62007TJ0112_EN
Parties
Grounds
Operative part
Parties
In Case T-112/07,
Hitachi Ltd, established in Tokyo (Japan),
Hitachi Europe Ltd,
established in Maidenhead (United Kingdom),
Japan AE Power Systems Corp.,
established in Tokyo,
represented by M. Reynolds, P. Mansfield and B. Roy, Solicitors, D. Arts, lawyer, N. Green QC, and S. Singla, Barrister,
applicant,
v
European Commission,
represented initially by F. Arbault, then by X. Lewis, and subsequently by P. Van Nuffel and J. Bourke, and finally by P. Van Nuffel, N. Khan and F. Ronkes Agerbeek, acting as Agents, assisted by J. Holmes, Barrister,
defendant,
APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) to the extent to which it concerns the applicants and annulment of the fines imposed on them and, in the alternative, for the annulment of Article 2 of that decision to the extent to which it concerns the applicants and, in the further alternative, for the annulment or a reduction of the fines imposed on the applicants,
THE GENERAL COURT (Second Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and S. Soldevila Fragoso, Judges,
Registrar: C. Kantza, Administrator
having regard to the written procedure and further to the hearing on 8 December 2009,
gives the following
Judgment
Grounds
Background to the dispute
A – Applicants
1. Hitachi Ltd and its subsidiary Hitachi Europe Ltd (referred to collectively as ‘Hitachi’) are companies active in various industrial sectors, including the sector for gas insulated switchgear (‘GIS’). Japan AE Power Systems Corp. (‘JAEPS’) is a joint venture between Hitachi, Fuji Electric Systems Co. Ltd and Meidensha Corp., which took over in particular the GIS business of the respective groups of its shareholders on 1 October 2002.
B – Goods concerned
2. GIS is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for power sub-stations. GIS is sold across the world either as part of turnkey power sub‑stations or as loose equipment which has to be integrated into a turnkey power sub‑station.
C – Administrative procedure
3. On 3 March 2004, ABB Ltd informed the Commission of the European Communities (now ‘the European Commission’) of anti‑competitive practices in the GIS sector in an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’).
4. ABB’s application for immunity was supplemented by oral observations and documentary evidence. It gave rise, on 24 April 2004, to a Commission decision granting conditional immunity to ABB.
5. On the basis of ABB’s statements, the Commission initiated an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of various companies active in the GIS sector.
6. On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies including the applicants. The Commission held hearings on 18 and 19 July 2006 for the companies to which the statement of objections had been sent.
D – Contested decision
7. On 24 January 2007, the Commission adopted Decision C(2006) 6762 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) (‘the contested decision’).
8. In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS projects had been carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘common understanding’), under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.
9. The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries, other than the ‘home countries’, were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.
10. According to the Commission, the sharing of GIS projects between the European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’) (‘the EQ Agreement’). It indicated that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.
11. On the basis of the findings of fact and legal assessments made in the contested decision, the Commission found that the undertakings implicated had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) and imposed on them fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the guidelines’) and in the Leniency Notice.
12. In Article 1 of the contested decision, the Commission found, first, that Hitachi had participated in the infringement from 15 April 1988 to 31 December 1999 and from 2 July 2002 to 11 May 2004, second, that Hitachi Europe had participated in the infringement from 15 April 1988 to 31 December 1999 and from 2 July 1999 to 30 September 2002, and, third, that JAEPS had participated in the infringement from 1 October 2002 to 11 May 2004.
13. For the infringement found in Article 1 of the contested decision, Hitachi was fined, in Article 2 of the contested decision, EUR 50 400 000, of which EUR 48 375 000 to be paid jointly and severally with Hitachi Europe. Similarly, in that same article a fine of EUR 1 350 000 was imposed on JAEPS, to be paid jointly and severally with Hitachi, Fuji Electric Holdings Co. Ltd and Fuji Electric Systems (collectively referred to as ‘Fuji’).
Procedure and forms of order sought by the parties
14. By application lodged at the Court Registry on 17 April 2007, the applicants brought the present action. The defence and reply were lodged on 13 August and 21 November 2007. The written procedure closed with the lodging of the rejoinder on 10 January 2008.
15. Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided, on 22 September 2009, to open the oral procedure. By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court, the Court invited the Commission to submit certain documents and requested the parties to express their views on the relevance of those documents in relation to the plea alleging infringement of the right of access to the file. The Court also put a question to the Commission in writing, inviting it to give its reply at the hearing.
16. In response to the Court’s request, the Commission forwarded the documents concerned on 26 October 2009. The applicants submitted their observations on those documents on 18 November 2009. The Commission replied to the applicants’ observations on 3 December 2009.
17. The parties presented oral argument and submitted their replies to the Court’s written and oral questions at the hearing on 8 December 2009.
18. By order of 26 March 2010, the Court ordered the oral procedure to be reopened. On 29 March 2010, under the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court invited the Commission to submit a number of documents.
19. Since the Commission pointed out that a number of the documents concerned could not be sent because of the protection granted in the context of the leniency programme, the Court, by order of 11 June 2010 ordered the Commission to produce those documents by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure and determined the arrangements by which the applicants could consult them. The Commission complied with that measure of inquiry within the deadline set.
20. The oral procedure was closed on 27 July 2010.
21. The applicants claim that the Court should:
– annul the contested decision in so far as it concerns them and, consequently, annul the fines imposed on them;
– in the alternative, annul Article 2 of the contested decision in so far as it concerns them;
– in the further alternative, annul or reduce the fines imposed on each of them;
– order the Commission to pay the costs.
22. The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
23. In support of their action, the applicants put forward five pleas in law. The first plea alleges that the Commission infringed their rights of defence. The second plea alleges that the Commission failed to prove the existence of the common understanding or the infringement resulting from it. The third plea alleges that the Commission has not proved the existence of a single and continuous infringement. The fourth plea alleges that the Commission committed errors in calculating the fines imposed on them. The fifth plea alleges that the Commission calculated their fines by means of a method which infringed the principles of equal treatment and proportionality.
24. The Commission considers the applicants’ pleas to be unfounded.
25. It should be noted, at the outset, that the applicants have not specified which of their pleas support the various claims which they have made. In that regard, it should be considered, first of all, that the first, second and third pleas have been raised by the applicants in support of their main claim. If one of those pleas is upheld, it will be necessary to annul both Articles 1 and 2 of the contested decision in so far as they concern the applicants. Next, it must be considered that the fourth and fifth pleas have been raised by the applicants in support of their application in the alternative, since they concern the calculation of the fines imposed on the applicants. Finally, the Court notes that no autonomous plea has been raised by the applicants in support of their claim in the further alternative.
A – The main application, seeking annulment of the contested decision in so far as it concerns the applicants
1. The first plea, alleging that the Commission infringed the applicants’ rights of defence
a) Arguments of the parties
26. The applicants submit that the Commission infringed their rights of defence since it failed to provi de them with all the relevant information in its file.
27. In the context of the first part of the first plea, concerning incriminating evidence, the applicants claim that the Commission failed to send them Fuji’s observations of 21 November 2006, allegedly confirming the raison d’être of the common understanding and the economic reasons specific to Fuji which explain its absence from the European GIS market. Given the probative value attributed by the Commission to the evidence submitted by Fuji in relation to the existence of a common understanding, it is highly probable that the administrative procedure could have had a different outcome if the observations in question had been disclosed.
28. In the context of the second part of the first plea, the applicants submit that their rights of defence were infringed as a result of the Commission’s failure to provide them with the following exculpatory evidence:
– the agreement entitled ‘General Rules for GE Agreement’ (‘the GE Agreement’) and the observations made by other undertakings which participated in the cartel concerning that agreement; according to the applicants, that information is relevant as proof of the existence of a European cartel in the GIS sector which predates the GQ Agreement;
– the observations made by other undertakings which participated in the cartel which undermine the reliability of Mr H’s witness statement, submitted to the Commission by Fuji, regarding the existence of a common understanding, which might taint the other evidence submitted by Fuji in relation to the existence of a common understanding;
– the witness statements of other undertakings which participated in the cartel concerning the non-existence of a common understanding and, in particular, the witness statements provided by Siemens AG on 7 August 2006, which are likely to cast doubt on the plausibility of the Commission’s arguments relating to the existence of a common understanding;
– the observations of the other Japanese undertakings concerning their alleged participation in the European projects referred to in recital 164 of the contested decision, which may establish that the Japanese undertakings never participated in the discussions on those projects;
– the statements of Mr S of 15 September 2006, submitted by Areva, concerning the breakdown of the cartel in 1999, from which it is apparent that the structure of the cartel put in place from 2002 was different from that of the earlier cartel.
29. The Commission contests the applicants’ arguments.
b) Findings of the Court
30. Respect for the rights of the defence requires that the person concerned must have been afforded the opportunity, during the administrative procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases C-204/00 P, C-205/00 P, C‑211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others
v Commission [2004] ECR I‑123, paragraph 66).
31. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved ( Aalborg Portland and Others v Commission, paragraph 30 above, paragraph 68).
32. In this respect, it should be recalled that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies to the statement of objections of the other undertakings alleged to have participated in the cartel are not, in principle, included in the documents of the investigation file that the parties may consult (Case T‑161/05 Hoechst
v Commission
[2009] ECR II‑3555, paragraph 163).
33. However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement (see Hoechst v Commission, paragraph 32 above, paragraph 164, and the case‑law cited).That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.
34. By analogy, if a passage in a reply to a statement of objections or on a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon.
35. However, the mere fact that other undertakings put forward the same arguments as the undertaking concerned and that they may have used more resources for their defence is not sufficient for those arguments to be regarded as exculpatory evidence (see, to that effect, Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraphs 353 and 355).
36. As regards the consequences of granting access to the file contrary to those rules, the failure to communicate a document on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different if the document which was not communicated had to be disallowed as incriminating evidence ( Aalborg Portland and Others v Commission, paragraph 30 above, paragraphs 71 and 73).
37. Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine ( Aalborg Portland and Others v Commission, paragraph 30 above, paragraphs 74 and 75).
38. The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded ( Aalborg Portland and Others
v Commission, paragraph 30 above, paragraph 76).
– The first part, alleging a failure to communicate the incriminating evidence
39. The Commission admits that it was not able to rely on Fuji’s observations of 21 November 2006 in support of the grounds of complaint raised against the applicants in the contested decision, but disputes actually having used them as incriminating evidence.
40. It must be noted, none the less, that, as submitted by the applicants, the Commission referred to Fuji’s observations of 21 November 2006 in recitals 125 and 255 of the contested decision to corroborate the existence of a common understanding.
41. Accordingly, the outcome of this part of the plea depends on the result of the examination of the arguments relating to the proof of the existence of a common understanding raised by the applicants in the context of the first part of the second plea. If the existence of such an understanding is established to the requisite legal standard even after dismissing Fuji’s observations of 21 November 2006 as incriminating evidence, it will be necessary to reject this part of the plea. By contrast, if it is found that those observations constitute necessary evidence in support of the findings made in the contested decision in relation to the existence of a common understanding, it will be necessary to uphold this part of the plea.
– The second part, alleging a failure to communicate the exculpatory evidence
42. First, the parties do not dispute that the GE Agreement was communicated to the applicants. The applicants merely submit that they were granted only a very brief period to study it, without specifying how that made their defence more difficult. In addition, the applicants admit in their observations of 18 November 2009 that they had the opportunity to express their views on that agreement and that they took advantage of that opportunity. Consequently, their argument relating to that agreement cannot be upheld.
43. Second, as regards the observations made by the other undertakings which participated in the GE Agreement cartel, the applicants state, in their observations of 18 November 2009, that Toshiba Corp. and Mitsubishi Electric System Corp. (‘Melco’) also acknowledged the value of that agreement as exculpatory evidence for the same reasons as those given by the applicants to the Commission. Thus, the applicants merely state that Toshiba and Melco raised the same arguments as them, which means that Toshiba’s and Melco’s observations cannot be regarded as exculpatory evidence.
44. Third, the same finding applies to the observations of the other undertakings which participated in the cartel which dispute the reliability of Mr H’s witness statement regarding the existence of a common understanding. In their observations of 18 November 2009, the applicants state that Toshiba and Melco also criticised the probative value of that witness statement for the same reasons as those submitted to the Commission.
45. Fourth, the observations and witness statements submitted by Melco and Siemens and the witness statements submitted by Fuji refer to ‘high’ barriers to entry on the European market and the fact that that market was ‘mature’, which made it very difficult, if not impossible, for the Japanese producers to enter. In addition, Siemens and Melco, and their employees, explicitly disputed the existence of a common understanding or discussions relating thereto, and the witness statement of Mr T, submitted by Siemens, states that the GQ Agreement cartel focused on the Middle East and did not apply to Europe.
46. However, the applicants have not disputed the Commission’s claim that the witness statements of Fuji’s employees were communicated to them. Consequently, no infringement of the right of access to the file can be found in relation to those statements.
47. Moreover, in their reply to the statement of objections, the applicants raised the same arguments as those set out in paragraph 45 above, which means that the observations of Melco and Siemens cannot be regarded as exculpatory evidence whose communication could have influenced the course of the proceedings and the content of the contested decision.
