from the foregoing that the Commission has demonstrated to the requisite legal standard the anticompetitive nature of the multilateral meeting in which Campine participated in Cologne on 4 April 2011.
(iv) The text messages from Mr M. (JCI) of 7 March 2012
174    In recitals 150 to 153 of the contested decision, the Commission examined the content of the text messages sent on 7 March 2012 by Mr M. (JCI) to Mr C. (Campine), Mr R. (Recylex) and Mr H. (Eco-Bat). The Commission noted that, on that day, at 15:36, Mr M. sent a text message to Mr C. and Mr R. separately which read as follows:
‘Call you on [M]onday direction is the same [as] we have discussed the last time — have a nice weekend MM’. It also noted that, on the same day, at 16:29, Mr M. sent a text message to Mr H. which stated as follows:
‘Market is on the right direction next step next week — can I call early next week?’.
175    It must be held that the Commission was entitled to infer from those elements Campine’s participation in an anticompetitive exchange aimed at coordinating scrap battery purchase prices.
176    In the first place, those text messages were sent almost simultaneously by the JCI representative to the representatives of the three other undertakings to which the contested decision was addressed and have essentially the same content.
177    In the second place, it is clear, in the light of the general context of the infringement and the manner in which the cartel was organised (see recitals 49 to 58 of the contested decision), that those text messages reveal that JCI was giving instructions to the three other participants in the cartel on the ‘direction’ to be followed as regards the purchase price of scrap batteries and that compliance with those instructions was monitored. It is also apparent from those text messages that they were part of a mechanism for coordinating those prices that was ongoing between the cartel participants (‘the same [as] we have discussed the last time’ and ‘next step next week — can I call early next week?’).
178    In the third place, it should be noted that Recylex confirmed the anticompetitive nature of that contact in its oral statement of 5 May 2014, where it stated inter alia as follows in relation to the text message that Mr R. (Recylex) received from Mr M. (JCI):
‘On 7 March 2012, there was an exchange of SMS between Mr [R.] and Mr [M.], following a decrease of lead prices on the LME. Mr [M.] initiated this contact, probably in agreement with Mr [H. (Eco-Bat)]. The purpose of this exchange of SMS was to fix a new target price for scrap batteries for the German market. To Mr [R.]’s best recollection, the exchange of SMS was probably followed by a call on 21 March 2012 between Mr [R.], Mr [M.] and Mr [H.] to discuss a decrease in price. Following the call on 21 March 2012, Mr [R.] sent an email of 22 March 2012 to the purchasing managers of Recylex Group to inform them of the decrease in price to be offered to the Dutch and German scrap battery suppliers.’
179    The anticompetitive nature of the contact at issue was also confirmed by JCI, which, in its oral statement of 5 May 2014, stated inter alia as follows:
‘The message … was sent to three companies with an interest in the scrap market in the Netherlands as all three companies are purchasing scrap batteries in the Netherlands from scrap collectors and scrap dealers. With the sentence “direction is the [same as] we have discussed the last time” Mr [M. (JCI)]
indicated that he would stick to the low prices while the LME was going up and this usually led to an increase in purchase prices. While Mr [M.] cannot remember the background of this particular text message exchange, he agreed in general that he had regular contact with [inter alia Mr C. (Campine) and Mr R. (Recylex)]. Such a text message exchange was typically followed by a conference call between the persons [concerned] or [bilateral contacts] between [each of them] and Mr [M.].’
180    It is true that, in its oral statement, Recylex refers to both the German and the Netherlands market, whereas, in JCI’s oral statement, JCI refers only to the Netherlands market. However, this discrepancy does not in any way affect the finding that the text messages in question show that Campine took part in an anticompetitive contact aimed at coordinating scrap battery purchase prices.
181    In the fourth place, it must be stated that none of the arguments which Campine puts forward can lead to a different conclusion.
182    Thus, first, in the light of the considerations set out in paragraphs 176 and 177 above, it cannot be claimed that the text messages of 7 April 2012 were very vague.
183    Second, there is nothing to indicate that the text message from Mr M. (JCI) was sent by mistake to Mr C. (Campine). In that regard, it is incorrect to claim that JCI acknowledged that Campine was not interested in the prices on the German market. What JCI stated in its oral statement of 13 November 2012, to which Campine refers, is that ‘the degree of involvement of the participants [in the cartel] varied somewhat depending on the region they discussed’ and that ‘while purchase prices in the Netherlands were of equal interest too, and a topic of discussion among all five companies, German prices were of primary interest to JCI, Eco-Bat and Recylex’. The fact that prices on the German market were of primary interest to the latter three undertakings does not, however, mean that they were of no interest to Campine. On the contrary, as the Commission correctly observes in its pleadings, it is apparent from other items of evidence (see, in particular, the examination of the email of 10 February 2010 in paragraphs 155 to 163 above) that Campine was interested in prices on the German market and aware of the influence that they had on other markets.
184    Third, it is incorrect to claim that the sender of the text messages, namely JCI, did not confirm the anticompetitive nature of that contact (see paragraph 179 above).
185    Fourth, it is not decisive that the Commission did not find any evidence showing that Mr C. (Campine) had in fact received the text message sent by Mr M. (JCI). As is apparent from the case-law recalled in paragraph 112 above, given the clandestine nature of cartels, explicit evidence of collusive behaviour may be only fragmentary and sparse, so that the Commission is entitled to infer the existence of an anticompetitive practice from coincidences and indicia. In the present case, in the light of the fact that it is established that a text message was sent by Mr M. to, inter alia, Mr C., of the explanations given by JCI and Recylex in their oral statements and of the manner in which the cartel was organised, it was not necessary for the Commission to discover, in addition, the relevant text message on Mr C’s telephone.
186    Nor was it necessary for the Commission to prove that Mr C. (Campine) had replied to the text message from Mr M. (JCI) or that he had taken any concrete follow-up action. The mere receipt by an undertaking of price information, including pricing intentions, from a competitor is capable of removing, or at least reducing, strategic uncertainty about future conduct on the market in question.
187    It follows from the foregoing that the Commission has demonstrated to the requisite legal standard the anticompetitive nature of the contact by text message between JCI and Campine on 7 March 2012.
(v)    Certain contacts during May 2012
188    In recitals 159 to 169 of the contested decision, the Commission analysed several emails, text messages and other contacts involving the four cartel participants. It concluded inter alia from those various contacts that Campine had discussed purchase prices in the Netherlands with JCI (recital 163 of the contested decision) and had participated in an agreement on future purchase prices in the Netherlands (recital 169 of the contested decision).
189    The Commission’s analysis consists of two parts: the first part is set out
in recitals 159 to 163 of the contested decision and the second part in recitals 164 to 169 of that decision.
190    Thus, in the first place, the Commission, relying on information which
JCI gave in its oral statement of 24 July 2014, found inter alia that, in a JCI internal email of 15 May 2012, Mr M. had informed his colleague Mr Co. that he had agreed with Eco-Bat and Recylex to reduce price levels in Germany from approximately EUR 640 to EUR 550 as of 21 May 2012 and that he would call Mr C. (Campine) at the latest the following day in order to align the new price level for the Netherlands (recital 159 of the contested decision). It is apparent from internal emails of Eco-Bat and JCI of 16 and 18 May 2012, the content of which is reproduced in recitals 160 and 161 of the contested decision, that those two undertakings applied the agreed price reduction.
191    In the second place, the Commission referred to a Recylex internal email, sent on 24 May 2012 at 10:41, in which a representative of that undertaking stated as follows to, inter alia, Mr R. (Recylex): ‘At the moment, the prices paid in [Belgium and the Netherlands] are [EUR] 580 [ex-works]. Campine is still paying [EUR] 600 delivered and pushing the new commercial everywhere in Wallonia. Regelink [is at EUR 640 ex-works in the Netherlands]’ (recital 164 of the contested decision). The Commission noted that, on the same day at 10:52., Mr R. sent the following text message to Mr M. (JCI): ‘ [M.], any success with [EUR] 550 [ex-works] in [the Netherlands]?’ (recital 165 of the contested decision).
192    The Commission also referred to the following text message, sent on 29 May 2012 by Mr R. (Recylex) to Mr M. (JCI):
‘Thanks to call [Campine which] is putting [EUR] 600 [ex-works] in [the Netherlands]’
(recital 166 of the contested decision). It noted that, on 31 May 2012, at 13:59, Mr M. sent a text message to Mr C. (Campine) in which he stated as follows:
‘[C.], are you in the range discussed yesterday?’ (recital 167 of the contested decision). It added that, at 16:18 on the same day, Mr M. sent the following text message to Mr R.: ‘Checked with him — never on that level you mentioned’. Lastly, the Commission noted that, also on the same day, at 17:16, Mr C. replied by text message to Mr M. as follows: ‘Yes, certainly. We never get anything from last week on above the normal level. I am certain’ (recital 168 of the contested decision).
193    It should be noted that Campine does not call into question the evidence mentioned in paragraphs 190 to 192 above. It does, however, dispute the Commission’s interpretation of that evidence.
194    It is apparent from an assessment of that evidence as a whole that, first, the other participants in the cartel considered that Campine was involved in collusion to reduce
scrap battery purchase prices, second, JCI and Campine were discussing the coordination of purchase prices on the Netherlands market and, third, Campine was complying with the agreed price levels or, at the very least, wanted to give the other undertakings concerned the impression that it was doing so.
195    Campine’s claim that the exchanges in question concerned previous price levels cannot be accepted. Those exchanges clearly reveal an agreement on future purchase prices of scrap batteries. In particular, they demonstrate that the cartel participants sought to reduce the purchase prices in the Netherlands to EUR 550, ex-works.
196    Campine’s claim that it is apparent from those exchanges that Campine ‘did not play along’ with
the three other cartel participants and set its prices independently must also be rejected. In that regard, it is sufficient to recall that it is apparent from the text message exchange of 31 May 2012 mentioned in paragraph 192 above that Campine confirmed to JCI, in response to a question to that effect from JCI, that it was complying with the price level discussed the previous day. In any event, as the Commission rightly contends in its pleadings, by indicating — even possibly misleadingly — to JCI that it was complying with the agreed price levels, Campine contributed to the proper functioning of the cartel by giving the impression to the other participants that it was actively implementing the agreement on purchase price levels for scrap batteries. In addition, it should be noted that, as follows from the case-law, even on the assumption that it is proved that certain participants in the cartel succeeded in misleading other participants by sending incorrect information and in using the cartel to their advantage by not complying with it, the infringement committed is not eliminated by that simple fact (see judgment of 13 September 2013, Total Raffinage Marketing v Commission, T‑566/08, EU:T:2013:423, paragraph 184 and the case-law cited).
197    In the light of the foregoing, it must be held that the Commission has demonstrated to the requisite legal standard that Campine participated in anticompetitive contacts during the second half of May 2012.
(vi) Certain contacts during June 2012
198    In recitals 174 to 180 of the contested decision, the Commission analysed certain exchanges between the cartel participants at the end of June 2012. It considered that it was clear from those exchanges that those participants, including Campine, had agreed to reduce scrap battery purchase prices.
199    Thus, first of all, the Commission found that, on 21 June 2012, Mr R. (Recylex) sent the following text message to Mr M. (JCI): ‘Following the further decrease on the LME, suggest to go down to [EUR] 500 [ex-works] next week. [Please] confirm’ (recital 174 of the contested decision). It is apparent from JCI’s oral statement of 13 November 2012 that that message indicated the target price levels that the participants in the cartel were seeking to achieve.
200    Next, the Commission referred to a Recylex internal email of 26 June 2012 which Mr B. sent to two other representatives of that undertaking, with Mr R. (Recylex) in copy, which reads as follows: ‘Due to our telephone conference yesterday and the situation at the LME I give to our suppliers new prices: delivered to HMG 540 means 500 [ex-works]. [Let’s hope] this signal has an influence [on] our competitors to follow’ (recital 175 of the contested decision). The Commission noted that, by an internal email of the same date, Mr R. replied to Mr B. and to two other representatives of Recylex, giving a new target price, as follows: ‘Due to the further decrease on the LME, I would expect that we decrease below 500 delivered (i.e. 470 [ex-works])’ (recital 176 of the contested decision).
201    In addition, the Commission noted that, on 27 June 2012, at 11:43, Mr M. (JCI) sent the following text message to Mr R. (Recylex): ‘Hello [Mr H. (Eco-Bat)] and I discussed the second step coming next week your proposed level of last week should be the right ones — please call me’ (recital 177 of the contested decision). The Commission further observed that, on the same day, at 22:04, Mr C. (Campine) sent an email to Mr G. (Campine), with the subject ‘new prices as of Monday’, in which he stated as follows: ‘[G.], [I] had [Mr M.] on the line: agreed to go to [EUR] 500 … as of next week Monday in line with recent LME moves. The aim is — if the LME stays like this — to go another [EUR] 50 … lower within 1 or [maximum] 2 weeks, please pass on the message’ (recital 178 of the contested decision).