48. The same conclusion applies to the witness statements of Melco’s employees and those of Siemens’ employees since the written witness statements of the employees of a company, drawn up under the supervision of that company and submitted by it in its defence in the administrative procedure carried out by the Commission cannot, in principle, be classed as evidence which is both different from, and independent of, the statements made by that same company. Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based, primarily, on the knowledge and opinions of its employees and management.
49. In so far as the applicants submit that the witness statements of Siemens’ employees call into question the Commission’s claim that the European producers did not dispute the existence of a common understanding, it should be noted that it has not been established that the Commission based its findings in the statement of objections or at a subsequent stage on such a general claim. In that regard, it is apparent, at best, from recital 125 of the contested decision that the Commission found that the existence of that understanding had not been challenged by Alstom and Areva and had not been openly contested by the undertaking belonging to the group of which VA TECH Transmission & Distribution & Distribution GmbH & Co. KEG (‘VA Tech’) forms part. By contrast, the Commission did not provide any details of Siemens’ position or that of the European producers in general. Consequently, the applicants’ argument is based on a false premiss. Moreover, the position of the European producers in relation to the existence of a common understanding and the relevance thereof will be addressed in paragraphs 197 to 203 below.
50. Fifth, in response to the Court’s request concerning the observations of the other Japanese undertakings as to their alleged participation in the GIS projects in the European Economic Area (EEA) referred to in recital 164 of the contested decision, the Commission produced an extract from Melco’s reply to the statement of objections, from which it is apparent that Melco disputes having participated in the sharing of such projects.
51. However, in its reply to the statement of objections, Melco merely adopted the same position as the applicants, which the latter admit in their observations of 18 November 2009. Consequently, the extract from Melco’s reply to the statement of objections does not constitute exculpatory evidence whose disclosure might have influenced the course of the proceedings and the content of the contested decision.
52. Sixth, it is apparent from the statements of Mr S of 15 September 2006 that he considered, first, that the cartel was dissolved when Siemens discontinued its participation in 1999 and, second, that the cartel set up as of 2002 was fundamentally different from the one which existed until 1999.
53. In their reply to the statement of objections, the applicants raised the same arguments to dispute the existence of a single and continuous infringement. Accordingly, and in the light of what was stated in paragraph 48 above in relation to the classification of the witness statements of the employees of a company, it must be found that the statements of Mr S also do not constitute exculpatory evidence whose disclosure might have influenced the course of the proceedings and the content of the contested decision.
54. In the light of all of the foregoing, the second part of the first plea must be rejected.
2. The second plea, alleging that the Commission failed to prove the existence of a common understanding or the resulting infringement
55. The applicants submit, in the context of the first part of the second plea, that the Commission failed to establish to the requisite legal standard the existence of a common understanding and submit that it did not make an effort to dispel doubts which had arisen in the context of an independent enquiry. They consider that, in the present case, the Commission was required to accept the alternative explanation of the facts proffered by them. In the context of the second part of the second plea, the applicants submit that the Commission did not establish that the common understanding constituted a restrictive agreement or a concerted practice.
56. The Commission considers the applicants’ arguments to be unfounded.
a) The first part, alleging that the Commission failed to establish the existence of a common understanding
57. According to the case‑law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Joined Cases T-44/02 OP, T-54/02 OP, T‑56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others
v Commission [2006] ECR II‑3567, paragraph 59, and the case‑law cited).
58. In that regard, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine ( Dresdner Bank and Others
v Commission, paragraph 57 above, paragraph 60).
59. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of Community law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Dresdner Bank and Others
v Commission, paragraph 57 above, paragraph 61, and the case-law cited).
60. Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others
v Commission, paragraph 57 above, paragraphs 62 and 63, and the case‑law cited).
61. In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see Dresdner Bank and Others
v Commission, paragraph 57 above, paragraphs 64 and 65, and the case‑law cited).
62. However, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another, plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed (see, to that effect, Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraph 186, and the case‑law cited).
63. Contrary to what the applicants claim, that rule does not apply to all cases in which the infringement is established solely on the basis of non‑documentary evidence.
64. As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence (Case T‑50/00 Dalmine v Commission
[2004] ECR II‑2395, paragraph 72). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
65. Consequently, even if the lack of documentary evidence may be relevant in the global assessment of the set of indicia relied on by the Commission, it does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative version of the facts. That is only the case where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats
v Commission
[2007] not published in the ECR, paragraph 74).
66. For the same reason, even if there is no documentary evidence, the Commission is not required to carry out independent investigations to verify the facts.
67. In addition, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions ( JFE Engineering and Others
v Commission, paragraph 62 above, paragraph 192). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
68. However, 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, though the degree of corroboration required may be less in view of the reliability of the statements at issue ( JFE Engineering and Others
v Commission, paragraph 62 above, paragraphs 219 and 220).
69. As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability ( Dalmine v Commission, paragraph 64 above, paragraph 72).
70. According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T‑25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T‑37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T‑48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T‑57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T‑65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T‑104/95 Cimenteries CBR and Others
v Commission
[2000] ECR II‑491, paragraphs 1053 and 1838).
71. As regards statements, particularly great probative value may be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to that effect, JFE Engineering and Others
v Commission, paragraph 62 above, paragraphs 205 to 210).
72. In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, considering the possibility, referred to by the applicants, that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit from the Leniency Notice, and thereby jeopardise his chances of benefiting fully under it (see, to that effect, Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 70).
73. It must also be noted, in that regard, that the potential consequences of the submission of distorted evidence are even more serious since, as is apparent from paragraph 68 above, a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings involved of detecting the inaccurate nature of those statements is increased.
74. As regards the application of those rules to the present case, it should be noted, at the outset, that, according to the findings made in the contested decision, the common understanding was an unwritten understanding which encompassed, first, the commitment of the Japanese undertakings not to enter the market for GIS projects in the EEA, second, the commitment of the European undertakings not to enter the Japanese market for GIS projects and, third, the commitment of the European undertakings to notify the Japanese undertakings of the GIS projects in the European countries other than the ‘home countries’ and to load those projects in the joint ‘European’ quota laid down in the GQ Agreement. According to the Commission, the purpose of the notification and project loading mechanism was to offer compensation to the Japanese undertakings, viewed by the European undertakings as potential competitors on the EEA market.
75. In that respect, it is necessary to dismiss from the outset the applicants’ claim that the content of the notion of common understanding is not consistent throughout the contested decision. Although minor differences may be noted between the various formulations used in the contested decision, those differences do not affect the fundamental characteristics of that notion as set out in the preceding paragraph.
76. Among the various components of the common understanding listed in paragraph 74 above, it is the alleged commitment of the Japanese undertakings not to enter the EEA market which constitutes the basis of the Commission’s complaint against the applicants. Consequently, it is the existence of that commitment which needs to be established to the requisite legal standard. However, the other components of the common understanding, if proven, may also serve as indirect evidence from which the existence of the corresponding commitment on the part of the Japanese undertakings may be inferred.
77. The applicants dispute the existence of a common understanding and submit that their absence from the European market for GIS projects can be explained by the fact that the Japanese undertakings were not regarded as credible competitors on the European market for various reasons, in particular of a commercial and technical nature. They dispute the probative value of the various items of evidence relied on by the Commission in the contested decision and refer to other items of evidence which, in their view, suggest that there was no common understanding. In addition, they submit a report prepared by consultants (‘the external report’), which they claim supports their alternative version of the facts.
78. The Commission submits that the existence of a common understanding, and in particular the commitment of the Japanese undertakings not to enter the EEA market, is established to the requisite legal standard by a body of evidence comprising documentary evidence, statements from undertakings, witness statements and evidence relating to the actual operation of the cartel.
79. It is therefore necessary to assess the reliability and the content of the various items of evidence concerned in order to assess whether, taken as a whole, the evidence relied on by the Commission establishes a firm conviction that a common understanding existed which is not able to be called into question by the evidence adduced by the applicants.
The GQ and EQ Agreements
– Arguments of the parties
80. The applicants submit, first, that the GQ and EQ Agreements do not make any reference to a common understanding, even though the rules of the cartel are set out in those agreements in a detailed manner. In that regard, Annex 2 to the GQ Agreement reflects not the existence of a common understanding but the exclusion of the countries of Western Europe from the scope of the agreement.
81. Second, the applicants contest the existence of an intimate relationship between the GQ Agreement and the EQ Agreement. They observe that, notwithstanding its detailed nature, the GQ Agreement does not refer to the EQ Agreement. In addition, the Japanese producers were not parties to the EQ Agreement and they were not aware of its content.
82. Consequently, the applicants consider that the GQ and EQ Agreements do not constitute documentary evidence of the existence of a common understanding. In so far as those agreements do not refer to the common understanding, in spite of the alleged fundamental importance of that understanding in the worldwide cartel, their content even proves that no such understanding existed.
83. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
84. It is common ground between the parties that the GQ Agreement sets out the organisation of a cartel for worldwide GIS projects. However, first, as the applicants submit, that agreement does not refer to a common understanding and, second, according to Annex 2 to that agreement, Japan, the twelve Member States of the European Community at that time and five other Western European countries were excluded from its scope of application.
85. Accordingly, the GQ Agreement cannot be regarded as constituting documentary evidence of the existence of a common understanding. The Commission’s interpretation, according to which the exclusion of the European countries and Japan was due to the existence of that understanding is no more plausible, a priori, than the interpretation to the contrary offered by the applicants.
86. The EQ Agreement, for its part, is an agreement implementing the GQ Agreement, which concerns, inter alia, the distribution of the joint ‘European’ quota provided for in the GQ Agreement. To that extent, there was a certain relationship between those agreements. However, the EQ Agreement was concluded solely by the European undertakings. The applicants were thus not parties to it. In addition, that agreement does not explicitly mention the common understanding.
87. In that regard, it should also be noted that, in accordance with point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, the European producers ‘decide about notification of [E]uropean projects to [the group of Japanese producers]’. It is apparent from the context of Annex 2 that the information was to be communicated prior to the allocation of the GIS projects concerned.
88. This makes it possible to dismiss, to a certain extent, the applicants’ arguments, since it suggests that the European producers considered that the Japanese producers might have been interested, at the very least, in the allocation process of certain GIS projects in the EEA, and that they were therefore potential competitors for such projects.
89. However, nothing in the EQ Agreement or in the other evidence adduced by the Commission proves that the mechanism concerned was implemented by the European producers or that the Japanese producers were aware of its existence.
90. Therefore, the EQ Agreement constitutes merely an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, as claimed by the Commission.
91. Moreover, it should be noted that the commitment of a group of producers not to enter a market reserved to the other group, such as the commitment alleged by the Commission against the Japanese producers, is based on a simple concept which may be implemented easily. Similarly, its implementation does not require, in principle, interaction between the undertakings concerned. Consequently, such a commitment is perfectly capable of existing as an unwritten understanding, which also reduces the likelihood of its discovery. In that regard, the Commission stated in recitals 170 to 176 of the contested decision that, in the present case, the participants to the cartel put a series of organisational and technical precautions in place to prevent its discovery.
92. Although it is true that the notification and project loading mechanism implemented after the distribution of the GIS projects concerned, as referred to by the Commission, required certain measures for its implementation, those measures were not particularly complicated, since they essentially consisted of the disclosure of certain information by the European group to the Japanese group, a disclosure which, in addition, took place in parallel with the information disclosed under the GQ Agreement concerning GIS projects outside of the EEA. Consequently, it is not apparent that such measures necessarily required written rules.
ABB’s statements
– Arguments of the parties
93. At the outset, the applicants state that the evidence adduced by ABB in the context of its application for immunity from fines and, in particular, the statements which it made after conditional immunity was granted by the Commission, must be assessed in the light of the pressure on ABB, since it sought to maintain the benefit of its immunity, while minimising the gravity of its own conduct and overstating the gravity of that of the other undertakings involved. In the present case, that pressure manifested itself in the partial statements by ABB at the hearing before the Commission and in parallel proceedings conducted by the Czech competition authority.
94. The applicants add that ABB’s statements do not date back to the material time, do not give sufficient clarity concerning the common understanding and changed over time, which reduces their probative value.
95. They state that, in its initial immunity application of 3 March 2004, ABB did not refer to the existence of the common understanding, which was mentioned only in its observations of 11 March 2004.
96. Regarding ABB’s observations of 11 March 2004, the applicants state, first, that when ABB refers to the participation of the Japanese undertakings in the common understanding it appears to be referring to JAEPS and to TM T & D Corp., a joint venture between Toshiba and Melco carrying on the GIS business of those companies between October 2002 and April 2005. However, in the contested decision, the Commission interpreted ABB’s statements not only as referring to the entire period of infringement since 1988, even though neither TM T & D nor JAEPS existed at that time, but also as involving, in addition to those two companies, Hitachi and Hitachi Europe.
97. Second, the applicants submit that, in its observations of 11 March 2004, ABB merely made imprecise statements in relation to the duration of the cartel, focusing on the period between 1999 and 2002.
98. Third, the vague and contradictory nature of ABB’s observations of 11 March 2004 gives the impression, according to the applicants, that there was an assumption on the part of ABB’s business people concerning market conditions rather than evidence of any express agreement involving a true meeting of minds.
99. Fourth, the applicants consider that, in its observations of 11 March 2004, ABB confirmed from the outset that the undertakings concerned considered that, because of legal, technical and commercial barriers, entry into the European market was difficult, if not impossible. They maintain that, in such circumstances, it would clearly be pointless to establish any express agreement to stay out of the market in question.
100. Finally, the applicants claim that in ABB’s observations of 4 October 2005, following the lodging of their own observations and those of the other Japanese producers explaining the existence of the abovementioned barriers, ABB contradicted its earlier statements concerning the common understanding since it stated in particular that the barriers to entry to the European market could be overcome and that, consequently, the entry of Japanese producers was economically feasible. However, the value of such a statement, which was submitted late and which radically changed the earlier statements raises doubts, in the applicants’ view.
101. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
102. As regards the reliability of ABB’s statements made in the context of its application for immunity, it has been stated in paragraphs 72 and 73 above that the mere fact of seeking to benefit from the application of the Leniency Notice in order to obtain immunity does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel.
103. The specific circumstances which allegedly prove that ABB was under pressure are not such as to influence that finding. At the hearing before the Commission, ABB merely set out the factual nature of the cartel and claimed that the factual elements which it had provided to the Commission justified that it be granted immunity from fines. In the proceedings carried out by the Czech competition authority, ABB’s intervention included, in addition to those two parts, a part on the legal assessment of the facts and observations on the statement of objections. It is not apparent that, in those two cases, ABB went beyond what might be expected of an undertaking which has sought immunity from fines and which seeks to maintain, by cooperating fully with the authority concerned, the conditional immunity granted to it. Consequently, it cannot be held that the reliability of ABB’s statements is called into question by the fact that ABB sought to benefit from immunity.
104. The applicants’ argument that ABB’s statements do not date back to the material time can also not be upheld. First, the statements made to the Commission by an undertaking in the context of an application for immunity cannot, by definition, be contemporaneous with the entire duration of the alleged infringement, but that does not deprive them of any probative value at all. Second, in the present case, ABB claimed that the common understanding existed from 11 March 2004, that is before the infringement concerned by the contested decision had ceased.
105. As regards the content of the various statements of ABB, first, particular importance cannot be attached to the fact that the common understanding is not referred to in the initial application, namely the application for immunity of 3 March 2004. When first entering into contact with the Commission in the context of an application for immunity, it is normal for the undertaking in question not to describe in detail all the aspects of the infringement whose existence it intends to reveal.
106. In addition, although, in its initial application, ABB did not mention the common understanding explicitly, it did state, none the less, that JAEPS and TM T & D were among the participants in the cartel and that the cartel covered all Member States of the European Union. That statement implies that, in ABB’s view, the two companies concerned participated in the common understanding.
107. Second, in its observations of 11 March 2004, before being granted conditional immunity, ABB explicitly referred to the existence of a common understanding, pursuant to which the two Japanese companies would not bid for European projects and the European companies would not bid for Japanese projects.
108. In that respect, it is normal that ABB referred to two Japanese companies, namely JAEPS and TM T & D, since, at the time when it submitted its statements, the GIS activities of Hitachi, Fuji, Toshiba and Melco were grouped within those joint ventures. None the less, the Commission was entitled to interpret that statement as indicating that those undertakings themselves participated in the common understanding. In its initial application, ABB had already stated that, to its knowledge, the cartel had been in existence for over 10 years, which implies that it came into being well before JAEPS and TM T & D were created.
109. Similarly, on a joint reading of ABB’s observations of 11 March 2004 and its initial application, the applicants’ argument that ABB did not provide information regarding the duration of the cartel can be rejected. In its initial application, ABB stated that the cartel operated from at least 1994 and its observations of 11 March 2004 do not contradict that finding.
110. In addition, it is true that ABB stated that the common understanding was based on the fact that the Japanese producers were not well accepted by European customers and had to face certain obstacles on the European market. However, it is absolutely clear from its observations of 11 March 2004 that, in its view, the Japanese undertakings involved not only noted the existence of those obstacles, but made a commitment to their European partners not to enter the EEA market. Thus, rather than rendering the existence of the common understanding pointless, the barriers to entry on that market constitute a factor which led to the conclusion of that understanding. It needs to be pointed out, in addition, that such a finding is not paradoxical since it is natural for a producer, when markets are being divided in the way alleged by the Commission in the present case, to leave to its competitors the markets in which its own position is weak.
111. Third, the applicants’ claim that ABB’s observations of 4 October 2005 contradict its earlier statements must be dismissed. In those observations, ABB confirmed the existence of a common understanding. Although it stressed on that occasion that the obstacles which the Japanese producers faced if they wanted to enter the EEA market were surmountable, that finding does not, however, contradict the statements of 11 March 2004, which did not state that it was impossible to enter that market, but merely that such entry was difficult.
112. Consequently, contrary to what the applicants claim, ABB’s observations of 4 October 2005 clarify its previous statements in a coherent manner.
113. In the light of all the above, it must be concluded that ABB’s statements are capable of proving the common understanding since they refer to its existence, describe the essential content of the understanding and provide information as to its duration and those involved.
114. In addition, ABB’s statements are coherent, they were provided on behalf of an undertaking and it is apparent from their content that they are founded on internal research and on discussions with ABB’s employees. Consequently, a certain degree of probative value must be attributed to them. However, in accordance with the case‑law set out in paragraph 68 above, their content must, in any event, be corroborated by further evidence.
The witness statements of the employees and of a former employee of ABB
– Arguments of the parties
115. The applicants reiterate, at the outset, their argument that the probative value of the evidence submitted by ABB is reduced as a result of the fact that ABB applied to benefit from immunity.
116. In that regard, the applicants state that the witness statements of the employees and of a former employee of ABB were given in interviews held in September 2005, namely 18 months after the first application for immunity, at the request of the Commission and in the presence of its staff and of ABB’s legal counsel, who even intervened actively in the interview with Mr M.
117. Similarly, some of the observations made in those interviews show, according to the applicants, that preparatory meetings were held earlier and that at least one written statement had been prepared. In particular, the statements of Mr M appear to have been initiated by a briefing conversation with ABB’s outside counsel earlier in the day of the hearing. Notwithstanding that fact, there were inconsistencies between the various witness statements.
118. Furthermore, the witnesses had been advised of the importance of the interviews for the outcome of ABB’s application for immunity. Consequently, in the applicants’ view, those witnesses had a personal interest in providing the Commission with evidence to corroborate its thesis as to the existence of the common understanding. In particular, the only reason for Mr M’s participation in the proceedings was to keep the retirement benefits afforded to him by ABB.
119. By contrast, according to the applicants, there was no risk that the witness statements would harm ABB, since they would be considered favourably when assessing the application for immunity.
120. In addition, the witness statements were not written or reviewed by them to assess their accuracy. They were thus not formulated as a result of studied reflection. The witnesses made their statements in their capacity as employees or former employees and not as official representatives of ABB.
121. The applicants add that, in many cases, the persons questioned had not been direct witnesses of the events to which they referred. In particular, Mr M was not a direct witness of the origin of the common understanding or even its alleged adoption on 15 April 1988, since he indicated that the understanding existed when maybe he was not even born.
122. Moreover, on numerous occasions, Mr M’s witness statement of September 2005 contradicted earlier observations of ABB based on the earlier statements of Mr M, and the language that he used was imprecise and prompted by the Commission or by ABB’s outside counsel. Furthermore, the fact that he did not recall the existence of the GE Agreement before November 2006 raises further doubts as to the reliability of his witness statement.
123. The applicants claim that the Commission itself acknowledged the limited probative value of Mr M’s witness statement, since it was selective in terms of what evidence it went on to use.
124. As regards the content of the witness statements, none of the witnesses was in a position to confirm the duration of the common understanding, since Mr M considered that the mechanism of the GQ Agreement and therefore, by implication, the understanding itself, ended in 2002, whilst the other witnesses claim that the understanding was in force in varying periods between 2002 and 2004. Similarly, no witness used the term ‘common understanding’ and the references to the existence of a cartel were solicited by the Commission rather than volunteered by the witnesses.
125. The applicants state, in that regard, that, even though the Commission had introduced the concept of a common understanding when interviewing Mr Wi, the latter was in a position to make observations only for the period from July 2002 to January 2004. Mr P’s comments on the common understanding were equally vague, which prompted the Commission to attempt to persuade him to replace imprecise language by more specific wording confirming the Commission’s point of view. Mr V-A, for his part, initially informed the Commission, in his interview, that Europe and North America were excluded from the cartel. As in Mr P’s case, the Commission introduced the concept of a common understanding later in the interview. Therefore, the three witness statements at issue are imprecise, inconsistent and thus not the result of studied reflection.
126. As regards Mr M’s witness statement, the applicants claim that his initial statement regarding mutual protection of home markets relates more broadly to the concept of home countries rather than the common understanding as defined by the Commission. Similarly, his statements on the common understanding were vague.
127. The applicants also state that Mr M did not confirm that the Japanese producers were able to sell GIS products on the European market. Even after the intervention of ABB’s outside counsel, who attempted to redirect the witness, the latter maintained that any involvement of Japanese producers in the European market was very rare.
128. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
129. It should be noted, at the outset, that the witness statements of the employees and of the former employee of ABB do not constitute evidence which is distinct and independent from ABB’s statements, since the witnesses made them before the Commission on ABB’s initiative and in the context of the latter’s duty to cooperate under the Leniency Notice, while benefiting from the presence of ABB’s outside counsel. Consequently, the witness statements concerned are not such as to corroborate ABB’s statements for the purposes of the case‑law cited in paragraph 68 above. Rather, they are complementary to those statements and can explain them and express them in concrete form. Consequently, they must also be corroborated by other evidence.
130. In so far as the applicants raise the issue of the reliability of witness statements provided by employees and by a former employee of an undertaking which has applied for immunity, it is apparent from paragraphs 72 and 73 above that it is not necessary to treat such evidence automatically with caution. As regards the individual motivation of the witnesses, it is indeed possible that the employees of such an undertaking, who are required to act in the interests of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the requirement for corroboration.
131. As regards Mr M, a former employee of ABB, he is no longer required, in principle, to act in the interests of his former employer when it comes to voluntary cooperation in administrative proceedings. However, that also implies that, in principle, he has no interest in providing inaccurate evidence in that respect. It should be noted, in that regard, that when he submitted his witness statement Mr M was already retired. Accordingly, it is not apparent that a failure on his part to cooperate in the administrative procedure would have had unfavourable consequences for him, in particular in respect of the benefits which were allegedly afforded to him by ABB.
132. The fact that a period of time elapsed between the submission of the application for immunity and the interviews with the witnesses also does not call into question, as such, the probative value of the witness statements compiled. It is justified for the Commission to obtain additional evidence during its investigation, in order to have at its disposal all the information necessary to assess whether there was an infringement, in particular in the light of the observations of the undertakings concerned.
133. By contrast, the period of time which elapsed between the submission of the witness statement and the facts to which it relates may be relevant in the assessment of its reliability, given that witnesses may provide, as a general rule, more detailed and more reliable evidence in respect of recent events. However, in the present case, the period of time which elapsed between the submission of the witness statements in September 2005 and the end of the involvement of the various witnesses in the cartel, namely May 2004 for Mr V.-A, Mr W and Mr P, and June 2002 for Mr M, is not sufficiently long to influence their reliability.
134. The reliability of the witness statements in general is also not affected by the presence of ABB’s outside counsel at the interviews, since the witness statements were given in the context of ABB’s cooperation under the Leniency Notice and the witnesses expressly stated, at the start of their respective interviews, that they wished to be assisted by that counsel.
135. It is true that ABB’s outside counsel intervened at a particular moment during Mr M’s interview in order to suggest to him that it could be beneficial for the Japanese producers to enter the European market, of which Mr M did not appear to be convinced. Consequently, it should be held that Mr M expressed doubts as to the commercial interest of such a step and account needs to be taken of that fact when assessing the content of his witness statement. However, the applicants do not explain how the intervention of ABB’s outside counsel affects the reliability of Mr M’s witness statement in other respects.
136. As regards the drafting of a statement in advance and the holding of preparatory meetings, it is not surprising that an undertaking which sought to benefit from immunity identified in advance the facts relevant to its application and the witnesses capable of commenting on them and analysed the extent of their knowledge with them.
137. In addition, it cannot be considered that the witness statements concerned were not capable of damaging ABB. Since the interviews took place before the statement of objections was sent, neither ABB, nor its employees nor its former employee could be certain of the extent and exact content of the objections which were going to be raised against ABB.
138. By contrast, the applicants rightly submit that the witness statements concerned do not appear to result from studied reflection and that they were also not revised after reflection and additional verifications. The witness statements were made orally and there are no indications that written questions were put beforehand to the witnesses by the Commission nor that the statements relating to the common understanding and the barriers to entry on the EEA market were subsequently verified and revised by their authors.