202    Lastly, the Commission referred to an internal email of 2 July 2012 from Mr G. (Campine) to his commercial team and to Mr C. (Campine), in which he gave instructions to reduce the proposed prices from EUR 550 per tonne, ex-works price, to EUR 500 per tonne, ex-works price, specifying that, ‘if the LME remains low, the intention is to further reduce prices by EUR 50 per tonne within a maximum of one or 2 weeks’ (recital 179 of the contested decision).
203    It should be noted that Campine calls into question not the evidence mentioned in paragraphs 199 to 202 above but the Commission’s interpretation of it.
204    However, it must be stated that, as the Commission rightly points out in recital 179 of the contested decision, the price levels indicated in Campine’s internal email of 2 July 2012 correspond precisely to those discussed and agreed by the participants in the cartel between 21 and 27 June 2012, which shows that that undertaking had implemented the agreement to coordinate purchase prices entered into by those participants. It must also be stated that the email from Mr C. (Campine) of 27 June 2012 is clearly linked, both in substance and chronologically, to the earlier contacts of 21 June 2012 between Recylex and JCI and to those of 27 June 2012 between JCI and Eco-Bat. It is apparent from that email that Campine’s decision to apply those price levels followed an anticompetitive telephone conversation between Mr C. and Mr M. (JCI) on the same date or very close to that date.
205    None of Campine’s arguments by which it attempts to call into question the anticompetitive nature of that latter contact between itself and JCI can succeed.
206    Thus, nothing in the wording of the email from Mr C. (Campine) of 27 June 2012 makes it possible to interpret that email in the sense that it related to a discussion with JCI regarding the purchase price to be paid for scrap batteries that Campine had ‘borrowed’ from JCI from a scrap stock that Campine held under a tolling agreement between them. On the contrary, it clearly refers to a coordination of purchase prices. The interpretation that Campine thus gives of its internal email is not supported by any credible evidence.
207    Moreover, Campine’s claim that it was simply able to pick up certain market signals and to adapt to the general price levels applicable to the market is purely speculative and contradicted by evidence, in particular its internal emails of 27 June and 2 July 2012.
208    Nor can Campine’s complaint that its rights of defence were infringed be upheld.
209    Thus, it is to no avail that Campine submits that, in the statement of objections, unlike in the contested decision, the Commission, in breach of its rights of defence, did not rely against it on the contact that it allegedly had with JCI on 27 June 2012, having even stated, in paragraph 308 of the statement of objections, that ‘the last anticompetitive contact for which there is evidence for Campine was on 31 May 2012’. In fact, in paragraphs 227 to 235 of the statement of objections, express reference is made to that contact of 27 June 2012 and to those which preceded it in the same context. In paragraphs 108 to 117 of its reply to the statement of objections, Campine moreover explicitly takes a view on those various contacts. There can therefore be no question of a breach of its rights of defence.
210    Moreover, Campine is not justified in criticising the Commission for having corroborated, in the contested decision, its findings in relation to the anticompetitive nature of the contact on 27 June 2012 by relying on two replies by JCI to requests for information to which it claims to have had access only the day before lodging its application in the present case. While it is true that those two replies were added to the Commission’s file after the statement of objections had been notified, the fact remains that they did not contain any new incriminating or exculpatory evidence, so that the Commission was not obliged to give Campine access to them (see, to that effect, judgment of 16 June 2011, Heineken Nederland and Heineken v Commission, T‑240/07, EU:T:2011:284, paragraph 242). Indeed, as is apparent from recital 180 of the contested decision, the Commission referred to the two replies in question only in order to rebut Campine’s claim that there was an alternative explanation for the contact of 27 June 2012 and not to support its objection
concerning the existence of an infringement (see, to that effect, judgment of 29 March 2012, Telefónica and Telefónica de España v Commission, T‑336/07, EU:T:2012:172, paragraph 78).
211    It follows from all the foregoing considerations that the Commission has proved to the requisite legal standard the anticompetitive nature of the six collusive contacts in which Campine was found to have been involved.
212    Accordingly, the first part of the second plea must be rejected as unfounded.
(c)    The second part of the second plea, alleging that the evidence adduced does not support the finding of an infringement
(1)    Arguments of the parties
213    In the first place, Campine claims that the Commission failed to prove that Campine had participated in the overall agreement described in the contested decision. First, none of the six anticompetitive contacts in which Campine was found to have been involved can reasonably be interpreted as demonstrating that it participated in purchase-price-fixing practices. Next, it never complained of non-compliance with the agreed prices and never requested corrective measures. Lastly, with respect to the four bilateral contacts it had with JCI, there is no evidence that it had any reason to believe that the information provided to JCI would then be passed on to Recylex or Eco-Bat.
214    In the second place, Campine disputes that the conduct attributed to Campine is in the nature of a single and continuous infringement.
215    In that regard, first, Campine submits that the Commission has not proved to the requisite legal standard that it had participated in an overall agreement with the three other cartel participants pursuing the common objective of restricting competition on the market for the purchase of scrap lead-acid car batteries in four Member States. First of all, Campine had no interest in participating in an anticompetitive agreement covering those four Member States since (i) in two of them (Germany and France) it had virtually no activities during the period of the infringement and (ii) on the Netherlands market, it was bound by a long-term supply agreement with a fixed‑pricing mechanism, with a Netherlands company, which accounted for up to 78% of its purchases on that market. Next, none of the documentary evidence or the oral statements contains any evidence that an overall plan was discussed or even referred to at the Windhagen meeting of 23 September 2009, which cannot therefore be regarded as the moment when Campine adhered to an overall plan. Similarly, there is no evidence that an overall agreement was discussed at the meeting in Cologne on 4 April 2011. Nor did Campine take part in any contact during the 11 months following that meeting. As regards the other four contacts, which were purely bilateral, that Campine was found to have been involved in, they were spread out over almost two and a half years and nothing in the file or in the contested decision indicates that reference was ever made, in the context of those contacts, to an overall agreement or a cartel between JCI, Eco-Bat and Recylex. Lastly, Campine argues that regular contacts would have been necessary in order to pursue an overall plan seeking to coordinate pricing policies. Its participation, over a period of more than 3 years, in six alleged anticompetitive contacts cannot prove that it took part in such an overall plan.
216    In the reply, Campine, relying on the 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 245), adds that the Commission cannot base the existence of an overall plan on the ‘generic’ finding of a common objective of distorting normal price trends on the scrap battery market.
217    Second, Campine claims that the Commission did not prove that Campine had intentionally contributed to the alleged overall plan. In particular, the passage from an email of 10 February 2010 on which the Commission relies does not constitute sufficient evidence in that regard. In any event, that passage relates only to a final consideration in an email dealing with other legitimate issues. Lastly, it did not take any initiative or play any active role in the cartel.
218    Third, Campine submits that the evidence adduced against it does not show that it had knowledge of the overall agreement involving the three other cartel participants. More specifically, it has not been shown that Campine had knowledge of the general scope and essential characteristics of the overall agreement. It states that most of the contacts concerning Campine related to a single party, namely JCI, its main customer. The only two contacts it had with other parties were meetings with a legitimate purpose organised by JCI and to which JCI invited Campine. Moreover, it did not participate in any of the many unlawful contacts that took place after the Windhagen (23 September 2009) and Cologne (4 April 2011) meetings. The use of coded language in a single email from Mr C. (Campine) to Mr M. (JCI) cannot prove knowledge of the overall plan. It was only from the time that the Commission carried out the unannounced inspections that Campine became aware of the scope of the agreement between the cartel members.
219    Fourth, Campine asserts that the six contacts the Commission alleged against it do not show that it participated in a continuous infringement over a period of more than 3 years. In view of the fact that those contacts were few in number, sporadic and isolated, and that long intervals had elapsed between them, they could at most establish that it committed a single and repeated infringement. In support of that claim, it notes that scrap battery prices may vary from 1 week to the next, or even from 1 day to the next, that LME prices are constantly changing, that it is apparent from the documentary evidence that contacts between the three other cartel participants generally concerned prices for only one specific week, and that prices differed in the four Member States concerned. Lastly, it claims to have distanced itself ‘diplomatically’ from the discussions at the multilateral meetings and to have participated in no follow-up contacts. The mere fact that it did not publicly distance itself from the infringement is, in any event, an insufficient basis on which to find that it continued to participate in it.
220    In the third place, Campine submits that the Commission has not proved that the conduct attributed to it had an anticompetitive object or effect. Thus, first, it considers that it cannot be inferred from the facts of this case that a horizontal agreement fixing purchase prices intended to restrict competition was concluded between it and the three other cartel participants. The sporadic and isolated contacts it had with them constitute at most an independent exchange of vague information on the market in general. Second, Campine states that it is certainly not possible to conclude that such an exchange of information may have had anticompetitive effects, in particular on a market where prices change so frequently and differ from one country to another. Moreover, the infringement at issue had no effect on Campine’s margins or on the prices that it charged during the infringement period. In the reply, Campine also argues that the Commission, in its analysis, should have attached far more importance to the context of the case.
221    The Commission rejects the arguments put forward by Campine. The Commission contends that the evidence on which it has relied, taken as a whole, establishes to the requisite legal standard that Campine took part in a single and continuous infringement between 23 September 2009 and 26 September 2012. The Commission further contends that the conduct alleged against the cartel participants, including against Campine, constituted a restriction of competition by object for the purposes of Article 101(1) TFEU.
(2)    Findings of the Court
222    The second part of the second plea is subdivided into three subsections. Thus, Campine claims that the Commission has not demonstrated to the requisite legal standard, in the first place, that it participated in the cartel described in the contested decision, in the second place, that the six contacts in which it was found to have been involved were part of a single and continuous infringement and, in the third place, that the conduct alleged against it had an anticompetitive object or effect.
(i)    On whether it is demonstrated that Campine participated in the cartel
223    It should be noted that, in the first subsection of the second part of the second plea, Campine essentially calls into question three assessments made by the Commission in recital 190 of the contested decision, which concerns contacts on prices and is one of a series of assessments aimed at establishing that the anticompetitive conduct alleged against the undertakings concerned has all the characteristics of an agreement and/or concerted practice within the meaning of Article 101(1) TFEU (paragraphs 185 to 196 of the contested decision).
224    That recital reads as follows:
‘As regards prices, the parties reached agreements to reduce or to maintain the prices offered to suppliers at a certain level, or to reduce the prices offered to suppliers by a certain amount, sometimes in phased reductions over a set period of time … At other times, the parties complained that agreed prices had not been respected and demanded corrective measures or repetition of the instruction to be given …
At other times again, price directions or timing indications were signalled or requested … In any case, there was an understanding among the parties that the contents of the bilateral communication concerning the conduct described in Recital (189) would be passed on to the other parties …’
225    It should also be noted that, by the arguments on which it relies in support of that first subsection, Campine does not dispute that the various anticompetitive practices identified in paragraph 224 above were properly classified by the Commission as ‘agreements’ or ‘concerted practices’ or that they constituted certain aspects of a purchase cartel. It merely argues that it cannot be inferred from any of the six contacts in which it was found to have been involved that it took part in these anticompetitive practices or, consequently, in the cartel. Apart from the fact that such a selective approach cannot be accepted (see paragraph 104 above), those arguments are, in essence, identical to some of those which it put forward in support of the first part of this plea and which have already been rejected as unfounded in the examination thereof.
226    Thus, first of all, Campine’s claim that it has not been proved that it took part in purchase price-fixing practices is clearly contradicted by its participation in the Windhagen meeting of 23 September 2009 (see paragraphs 138 to 154 above) and in the Cologne meeting of 4 April 2011 (see paragraphs 164 to 173 above), by the contacts during May 2012 (see paragraphs 188 to 197 above) and by its internal email of 27 June 2012 (see paragraphs 198 to 210 above).
227    Second, it is to no avail that Campine claims that the Commission’s finding that the cartel participants sometimes complained about non‑compliance with the agreed prices does not relate to it. In that respect, it is sufficient to refer to the contacts discussed in paragraphs 191 and 192 above.
228    Lastly, it is apparent inter alia from the examination of the contacts during May 2012 (see paragraphs 188 to 197 above) that Campine could not reasonably claim that it had no reason whatsoever to believe that the information it provided to JCI would be passed on to Recylex or Eco-Bat. More generally, the Commission’s finding that there was an arrangement whereby the content of contacts between two participants was subsequently passed on to the other participants is confirmed by Recylex in its oral statement of 23 October 2012, in which it describes the usual pattern of communications within the cartel.
229    As to the remainder, it must be noted that the arguments put forward by Campine in support of this subsection relate more to the question whether the Commission has established to the requisite legal standard that the conduct attributed to it was part of an overall plan with a single objective, a question which is the subject of the second subsection examined below.
230    It must therefore be concluded that Campine has not demonstrated that the Commission committed an error of law or assessment in finding that it participated in the cartel in question.
(ii) On whether Campine took part in a single and continuous infringement
–       Preliminary observations
231    As was already stated in paragraph 45 above, the Commission found, in recitals 197 to 230 of the contested decision, that each of the aspects of the alleged conduct of the undertakings concerned had the object of restricting competition and, therefore, constituted an infringement of Article 101(1) TFEU. The Commission considered that it could nevertheless be concluded that the various individual infringements of that provision together constituted a single and continuous infringement for which all the cartel participants could be held liable, since, first, the conduct of each of those participants was part of an overall plan pursuing a common anticompetitive objective, second, each of those participants intended to contribute to that overall plan and, third, each of those participants was aware of the unlawful conduct of the other participants or could reasonably have foreseen it and was prepared to take the risk.
232    As a preliminary point, it should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an overall plan because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).
233    An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the 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 that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).
234    An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).
235    On the other hand, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 159 and the case-law cited).
236    In the present case, Campine does not call into question the actual classification of the cartel as a single and continuous infringement found in recitals 197 to 230 of the contested decision. However, it disputes having taken part in such an infringement, claiming that the Commission has not demonstrated that the three conditions mentioned in paragraph 231 above were fulfilled in its case. It adds that the six collusive contacts in which it was found to have been involved occurred only on an ad hoc basis and that, therefore, only a single and repeated infringement could at most be attributed to it.
–       Campine’s participation in an overall plan pursuing a common objective
237    In the contested decision, the Commission concluded that the various bilateral and multilateral contacts between the four cartel participants which it had previously examined and classified as agreements and/or concerted practices within the meaning of Article 101(1) TFEU were part of an overall plan pursuing a common objective, namely to distort the normal movement of prices on the market for scrap lead-acid car batteries (recitals 203 to 208 of the contested decision).
238    A number of criteria have been identified by the case‑law as being relevant for the assessment of the single nature of an infringement, namely the identical nature of the objectives of the practices in question, the identical nature of the goods and services concerned, the identical nature of the undertakings that took part in the practices, and the identical nature of the detailed rules for its implementation (see judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60 and the case-law cited; see also, to that effect, 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 243). Furthermore, whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is identical are factors that may be taken into consideration for the purposes of that examination (see judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 60).
239    It must be stated that those various circumstances are present in this case, including as regards Campine.
240    Thus, in the first place, the Commission’s finding in the contested decision that the various collusive contacts were part of the same common objective of coordinating the purchase prices of scrap lead‑acid automotive batteries must be upheld. The existence of that objective is corroborated by the extensive evidence in the Commission’s file which demonstrates that the cartel participants implemented it through, inter alia, discussions and agreements on target prices, maximum prices and price reductions as well as exchanges of information on future market conduct and price negotiations with suppliers. Moreover, as is noted in recital 203 of the contested decision, in their oral statements, the cartel participants other than Campine confirmed that common objective. Thus, in particular, Recylex indicated in its oral statement of 23 October 2012 that the ‘ultimate aim’ of the collusive contacts was to ‘achieve a reduction of the market prices for the purchase of scrap batteries’.
241    It is clearly apparent from the examination of the six collusive contacts in which Campine was found to have been involved (see paragraphs 138 to 212 above) that those contacts were part of that common objective. Thus, in addition to its presence at the multilateral meetings of 23 September 2009 in Windhagen and of 4 April 2011 in Cologne, during which the four members of the cartel discussed and agreed on maximum purchase prices for scrap batteries (see paragraphs 138 to 154 and 164 to 173 above), Campine, in February 2010, actively sought to influence the purchase prices offered by one of those members (see paragraphs 155 to 163 above) and, in March 2012, took part in an exchange with those members aimed at coordinating the purchase prices (see paragraphs 174 to 187 above). In May 2012, it also discussed the coordination of purchase prices on the Netherlands market with one of the cartel members, participated in an arrangement on future purchase price levels on that market and confirmed with that member that it was setting its prices within the agreed range (see paragraphs 188 to 197 above). Lastly, in June 2012, it applied the purchase prices agreed by the cartel members (see paragraphs 198 to 210 above).
242    In the second place, the collusive contacts at issue, including those in which Campine was found to have been involved, concerned the same products, namely scrap lead-acid car batteries.
243    In the third place, the contacts concerned the same geographical area, namely Belgium, Germany, France and the Netherlands, even though the degree of involvement of the participants in the cartel varied according to the territory concerned.
244    In the fourth place, throughout the infringement period, the collusive contacts involved not only the same undertakings but also the same natural persons acting on their behalf, namely Mr M. (JCI), Mr C. (Campine), Mr D., Mr B. and Mr R. (Recylex) and Mr H. (Eco-Bat).
245    In the fifth place, the collusive contacts followed the same pattern. Thus, the multilateral meetings in Windhagen on 23 September 2009 and Cologne on 4 April 2011, at which Campine was present, were held on the pretext of discussions on the requirements laid down by the REACH Regulation. Most of the other contacts, including those in which Campine was found to have been involved, occurred on a bilateral basis, through telephone calls, emails or text messages, and were generally conducted as follows: the representative of one of the undertakings concerned would contact the representative of another of those undertakings in order to agree on a maximum target price, and one of those two persons would then contact the representative of a third one of those undertakings in order to indicate to it the agreed price, the representative of the third undertaking possibly contacting, in turn, the representative of the fourth and final undertaking concerned. It should moreover be recalled that the cartel participants, and in particular Campine, sometimes used coded language in their communications (see paragraphs 141 and 155 to 161 above).
246    In the sixth place, the collusive contacts, which sometimes took place simultaneously, were interrelated and complementary. Thus, for example, with regard to Campine in particular, it was already noted in paragraph 174 above that, on 7 March 2012, Mr M. (JCI) sent identical text messages separately to Mr C. (Campine) and Mr R. (Recylex) at 15:36 and, at 16:29, a text message with a similar content to Mr H. (Eco-Bat). Similarly, the internal Campine email of 27 June 2012, which shows that Campine applied the purchase price levels on which the cartel participants agreed, is linked both on the substance and chronologically to the earlier contacts between Recylex and JCI on 21 June 2012 and to those between JCI and Eco-Bat on 27 June 2012 (see paragraphs 198 to 210 above).
247    Consequently, the Commission was right to find that the conduct alleged against Campine was part of an overall plan pursuing a common objective.
248    Campine’s arguments to the contrary are unconvincing.
249    First of all, it is to no avail that Campine objects that, in paragraph 245 of its 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), the Court stated that the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element inherent in any conduct covered by Article 101(1) TFEU. In the present case, as is apparent from paragraphs 237 and 240 above, the concept of a single objective was not determined by such a general reference, but by a specific reference to the objective of distorting normal price trends on the market for scrap lead-acid car batteries. In addition, the Commission’s findings on the existence of an overall plan pursuing a single objective are based on the various objective elements mentioned in paragraphs 240 to 246 above.
250    Next, it must be held that the fact that the evidence gathered by the Commission, in particular that relating to the multilateral meetings in Windhagen on 23 September 2009 and Cologne on 4 April 2011, does not expressly refer to the existence of an overall plan is not decisive, as it can be inferred from a set of circumstances. In addition, Campine’s argument arises from confusion, already noted in paragraphs 139 and 140 above, between the cartel participants’ alleged conclusion of an overall agreement concerning their future market behaviour and the question of the existence of an overall plan pursuing a common objective as a condition for establishing the existence of a single and continuous infringement.
251    Moreover, the fact that the six collusive contacts in which Campine was found to have been involved occurred sporadically over the infringement period and reflect a limited degree of participation in the cartel does not in itself preclude the possibility that those collusive contacts could have been part of the same overall plan pursuing a common objective as that of the tens of other collusive contacts identified in recitals 59 to 182 of the contested decision.
252    Lastly, Campine cannot usefully argue that it had no interest in participating in an anticompetitive agreement covering in particular the German, French and Dutch markets, that is to say three of the four relevant geographic markets. As the Commission rightly contends in its pleadings, that argument does not relate to the objective criterion of whether the different collusive contacts were part of the same overall plan, but rather to Campine’s specific subjective role in the infringement. Moreover, according to the case-law, so far as the existence of the infringement is concerned, it does not matter whether or not the commission of that infringement was in the commercial interest of the undertaking concerned (see, to that effect, judgment of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission, C‑403/04 P and C‑405/04 P, EU:C:2007:52, paragraphs 44 to 46). In any event, the evidence shows that Campine took part in collusive contacts, at least in relation to the German market (see, in particular, paragraphs 144, 150, 155 to 157 above) and the Netherlands market (see, in particular, paragraphs 144, 150, 155 to 157, 164 to 168 and 188 to 197 above).
–       Campine’s intentional contribution to the overall plan
253    In the contested decision, the Commission concluded that by participating in multilateral meetings and other anticompetitive contacts, each of the cartel participants had intentionally contributed to the overall plan to distort the normal movement of prices on the market for scrap lead-acid car batteries (recitals 209 to 214 of the contested decision). In that respect, in particular with regard to Campine, the Commission noted in recital 214 of that decision that Mr C., who was the General Manager at Campine, had engaged in anticompetitive contacts directly with all the other participants in the cartel as he was present at the multilateral meetings of Windhagen on 23 September 2009 and of Cologne on 4 April 2011, that Campine had also participated in certain bilateral anticompetitive contacts and that it had, on certain occasions, taken the initiative to contact other participants.
254    It is clearly apparent from the examination of the six collusive contacts in which Campine was found to have been involved (see paragraphs 138 to 212 above) and from the considerations set out in paragraph 241 above that, by those contacts, at least for the period of its own participation in the infringement, Campine intended to associate itself with the objectives pursued by all the members of the cartel.
255    Campine’s claim that it took no initiative and played no active role in the cartel is not only irrelevant but incorrect. Taking the initiative for an anticompetitive contact is not required to establish the intention to contribute to an overall plan. Moreover, Campine was at the origin of the collusive contact which manifested itself in the email of 10 February 2010 (see paragraphs 155 to 163 above), by which Campine actively sought to influence the decisions of one of its competitors on fixing purchase prices. In addition, it is apparent from an email from Mr G. (Campine) to Mr C. (Campine) of 10 January 2011, a passage of which is reproduced in recital 84 of the contested decision, that Campine verified that the other participants in the cartel were in fact complying with the prices agreed within it. That passage reads as follows:
‘For info. At the moment STCM [Eco-Bat] does not go with the price (they should be at [minimum] 850)’.
–       Campine’s awareness of the unlawful conduct as a whole
256    In the contested decision, the Commission found that all the participants in the cartel were aware of the unlawful conduct planned or put into effect by the other participants or could reasonably have foreseen it and were prepared to take the risk, so that they should all be held liable for all aspects of the single and continuous infringement (recitals 215 to 219 of the contested decision).
257    As a preliminary point, it should be noted that the fact that there is a single and continuous infringement does not necessarily mean that an undertaking participating in one or more of the collusive activities may be held liable for the infringement as a whole. The Commission still has to establish first and foremost that that undertaking must have been aware of all the anticompetitive activities implemented by the other undertakings party to the cartel or, in any event, that it could reasonably have foreseen such conduct. In other words, the mere fact that there is identity of object between an agreement in which an undertaking participated and an overall cartel does not suffice to render that undertaking responsible for the cartel as a whole. Article 101(1) TFEU does not apply unless there exists a concurrence of wills between the parties concerned (see, to that effect, judgments of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 62, and of 15 December 2016, Philips and Philips France v Commission, T‑762/14, not published, EU:T:2016:738, paragraph 172).
258    In the present case, in the first place, it is established that Campine took part in the meetings in Windhagen on 23 September 2009 and Cologne on 4 April 2011, which the three other cartel members also attended. Consequently, it was necessarily aware of the identity of the other undertakings which were parties to that cartel, because they were all involved in the practice of coordinating scrap battery purchase prices, and of the common objective pursued by that cartel.
259    In the second place, as the Commission correctly pointed out in recital 216 of the contested decision, the cartel members could not have been unaware that the information exchanged between them was capable of removing uncertainty as to their competitive behaviour, in particular as regards the prices offered for the purchase of scrap car batteries. Each participant must have been aware that the others would use that information to decide on their own pricing behaviour. Certain items of evidence in the Commission’s file show moreover that the participants, including Campine (see paragraph 255 above), were verifying that the others were in fact complying with the prices agreed within the cartel.
260    In the third place, Campine was fully aware of the anticompetitive nature of the contacts, since it sometimes used coded language referring to weather conditions in its communications (see paragraphs 155 to 163 above).
261    In the fourth place, other cartel participants referred to Campine in connection with bilateral exchanges on the coordination of purchase prices (see paragraphs 191 and 192 above). The case-law shows that being perceived by its partners as an undertaking whose opinion should be ascertained in order to establish a common position is a factor which tends to prove an undertaking’s participation in an agreement contrary to the competition rules (see judgment of 11 December 2003, Marlines v Commission, T‑56/99, EU:T:2003:333, paragraph 59 and the case-law cited).
262    However, it should be pointed out that, as will be explained in greater detail in paragraphs 263 to 284 below, it has not been demonstrated to the requisite legal standard that the awareness that Campine had or could have had of the unlawful conduct planned or put into effect by the other cartel members extended to the two long periods of 11 months in respect of which the Commission was unable to adduce any direct evidence of its participation in the infringement.