139. Similarly, it is not apparent that the witnesses made their statements as official representatives of ABB. First of all, that role appears to have been assumed, for the main part, by ABB’s outside counsel, who made the statements examined in paragraphs 102 to 114 above. Next, as noted in paragraph 131 above, when giving his witness statement Mr M was no longer required, a priori, to act in the interests of his former employer and there is also no indication that either he or any other witness systematically prepared for the interview by consulting other employees of ABB and documents held by that company. Finally, the questions put by the Commission at the interviews did not concern ABB’s official position on the subjects addressed, but rather the individual knowledge of the various witnesses.
140. The applicants’ claim that the persons interviewed were often not direct witnesses of the events at issue must be dismissed. It is apparent from the witness statements that the four witnesses participated in person in the workings of the cartel. In particular, Mr M was one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators. Mr M was thus a direct and privileged witness of the facts which he disclosed.
141. In that regard, it must be conceded that, in his witness statement, Mr M confirmed that he was not present when the common understanding was concluded, which, he believes, took place prior to the signing of the GQ and EQ Agreements. Similarly, when asked whether the issue of the common understanding had been raised at meetings which he had attended, Mr M responded that it was not necessary to refer to it since the common understanding went without saying. However, this does not call into question the probative value of Mr M’s witness statement. First, a witness is perfectly able to furnish evidence of a long-standing phenomenon even if he was not present at its inception. Second, although Mr M stated that the issue of the common understanding had not been referred to explicitly at the meetings which he had attended, it is apparent from his witness statement that, in his view, this was so because the content of the common understanding was understood, accepted and implemented by the participants to the cartel without the need for an explicit discussion. Since the commitment of the Japanese undertakings, alleged by the Commission, consisted of a mere commitment not to act rather than a positive action, such a situation is indeed envisigeable.
142. The applicants do not provide details of the alleged incoherencies in the various witness statements. In addition, a comparison of the witness statements, both with one another and with the other evidence submitted by ABB, does not reveal any inconsistencies capable of affecting the reliability of the statements concerning the existence of a common understanding. The only discrepancy of any importance is related to the existence of the commercial interests of the Japanese undertakings in entering the European market. However, as stated in paragraphs 156 to 158 below, the position of certain witnesses in that regard does not affect their statements concerning the existence of a common understanding.
143. As regards the alleged incomplete nature of Mr M’s witness statement, it should be noted that it is not surprising that a witness is not able to recall, at an interview, all the documents relating to a cartel. Moreover, although Mr M did not refer explicitly to the GE Agreement at the interview, he none the less made reference to the allocation of GIS projects in the EEA, pursuant to agreements which predated the GQ Agreement, one of which was the GE Agreement.
144. Similarly, the fact that the Commission does not make use of all the information contained in a witness statement does not imply that that statement is of weak probative value. It is normal that some information is irrelevant or that certain information is supported more convincingly by other evidence.
145. As regards the content of the witness statements, the statements made in relation to the duration of the cartel are coherent with one another as well as with the Commission’s allegations, contrary to what the applicants claim.
146. Mr M clearly stated that the rule of mutual respect for domestic markets by the groups of European and Japanese producers existed for quite some time and even predated the GQ Agreement.
147. Mr M’s statement that the GQ Agreement mechanism ceased to exist in 2002 does not imply, in itself, that the common understanding also ceased to exist. First, during that period, the mode of operation of the cartel developed somewhat as a result, in particular, of the fact that Siemens and Hitachi reinitiated their participation in that cartel and Mr M was thus able to consider that the GQ Agreement, as signed in 1988 and subsequently revised, had ceased to be implemented. This is without prejudice to the fact that the mode of operation of the cartel from July 2002 could also have been based on the common understanding or on a similar understanding. ABB’s witnesses, other than Mr M, confirm explicitly that that was indeed so in this case, since it is apparent from their statements that the common understanding between the European and Japanese producers, on respecting domestic markets, existed during the period during which they were involved in the operation of the cartel, that is between July 2002 and 2004.
148. Second, in June 2002, Mr M was placed in early retirement, following the discovery of collusive activities by his new hierarchical superior. This explains why Mr M did not have any detailed knowledge of the mode of operation of the cartel put in place from July 2002.
149. Similarly, it cannot be submitted that the references made by the witnesses to the common understanding are vague and unspontaneous. Each of the witnesses referred, in his own words, to the existence of a particular situation, in relation to the European and Japanese markets, corresponding to the common understanding alleged by the Commission.
150. Contrary to what the applicants claim, Mr Wi stated that the absence of the Japanese undertakings on the European market was the result of a system in place to protect the Japanese and European markets, motivated by the fact that neither of the two groups of producers wanted the other group to enter its domestic market. Although, later in the interview, the Commission’s representative came back to the subject and actually introduced the concept of the common understanding, he merely clarified the concept introduced spontaneously by Mr Wi.
151. Mr P referred spontaneously to a common understanding with the Japanese undertakings pursuant to which the latter undertook not to participate in the European market and the European undertakings undertook not to participate in the Japanese market. In that case too, the Commission’s representative subsequently came back to that issue, but merely ascertained whether he had correctly understood the spontaneous statements made earlier.
152. In the case of Mr V.-A, the Commission did not introduce the concept of the common understanding but merely asked the witness whether he was aware of any form of understanding between European and Japanese producers. In response to that question, Mr V.-A referred to an understanding between Japanese and European producers pursuant to which the European undertakings agreed not to ‘attack’ the Japanese undertakings on the Japanese market and vice versa. Moreover, Mr V.-A stated that he had participated in a discussion between the European undertakings and the representative of a Japanese undertaking specifically regarding compliance with that understanding which was brought about by attempts on the part of the Japanese undertakings to enter the European market.
153. Furthermore, as regards the alleged exclusion of certain territories from the scope of the worldwide cartel, Mr V.-A stated, first, that North America was excluded for a specific reason, namely the risk of the penalties if the cartel were to be discovered. Second, he explained that the exclusion of Western European countries meant that the GIS projects concerned were not discussed by the European producers at meetings at which he was present, that is to say the meetings of the worldwide cartel previously governed by the GQ and EQ Agreements, but on other occasions. Those statements are fully in line with both those agreements and the Commission’s statements.
154. Finally, in his witness statement, Mr M stated that an understanding relating to the mutual protection of domestic markets, predating the GQ Agreement, existed between the Japanese and European producers, that that understanding was a prerequisite for the conclusion of agreements relating to other regions and that compliance with its rules implied that the Japanese producers were not to enter the domestic market of the European producers, even though they would have been able to do so at a technical level. Mr M also explained, in that context, the notification and project loading mechanism and the fact that the GIS projects in the home countries were not discussed between the two groups of producers and were not charged to the quotas set under the GQ Agreement.
155. Thus, the statements given by Mr M confirm the existence of the common understanding alleged by the Commission and cannot be regarded as vague since they provide information on the duration of that understanding, its content and its participants. The lack of information on the implementation of that understanding is hardly surprising given that the essential commitment of the parties was not to be active on certain markets. Moreover, Mr M described the part of the common understanding which required implementation measures, namely the notification and project loading mechanism.
156. However, as noted in paragraph 135 above, Mr M was not convinced of the commercial interest for the Japanese undertakings in entering the European market. His point of view was shared by Mr P, who considered that the Japanese producers probably considered that the operation was not justified in commercial terms. According to the other two witnesses, Mr Wi and Mr V.-A, there was a commercial interest in such an operation.
157. None the less, the position of Mr M and Mr P does not affect the fact that the four witnesses stated that the Japanese undertakings were committed to not entering the EEA market even though they were capable of doing so at a technical level, irrespective of a possible lack of immediate commercial interest in such a commitment.
158. It should also be noted in that regard that, contrary to what the applicants claim, the possible lack of commercial interest for the Japanese producers in entering the EEA market at a given point in time does not render the existence of an understanding, such as the common understanding, devoid of purpose. Such an understanding may serve, first of all, to eliminate the residual risk of a future entry on to the markets concerned in the event that competition changes and thereby to ensure long-term security for the two groups of producers by stabilising their respective privileged positions. Second, such an understanding may form the basis of mutual trust between the two groups. According to the statements made by Mr M, such confidence was necessary to be able to implement the cartel worldwide.
159. In conclusion, firstly, the statements made by the four witnesses concerned, and in particular Mr M’s statement, are credible since they were made by direct witnesses of the events to which they refer and it is not apparent from the circumstances of the case that those witnesses were encouraged to make inaccurate statements.
160. Next, the four witness statements are coherent, both in relation to one another and in relation to the other information submitted by ABB, in respect of the existence and fundamental content of the common understanding. Thus, the witnesses confirmed the existence of an understanding pursuant to which the Japanese undertakings committed not to enter the European market for GIS projects and the European undertakings committed not to enter the Japanese market for such projects. The four witnesses also confirmed that entry onto the European market was possible technically speaking, irrespective of certain barriers to entry. Although their points of view differed in relation to the commercial interest of the Japanese undertakings in entering the European market, that is irrelevant in this case in the light of the statements concerning the existence of a common understanding, as stated in paragraphs 156 to 158 above.
161. Finally, the four witnesses provided a precise and complete picture of the common understanding in light of their varying degrees of knowledge. In particular, in his witness statement, Mr M set out in detail the content of that understanding, the reason for its existence and how it functioned.
162. In the light of all of the above, it must be found that the witness statements made by the employees and the former employee of ABB constitute indicia of the existence of the common understanding that are of a high probative value.
The evidence furnished by Fuji
– Arguments of the parties
163. The applicants submit that Fuji’s reply to the statement of objections does not constitute sufficiently precise and detailed evidence to corroborate the evidence furnished by ABB and, consequently, the Commission’s claim regarding the existence of a common understanding.
164. First, Fuji did not state how it became aware of the existence of the common understanding nor did it state when it was concluded, what form it took, who was involved or whether it had been implemented.
165. Second, Fuji did not confirm the reciprocal nature of the common understanding and referred to the barriers to entry on to the European GIS market with which it was confronted, thereby calling the usefulness of the understanding into question. In that regard, in the applicants’ view, the reciprocal nature of the common understanding cannot be derived from the fact that the Japanese producers had no interest in accepting a unilateral arrangement. They submit that, in so far as the Japanese market was inaccessible to the European undertakings, the Japanese producers had no interest in entering into any arrangement.
166. Third, the inconsistencies between Mr H’s witness statement and those of the employees and former employees of Fuji in relation to both the existence of the common understanding and the technical and commercial barriers to entry on to the EEA market, also call into question the probative value of the evidence furnished by Fuji.
167. Fourth, the claims made in Fuji’s reply to the statement of objections are inconsistent with its subsequent leniency application.
168. Fifth, the Commission did not reduce Fuji’s fine under the Leniency Notice, which in the applicants’ view implies that the evidence provided by Fuji did not corroborate the existence of the common understanding.
169. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
170. In its reply to the statement of objections, Fuji stated that it was aware of the common understanding, pursuant to which the Japanese producers would not attempt to enter the European market, while stating that the main reason for Fuji’s absence from the EEA market was that it was not a credible significant GIS supplier in Europe.
171. First, it must be admitted that that statement is relatively vague since Fuji merely refers to the commitment of the Japanese producers not to enter the European market. However, in doing so, Fuji corroborated the key element resulting from the evidence submitted by ABB and imputed to the Japanese producers by the Commission. Thus, that statement is not irrelevant in this case. That is even more so since the limited extent of Fuji’s knowledge can be explained by its secondary role within the cartel and, in particular, by the fact that, as is apparent from recital 150 of the contested decision, Fuji was the only Japanese undertaking which was not a member of the committee of the group of Japanese producers responsible, in particular, for the coordination of the two groups of producers within the context of the GQ Agreement.
172. Second, the fact that Fuji did not confirm the reciprocal nature of the common understanding is irrelevant in this case. As noted in paragraph 76 above, although the existence of a commitment of the European producers not to enter the Japanese GIS market may constitute indirect evidence of the participation of the Japanese undertakings in an infringement of Article 81 EC and Article 53 of the EEA Agreement, it is not a necessary element in that regard.
173. In addition, it is true that, in its statement, Fuji referred to the existence of technical and commercial obstacles to entry on to the EEA market. However, those obstacles were not referred to as being the sole reason for Fuji’s absence from that market, but merely as being the main reason. Furthermore, when Fuji listed the various obstacles at issue, it referred to its small share of the worldwide market which placed it at a disadvantage compared with its larger competitors, both European and Japanese. Therefore, it is not apparent that its arguments in that regard can be transposed to those of the other Japanese producers.
174. It should also be noted that it has been concluded in paragraphs 110 and 158 above that the existence of barriers to entry on to the EEA market and the possible consequence thereof, namely the alleged lack of commercial interest for the Japanese producers in entering the EEA market, do not render the existence of an understanding such as the common understanding devoid of purpose.
175. Third, it is not disputed that the written witness statement of Mr H was not included by the Commission among the evidence on which it was going to rely after the statement of objection had been sent. Consequently, that witness statement cannot be regarded as incriminating evidence.
176. In so far as concerns the value of Mr H’s witness statement as exculpatory evidence, it should be noted that there is no substantial inconsistency between that statement and the other witness statements of the employees and former employees of Fuji. In particular, neither the other employees of Fuji nor its former employees disputed that the common understanding existed; the witnesses simply remained silent in that regard. Similarly, Mr H did not dispute the existence of technical and commercial barriers to entry on to the EEA market by the Japanese undertakings.
177. Fourth, the applicants do not specify the alleged inconsistencies between Fuji’s statement in its reply to the statement of objections and its leniency application. Consequently, their argument must be rejected.
178. In addition, it should be noted that, for the Commission to be able to reduce a fine under point 21 of the Leniency Notice, the evidence concerned must be of significant probative value with respect to the evidence already in the Commission’s possession.
179. Consequently, in a leniency application made after the reply to the statement of objections has been sent, it is legitimate for the undertaking wishing to obtain a reduction of its fine to focus on the evidence which, in its view, has thus far not been established to the requisite legal standard, in order to add significant value to it. This can explain why the undertaking concerned may choose to omit the evidence which it regards as established beyond doubt by the evidence previously submitted.
180. Fifth, in the light of the wording of point 21 of the Leniency Notice, it cannot be ruled out that the submission of evidence of a certain probative value, but which contains facts established by other evidence, will not result in any reduction.
181. In the light of all of the above, it must be concluded that the statement made by Fuji in the reply to the statement of objections corroborates ABB’s statements and the witness statements of the employees and of a former employee of that undertaking in relation to the existence of a common understanding. However, given its vague and general nature, its probative value is limited.
The proposal made by Alstom on 10 July 2002
– Arguments of the parties
182. The applicants dispute the Commission’s interpretation of the proposal made by Alstom at the cartel members’ meeting of 10 July 2002 and rejected by Hitachi’s representative at the following meeting on 15 July 2002. In their view, that proposal was not designed to update the common understanding, by extending it to the countries of Central and Eastern Europe with a view to their possible accession to the European Union, as claimed by the Commission in recitals 127 and 128 of the contested decision. The proposal was in fact an attempt by Alstom, in the course of the developments in the cartel’s modes of operation, to put in place an arrangement that did not previously exist, requiring each of the two groups of producers to respect the traditional market of the other group. However, that arrangement was rejected by the Japanese undertakings and the question was not raised again by the European producers.
183. The applicants also observe in that regard that the Commission’s allegation is inconsistent both with its argument that the common understanding can be inferred from Annex 2 to the GQ Agreement and with the witness statement of Mr M, who asserted that the ‘GQ Agreement system’ was brought to an end in June 2002.
184. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
185. It is apparent from recital 127 of the contested decision that, at the meeting of 10 July 2002 during which there was discussion of the development of the modes of operation of the cartel after Siemens and Hitachi had withdrawn from it, Alstom proposed that the European producers should stay in Europe and the Japanese producers should stay in Japan and not attempt to enter the European market. In addition, it is stated in that recital that, at the following meeting on 15 July 2002, the representative of Hitachi had stated that Hitachi rejected that proposal, that the European producers had reacted by stating that Europe, including Central and Eastern Europe, was their market and that they wanted to maintain the prices they were currently charging in Western Europe and had also said that the issue was to be raised again, even though that was not the case.
186. It must be admitted that, at first sight, that summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by the applicants, suggests that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently, which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese producers on the EEA market.
187. However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that specific aspect, but not to the situation in Western Europe.
188. It should also be noted that the applicants’ interpretation is incompatible with their own argument in relation to competition on the EEA market. If, as claimed by the applicants, the Japanese producers were not perceived as credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it is apparent from the summary provided by the applicants that Alstom’s proposal concerned the EEA market as well as the Central and Eastern European market.
189. Accordingly, it is necessary to uphold the interpretation set out in recitals 127 and 128 of the contested decision, namely that Alstom proposed extending the common understanding to include Central and Eastern Europe, and to reject the interpretation proposed by the applicants.
190. The other arguments raised by the applicants are not capable of influencing that finding. First, Alstom’s proposal was made at a time when, as a result of the fact that Siemens and Hitachi had withdrawn from the cartel, the methods of operation of the cartel had developed. The Commission’s interpretation that that development was supposed to include the extension of the common understanding beyond the limits previously laid down by the GQ Agreement is in no way contradictory.
191. Second, as noted in paragraph 147 above, Mr M’s statement that implementation of the ‘GQ Agreement System’ ceased in June 2002, does not imply that the common understanding also ceased to exist or that the scope of that understanding was not able to be widened subsequently to cover Central and Eastern Europe. In addition, Mr M ceased his participation in the cartel’s activities in June 2002 and thus, in principle, he does not have any direct knowledge of how it was operated subsequently.
192. In conclusion, it must be found that, at the meeting of 10 July 2002, Alstom proposed the extension of the common understanding referred to by the Commission to the countries of Central and Eastern Europe. That is proof that the common understanding existed at the time of that meeting.
193. In addition, in the light of the interpretation of Alstom’s proposal, the rejection of that proposal by Hitachi does not amount to a rejection of the common understanding as such, but represents merely a refusal to extend it. Consequently, such a rejection does not constitute evidence that the common understanding was abandoned in July 2002.
The position of the other addresses of the statement of objections
– Arguments of the parties
194. The applicants submit, first, that the existence of the common understanding was disputed by five Japanese companies, namely Hitachi, JAEPS, Toshiba, Melco and TM T & D.
195. Second, the applicants state that the Commission incorrectly interpreted VA Tech’s position by claiming that it did not contest the existence of the common understanding. Similarly, the common understanding was called into question by Siemens, which also submitted the witness statement of one of its employees, Mr T, who was closely associated with the operation of the cartel. The Commission failed to take account of those facts and based its decision to a large extent on the witness statements of the employees and of a former employee of ABB. In addition, the probative value of the evidence furnished by Siemens is even greater since its leniency application was rejected as it contested the facts put forward by the Commission.
196. In addition, according to the applicants, the European undertakings generally had no interest in contesting the statements concerning the common understanding, since that understanding was not relevant to the Commission’s objections in regard to them. On the contrary, those undertakings would probably have benefited from a finding by the Commission that the common understanding existed, since that would have to some degree alleviated the weight of their own anti‑competitive conduct. Furthermore, as illustrated by the case of Siemens, the fact that they did not contest the facts put forward by the Commission was relevant to the outcome of the leniency applications of the European undertakings.
– Findings of the Court
197. First of all, it is apparent from the file that VA Tech explicitly contested the existence of the common understanding, as the applicants submit.
198. However, the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of the applicants relating to notification and project loading had to be regarded as being of a higher probative value than the claims made by Hitachi, JAEPS, Toshiba, Melco, TM T & D, Siemens and VA Tech that there was no common understanding.
199. Unlike the first group of evidence, the claims that there was no common understanding are not contrary to the interests of the undertakings concerned, since they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. That finding also applies to Mr T’s witness statement in which he merely set out the background of the GQ Agreement, challenged the existence of the common understanding and referred to barriers to trade both on the EEA market and on the Japanese market. As regards the common understanding in particular, Mr T’s witness statement does not contain any additional evidence to that furnished by the addressees of the statement of objections.
200. In addition, it cannot be considered that the European undertakings, including Siemens, had no interest in contesting the existence of the common understanding, since that understanding was interpreted by the Commission in the statement of objections as a collusive agreement between the European producers and the Japanese producers in relation to the EEA market and thus constituted an infringement of Article 81 EC and Article 53 of the EEA Agreement. Indeed, such a finding was detrimental to the interests of the European producers, or at least could potentially have been, if the Commission had not been able to establish the other objections against them to the requisite legal standard.
201. Moreover, the Commission submits that it did not rely on the position of the European undertakings in concluding that the common understanding existed, but merely noted their position. Although that interpretation is confirmed by the wording of recital 125 of the contested decision, in which no corroborative value is accorded to the position of Alstom, Areva and VA Tech, unlike Fuji’s statements confirming the existence of the common understanding, it is called into question in recital 255 of that decision, in which the Commission refers to the implicit acknowledgement of the existence of the common understanding by certain European producers.
202. In any event, the neutral position of Alstom and Areva cannot be interpreted as evidence of the existence of the common understanding. Given that the burden of proof is on the Commission in proceedings under Article 81 EC and Article 53 of the EEA Agreement, an undertaking’s failure to challenge a fact does not mean that the fact in question is established.
203. It follows from all of the above that the evidence put forward by the applicants does not make it possible to draw conclusions in relation to the existence of the common understanding.
The notification and project loading mechanism
– Arguments of the parties
204. First of all, the applicants submit that the aim of the notification and project loading mechanism was to artificially reduce the European producers’ quota for GIS projects outside of the EEA, owing to the comparatively strong competitive position of the Japanese producers in markets such as Asia and the Middle East, primarily covered by the global cartel. Project loading was in fact an alternative solution put forward by the European producers instead of a flat-rate reduction of their joint quota.
205. They add that there is no evidence to suggest that the notification was mandatory, systematic or regular, that it took place before the allocation of the projects concerned and that it continued after 1999.
206. According to the applicants, a loading mechanism, based on notification which was discretionary, and not systematic or mandatory, could not provide the Japanese suppliers with any security or compensation. Consequently, the theory of the common understanding, as defended by the Commission, is not compatible with the facts of the case.
207. In so far as concerns the various items of evidence put forward by the Commission, the reference, in the EQ Agreement, to the notification of European GIS projects in the EEA to the Japanese suppliers is irrelevant, the content of that agreement having been unknown to the Japanese producers. Moreover, according to the EQ Agreement, the disclosure of information on the GIS projects in the EEA post-dated their allocation and was discretionary.
208. Similarly, the applicants submit that, in their leniency application, the statement that Siemens would regularly circulate tables summarising a share of GIS projects allocated to various members of the cartel clearly relates only to GIS projects outside the EEA.
209. In addition, the applicants submit that, in their reply to the statement of objections, the statement based on Mr Wa’s witness statement that European suppliers told Japanese suppliers the details of GIS projects in the EEA for the purposes of project loading, refers to occasional reporting and not mandatory and systematic notification throughout the duration of the agreement. They add that they had no knowledge of the allocation itself, only the results of it, and that the data disclosed were historic and therefore not confidential, which means that their disclosure was not liable to have any impact on competition between European and Japanese producers. Moreover, all reporting ended in 1999 in any event.
210. According to the applicants, the Commission also misinterpreted Fuji’s statements relating to the disclosure of data on the GIS projects in the EEA. Fuji expressly denied that information was notified systematically and indicated that it had no knowledge of the mechanism for allocation of those projects.
211. Finally, it its statement of 3 February 2005 on the notification, ABB did not indicate whether the mechanism at issue was mandatory and regular and did not mention its duration or any effects of it within the common market. ABB, on the other hand, confirmed that only the results of the allocation of European projects were reported to the Japanese producers.
212. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
213. It is necessary, at the outset, to dismiss the alternative explanation of the notification and project loading mechanism put forward by the applicants. They have not identified any evidence to support their claims that the Japanese producers requested an adjustment of the quotas laid down in the GQ Agreement, that such an adjustment was rejected by the European producers and that the process of notifying and loading certain GIS projects in the EEA was suggested and adopted as a viable alternative. In any event, a random notification and project loading mechanism, as suggested by the applicants, would be considerably more complex than simply adjusting the quotas, while not offering any additional advantages over the latter approach.
214. As regards the various evidence relating to notification and loading, it is apparent from point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement that ‘the European producers decide[d] about notification of [E]uropean projects to [the group of Japanese producers]’.
215. As noted in paragraph 87 above, that provision related to the possible communication of information prior to the allocation of the GIS projects concerned. By contrast, it did not relate to the monitoring of projects which had already been allocated. Consequently, although the content of that provision suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, the measures which it provided for are not part of the notification and project loading mechanism as claimed by the Commission. Therefore, Annex 2 to the EQ Agreement is of no use for proving that mechanism.
216. As regards the evidence furnished by ABB, it should be noted that, in his witness statement, Mr M explicitly affirmed the existence of the notification and project loading mechanism. He also stated that that mechanism did not concern the GIS projects in the home countries, that is to say in Japan and in certain European countries.
217. The existence of a mechanism whereby the value of GIS projects in the EEA was charged to the worldwide quota laid down in the GQ Agreement was also confirmed in ABB’s replies of 3 February 2005 to the questions put by the Commission. ABB affirmed that, when projects outside of the European Union were allocated, the results of the allocation of projects within the European Union were taken into account.
218. In so far as concerns the evidence furnished by the applicants, it should be noted that, read in the context of the sentences which immediately precede it, the statement, in point 2.10 of the leniency application made by the applicants, according to which Siemens would regularly circulate tables summarising a share of the GIS projects allocated to the various members of the cartel, refers to GIS projects outside of the EEA. Consequently, that statement is not relevant as evidence of the notification and project loading mechanism, alleged by the Commission, concerning GIS projects in the EEA.
219. On the other hand, in their reply to the statement of objections, the applicants stated that, before Hitachi discontinued its participation in the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside of the EEA allocated to the two groups of producers under the GQ Agreement.