–       The continuous nature of Campine’s participation in the infringement
263    In the contested decision, the Commission held Campine liable for all the anticompetitive conduct comprising the single and continuous infringement and, consequently, for the infringement as a whole (recital 229 of the contested decision). It found that the fact that Campine had taken part ‘less frequently in some of the anti‑competitive contacts’ was not capable of altering that conclusion (recital 230 of the contested decision).
264    The Commission noted that, with the exception of a period of 11 months between the email of 10 February 2010 and Campine’s internal email of 10 January 2011 (see paragraph 255 above) and of a period of 10 months between Campine’s participation in the World Lead Conference in Brussels (Belgium) of 6 to 8 April 2011 and the collusive contact of 7 March 2012 (see paragraph 174 above), there was no interval of more than 4 months between each of the other collusive contacts or ‘[other] related relevant events’ in which Campine participated (recital 249 of the contested decision). It concluded that the collusive contacts in which Campine was found to have been involved were sufficiently close in time to consider that the latter had participated in the infringement without interruption from 23 September 2009 to 26 September 2012 (recital 249 of the contested decision).
265    With regard to the 11‑ and 10-month intervals identified in the contested decision, the Commission explained that, in accordance with the case-law, the fact that direct evidence of an undertaking’s participation in a cartel during a certain period has not been adduced does not, in the case of an infringement lasting several years, preclude participation in that cartel being regarded as established also during that period, provided that such participation is based on objective and consistent indicia (recital 250 of the contested decision).
266    The Commission took the view that Campine could not be considered to have temporarily ceased, interrupted or suspended its participation in the infringement during those intervals, on the basis of the following findings (recitals 251 and 252 of the contested decision):
–        Campine participated in the infringement and was aware of the collusive conduct and intentions of the other participants in the cartel, as well as the objectives pursued by them, and did not publicly distance itself from that conduct;
–        the collusive contacts between the cartel participants did not take place on a regular basis at fixed or predetermined periods, but on an ad hoc basis when the participants felt the need to do so;
–        given the overall relative stability of lead prices on the LME between June 2010 and April 2011, there were fewer collusive contacts during the 11-month interval;
–        Campine’s different degree of participation in the infringement can also be explained by the fact that it had other sources of information at other levels in the market regarding the purchase prices applied by its competitors;
–        it cannot be concluded that, during the two intervals in question, the other cartel participants did not have any precise idea of Campine’s conduct on the market, as they exchanged information on the purchase prices offered by other scrap battery buyers during those periods.
267    By its arguments in support of this complaint, Campine challenges the merits of the Commission’s finding that its participation in the infringement in question was continuous. It submits that only a single and repeated infringement could at most be attributed to it. In its pleadings, the Commission essentially reiterates the arguments set out in the previous paragraph.
268    As a preliminary point, it should be pointed out that, depending on the circumstances, a single infringement may be continuous or repeated.
269    Although the notion of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition and also individual infringements linked to one another by the same object and the same undertakings, the way in which the infringement was committed determines whether it may be categorised as a single, continuing infringement or a single, repeated infringement (see, to that effect, judgments of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraphs 85 and 86, and of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 484).
270    With regard to a continuous infringement, the concept of an overall plan means that the Commission may assume that an infringement has not been interrupted even if, in relation to a specific period, it has no evidence of the participation of the undertaking concerned in that infringement, provided that that undertaking participated in the infringement prior to and after that period and provided that there is no proof or indication that the infringement was interrupted so far as concerns that undertaking. In that case, it will be able to impose a fine in respect of the whole of the period of infringement, including the period in respect of which it does not have evidence of the participation of the undertaking concerned (see, to that effect, judgments of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 87, and of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 481).
271    However, the principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 482 and the case-law cited).
272    Although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 483 and the case-law cited).
273    Lastly, if the participation of an undertaking in the infringement may be regarded as having been interrupted and the undertaking may be regarded as having participated in the infringement prior to and after that interruption, that infringement may be categorised as repeated if — as in the case of a continuing infringement — there is a single objective which it pursued both before and after the interruption. That circumstance may be deduced from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings and, lastly, of the geographical scope of those practices. The infringement is then single and repeated and, although the Commission may impose a fine in respect of the whole of the period of the infringement, it may not do so for the period during which the infringement was interrupted (judgments of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 88, and of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 484).
274    In the present case, it is apparent from the documents before the Court that, during the infringement period of 3 years and 4 days, there were 62 collusive contacts within the cartel, which averages at approximately 20 contacts per year. The longest interval between the various collusive contacts was four and a half months (namely between 23 September 2009 and 10 February 2010).
275    In the case of Campine, the Commission found that it was involved in only six collusive contacts. As the Commission expressly acknowledges in recitals 249, 250 and 252 of the contested decision, there is no direct evidence of that undertaking’s participation in any anticompetitive contacts during, in particular, two periods separating those collusive contacts. Thus, an initial interval of 11 months elapsed between the collusive contact which manifested itself in the email of 10 February 2010 and the email from Mr G. (Campine) to Mr C. (Campine) of 10 January 2011, which, although not classified as a collusive contact, was relied on by the Commission to establish that Campine verified that the other participants in the cartel were in fact complying with the agreed prices (see paragraph 255 above). A second interval of approximately 11 months — and not 10 months as incorrectly indicated in the abovementioned recitals of the contested decision — elapsed between the collusive contact which manifested itself in Campine’s participation in the meeting in Cologne on 4 April 2011 and that consisting in the text message sent on 7 March 2012 by Mr M. (JCI) to Mr C. (Campine) (see paragraph 174 above). On that latter point, it should be noted that, in the contested decision, the Commission did not find that Campine participated in an anticompetitive contact which allegedly occurred at the World Lead Conference in Brussels of 6 to 8 April 2011 (see recitals 58, 94 and 95 of the contested decision).
276    It should be noted that those two periods in respect of which the Commission has no direct evidence of Campine’s participation in the infringement amount to 22 months in total, which is significant in relation to the overall duration of the cartel, namely slightly more than 36 months.
277    It should also be noted that, contrary to the Commission’s claims, those 11-month intervals significantly exceed the intervals separating the other collusive contacts in which Campine took part, which were approximately 1 month (between the end of May 2012 and 27 June 2012), 3 months (between 10 January and 4 April 2011, between 27 June and 26 September 2012, and between 7 March 2012 and the end of May 2012) and four and a half months (between 23 September 2009 and 10 February 2010). Those 11-month intervals are also much longer than the usual intervals between the tens of other collusive contacts involving the three other cartel members.
278    It is true, as the Commission observes, that the collusive contacts within the cartel did not take place at fixed or predetermined periods, but were driven, in particular, by fluctuations in LME lead prices. The fact remains, however, that (i) those prices, which influence to a large extent scrap battery prices (see recital 25 of the contested decision), frequently vary and that (ii) scrap battery prices may fluctuate on a weekly, or even daily, basis (see recital 19 of the contested decision). It necessarily follows that the collusive contacts, whose objective was to coordinate scrap battery purchase prices, had to take place with a certain regularity and at relatively close intervals.
279    The Commission’s contention that Campine’s lesser participation in the infringement can be explained by the fact that it had other sources of information at other levels in the market regarding the purchase prices applied by its competitors is pure speculation and cannot therefore be accepted.
280    The Commission’s argument that, by exchanging information on the purchase prices charged by their competitors, the other cartel participants were in a position to know Campine’s market behaviour during the two 11-month intervals is entirely irrelevant as regards whether Campine must be considered to have participated uninterruptedly in the infringement.
281    Moreover, the Commission does not adduce any evidence capable of corroborating its claim that Campine was aware of the cartel contacts that the three other members of the cartel engaged in during those two 11-month intervals or could reasonably have foreseen those contacts.
282    In fact, in finding that Campine’s participation in the cartel continued during the two 11-month intervals, the Commission essentially relied solely on the fact that it had not publicly distanced itself from the cartel. In that regard, it has been held that even if a public distancing is not the only means available to an undertaking implicated in a cartel of proving that it has ceased participating in that cartel, such distancing nonetheless constitutes an important fact capable of establishing that anticompetitive conduct has come to an end. The absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anticompetitive conduct has continued. However, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission must also base its findings on other evidence (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 28). Since that other evidence is lacking in the present case, it must be concluded that Campine’s participation in the infringement was interrupted between 10 February 2010 and 10 January 2011 and between 4 April 2011 and 7 March 2012.
283    Given that after those two 11-month periods, Campine resumed and repeated an infringement which it does not establish is different from the cartel in which it had participated before the interruptions, the infringement must be classified as single and repeated in its case.
284    Consequently, the second subsection of the second part of the second plea must be upheld in part inasmuch as the Commission erred in finding that Campine had participated in the infringement without interruption from 23 September 2009 to 26 September 2012. The consequences of that finding will be examined in the context of the assessment of the third plea, below.
(iii) On whether the conduct attributed to Campine has an anticompetitive object or effect
285    In recitals 231 to 238 of the contested decision, the Commission found that the agreements and concerted practices in question constituted restrictions of competition by object within the meaning of Article 101(1) TFEU and that, therefore, it was not necessary to demonstrate actual anticompetitive effects.
286    It must be recalled that, to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.
287    According to settled case-law, the alternative nature of that requirement, indicated by the conjunction ‘or’, means that it is first necessary to consider the precise object of the agreement (see judgment of 16 July 2015, ING Pensii, C‑172/14, EU:C:2015:484, paragraph 30 and the case-law cited).
288    Thus, where the anticompetitive object of the agreement is established, it is not necessary to examine its effects on competition (see judgment of 6 October 2009, GlaxoSmithKline Services and Others v Commission and Others, C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P, EU:C:2009:610, paragraph 55 and the case-law cited). The same is true of concerted practices (see, to that effect, judgment of 4 June 2009, T‑Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 28 to 30).
289    According to the case-law, certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 49 and the case-law cited).
290    That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 50 and the case-law cited).
291    Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price-fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51 and the case-law cited).
292    Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 52 and the case-law cited).
293    In order to determine whether a type of coordination between undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had, inter alia, to its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117 and the case-law cited).
294    In addition, although the parties’ intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive, there is nothing prohibiting competition authorities, national courts or the Courts of the European Union from taking that factor into account (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 118 and the case-law cited).
295    In cases where the anticompetitive object is readily apparent, the analysis of the economic and legal context in which the practice occurs may naturally be limited to what is strictly necessary (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 29). Just such a readily apparent anticompetitive object is present where competitors enter into price‑fixing agreements with each other (judgments of 30 January 1985, Clair, 123/83, EU:C:1985:33, paragraph 22; of 11 September 2014, CB v Commission, C‑67/13 P, EU:C:2014:2204, paragraph 51, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 115) or where they exchange sensitive information which is relevant to their respective pricing models (judgments of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraphs 32 to 37, and of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 119 to 124).
296    In the present case, the main aspect of the infringement attributed to the undertakings concerned consisted in the coordination of their policy on the purchase price of scrap lead-acid car batteries through the fixing of target prices, maximum prices and fixed-amount price reductions, in particular by means of exchanges of commercially sensitive information.
297    Such coordination of purchase prices, with the aim of reducing or preventing their increase and thus, ultimately, increasing the cartel participants’ profit margins, reveals a sufficient degree of harm to competition that it may be found that there is no need to examine its effects. A price cartel can be regarded, by its very nature, as being harmful to the proper functioning of normal competition. In that regard, it must be borne in mind that the first example of a cartel given in Article 101(1)(a) TFEU, expressly declared incompatible with the internal market, is precisely one which ‘directly or indirectly [fixes] purchase or selling prices or any other trading conditions’. The practice that was the object of the cartel is thus expressly prohibited by Article 101(1) TFEU, as it involves inherent restrictions on competition in the internal market (see, to that effect, judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 768).
298    The exchanges of information between the cartel participants in the present case concerned in particular the current or future purchase prices offered to their suppliers, purchasing intentions, expected volumes of purchases, levels of stocks and levels of activity.
299    In that regard, it should be recalled that the criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the notion inherent in the Treaty provisions on competition, according to which each economic operator must determine independently the policy which he intends to adopt on the internal market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 119 and the case-law cited).
300    While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, nonetheless, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the number and size of the undertakings involved and the volume of that market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 120 and the case-law cited).
301    The Court has therefore held that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 121 and the case-law cited).
302    In particular, an exchange of information which is capable of removing uncertainty between participants as regards the timing, extent and details of the modifications to be adopted by the undertakings concerned in their conduct on the market must be regarded as pursuing an anticompetitive object (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 122 and the case-law cited).
303    Lastly, it should be pointed out that the concept of a concerted practice, as it derives from the actual terms of Article 101(1) TFEU, implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 126 and the case-law cited).
304    In that regard, the Court has held that, subject to proof to the contrary, which the economic operators concerned must adduce, it must be presumed that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market. In particular, the Court has concluded that such a concerted practice is caught by Article 101(1) TFEU, even in the absence of anticompetitive effects on the market (see judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 127 and the case-law cited).