220. That statement expressly confirms the existence of the notification and project loading mechanism referred to by the Commission until 1999. In addition, it is of a high probative value for two reasons. First, that statement goes against the applicants’ interests, since it implies the existence of a link between the collusive activities within the EEA and the Japanese producers and constitutes, as a result, incriminating evidence. Second, it is apparent from reading the relevant passage of the reply to the statement of objections that the applicants were not aware of the inferences which could be made from that statement.
221. In that regard, it should be noted that the applicants provided the Commission with an additional reply to the statement of objections. However, in that document, they merely dispute the Commission’s interpretation of the statements relating to the notification and project loading mechanism contained in their first reply, in particular in relation to the relevance of those statements as evidence of the common understanding and of the existence of a single infringement involving both the common understanding and the GQ Agreement. By contrast, the applicants did not comment on the actual content of the statements at issue.
222. Fuji, for its part, stated in its reply to the statement of objections that the information concerning the allocation of GIS projects in the European countries excluded from the scope of the GQ Agreement was not systematically provided to the Japanese producers and that, consequently, Fuji did not know about the operation of the EQ Agreement.
223. Fuji’s secondary role within the cartel, noted in paragraph 171 above, may explain the fact that Fuji was not privy to all the information exchanged by the group of European producers. That also calls into question the reliability of Fuji’s statements in that regard compared with that of the evidence furnished by ABB and Hitachi, which were members of the committees of their respective groups and were, for that reason, more closely associated with the detailed operation of the cartel alleged.
224. Contrary to what the applicants claim, it is not apparent from the evidence analysed above, taken as a whole, that the notification and project loading mechanism was implemented occasionally and in a discretionary manner. Although ABB’s statements, those of the applicants and Mr M’s witness statement do not address that subject explicitly, it is clear from the wording used in the documents at issue that notification was carried out regularly and applied to all of the participants and projects concerned. As explained in the preceding paragraph, Fuji’s statements are less reliable in that respect than the evidence provided by ABB and the applicants. In addition, it has been noted in paragraph 215 above that Annex 2 to the EQ Agreement does not concern notification and loading, as claimed by the Commission, and is thus not relevant in that regard.
225. As regards the implementation period of the notification and project loading mechanism, ABB’s statements of 3 February 2005 do not refer to a specific period and may therefore, a priori, be interpreted as referring to the entire duration of the infringement. As for Mr M’s statements, they refer to the period during which he was involved in the cartel, that is to say from 1988 to June 2002. However, in so far as it has been noted in paragraphs 68 and 129 above that the evidence provided by ABB had to be corroborated by other evidence and that such corroboration could not be provided by Mr M’s witness statement, it must be pointed out that the applicants’ statements, contained in their reply to the statement of objections, concern the period preceding the date when Hitachi discontinued its participation in the cartel in 1999. Therefore, it must be considered that the existence of the notification and project loading mechanism was established for that latter period.
226. As regards the relevance of the notification and project loading mechanism in proving the existence of the common understanding, it must be found that the mechanism constitutes a serious indicator that the Japanese producers were perceived by the European producers as potential credible competitors on the EEA market. If the European market was actually impenetrable for the Japanese producers because of the barriers to entry, the European producers would have no reason to notify the results of the allocation of certain GIS projects in the EEA and, a fortiori, to load those projects into the joint ‘European’ quota provided for in the GQ Agreement, since such loading would deprive them of a share of the GIS projects in the regions covered by the GQ Agreement. Consequently, the existence of such a notification and project loading mechanism implies that the Japanese undertakings could have entered the European market. If they did not do so it is because they committed themselves not to, in exchange for a larger share of the GIS projects outside of the EEA. Thus, the mechanism at issue constitutes a link between the collusive activities within the EEA and the Japanese producers and, as a result, indirect evidence of the existence of the common understanding.
227. The question whether the notification and project loading mechanism affected the EEA market is irrelevant in this case. As noted in paragraph 76 above, the basis of the Commission’s complaint against the applicants in the contested decision is the commitment of the Japanese undertakings not to enter the EEA market, which is indirectly proven by the existence of the notification and project loading mechanism. By contrast, it is not apparent from the contested decision that, in the Commission’s view, that mechanism constitutes a separate infringement of Article 81 EC and Article 53 of the EEA Agreement.
228. Similarly, pursuant to the reasoning set out in paragraph 226 above, it is not necessary to establish that the notification and project loading mechanism did not concern GIS projects in the European home countries or that Japan constituted a home country to be able to regard that mechanism as a relevant indication of the existence of the common understanding. Consequently, the fact that Mr M’s witness statement may not be corroborated in that regard is of no significance.
229. In addition, since the Commission’s argument relating to the notification and project loading mechanism is not based on either the confidential nature of the data provided or on the fact that it was provided prior to the allocation of the GIS projects concerned, those aspects are also irrelevant in this case.
230. In the light of all of the above, it must be held that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, has been established in so far as concerns the period from 1988 to Hitachi’s withdrawal from the cartel in 1999 by ABB’s statements, those of the applicants and Mr M’s witness statement. In addition, the mechanism at issue constitutes indirect evidence of the existence of the common understanding alleged by the Commission.
The allocation of GIS projects in the EEA
– Arguments of the parties
231. The applicants submit that the GIS projects in the EEA were shared amongst the European members of the cartel at meetings separate from those on the GQ Agreement, without the participation of the Japanese undertakings.
232. In that regard, the lists of projects supplied by ABB do not constitute plausible evidence that the information on the GIS projects concerned had been notified to the Japanese producers and discussed with them before those projects were allocated.
233. In the applicants’ view, that same finding is valid in relation to the claim that the Japanese undertakings planned to submit bids for GIS projects in the EEA, thereby creating tension within the cartel. The statements in that respect by ABB’s witnesses are imprecise or irrelevant in this case.
234. Similarly, aside from the alleged interest of Melco in a GIS project in Spain, only European producers apparently discussed the eleven GIS projects in the EEA mentioned in the contested decision. It is possible that Melco received information on the project concerned from sources other than the list of projects or the European suppliers.
235. In addition, it has not been established that the Japanese undertakings participated in price fixing for GIS projects in the EEA which could not be allocated to a particular supplier, in the implementation of the clause of the GQ Agreement requiring the parties to end licence agreements with non-cartel members in relation to the territory of the EEA or in exchange for sensitive information concerning the European market for GIS projects.
236. Furthermore, the pre-existing arrangements between European suppliers, relating to the allocation of GIS projects in the EEA, and in particular the GE Agreement, constitute evidence which calls into question the existence of the common understanding. According to the applicants, the GE Agreement describes a complex cartel between the European producers, which predated the signing of the GQ Agreement and was independent from it. Thus, the cartel at issue was implemented without benefiting from any protection from the alleged common understanding. That calls into question the Commission’s argument relating to the importance of the common understanding for the collusive activities of the European producers within the EEA.
– Findings of the Court
237. The file does not contain any evidence which suggests that GIS projects in the EEA were discussed at GQ Agreement meetings in which the Japanese members of the cartel participated.
238. Similarly, it is not apparent from the lists of projects provided by ABB that GIS projects in the EEA were discussed with the Japanese producers, with the exception of Melco’s alleged interest in the ‘MSP via GC’ project in Spain. It cannot be ruled out that the reference to interest shown by Melco in that project is a mistake, given the length of the list of projects concerned and the fact that the Commission did not identify other cases in which a Japanese producer showed interest in a GIS project in the EEA. In any event, the content of the list of projects concerned is not corroborated by other evidence in respect of the ‘MSP via GC’ project and cannot therefore be taken into consideration in that regard.
239. In addition, when the Commission stated in recital 125 of the contested decision that the Japanese producers sometimes considered replying to European tenders, but normally declined them and mentioned the projects concerned to the European producers, it based its findings solely on ABB’s statements and on the witness statements given by its employees. Consequently, since that statement is not corroborated by other evidence, it cannot be taken into consideration.
240. In addition, the Commission does not accuse the applicants of having participated in the fixing of minimum prices for GIS projects in the EEA or in the ending of licence agreements with non-cartel members concerning the EEA. Consequently, the applicants’ arguments in that regard are irrelevant in this case.
241. As regards the exchange of sensitive information concerning GIS projects in the EEA, the notification as established in this case goes beyond the limits of normal competitive conduct both in respect of its duration and intensity and in respect of the nature of the information provided. However, it is not established that the object of the notification was to allocate GIS projects in the EEA to Japanese producers or that the information actually provided was used to that end.
242. In the light of all of the above, it must be found that it has not been established that the Japanese undertakings participated in the allocation of GIS projects in the EEA.
243. As regards the European agreements which pre-date the GQ Agreement, it should be noted that, with the exception of the GE Agreement, the applicants’ claims are not sufficiently precise or substantiated. Consequently, they must be rejected.
244. As for the GE Agreement, it is not disputed that it was signed prior to the GQ and EQ Agreements. However, that does not imply, contrary to what the applicants claim, that it was independent of the GQ Agreement or the common understanding.
245. Under Article 15 of the GE Agreement, that agreement was initially intended as a temporary solution valid until the entry into force of the GQ Agreement and, failing that, had to be renegotiated after 31 December 1988. Thus, it is apparent that, when concluding the GE Agreement, the signatories already anticipated the establishment of the worldwide cartel and its various components, including, according to the Commission’s claims, the common understanding. That interpretation is corroborated by Mr M’s witness statement, according to which the worldwide cartel came about as a result of years of complex negotiations prior to the signing of the GQ Agreement.
246. In addition, according to Mr M, the mutual commitment of the two groups of producers not to enter the domestic markets of the other group, which constitutes the main part of the common understanding alleged by the Commission, predated the conclusion of the GQ Agreement. Consequently, that commitment could be taken into consideration by the European producers when signing the GE Agreement.
247. Accordingly, it cannot be considered that the GE Agreement calls into question the existence of the common understanding alleged by the Commission.
Overall assessment
– Arguments of the parties
248. According to the applicants, the evidence relied on by the Commission linked with the existence of the common arrangement is selective, lacking in probative value and unsupported, and does not reflect reality, the Commission having developed its theory before examining the facts of the case.
249. The applicants submit, in that regard, that the evidence produced by ABB does not establish to the requisite legal standard the existence of a common understanding, and in particular the fact that the Japanese producers agreed to the allocation of GIS projects in the EEA among the European producers, the importance of the common understanding regarding the alleged worldwide cartel, the existence of a mandatory and systematic notification mechanism or the fact that the Japanese undertakings participated in the collusive activities of the European producers within the EEA. Similarly, the Commission took a selective approach, since it did not refer in the contested decision to evidence provided by ABB which was not in line with its theory, in particular the GE Agreement.
250. The applicants consider that, in so far as the evidence given by ABB is both of a low probative value and contested by them, Toshiba, Melco, TM T & D and, in certain respects, by Fuji, it should have been corroborated by other evidence, which ‘would have to be of the highest corroborative quality’. However, it had not been. In particular, the Commission made allegations regarding the GQ and EQ Agreements which are contradictory with other evidence in the file and misinterpreted the statements made by the applicants and Fuji concerning the notification and project loading mechanism.
251. The applicants submit, in that context, that the Japanese producers were not in a position to enter the European GIS market as a result of the existence of insurmountable barriers to entry, which meant that there was no need for their involvement at European level and, therefore, for the existence of the common understanding. They add that the plausibility of that alternative explanation was confirmed by all the undertakings concerned and it is also apparent from numerous items of evidence in the file, such as the GE Agreement in particular, which was entered into exclusively by the European producers without them needing to secure any arrangement with the Japanese producers or to inform them.
252. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
253. It is apparent from the examination carried out in paragraphs 84 to 230 above, first, that ABB’s statements and the witness statements of its employees and of its former employee show that an understanding existed whereby the European and Japanese producers undertook mutually not to enter the domestic markets of the other group. Those items of evidence also make it possible to identify the parties to the understanding and to conclude that, although it was probably concluded prior to the GQ Agreement, it was concluded, at the latest, at the time the GQ Agreement was concluded.
254. Second, the existence of the mutual understanding referred to above is corroborated by the proposal made by Alstom at the meeting of 10 July 2002. The existence of the commitment of the Japanese undertakings not to enter the European market is also corroborated by Fuji’s statements.
255. Third, it is apparent from ABB’s statements and its witness statement, corroborated by the applicants’ statements, that the Japanese producers accepted, at least in so far as concerns the period from 1988 to 1999, the regular notification of the results of the allocation of certain GIS projects in the EEA and their loading into the joint ‘European’ quota provided for in the GQ Agreement. Similarly, under Point 4 of Part ‘E (E (Members)’ of Annex 2 to the EQ Agreement, the European producers foresaw the possibility of providing the Japanese producers with the details of certain GIS projects in the EEA prior to their allocation. Those two factors suggest that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, but that they had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions. They thus constitute indirect evidence of the existence of the mutual understanding between the European producers and the Japanese producers.
256. Thus, the evidence produced by the Commission supports its assertions regarding the existence of the common understanding, as summarised in paragraph 74 above. By contrast, the evidence relied on by the applicants is not capable of calling those statements into question.