305    In view of the above-mentioned case-law principles, it must be held that the exchanges of information between the cartel participants clearly have an anticompetitive object, in that they clearly run counter to the requirement of independence, which is a key feature of the market conduct of undertakings operating within a system of effective competition. Through those exchanges of information, which concerned in particular current and future purchase prices and expected volumes of purchases, that is to say highly sensitive commercial information, the cartel participants communicated to each other how they intended to conduct themselves on the market with regard to factors that were decisive for their input purchasing policy. Those exchanges were aimed not only at eliminating or reducing uncertainties over the conceivable conduct of those undertakings, but also at enabling those undertakings to agree on the purchase prices of scrap lead-acid car batteries and at limiting the bargaining power of their suppliers. Accordingly, such exchanges of information in themselves reveal a sufficient degree of harm to competition and can be regarded, by their very nature, as being harmful to the proper functioning of normal competition.
306    It follows from the foregoing considerations that the Commission was entitled to classify the infringement in question as a restriction of competition by object and therefore to find that it was not necessary to examine its actual effects.
307    The various arguments advanced by Campine do not cast doubt on that finding.
308    Thus, in the first place, it is apparent from the examination of the first part of the second plea and of the first and second subsections of the second part of the same plea that Campine took part in collusive contacts aimed at coordinating the purchase prices of scrap lead-acid car batteries and in exchanges of commercially sensitive information. Campine’s claim that it was involved only in a few sporadic and isolated contacts cannot succeed, since it is not the frequency of the contacts but their nature that is decisive for classifying an infringement as a restriction of competition by object.
309    In the second place, it was established in paragraph 305 above that the exchanges of information between the cartel participants clearly had an anticompetitive object, so that it was not necessary to demonstrate actual anticompetitive effects. Whether and to what extent, in fact, such anticompetitive effects result can only be of relevance for determining the amount of any fine and assessing any claim for damages (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 31).
310    In the third place, it is to no avail that Campine complains that the Commission did not attach sufficient importance to the context of the case. As was already explained in paragraph 295 above, in cases where, as in the present case, the anticompetitive object is readily apparent, the analysis of the economic and legal context in which the conduct occurs may naturally be limited to what is strictly necessary. Moreover, and in any event, elements of such an analysis can be found in recital 233 of the contested decision, where the Commission, referring to recital 20 of that decision, which appears under section 2.3, entitled ‘Description of the sector’, states in particular that, under normal market conditions, in a market where, like the scrap battery market, demand exceeds supply and where it is necessary for recycling companies to ensure regularity of input supply, those companies would compete with each other as buyers and would therefore generally seek to offer prices that are sufficiently high to obtain the required supply of scrap batteries.
311    It follows that the third subsection of the second part of the second plea must be rejected as unfounded.
312    It follows from all the foregoing considerations that the second plea must be upheld to the extent that the contested decision found that Campine had participated uninterruptedly in the infringement between 23 September 2009 and 26 September 2012 and be rejected as to the remainder.
2.      The first plea, alleging infringement of the obligation to state reasons, of the rights of the defence and of the principles of good administration, legal certainty, the protection of legitimate expectations and non-discrimination
313    In the first plea, Campine challenges different aspects of the Commission’s application in the present case of point 37 of the Guidelines in order to increase by 10% the amount of the fine for all the addressees of the contested decision. This plea consists of three parts, alleging (i) infringement of the obligation to state reasons, (ii) infringement of Campine’s rights of defence and of the principle of good administration and (iii) infringement of the principles of legal certainty, the protection of legitimate expectations and non‑discrimination.
(a)    The first part of the first plea, alleging breach of the obligation to state reasons
(1)    Arguments of the parties
314    Campine, referring to the judgment of 13 December 2016, Printeos and Others v Commission (T‑95/15, EU:T:2016:722), maintains that, in the contested decision, the Commission did not set out, to the requisite legal standard, the specific reasons which led it, on the basis of point 37 of the Guidelines, to increase by 10% the amount of the fine for all the addressees of the contested decision. It states that, when the Commission decides to depart from the general methodology set out in the Guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies, as in the present case, on point 37 of the Guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously.
315    In that regard, in the first place, Campine complains that the Commission (i) did not clearly explain why the value of sales could not provide an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement and (ii) did not clearly set out the facts and points of law justifying the necessity, in the present case, for an increase of the fine under point 37 of the Guidelines.
316    In the reply, Campine submits that the reasons given by the Commission in the statement of objections to explain why it had taken into account the value of purchases rather than the value of sales to determine the basic amount of the fines contradict those given in the contested decision in this respect. It also criticises the fact that the Commission took into account the value of purchases, rather than the value of sales, in determining the basic amount of the fines and then decided to increase that amount precisely because the first value was used rather than the second. According to Campine, such an approach is contradictory.
317    Likewise in the reply, Campine claims that, in the statement of objections, in the letter of 13 December 2016 and in the contested decision, the Commission gives on each occasion different explanations to justify the increase under point 37 of the Guidelines. Moreover, Campine submits that it is incorrect to claim, as does the Commission, that the general methodology for setting fines laid down in the Guidelines is intended for sales cartels. The Guidelines apply in fact to any type of infringement of Articles 101 and 102 TFEU. Campine adds that, contrary to what the Commission stated in the defence, nowhere in the Guidelines is it stated that the value of sales is regarded as providing an appropriate proxy on the ground that it may be assumed that the infringements giving rise to the fines are likely to increase the value of sales. Many infringements penalised by the Guidelines do not lead to an increase in the value of sales, but can, for example, result in less innovation, a reduction of costs or a limitation of sales. Again in the reply, it states that the Commission has in no way proved that the cartel at issue was successful in achieving its objective, before pointing out that the Commission cannot increase as it sees fit a fine on the basis of point 37 of the Guidelines in order to achieve a deterrent effect, since an additional amount of 15% has already been imposed for that purpose.
318    In the second place, Campine claims that the Commission did not explain, in the statement of objections, in the letter of 13 December 2016 or in the contested decision, why it had set the percentage increase at 10%.
319    In the third place, Campine complains that the Commission failed to explain in the contested decision why it had imposed the same percentage increase on all the addressees of that decision. In the reply, it adds that a failure to state reasons cannot be remedied by the fact that explanations were provided in the defence. In any event, contrary to what the Commission argued in the defence, it cannot be found that all the addressees of the contested decision were in a comparable situation on the ground that they had all participated in the same purchase cartel.
320    The Commission contends that it has stated to the requisite legal standard the reasons for its decision to increase by 10%, on the basis of point 37 of the Guidelines, the amount of the fine for all the addressees of the contested decision.
(2)    Findings of the Court
321    It should be recalled that, according to settled case-law, the obligation to provide a statement of reasons laid down in the second paragraph of Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. From that point of view, the statement of reasons required must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which such a decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 146 to 148 and the case-law cited; judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 114 and 115, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 44).
322    Moreover, the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons 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, to that effect, judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 150; of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 116, and of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 45).
323    Furthermore, the obligation to state reasons laid down in Article 296 TFEU requires that the reasons on which a decision is based be clear and unequivocal. Thus, the statement of the reasons for a measure must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 151 and the case-law cited).
324    Point 37 of the Guidelines states that ‘although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21’.
325    When the Commission decides to depart from the general methodology set out in the Guidelines, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies, as in the present case, on point 37 of the Guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously. Those reasons must be all the more specific because that point 37 simply makes a vague reference to ‘the particularities of a given case’ and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission’s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance (judgment of 13 December 2016, Printeos and Others v Commission, T‑95/15, EU:T:2016:722, paragraph 48).
326    In the present case, first of all, it should be recalled that, in determining the basic amount of the fines, the Commission took into account the value of the purchases of scrap lead-acid car batteries made by each of the undertakings concerned, in the course of the full business year 2011, from scrap collectors, scrap dealers or traders established in Belgium, in Germany, in France and in the Netherlands, including purchases made directly from collection points where used batteries were deposited.
327    The Guidelines provide, in point 12
thereof, that ‘the basic amount [of the fine] will be set by reference to the value of sales’. Point 13 of the Guidelines provides that ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’ and that ‘it will normally take the sales made by the undertaking during the last full business year of its participation in the infringement’.
328    In the circumstances of this case, the reasons why the Commission considered it appropriate to depart from the general methodology provided for in the Guidelines, by taking into account the figures relating to purchases rather than those relating to sales, are set out in recital 298 of the contested decision, which reads as follows:
‘In the [statement of objections], the Commission stated its intention to use the value of purchases by each undertaking of the products concerned rather than the value of sales, given that the infringement related to purchase prices, and that the products concerned are inputs and not intermediary products or downstream products for which the value of sales could be used. In this context, the Commission noted that JCI does not sell any recycled lead but uses its entire production of recycled lead for its own production of lead-acid batteries. For this reason, it would therefore not be possible to use as a proxy the sales of recycled lead.’
329    In the light of what is stated in recital 298 of the contested decision, Campine’s claim that the Commission did not clearly explain why the value of sales could not provide an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement cannot be upheld. It is true that the Commission’s reasoning is brief, but it is clear and unequivocal and enables Campine to ascertain the reasons for the approach chosen and for the Court to exercise its power of review.
330    Contrary to what Campine submits in the reply, there is no contradiction between the reasons given in that respect in the statement of objections, on the one hand, and those given in the contested decision, on the other.
331    In paragraph 359 of the statement of objections, the Commission states as follows:
‘In the present case, as the infringement relates to purchase prices, the basic amount of the fine should be set by reference to the value of the purchases of the products to which the infringement relates of each undertaking. The Commission considers that it is relevant and appropriate to use figures for the value of purchases rather than the value of sales because of the particular nature of the cartel (purchase price cartel) and the characteristics of the market concerned, and given furthermore that the products to which the infringement directly relates are scrap lead-acid batteries and lead scrap obtained from such batteries, and not any of the intermediary products (partially processed lead scrap or residues) or downstream products (secondary pure lead or lead alloys) for which the value of sales could be taken. In this context, it is relevant to note that JCI does not sell any secondary pure lead or lead alloys on the open market.’
332    Moreover, it is clear from the same paragraph of the statement of objections that it is incorrect to claim, as Campine does in the reply, that, in that statement, the Commission ‘merely referred to the nature of the cartel (the purchase cartel) to state that the value of purchase was an appropriate proxy’.
333    In the second place, in the context of the adjustments to the basic amount, the Commission decided, on the basis of point 37 of the Guidelines, to increase by 10% the amount of the fine to be imposed on each of the addressees of the contested decision, in order to take into account the particularities of the case and to achieve deterrence (recitals 363 to 380 of the contested decision).
334    In that regard, it must be held that, contrary to Campine’s submission, in section 8.3.3.5. of the contested decision (see, in particular, recitals 363 to 365), the Commission set out clearly and to the requisite legal standard the reasons why it considered it necessary to apply such an increase.
335     It indicated the following:
–        it follows from point 5 of the Guidelines that, in order to achieve the objectives of specific and general deterrence, it is appropriate to refer to the value of the sales of goods or services to which the infringement relates as a basis for setting the fine;
–        according to point 6 of the Guidelines, the combination of the value of sales to which the infringement relates and of the duration of the infringement is to be regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement;
–        the objective of the cartel at issue was to coordinate prices for the purchase of scrap lead-acid batteries;
–        price-fixing of purchase prices and price-fixing of selling prices differ in that the objective of the former is not to increase the (purchase) price but, on the contrary, to reduce it or to prevent its increase;
–        the mechanism of the general method for the setting of fines is such that the more successful a sales cartel is, the higher the value of sales and thus the amount of the fine;
–        the inverse is true for purchase cartels: the more successful a purchase cartel is, the lower the amount of the value of purchases and thus the amount of the fine;
–        the Commission drafted the Guidelines with sales cartels in mind, not taking this particularity of purchase cartels into account;
–        it is thus inherent in the fact that the cartel at issue is a purchase cartel that the value of purchases in itself is unlikely to be an appropriate proxy for reflecting the economic importance of the infringement;
–        normally, in an operating company, purchases are lower than sales in value terms, thus giving a systematic lower starting point for the calculation of the basic amount of the fine;
–        therefore, following the general methodology of the Guidelines without any adjustment would also not achieve a sufficient deterrent effect (not only specific, but also general);
–        in order to take this particularity into account and to achieve sufficient deterrence, it is appropriate for an increase of 10% to be applied for all undertakings concerned.
336    In other words, and in essence, it is clear from the foregoing considerations, assessed in conjunction with those in recital 298 of the contested decision, that the Commission considered that, while the use of the value of purchases of scrap batteries was a more appropriate starting point for determining the basic amount of the fines than the value of sales, the use of such a starting point nevertheless had a certain perverse effect, since, in the case of a purchase cartel, the value of the purchases was liable to underrepresent the economic importance of the infringement and not to have the necessary deterrent effect. It therefore decided to apply a 10% increase under point 37 of the Guidelines, taking the view that this would ensure a balance between basing the calculation of the amount of the fine on the most appropriate parameter to reflect the economic importance of the infringement and at the same time making the necessary adjustments to ensure a sufficient deterrent effect, while respecting the principle of proportionality. There is no contradiction in such an approach.