257. First, as set out in paragraphs 244 to 247 above, the GE Agreement does not constitute evidence of a European cartel which was implemented without the aid of the common understanding.
258. Second, although it has not been established that the Japanese undertakings participated, with the European producers, in the allocation of GIS projects in the EEA, it should be pointed out that, in the light of the nature of their alleged commitment under the common understanding, their participation in it would not have been necessary. The Japanese producers would have had no interest in intervening in the actual allocation of GIS projects in the EEA which they had committed themselves not to take. Their sole interest would have been to learn the value of the projects concerned and the identity of the undertakings to which they were awarded, in order to be able to monitor the loading into the joint ‘European’ quota provided for in the GQ Agreement. At least in so far as concerns the period from 1988 to 1999, that information was communicated to the Japanese producers via the notification mechanism.
259. In the light of all of the above, it must be found that the existence of the common understanding as described in paragraph 74 above has been established to the requisite legal standard.
260. Accordingly, contrary to what the applicants claim, the Commission was not required to prove the commercial interest of the undertakings concerned in concluding the common understanding. Moreover, as set out in paragraphs 110 and 158 above, the conclusion of the common understanding was likely to confer certain advantages on those undertakings and was thus not without purpose, notwithstanding the existence of barriers to entry on to the EEA market and the possible lack of immediate commercial interest in entering that market.
261. In addition, since the Commission did not base its findings solely on the conduct of the undertakings at issue on the market in concluding that the alleged infringement had been committed, it is not sufficient for the applicants to substitute their own alternative plausible version of the facts for the version given by the Commission. Consequently, the alternative explanation proposed by the applicants is irrelevant in so far as concerns the existence of that infringement. In any event, the evidence supporting that explanation is also relied on by the applicants in the context of the first part of the third plea and will therefore be examined in paragraphs 317 to 332 below.
262. Consequently, the first part of the second plea must be rejected.
263. Furthermore, in accordance with what has been stated in paragraph 41 above, since it has been possible to establish the existence of the common understanding without taking account of Fuji’s observations of 21 November 2006 as incriminating evidence, ultimately it is necessary to dismiss the first part of the first plea, alleging that the applicants did not have access to certain items of incriminating evidence. Consequently, the first plea must be dismissed in its entirety.
b) The second part, alleging that the Commission did not establish that the common understanding constituted a restrictive agreement or a concerted practice
– Arguments of the parties
264. The applicants claim that, even if the Commission had established the existence of a common understanding, it has not established, by precise and plausible evidence, that it represented the manifestation of a meeting of minds in the form of a restrictive agreement or concerted practice. In their view, at most, the Commission’s file discloses parallel behaviour on the part of operators, compatible with normal market conditions. That fact is attested to by Mr M’s witness statement, in which he stated that, at the meetings he attended, it was not necessary to raise the question of the common understanding, in so far as the latter went without saying.
– Findings of the Court
265. According to the case‑law, it is for the Commission to gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement constitutes an agreement or a concerted practice within the meaning of Article 81(1) EC (Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47). The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement.
266. In the contested decision, the Commission did not comment expressly on the issue whether the conduct imputed to the Japanese undertakings constituted an agreement or a concerted practice. In recital 248 of the contested decision, it merely observed that the infringement consisted of several actions which may be classed as agreements or concerted practices.
267. Consequently, it should be assessed, first, whether the common understanding constitutes an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement.
268. In that regard, in order for there to be an agreement within the meaning of those provisions, it is sufficient that the undertakings in question expressed their joint intention to conduct themselves on the market in a specific way (see, by analogy, Cimenteries CBR and Others
v Commission, paragraph 70 above, paragraph 958, and the case‑law cited). There is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition (see Cimenteries CBR and Others
v Commission, paragraph 70 above, paragraph 837, and the case‑law cited).
269. In the present case, it is apparent from the various items of evidence produced by the Commission, and in particular ABB’s and Fuji’s statements and the witness statements of Mr M and Mr V.-A that the European and Japanese producers mutually agreed not to enter the domestic markets of the other group. The existence of a mutual agreement necessarily implies the existence of a meeting of minds, even if there is no evidence which makes it possible to determine with precision the exact point in time that meeting of minds was manifested or which formalised its expression. In addition, it is apparent from paragraph 141 above that Mr M considered that it was not necessary to refer to the common understanding during the discussions in which he participated, since the content of that understanding was understood, accepted and implemented by all the participants to the cartel without the need for any specific discussion on it. Moreover, as set out in paragraph 152 above, Mr V.-A stated that he participated in discussions between the European undertakings and the representative of a Japanese undertaking expressly concerning compliance with the common understanding.
270. Similarly, the acceptance over a number of years – confirmed by ABB’s statements and witness statement and by the applicants’ statements – by the Japanese producers of the notification of the results of the allocation of certain GIS projects in the EEA and the monitoring of their loading into the joint ‘European’ quota provided for in the GQ Agreement is not consistent with the mere parallel conduct of competitors with no meeting of minds.
271. Furthermore, the object of the common understanding was to determine the conduct of the Japanese undertakings in relation to the EEA market, since those undertakings committed themselves not to enter that market. Thus, that understanding effectively amounted to reserving the EEA market for European producers.
272. Consequently, the Commission was right to find that the common understanding constituted an agreement between undertakings within the meaning of Article 81(1) EC and Article 53(1) of the EEA Agreement.
273. Accordingly, it is not necessary to examine whether the common understanding constituted a concerted practice within the meaning of those provisions.
274. In the light of all the foregoing, the second part of the second plea must be rejected and, therefore, the second plea must be dismissed in its entirety.
3. The third plea, alleging that the Commission has not proved the existence of a single and continuous infringement
275. In the context of the first part of the third plea, the applicants submit that, in so far as they are concerned, the Commission has established neither the essential aspects of the measures implemented by the cartel participants, nor that those measures pursued a single objective. In the context of the second part, they challenge the finding that the alleged cartel was continuous and, in particular, that its objective was continuous.
276. The Commission considers the applicants’ arguments to be unfounded.
a) The first part, alleging that the Commission failed to establish the existence of a single infringement encompassing the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activity of the European producers within the EEA
– Arguments of the parties
277. The applicants submit that, in the present case, the products, the geographic markets and the undertakings concerned, first, by the cartel provided for in the GQ Agreement and, second, by the agreements on GIS projects in the EEA are different, which in the applicants’ view means that the GQ Agreement is separate from the European agreements and that it is thus wrong to consider that the activities of the cartel outside the EEA and the activity of the European undertakings within the EEA form a single infringement.
278. The applicants add that the facts set out in the contested decision do not establish, beyond all reasonable doubt, the existence of a single infringement.
279. According to the applicants, the common understanding has not been established, since the evidence furnished by ABB lacks probative value and is not corroborated by other evidence.
280. Similarly, the Commission has not established the importance of the common understanding regarding the alleged worldwide cartel, since it is not apparent from the evidence in the file that such an arrangement was necessary either to establish mutual trust or to encourage the activities of the European members of the cartel relating to the territory of the EEA. In addition, the Commission has not proved that the Japanese producers knew of and accepted the mutual reservation of the home countries. The notion of home countries was a concept which was applied solely in relation to agreements between European producers and was thus unknown to the Japanese undertakings.
281. According to the applicants, the independent nature of the participation of the Japanese undertakings in the GQ Agreement in relation to the collusive conduct of the European undertakings within the EEA resulted from the fact that the Japanese producers were not in a position to enter the European GIS market as a result of insurmountable barriers to entry.
282. The existence of two independent cartels is confirmed, in addition, by various items of evidence in the file. In that regard, the applicants refer to the existence of the GE Agreement and of other earlier agreements concluded between European suppliers, to the fact that the common understanding is not mentioned in the written agreements, that the conduct of the European producers within the EEA is not mentioned in the GQ Agreement, and refers to the non-disclosure agreement concluded with ABB, Areva, Siemens and VA Tech aimed at facilitating the exchange of sensitive information between signatories, without the knowledge of the other undertakings which participated in the cartel.
283. By contrast, there is no evidence which suggests that the Japanese undertakings participated in the allocation of GIS projects within the EEA and in the associated collusive activities of the European producers within the EEA, or that they were aware thereof.
284. In so far as concerns the notification and project loading mechanism, the applicants refer, first of all, to the alternative version of the facts set out in paragraph 204 above. Moreover, they reiterate that the notification was not systematic, that it took place after the projects concerned had been allocated, that the practice was discontinued in 1999 and that it concerned non-confidential data.
285. In particular, the applicants dispute that the mere knowledge of the past existence of arrangements between other undertakings and the exchange of historical information in summary form constituted infringements of Article 81 EC and Article 53 of the EEA Agreement.
286. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
287. The agreements and concerted practices referred to in Article 81(1) EC 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. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect (Case C‑49/92 P Commission
v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 79 to 80). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA Agreement.
288. Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission
v Anic Partecipazioni, paragraph 287 above, paragraph 83). The case‑law cited above is applicable, by analogy to Article 53(1) of the EEA Agreement.
289. In the present case, first, it is apparent from the examination of the second plea that the Japanese undertakings participated along with the European undertakings in the common understanding, which was an agreement between undertakings within the meaning of Article 81 EC and Article 53 of the EEA Agreement concerning the European market for GIS projects. Participation in the common understanding implies that the Japanese undertakings were aware of the fact that the GIS projects in the EEA were reserved for European producers.
290. In that regard, the fact that the applicants did not participate in the specific collusive measures in the EEA is irrelevant. As stated in paragraph 258 above, given the nature of their commitment under the common understanding, the participation of the Japanese undertakings in the allocation of GIS projects on the EEA market was not necessary. Thus, the passive role of the Japanese producers was not due to their choosing but to the form of their participation in the agreement relating to the EEA market. On the other hand, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA between European producers could be carried out pursuant to the principle of the protection of home countries or pursuant to the GE Agreement.
291. Second, ABB’s statements and Mr M’s witness statement suggest that, although the common understanding was not referred to explicitly in the GQ Agreement, it was behind its operation, since it made it possible to ensure the confidence required for the worldwide cartel to be able to function. The existence of the link between the common understanding and the GQ Agreement is confirmed by Mr V.-A’s witness statement which states that, at a meeting on the GQ Agreement, the need to comply with the common understanding was discussed between the European undertakings and a representative of the Japanese undertakings.
292. Third, the notification and project loading mechanism constitutes a link between the collusive activities of the European undertakings within the EEA and the worldwide undertaking governed by the GQ Agreement. Through that mechanism, the results of the allocation of certain GIS projects in the EEA were taken into account when allocating GIS projects in other regions pursuant to the GQ Agreement. The existence of the mechanism concerned is established by the statements and witness statements of ABB and by the applicants’ statements, irrespective of the fact that it was not referred to explicitly in the GQ Agreement.
293. In that respect, the alternative explanation of the notification and project loading mechanism proposed by the applicants has been rejected in paragraph 213 above. Similarly, it is apparent from paragraphs 243 to 247 above, first, that the applicants’ arguments relating to the European agreements other than the GE Agreement cannot be taken into account by the Court and, second, that the GE Agreement does not constitute evidence that the collusive activities of the European producers within the EEA were independent of the worldwide cartel governed by the GQ Agreement. In addition, it is not apparent from the evidence produced by the applicants that the non-disclosure agreement between the European producers was actually concluded nor, a fortiori, that the exchange of information between the two groups of producers was affected as a result.
294. Fourth, it must be held that, as a result of the regular notification of the results of calls for tenders for certain GIS projects in the EEA, carried out at least from 1988 to 1999, the Japanese undertakings could reasonably have envisaged that the allocation of GIS projects in the EEA among European producers was the result of collusive activity. The fact that a group of producers has communicated to it regularly, over several years, the results of calls for tenders in which the members of another group of producers in the same industrial sector participated, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct. Notification should therefore have given rise to doubts regarding the conditions under which the GIS projects concerned were allocated. That is all the more the case since the results of a call for tenders are not necessarily public information, in particular in so far as concerns calls for tenders launched by private undertakings and in respect of the details of the winning tender.
295. In that regard, the Commission rightly stated, in recital 277 of the contested decision, that knowledge of the collusive nature of the allocation of GIS projects in the EEA, acquired by the Japanese undertakings as a result of the notification mechanism between 1988 and 1999, was not likely to be affected by any subsequent interruption of notification. The same applies to JAEPS, irrespective of the fact that it was not created until 2001. JAEPS took over the GIS business of its shareholders, including Hitachi and Fuji. Accordingly, it can be considered that it had the same knowledge as those shareholders in relation to the allocation of GIS projects in the EEA.
296. Fifth, the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA were implemented at the same time, concerned the same products and involved the same European producers and, in so far as concerns the common understanding and the GQ Agreement, the same Japanese producers. Similarly, the various measures had the same objective, namely the establishment of a system for sharing the worldwide market for GIS projects and allocating those projects among the various participants.