337    Nor is there any contradiction between the Commission’s position on the need for such an increase which was expressed in turn in the statement of objections, the letter of 13 December 2016 and the contested decision.
338    In that respect, it should first of all be noted that, for the reasons set out in paragraphs 355 to 357 below, it is to no avail that Campine complains that the Commission did not refer in the statement of objections to its intention to increase the amount of the fine on the basis of point 37 of the Guidelines.
339    Second, it should be noted that the Commission provided explanations concerning its intention to apply such an increase in the letter of 13 December 2016, which reads as follows:
‘This letter aims to bring to your attention that, when determining the amount of the fine to be imposed in this case, the Commission intends to apply a
specific increase
under point 37 of the 2006 Guidelines …
. Point 37 allows the Commission to depart from the general methodology of the Guidelines when justified due to the particularities of a given case or the need to achieve deterrence in a particular case.
In the [statement of objections], the Commission stated its intention to use the value of purchases by each undertaking of the products concerned to set the basic amount of the fines.
The Commission notes that it is inherent to the very nature of the infringement (purchase cartel), that the more successful the cartel was in meeting its objective, the lower the basic amount used to calculate a fine.
In order to take this specificity into account and achieve deterrence in the present case, the Commission intends to apply, under point 37 of the … Guidelines …, an increase of the amount of the fine (before the legal maximum of 10% of worldwide turnover) by a set percentage. The percentage will be the same for all undertakings held liable for the infringement.
Please note that this letter does not contain any new objections.
You may provide comments on this letter within 10 working days from its receipt …’
340    The explanations thus provided are fully consistent with those contained in the contested decision. The fact that the Commission further clarified its reasoning in that decision does not in any way mean that it ‘repeatedly changed the explanation given for the increase applied’, as Campine submits in the reply.
341    As regards the other arguments and complaints which Campine raises in the reply, it is sufficient to note that they concern the merits of the contested decision and not its reasoning, so that they must be rejected as irrelevant.
342    In any event, those arguments and complaints are unfounded.
343    Thus, first, it is true that the Guidelines do not apply solely to sales cartels, but to different types of infringements of Articles 101 and 102 TFEU. However, as the Commission quite rightly contends in the rejoinder, that does not mean that it is appropriate to apply automatically the general fining methodology set out in those guidelines for all cases and for all undertakings concerned. If that were the case, there would be no reason for the exception laid down in point 37 of the Guidelines.
344    Second, it should be noted that Campine does not reproduce the Commission’s position accurately when it claims that the Commission stated in the defence that the value of sales is regarded as providing an appropriate proxy on the ground that it may be assumed that the infringements giving rise to the fines are likely to increase the value of sales. What the Commission stated is that the purpose of a sales cartel is generally to increase or maintain sales prices and that such conduct is therefore likely to increase the value of sales in relation to what it would have been in the absence of such an infringement and, consequently, to result in a higher fine. It is inherent in the application of the general fining methodology provided for by the Guidelines that, if, as in one of the situations which Campine invokes, an infringement does not lead to an increase in the value of sales, the fine will be lower than it would be if the infringement did have such an effect.
345    Third, it is to no avail that Campine complains that the Commission argued that the purpose of a purchase cartel is generally to reduce purchase prices or prevent their increase, but failed to establish in the present case that the cartel had been successfully implemented. The Commission’s reasoning is not based on the premiss that the cartel in question was successful, but on the finding that, unlike in the case of a sales cartel, achieving the aim of a purchase cartel would result in a fine lower than would be the case in the absence of the infringement and which would not therefore have any deterrent effect. In any event, increasing the amount of a fine on the basis of point 37 of the Guidelines is not conditional on proof that the conduct at issue had any actual effects on the market.
346    Fourth, Campine is not justified in criticising the fact that the Commission already included in the basic amount of the fines an additional amount of 15% of the value of purchases on the basis of the provisions of point 25 of the Guidelines. That additional amount, unlike the increase applied under point 37 of the Guidelines, was not intended to compensate for the fact that taking into account the value of purchases as the most appropriate proxy value was liable to lead to an underestimation of the economic importance of the infringement. In that respect, it should be noted that, as the Commission explained in the rejoinder and at the hearing, points 25 and 37 of the Guidelines address different issues. Thus, point 25 provides for the possibility for the Commission to apply an additional amount in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements, or even participating in other infringements, irrespective of the duration of their participation in the infringement. That mechanism is intended to deter companies from infringing competition law, even if only for a short period. As regards point 37, it is intended to give the Commission some flexibility to ensure that the overall amount of the fine is sufficiently high to be deterrent in the light of the particularities of the case.
347    In the third place, Campine is not justified in criticising the Commission for not having explained why it set the percentage increase at 10% under point 37 of the Guidelines. In view of the Commission’s broad discretion to choose the rate of increase that it intends to apply, the explanation in recital 375 of the contested decision, according to which the percentage of 10% is justified by the fact that this is the first time that it has imposed an increase in a case concerning a purchase cartel, must be regarded as sufficient.
348    In the fourth place, Campine is not justified in complaining that the Commission failed to explain in the contested decision why it had imposed the same percentage increase on all the addressees of the contested decision. It is clear that, since the reasons which led to that increase applied in the same way to all those addressees, it was not necessary to explain why the same percentage increase applied to all the addressees of the contested decision. The reasons thus provided by the Commission are compatible with the principle of equal treatment, since the various undertakings concerned were in a comparable situation, having all participated in the same purchase price cartel. The fact, on which Campine relies, that the undertakings concerned participated in the cartel to varying degrees is an irrelevant factor at this stage of the calculation of the amount of the fines which was taken into account by way of mitigating circumstances.
349    In the light of the foregoing, it must be held that, as regards the increase in the amount of the fines on the basis of point 37 of the Guidelines, the contested decision is not vitiated by any failure to state reasons. The first part of the first plea must therefore be rejected as unfounded.
(b)    The second part of the first plea, alleging infringement of Campine’s rights of defence and of the principle of good administration
(1)    Arguments of the parties
350    Campine claims that the Commission infringed its rights of defence, its right to be heard and the principle of good administration by failing, in the statement of objections or in a supplementary statement of objections, to refer to its intention to apply an increase on the basis of point 37 of the Guidelines.
351    Campine states that it was informed of that intention only by the letter dated 13 December 2016, that is one and a half years after the adoption of the statement of objections and more than a year after the hearing. That letter did not give Campine the right to request a hearing and did not even allow it to exercise its rights of defence in writing, since the letter had not properly informed it of the reasons why the Commission intended to apply point 37 of the Guidelines.
352    The Commission denies that it infringed Campine’s rights of defence and disregarded the principle of good administration.
(2)    Findings of the Court
353    In the first place, as regards the alleged infringement of Campine’s rights of defence, it should be recalled that, according to settled case‑law, observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the European Union Courts ensure (see, to that effect, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 26 and the case-law cited). That principle requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see judgment 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, paragraph 66 and the case-law cited).
354    Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure, to enable the parties concerned properly to identify the conduct complained of by the Commission and to defend themselves properly before the Commission adopts a final decision. That obligation is satisfied if the final decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity of stating their views (see judgment of 24 May 2012, MasterCard and Others v Commission, T‑111/08, EU:T:2012:260, paragraph 266 and the case-law cited).
355    With regard in particular to the exercise of the rights of the defence in respect of the imposition of fines, it is settled case-law that, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines (see judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 48 and the case-law cited).
356    In that respect, the Commission is not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level. To give indications as regards the amount of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate the Commission’s decision and would thus be inappropriate (see judgment of 15 March 2006, BASF v Commission, T‑15/02, EU:T:2006:74, paragraph 62 and the case-law cited).
357    In the present case, it is common ground that, in the statement of objections, the Commission expanded on the imperative criteria of the gravity and the duration of the infringement and on the fact that it had been committed intentionally (see paragraphs 355, 356 and 364 to 372 of the statement of objections). Since the Commission’s intention to increase the amount of the fine on the basis of point 37 of the Guidelines in order to take into account the particularities of the case and to achieve deterrence does not constitute ‘an element of fact and of law that may give rise to a fine’ for the purposes of the case-law cited in paragraph 355 above, it was not required — contrary to what Campine claims — to mention that intention in the statement of objections or in any supplementary statement of objections, or to allow the cartel participants to be heard in this regard at a hearing.
358    Campine is all the less justified in claiming an infringement of its rights of defence given that, by letter of 13 December 2016, the Commission informed the cartel participants of its intention to apply such an increase, requesting them to submit to it any observations they might have. Campine did indeed submit such observations.
359    Moreover, Campine’s claim that the letter of 13 December 2016 did not properly inform it of the reasons why the Commission intended to apply point 37 of the Guidelines cannot succeed either. In addition to what was stated above, it must be pointed out that the reason given in that letter to justify the increase under that point is essentially the same as that given in the contested decision (see paragraphs 335 to 340 above). It must be added that the contested decision was in no way required to be a copy of the letter of 13 December 2016, in particular in view of the fact that the Commission was entitled to take account in that decision of the cartel participants’ observations on that letter.
360    In the second place, as regards the alleged infringement of the principle of good administration, Campine appears to criticise the Commission for not having stated, at the stage of the statement of objections, that it would apply an increase on the basis of point 37 of the Guidelines when, at that stage, it already knew the reasons justifying, in its view, such an increase. That complaint cannot be upheld. As the Commission rightly points out, it is not required at the stage of the statement of objections to have taken a final decision on the exact amount of the fine that it intends to impose or on the final method for determining the amount of the fines that it intends to apply.
361    It follows from the foregoing considerations that the second part of the first plea must be rejected as unfounded.
(c)    The third part of the first plea, alleging infringement of the principles of legal certainty, protection of legitimate expectations and non‑discrimination
(1)    Arguments of the parties
362    Campine submits that the application of the 10% increase on the basis of point 37 of the Guidelines infringes the principles of legal certainty, protection of legitimate expectations and non-discrimination.
363    In that regard, in the first place, Campine argues that that increase marks a clear departure from the Commission’s previous decision‑making practice, since point 37 of the Guidelines has never been used to increase the amount of a fine in the case of a purchase cartel.
364    In the second place, Campine maintains that, in the contested decision, the Commission wrongly equated the type or nature of the cartel at issue with the ‘particularities of a given case’, within the meaning of point 37 of the Guidelines. However, the Commission already took into account the nature of the infringement under point 22 of the Guidelines.
365    In the third place, Campine argues that increasing the amount of the fine on the basis of point 37 of the Guidelines in the case of a purchase cartel was unprecedented and in no way foreseeable. A lack of foreseeability in the amount of the fine deprives competition policy of a deterrent effect.
366    In the fourth place, Campine claims that it is clear from the case-law relating to the principle that offences and penalties must be defined by law (nullum crimen, nulla poena sine lege) that, in a novel situation or where the Commission intends to change its decision-making practice and to adopt a decision aimed at deterring other undertakings from engaging in a specific type of infringement, only a symbolic fine should be imposed, since the outcome of its new interpretation was not reasonably foreseeable at the time when the infringement was committed.
367    Campine adds that the increase in the amount of the fine on the basis of point 37 of the Guidelines cannot be justified by the need to ensure a specific deterrent effect in so far as it is concerned. In that regard, it observes that this is the first time that it has been found to have taken part in an infringement of competition law and that it, at most, played only a minor and ancillary role in the alleged cartel.
368    The Commission denies that it disregarded the principles of legal certainty, protection of legitimate expectations and non-discrimination by applying point 37 of the Guidelines in the present case.
(2)    Findings of the Court
369    It must be held that, contrary to what Campine claims, the Commission’s application in the present case of the 10% increase on the basis of point 37 of the Guidelines does not in any way infringe the principles of legal certainty, protection of legitimate expectations and non‑discrimination. None of the arguments that Campine puts forward in support of its proposition can succeed.
370    Thus, in the first place, Campine’s claim that that increase marks a clear departure from the Commission’s previous decision-making practice must be rejected. The fact that the Commission has never in the past applied an increase under point 37 of the Guidelines in the case of a purchase cartel cannot create a legitimate expectation that it will not do so in the future. In that regard, it should be recalled that, according to the case-law, the Commission is not bound by its previous decision‑making practice and the latter does not, in any event, constitute a legal framework for the calculation of fines (judgments of 20 March 2002, LR AF 1998 v Commission, T‑23/99, EU:T:2002:75, paragraph 234, and of 25 October 2005, Groupe Danone v Commission, T‑38/02, EU:T:2005:367, paragraph 153). Undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or that it will always follow the same method of calculating the fines (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 173 and 229).
371    Moreover, as the Commission rightly observes in its pleadings, all its previous decisions concerning purchase cartels were adopted on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5)[CA] (OJ 1998 C 9, p. 3), which, unlike the Guidelines, made no reference to the value of sales for the purposes of determining the basic amount of the fine. The present case is the first in which the Guidelines have been applied to such a cartel, and there can therefore be no question of a ‘clear departure’, as Campine claims.
372    In the second place, Campine is wrong to argue that, in the contested decision, the Commission wrongly equated ‘the particularities of a given case’, within the meaning of point 37 of the Guidelines, with the nature of the cartel in question, namely a purchase cartel, which nature the Commission had allegedly already taken into account under point 22 of the Guidelines. The nature of the cartel which the Commission took into consideration for the purposes of applying that point 22 relates to the gravity of the infringement, namely the fact that it consisted in collusive behaviour leading to horizontal price-fixing, which is one of the most harmful restrictions on competition (see recital 322 of the contested decision). However, the application of point 37 of the Guidelines was justified by the particularity that the cartel was a purchase cartel, for which the application of the general methodology for calculating the amount of the fine was not entirely appropriate.
373    In the third place, it must be held that Campine cannot rely on the principle of legal certainty and, in particular, the requirement that the effects of rules of law must be foreseeable, in order to criticise the fact that the Commission decided in the present case to apply an increase on the basis of point 37 of the Guidelines. In that regard, first of all, it must be recalled that it is settled case-law that fines constitute an instrument of the Commission’s competition policy and that that institution must therefore be allowed a margin of discretion when fixing their amount, in order that it may direct the conduct of undertakings towards compliance with the competition rules (judgment of 11 December 1996 in Van Megen Sports v Commission, T‑49/95, EU:T:1996:186, paragraph 53). Next, it should be noted that the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability (judgment of 13 July 2011, Case T‑138/07, Schindler Holding and Others, EU:T:2011:362, paragraph 99). Moreover, it has even been held by the EU Courts that, in view of the need to achieve deterrence, it is important to ensure that fines are not easily foreseeable by economic operators (see, to that effect, judgment of 27 March 2014, Saint-Gobain Glass France and Others v Commission, T‑56/09 and T‑73/09, EU:T:2014:160, paragraph 151). Lastly, it should be noted that, in the present case, the Commission largely followed the general methodology for calculating the amount of the fine provided for in the Guidelines, departing from it only in order to use the most appropriate proxy value and to compensate for the fact that taking that proxy value into account was liable to result in an underestimation of the economic importance of the infringement and lead to an insufficient deterrent effect. Such a departure cannot be regarded as unforeseeable, since point 37 of the Guidelines expressly states that the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology.
374    Admittedly, as Campine noted in the reply, the Court held, in paragraph 58 of the judgment of 18 July 2013, Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522), that an operator must be able to foresee in a sufficiently precise manner the method of calculation and order of magnitude of the fines which he incurs for a given line of conduct. However, Campine fails to mention that, in the same paragraph, the Court concluded that this was indeed the case in practice, since, although Article 23(2) of Regulation No 1/2003 leaves the Commission a discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere, and stated that the fact that that trader cannot know in advance precisely the level of the fines which the Commission will impose in each individual case cannot constitute a breach of the principle that penalties must have a proper legal basis.
375    In the fourth place, the passage from paragraph 142 of the judgment of 8 July 2008, AC-Treuhand v Commission (T‑99/04, EU:T:2008:256), cited by Campine, is irrelevant to the question whether the Commission was entitled to apply an increase in the present case on the basis of point 37 of the Guidelines. In that passage, the Court stated that, although the principle of nullum crimen, nulla poena sine lege in principle enables the rules governing criminal liability to be gradually clarified through interpretation by the courts, it may preclude the retroactive application of a new interpretation of a rule establishing an offence.
That is particularly true if the result of that interpretation was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation attributed to the provision in the case-law at the material time. However, the application in the circumstances of this case of point 37 of the Guidelines does not in any way result in the retroactive application of a new interpretation of Article 101 TFEU. That point concerns only the question of the fine to be imposed, in accordance with the provisions of Article 23(2) and (3) of Regulation No 1/2003 and with the Guidelines, to punish the breach of the competition rules. Moreover, the fact that a purchase price cartel may constitute an infringement of Article 101 TFEU is in no way new.
376    In the fifth place, Campine’s claims that this is the first time that it has been found to have taken part in an infringement of competition law and that it has, at most, played only a minor and ancillary role in the cartel are also irrelevant. Those circumstances have no bearing on the application of point 37 of the Guidelines and were duly taken into account at other stages of the calculation of the amount of the fine imposed on Campine.
377    In the sixth place, with regard to the alleged infringement of the principle of equal treatment, it is sufficient to note that Campine does not raise any arguments in support of that complaint. It must therefore be rejected as inadmissible, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that Statute, and Article 177(1)(d) of the Rules of Procedure, according to which there must be a summary of the pleas in law relied on.
378    It follows from all the foregoing considerations that the third part of the first plea and, consequently, that plea as a whole must be rejected.
379    In conclusion, the application for annulment of the contested decision must be upheld in part, in so far as the Commission (i) concluded, in Article 1 of that decision, that Campine participated in the infringement between 10 February 2010 and 10 January 2011, and between 4 April 2011 and 7 March 2012 and (ii) set, in Article 2 of that decision, the amount of the fine imposed on Campine by taking into account the duration of the infringement initially found. The consequences of that annulment in part of the contested decision will be examined in paragraphs 424 and 425 below.
C.      The alternative head of claim, seeking the cancellation or reduction of the fine
1.      Preliminary observations
380    By the second group of pleas, Campine submits complaints and arguments challenging both the lawfulness of the calculation of the amount of the fine imposed on it and the appropriateness of the fine. Thus, those complaints and arguments seek, without drawing a clear distinction, the annulment in part of Article 2 of the contested decision in so far as it concerns Campine and/or its variation in the exercise by the Court of its unlimited jurisdiction.
381    According to the case-law, the review of the lawfulness of decisions adopted by the Commission is supplemented by the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited). The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the decision that is contested and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 67 and the case-law cited).
382    In order to determine the amount of the fine imposed, it is for the Court to assess for itself the circumstances of the case and the nature of the infringement in question. That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, without the General Court being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 89 and 90).
2.      The third plea, alleging infringement of Article 23(3) of Regulation No 1/2003 and the Guidelines
(a)    Arguments of the parties
383    In the first place, Campine claims that the Commission did not correctly assess the gravity of the infringement. Campine again argues that it was at most only marginally involved in that infringement and that its conduct could at most be regarded only as an independent exchange of imprecise, vague and sporadic information, with no demonstrated effect on the market. It adds that it is only a small operator on the market and has virtually no market share in two of the Member States concerned, namely Germany and France.
384    In the second place, Campine maintains that the Commission did not correctly assess the duration of the infringement. It reiterates its claim that it did not participate in a single and continuous infringement, but at most a single and repeated infringement. It submits that the evidence relating to six contacts over a period of more than 3 years cannot constitute evidence of facts sufficiently close in time for it to be reasonable to conclude that the infringement continued without interruption between two specific dates. Accordingly, and in the light of the movement of prices on the scrap battery market, the duration of the infringement for Campine should be limited to 1 week or at most 2 weeks after any of the contacts that the Court might classify as illegitimate.
385    In the third place, Campine claims that the Commission did not correctly assess the mitigating circumstances when calculating the fine which was imposed on it.
386    In that regard, first, Campine criticises the fact that the Commission granted Campine only a 5% reduction in the amount of its fine on account of its secondary role in the infringement. Campine takes the view that the Commission cannot justify that percentage by the fact that the value of the purchases which it had taken into account for Campine already reflected its secondary position on the market as compared with that of Eco-Bat, JCI and Recylex. The Commission is not entitled, when assessing the mitigating circumstances, to take into account the figures relating to the value of the purchases made by Campine, since that value has already been taken into account when calculating the basic amount of the fine to be imposed.
387    According to Campine, nor can the Commission justify the percentage of only 5% by stating that Campine had participated in all the multilateral meetings and that it did not oppose or disrupt the cartel. There were only two multilateral meetings over a period of more than 3 years and Campine felt ‘morally’ obliged to participate in them because they had been organised by its most important customer, JCI, in order to discuss issues relating to the REACH Regulation. Moreover, Campine claims to have opposed the cartel so far as possible, never to have initiated any of the collusive contacts with the three members of the cartel and to have behaved in a competitive manner. Relying on various elements which are identified in the case-law and are present in this case, Campine concludes from the foregoing that the Commission should have applied a reduction of at least 20% to the amount of its fine, on the basis of the mitigating circumstance that its participation in the cartel was considerably limited.
388    Second, Campine claims that the Commission erred in not granting it a further reduction on account of its cooperation outside the scope of the Leniency Notice. It states that it provided the Commission, in its leniency application, with all the information at its disposal concerning the cartel.
This was not an easy task, since the main person involved in the infringement in question, Mr C. (Campine), had left the company on 24 August 2012 and it is a small company with no in-house legal counsel and only one IT specialist. It claims that, when it submitted its leniency application, it had not yet found evidence of unlawful conduct and that, after further research, it was quite clear to it that there was simply no evidence of its participation in the cartel. The information which it provided in its leniency application was very valuable information about the functioning of the market, made it easier for the Commission to establish the infringement and was confirmation of the events. Lastly, it is stated in the contested decision that Campine provided information to the Commission on at least 12 occasions.
389    In the fourth place, Campine submits that the Commission infringed the principle of non-discrimination in calculating the amount of the fine, in so far as it did not penalise Métal Blanc whereas that company was one of the addressees of the statement of objections and there was evidence in the file to prove quite clearly the existence of discussions and agreements on prices between that company and the three members of the cartel.
390    In the light of all the foregoing considerations, Campine submits that no fine should be imposed on it or, at the very least, that the amount of the fine should be substantially reduced.
391    The Commission rejects the arguments put forward by Campine.
(b)    Findings of the Court
392    In the first place, as regards the Commission’s assessment of the gravity of the infringement committed by Campine, it should be recalled that, according to the Guidelines, the amount reflecting the gravity of the infringement is determined in accordance with a percentage between 0 and 30% of the value of the relevant sales of the undertaking concerned in the final year of its participation in the cartel.
393    As the Commission rightly stated in recitals 321 and 322 of the commission decision, for the purposes of setting the multiplier for the ‘gravity of the infringement’, it is necessary to take into account in particular the nature of the infringement alleged.
394    However, as the Commission observed, inter alia, in recitals 322 and 324 of the contested decision and as was already noted in paragraphs 295 to 297 above, a cartel with the objective of coordinating prices is by its nature one of the most harmful restrictions of competition (see also point 23 of the Guidelines). Consequently, it cannot be alleged that the Commission made errors of law in setting for such an infringement a rate of 15% as the multiplier for the ‘gravity of the infringement’. Such a rate, which is the lowest rate on the scale of penalties prescribed for such infringements under the Guidelines (judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 61), is clearly consistent with the principle of proportionality.
395    Moreover, for the reasons set out in the context of the examination of the second plea above, to which reference is made, Campine’s claim that its conduct could at most be regarded only as an independent exchange of imprecise, vague and sporadic information, with no demonstrated effect on the market, cannot be accepted.
396    As regards Campine’s argument that it was involved only marginally in the infringement, it should be noted that, for the purpose of assessing the gravity of an infringement, differences between undertakings which have participated in the same cartel need not necessarily be taken into account when setting the multiplier for the ‘gravity of the infringement’ (or the additional amount), but may be taken into account at another stage of calculating the fine, such as when adjusting the basic amount in the light of any mitigating and aggravating circumstances, under points 28 and 29 of the Guidelines (see judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 71 and the case-law cited). In the present case, the Commission took into account the ancillary role played by Campine in the cartel by way of mitigating circumstances by granting it a 5% reduction in the amount of the fine.
397    As for Campine’s argument that it is only a small operator on the market and had virtually no market share in two of the four Member States concerned, it should be pointed out that the Court has acknowledged that the use of the value of an undertaking’s sales (and, by analogy, of the value of purchases in the case of a purchase cartel) as a starting point for calculating the basic amount of the fines makes it possible to reflect, for each participating undertaking, the scale of its involvement in the infringement in question (judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 105). This reasoning may be applied by analogy to the use of the value of purchases in the case of a purchase cartel. In the present case, the basic amount of the fines was determined, for each cartel participant, on the basis of the value of the purchases that it had made during the infringement period in the territories concerned. Thus, a different basic amount was established for each of those participants, reflecting the scale of their respective activities in the territories concerned.
398    It must therefore be concluded that the Commission correctly assessed the gravity of the infringement when calculating the amount of the fine imposed on Campine.
399    In the second place, it should be recalled that, for the purposes of determining the duration of the participation of each of the undertakings concerned in the infringement, the Commission relied on the classification of that cartel as ‘single and continuous’. Thus, it considered that Campine had taken part in that single and continuous infringement, without interruption, from 23 September 2009 to 26 September 2012, so that the multiplier to be applied for the duration of the infringement had to be set at 3.01.
400    It is apparent from the examination of the second subsection of the second plea (see paragraphs 263 to 284 above) that the Commission was wrong to find that Campine had participated in the infringement continuously from 23 September 2009 to 26 September 2012. It was found that its participation in that infringement was interrupted, first, between 10 February 2010 and 10 January 2011 and, second, between 4 April 2011 and 7 March 2012, so that the duration of the single and repeated infringement attributable to Campine was 14 months.
401    Accordingly, the multiplier to be applied for the duration of the infringement must be set at 1.17 for Campine.
402    In the third place, as regards the assessment of mitigating circumstances, it should be recalled that, pursuant to point 29 of the Guidelines, the Commission granted Campine a reduction of 5% of the basic amount of its fine, in the light, in essence, of its minor and peripheral role in the cartel.
403    It is necessary to ascertain whether that level of reduction is appropriate in view of the nature of, and all the relevant circumstances that characterise, Campine’s participation in the cartel.
404    In that respect, first, it is apparent from recital 355 of the contested decision that, in order to set the level of reduction to be applied to Campine’s fine at 5%, on the one hand, the Commission found that Campine had been involved in significantly fewer anticompetitive contacts than the three other members of the cartel (namely 6 contacts for Campine, compared with 61 for JCI, 28 for Eco-Bat and 39 for Recylex), that for long periods there was no evidence of its participation in any anticompetitive contacts and that it therefore appeared that it had played only a minor or peripheral role in the infringement. On the other hand, the Commission found that a reduction of more than 5% would not be justified, as ‘the value of purchases figure taken into account for Campine already reflects its secondary position on the market compared to Eco-Bat, JCI and Recylex’, as Campine ‘took part in all multilateral meetings and [as it] did not oppose or disrupt the cartel’.
405    Campine does not call into question the findings made by the Commission in the first part of the reasoning set out in the previous paragraph and the material accuracy of which is moreover confirmed by the information in the case file.
406    It should be noted, however, that the fact that Campine did not take part in any anticompetitive contacts in connection with the cartel for a total period of approximately 22 months has already been taken into account by the Court in order to reduce the multiplier to be applied for the duration of the infringement (see paragraph 401 above).
407    As regards the Commission’s findings in the second part of its reasoning set out in paragraph 404 above, it should first of all be noted that it is common ground between the parties that Campine took part in all the multilateral cartel meetings, but that there were only two such meetings during the entire period of the cartel. Campine’s argument that it felt ‘morally obliged’ to attend those meetings on the ground that they were organised by its most important customer, JCI, cannot succeed. As can be seen from the considerations set out in paragraphs 138 to 154 and 164 to 173 above, the discussions at those meetings were of an anticompetitive nature and Campine did not publicly distance itself from their content. Next, it must be stated that there is nothing in the documents before the Court to support Campine’s claim that it opposed the cartel so far as possible. Campine’s claim that it never initiated any of any collusive contacts with the other members of the cartel is contradicted by the email of 10 February 2010, from which it is apparent that it had requested JCI to lower its purchase prices for scrap batteries on the German market (see paragraphs 155 to 163 above).
408    On the other hand, the Court cannot concur with the Commission, when, in order to limit the level of reduction that could be granted to Campine on account of mitigating circumstances, it relies on the fact that the value of the purchases taken into account in Campine’s case already reflects its secondary position on the market in comparison with that of the other cartel participants. In other words, in order not to grant Campine a reduction of more than 5%, the Commission seeks to rely on the fact that Campine’s limited presence on the market was already taken into account when determining the basic amount of its fine, which was based on the value of the purchases made by each of the cartel participants, and that, therefore, if such a reduction were applied to its fine, it would no longer have a sufficient deterrent effect. Such an approach cannot be accepted, since it amounts to treating a small operator more severely than a larger market operator.
409    Second, it is not possible to take the view, as Campine does, that the Commission erred in not further reducing the amount of its fine on account of its cooperation outside the scope of the Leniency Notice.
410    In that regard, it should be recalled that the fourth indent of point 29 of the Guidelines provides that the basic amount of the fine may be reduced on account of mitigating circumstances ‘where the undertaking concerned has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so’.
411    In order for Campine to be able to claim the benefit of the fourth indent of point 29 of the Guidelines, however, it must establish that its cooperation, having gone beyond Campine’s legal obligation to cooperate but without entitling it to a reduction of the fine under the Leniency Notice, was objectively useful to the Commission, in that the latter was able to rely in its final decision on evidence supplied to it by Campine in the context of its cooperation, and without which the Commission would not have been in a position to penalise the infringement in question, in whole or in part (see, to that effect, judgment of 15 July 2015, Socitrel and Companhia Previdente v Commission, T‑413/10 and T‑414/10, EU:T:2015:500, paragraph 329).
412    It is clear that that is not the case here. As the Commission rightly observes in its pleadings, Campine’s cooperation consisted only in complying with its legal obligation to respond to requests for information and to undergo inspections. Moreover, far from acknowledging the facts, Campine has consistently denied them and contested its participation in the cartel, even in the context of this action. Lastly, as is apparent from recitals 404 to 411 of the contested decision, the information that Campine provided in its leniency application provided little or no added value.
413    In the light of the considerations set out in paragraphs 402 to 412 above, it is appropriate, in the exercise of the unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003, to apply an 8% reduction to the basic amount of Campine’s fine on account of mitigating circumstances.
414    In the fourth place, it is necessary to reject Campine’s complaint that the Commission infringed the principle of non-discrimination by holding it liable for participating in the cartel in question and imposing on it a fine for that conduct, but did not act in the same way with regard to Métal Blanc, when there is allegedly clear evidence of collusive contacts between the latter and the members of the cartel.
415    It should be recalled that, according to settled case-law, the fact that a trader who was in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by that applicant, provided that it was properly established (judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 146). It follows from that case-law that the Commission is entitled to address to each undertaking against which an infringement is found a decision recording that infringement and imposing a penalty on it. Arguments based on a comparison of the situation of the addressee of such a decision with the situation of other undertakings (whether or not addressees of the same decision) cannot in any circumstances call in question the legality of the decision in so far as it finds and penalises a duly established infringement (judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraphs 138 and 139). Campine’s complaint must therefore be rejected as ineffective.
416    Moreover, and in any event, it is settled case-law that the principle of equal treatment, a general principle of European Union law, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (see judgment of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 237 and the case-law cited). However, in the present case, Campine does not put forward any argument or evidence to establish that it was in a situation comparable to that of Métal Blanc. In that regard, the Commission’s statement in the defence that, unlike in the case of Campine, it had insufficient evidence to demonstrate that Métal Blanc had infringed Article 101 TFEU and punish it accordingly must be considered credible.
417    In the light of all the foregoing considerations, the third plea must be upheld to the extent that the Commission did not correctly assess the ‘duration of the infringement’ factor when calculating the basic amount of Campine’s fine and that it granted only a 5% reduction of that amount on account of mitigating circumstances. This plea must be rejected as to the remainder.
3.      The fourth plea, seeking a reduction of the amount of the fine, alleging that the 10% increase applied under point 37 of the Guidelines should be annulled
(a)    Arguments of the parties
418    In the first part, Campine claims that, if the Court holds that the complaints that it relied on in the context of the first plea do not justify annulment of the contested decision, the Court should at the very least annul the 10% increase in the amount of the fine applied under point 37 of the Guidelines.
419    In the second part, Campine submits that, having regard to its individual circumstances and to its extremely limited and marginal role in the infringement at issue, if the Court concludes that the Commission was justified in increasing the amount of the fine on the basis of point 37 of the Guidelines, that increase should be limited to a symbolic amount or, at the very least, be significantly lower than 10%.
420    The Commission rejects Campine’s arguments.
(b)    Findings of the Court
421    As regards the first part of the fourth plea, it is sufficient to recall that the arguments put forward in support of it were already rejected in the context of the assessment of the first plea, in paragraphs 321 to 349, 353 to 361 and 369 to 378 above.
422    As regards the second part, it is also sufficient to note that Campine’s limited role in the cartel has already been taken into account by the grant of a reduction in the basic amount of its fine on account of mitigating circumstances.
423    The fourth plea must therefore be rejected as unfounded.
D.      The determination of the final amount of the fine
424    It is apparent from the considerations set out in paragraphs 399 to 413 above that the multiplier to be applied for the duration of the infringement should be set at 1.17 and the reduction to be applied on account of mitigating circumstances at 8%.
425    The final amount of the fine imposed on Campine is therefore calculated as follows: first of all, the basic amount of the fine is determined by applying, in view of the gravity, a percentage of 15% to the value of the purchases made by Campine, which results in an amount of EUR 1 946 981, and by applying to the latter amount, in respect of the duration of the infringement, a multiplier of 1.17, which results in an amount of EUR 2 277 968, to which an additional amount of EUR 1 946 981 must be added, to reach an amount of EUR 4 224 949. 8% of that amount (EUR 337 996) is then deducted, on account of mitigating circumstances, which results in an amount of EUR 3 886 953. Lastly, that latter amount must be increased by 10% on the basis of point 37 of the Guidelines (EUR 388 695), which results in a fine in the final amount of EUR 4 275 648.
IV.    Costs
426    Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
427    Since the applicants’ action has been upheld in part, the Commission must be ordered to bear its own costs and to pay one third of those incurred by the applicants. The applicants are ordered to bear two thirds of their own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls Article 1 of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) in so far as it refers to the period from 10 February 2010 to 10 January 2011 and the period from 4 April 2011 to 7 March 2012, to the extent that it concerns Campine NV and Campine Recycling NV;
2.      Annuls Article 2 of Decision C(2017) 900 final in so far as it sets the amount of the fine imposed on Campine and Campine Recycling at EUR 8 158 000;
3.      Sets the amount of the fine imposed on Campine and Campine Recycling in Article 2 of Decision C(2017) 900 final at EUR 4 275 648;
4.      Dismisses the action as to the remainder;
5.      Orders Campine and Campine Recycling to bear two thirds of their own costs;
6.      Orders the European Commission to bear its own costs and to pay one third of the costs of Campine and Campine Recycling.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 7 November 2019.
E. Coulon
A. M. Collins
Registrar
President
Table of contents
I.
Background to the dispute
A.
The administrative procedure which led to the contested decision
B.
The contested decision
1.
Relevant sector
2.
Description of the infringement
3.
The Commission’s legal assessment of the infringement
4.
Duration of participation in the infringement
5.
Liability for the infringement
6.
Calculation of the amount of the fines
(a)
Starting point for setting the basic amount of the fines
(b)
Basic amount of the fines
(c)
Adjustments to the basic amount of the fines
(d)
Application of the 10% of turnover limit
(e)
Application of the Leniency Notice and the final amount of the fines
II.
Procedure and forms of order sought
III.
Law
A.
Admissibility of the documents produced by Campine at the hearing and its request to have the email of 10 February 2010 removed from the case file
B.
The principal head of claim, seeking the annulment of the contested decision
1.
The second plea, alleging that the Commission has not established to the requisite legal standard that Campine infringed Article 101(1) TFEU
(a)
Preliminary observations
(b)
The first part of the second plea, alleging incorrect assessment of the evidence
(1)
Arguments of the parties
(2)
Findings of the Court
(i)
The meeting in Windhagen on 23 September 2009
(ii)
The email of 10 February 2010
(iii)
The meeting in Cologne on 4 April 2011
(iv)
The text messages from Mr M. (JCI) of 7 March 2012
(v)
Certain contacts during May 2012
(vi)
Certain contacts during June 2012
(c)
The second part of the second plea, alleging that the evidence adduced does not support the finding of an infringement
(1)
Arguments of the parties
(2)
Findings of the Court
(i)
On whether it is demonstrated that Campine participated in the cartel
(ii)
On whether Campine took part in a single and continuous infringement
–
Preliminary observations
–
Campine’s participation in an overall plan pursuing a common objective
–
Campine’s intentional contribution to the overall plan
–
Campine’s awareness of the unlawful conduct as a whole
–
The continuous nature of Campine’s participation in the infringement
(iii)
On whether the conduct attributed to Campine has an anticompetitive object or effect
2.
The first plea, alleging infringement of the obligation to state reasons, of the rights of the defence and of the principles of good administration, legal certainty, the protection of legitimate expectations and non-discrimination
(a)
The first part of the first plea, alleging breach of the obligation to state reasons
(1)
Arguments of the parties
(2)
Findings of the Court
(b)
The second part of the first plea, alleging infringement of Campine’s rights of defence and of the principle of good administration
(1)
Arguments of the parties
(2)
Findings of the Court
(c)
The third part of the first plea, alleging infringement of the principles of legal certainty, protection of legitimate expectations and nondiscrimination
(1)
Arguments of the parties
(2)
Findings of the Court
C.
The alternative head of claim, seeking the cancellation or reduction of the fine
1.
Preliminary observations
2.
The third plea, alleging infringement of Article 23(3) of Regulation No 1/2003 and the Guidelines
(a)
Arguments of the parties
(b)
Findings of the Court
3.
The fourth plea, seeking a reduction of the amount of the fine, alleging that the 10% increase applied under point 37 of the Guidelines should be annulled
(a)
Arguments of the parties
(b)
Findings of the Court
D.
The determination of the final amount of the fine
IV.
Costs
*      Language of the case: English.