297. In the light of all the foregoing, it must be held that the Commission did not err in finding that the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA formed a single infringement and pursued a common objective. Consequently, the first part of the third plea must be rejected.
b) The second part, alleging that the Commission has not proved the continuous nature of the cartel
– Arguments of the parties
298. The applicants submit that, following the meeting of 10 July 2002, the cartel did not pursue the same economic objective, since it was focused on the Middle East and South East Asia and its new objective was to combat price erosion in those regions.
299. In addition, the applicants claim that the Commission was required to take account of the changes in the structure and operation of the cartel made at the same time, which included a simplification of the working methods, the introduction of a system of packages of projects allocated directly and changes to the designation codes of the members of the cartel.
300. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
301. It is not apparent from the evidence in the file that the economic objective of the worldwide cartel was changed at the meeting of 10 July 2002. Both before and after that date the essential aim of that cartel was to share the markets for GIS projects and to coordinate the allocation of those projects between the undertakings involved in the worldwide cartel. In that regard, it is apparent that the will of the undertakings concerned to combat price erosion in the Middle East and South East Asia was not the result of changing their essential objectives, but of the development of competition on those markets.
302. In addition, the structural and operational development referred to by the applicants consists of isolated changes limited to certain aspects of the functioning of the cartel, but did not affect its overall objective. As submitted by the Commission, it appears that the various changes were related to changes in the number of participants to the cartel and to technological developments. Furthermore, the applicants do not support their objection regarding the progressive nature of the changes that were made, set out by the Commission in recital 280 of the contested decision.
303. It follows that the applicants’ claims regarding the continuity of the cartel and its objective have no factual basis. It must therefore be considered that the Commission did not err in finding that, between 15 April 1988 and 11 May 2004, there was a continuous infringement which pursued the same economic objective.
304. Therefore, the second part of the third plea must be rejected as, consequently, must the third plea in its entirety.
305. Since none of the pleas raised in support of the main claim can succeed, that claim must be rejected.
B – The first claim in the alternative, seeking annulment of Article 2 of the contested decision in so far as it concerns the applicants
1. The fourth plea, alleging that the Commission committed errors in calculating the fines imposed on the applicants
306. The applicants maintain that the Commission committed errors in calculating the fines which it imposed on them. In the first part of the plea, they claim that the Commission failed in its obligation to assess the relative importance of the infringement committed by each undertaking. In the second part they claim that the Commission committed a manifest error in applying the Leniency Notice. In the third part they submit that the Commission committed a manifest error in assessing the factors relating to duration of the cartel.
307. The Commission considers the applicants’ arguments to be unfounded.
a) The first part, alleging an error in the evaluation of the relative weight of the infringement committed by each undertaking
– Arguments of the parties
308. The applicants submit that the Commission should have taken into account the secondary role which they played within the cartel, both in relation to the relative gravity of their conduct and the effect thereof on the EEA market.
309. First, the applicants state that they did not participate in the cartel within the EEA or at the meetings organised in the context of the EQ Agreement, but merely implemented the GQ Agreement. Consequently, their possible participation in the European cartel could only be passive and their conduct did not affect trade between the Member States, owing also to the existence of the earlier European cartel governed by the GE Agreement.
310. Second, the applicants submit that their alleged participation in the common understanding had no impact on the EEA market and was thus not liable to harm competition on that market. In that regard, they refer to the evidence which they submitted to the Commission, in particular the external report, statements by other cartel participants and the fact that they did not sell any GIS in Europe either between 2000 and 2002, that is to say during the period when they did not take part in the cartel, or after the cartel was terminated. They add that the fact that they were not able to harm competition in the EEA should have been taken into consideration as an attenuating circumstance.
311. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
312. According to settled case‑law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see Commission
v Anic Partecipazioni, paragraph 287 above, paragraph 150, and the case‑law cited).Thus, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined ( Commission
v Anic Partecipazioni, paragraph 287 above, paragraph 90).
313. It is pointed out, first of all, in that regard, that the contested decision does not penalise its addressees for having participated in the GQ Agreement, which did not concern the territory of the EEA. Article 1 of the contested decision states clearly that the infringement of Article 81 EC and Article 53 of the EEA Agreement concerned the GIS sector in the EEA.
314. It is apparent from the examination of the second plea that the nature of the participation of the Japanese producers in the agreements and concerted practices concerning the EEA was not the same as that of the European producers. The Japanese undertakings committed themselves, under the common understanding, not to enter the EEA market and their participation thus consisted of a failure to act. The European undertakings, for their part, distributed the various GIS projects on that same market through active collusion.
315. However, there is no substantial difference in respect of the gravity of those two types of conduct. As noted in paragraphs 258 and 290 above, given the nature of the applicants’ commitment under the common understanding, the fact that they did not participate in the distribution of GIS projects in the EEA is irrelevant, since it was not necessary for them to intervene; their lack of participation in the distribution of such projects was not the result of their choice, but a mere consequence of the nature of their participation in the agreement relating to the EEA market. By contrast, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA between European producers could be carried out among the European producers in accordance with the rules agreed to that effect.
316. Consequently, it must be considered that the gravity of the conduct of the Japanese undertakings is comparable to that of the conduct of the European undertakings.
317. As regards the alleged inability of the applicants to harm competition in the EEA, it is apparent from section 1 A of the Guidelines on the method of setting fines that, when setting fines, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers.
318. In that regard, the applicants submit, first, that a Japanese producer wishing to enter the EEA GIS market would be confronted with ‘high’ barriers to entry of a technical, commercial, cultural and economic order. Second, that same market is a ‘mature’ market, which implies that, during the period of the infringement, there was only a low rate of growth and that it was adequately served by the European producers.
319. It should be noted, first, that the existence of a common understanding, and in particular of the notification and project loading mechanism, implies that the Japanese producers were perceived as credible potential competitors for the European producers, irrespective of certain objective barriers to entry, the existence of which is also not disputed by the Commission. If that had not been the case, the common understanding would not have been concluded and respected by the European producers, for whom that would mean a loss of a share of the GIS projects outside of the EEA. In so far as the European producers were particularly well situated to assess the situation in the EEA, as a result of their privileged position in Europe, their acceptance of the common understanding constitutes an argument which seriously calls into question the plausibility of the line of argument put forward by the applicants.
320. Second, it should be pointed out that the external report submitted by the applicants was elaborated ex post, for the specific needs of the parties’ defence in the procedure which led to the adoption of the contested decision. As submitted by the Commission, the report is drafted in general terms and it does not state that the feasibility or commercial opportunity of entering the EEA market was discussed by the parties. Similarly, in so far as concerns the technical barriers in particular, the external report refers to a large extent to the statements of JAEPS and the other addressees of the contested decision, which suggests that, by the same token, it does not constitute an independent source.
321. In addition, as regards the technical barriers, it indeed appears to be the case that a Japanese producer wishing to enter the EEA market is required to adapt the product concerned to the norms in place, resulting from the standards defined by the International Electrotechnical Commission, to carry out a certain number of conformity tests and to obtain the corresponding certificates. However, the applicants do not dispute that the Japanese producers made sporadic sales of GIS products in the EEA, and a larger number of sales in other territories in which the standards defined by the International Electrotechnical Commission are also applicable.
322. The applicants also refer to the additional technical requirements and usages which apply in certain countries in Western Europe. At least in so far as concerns the countries other than the home countries, such requirements apply to all potential suppliers, whether European or Japanese.
323. The same goes in relation to the alleged preference for national products, since it is apparent from the contested decision that the EEA countries other than the home countries were precisely those in which there were no credible national suppliers. Such reasoning applies, a fortiori, to the alleged preference for the supplier of the equipment already installed. A pre-existing satisfactory relationship with a supplier tends to disadvantage all other suppliers, irrespective of the whether they are European or Japanese.
324. The applicants also submit that Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors (OJ 1993 L 199, p. 84), required that preference be given to European suppliers in procurement procedures. However, as the applicants acknowledge themselves, that rule was no longer applicable to Japanese producers from 1 January 1996. Moreover, the preference rule was not an absolute one, since, pursuant to Article 36(3) of that directive, the latter applied only where tenders were equivalent in the light of the award criteria, that is if the price difference did not exceed 3%.
325. The applicants arguments alleging, first, the need to establish a presence in Europe to ensure the sale and the services and maintenance infrastructures and, second, the impact of the distance between Japan and Europe on transport and insurance costs and on delivery times, cannot be upheld in the light of the GIS sales made by the Japanese producers in the EEA, and in the rest of Europe and in the Mediterranean region, namely in territories which are geographically distant from Japan.
326. As regards the alleged tariff barriers, the applicants did not provide details of the rate of customs duty which would be applicable to imports of GIS products to the EEA from Japan. Consequently, that argument must be rejected.
327. Finally, it should be noted that the prolonged existence of the common understanding and, consequently, the absence of the Japanese producers on the EEA market was likely to reinforce artificially some of the barriers to entry referred to by the applicants, in particular those related to the acceptance by European customers of Japanese suppliers. The applicants cannot be permitted to rely on the consequences of the functioning of the infringement in which they participated to seek a reduction of the fine imposed on them for that very infringement. Moreover, the effects referred to above of the prolonged existence of the common understanding are capable of explaining why the applicants did not make any GIS sales in the EEA between 1999 and 2002 and between 2004 and 2006, that is to say during relatively short periods compared with the duration of the infringement.
328. Third, it should be noted that the statements made by the other participants do not refer to barriers to entry other than those raised by the applicants. Consequently, the arguments set out in paragraphs 321 to 327 above also apply here.
329. Fourth, it should be pointed out that the information given in the external report relating to the state of the EEA market is not sufficiently detailed, since it covers only certain parts of the period of infringement. Moreover, part of that information concerns the growth rate of the EEA market, but does not provide details of the size of that market. A large market in absolute terms may offer opportunities for entry even if there is not a high growth rate.
330. Similarly, the presence of other competitors is a factor inherent in the exercise of an economic activity in a market economy and thus does not constitute, in itself, a particularity which should have been taken into account. In so far as the applicants’ argument emphasises the alleged privileged relationship between the European customers and the European producers, reference should be made to paragraphs 323 and 327 above.
331. In addition, the interest in analysing the capacity of the Japanese producers in entering the EEA market is not to find out whether an entry on to that market was the most attractive alternative available to the Japanese producers, but whether it was a realistic option which, had the common understanding not existed, could have put pressure on the conduct of the producers present on the EEA market. Consequently, the fact that opportunities may have been available to the Japanese producers on other markets is not relevant in itself.
332. In the light of all of the foregoing, it must be concluded that the applicants have not substantiated to the requisite legal standard their claim that the particularities of the EEA market meant that the conduct of the Japanese producers who were parties to the common understanding was not likely to harm competition on that same market in the present case. Accordingly, the Commission cannot be accused of having failed to take that claim into consideration, either when evaluating the gravity of the infringement committed by the applicants or when evaluating the attenuating circumstances.
333. The first part of the fourth plea must therefore be rejected.
b) The second part, alleging an erroneous application of the Leniency Notice
Arguments of the parties
334. The applicants claim that, in concluding that they participated in the common understanding and, more generally, in a single and continuous infringement, the Commission relied on two pieces of information volunteered by the applicants: first, the statements concerning the notification and project loading mechanism and, second, the description of their rejection of Alstom’s proposal, made on 10 July 2002 relating to a common understanding for the European market. That information was not known to the Commission at the time and had a direct impact in demonstrating the existence of a single and continuous infringement.
335. The applicants consider that the Commission therefore erred in finding that the abovementioned information did not constitute added value such as to merit a reduction of the fine in accordance with the Leniency Notice. They also maintain, referring to point 23 of the Leniency Notice, that no fine should have been imposed on them.
336. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
337. Points 4, 20, 21 and 23 of the Leniency Notice state the following:
‘4. The Commission considered that it is in the Community interest to grant favourable treatment to undertakings which cooperate with it. The interests of consumers and citizens in ensuring that secret cartels are detected and punished outweigh the interest in fining those undertakings that enable the Authority to detect and prohibit such practices.
…
20. Undertakings that do not meet the conditions … above [to obtain immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.
21. In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
…
23. … In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
338. Assessed in the light of that criteria, the applicants’ arguments cannot be upheld.
339. As noted in paragraphs 192 and 230 above, the statements relating to the notification and project loading mechanism and to Alstom’s proposal of July 2002 constitute evidence which is relevant for proving the existence of the common understanding. However, during the administrative procedure, the applicants claimed, first, that the notification and project loading mechanism was not relevant when establishing the existence of that understanding and, second, that Alstom’s proposal and their reaction to that proposal made it possible to call the existence of that understanding into question. Accordingly, it cannot be argued by the applicants that they cooperated with the Commission in that regard, in accordance with point 4 of the Leniency Notice. Therefore, the Commission did not err in refusing to apply points 20 and 21 of that notice to them.
340. As regards the application of point 23 of the Leniency Notice, it should be noted that on 9 September 2004, namely the day the applicants made their leniency application to which they annexed a description of Alstom’s proposal of 10 July 2002, the Commission was already aware of the existence and of the nature of the common understanding, and of the fact that it covered specifically the period from July 2002 to 2004. Those facts were made known in ABB’s statements of 11 March 2004. Similarly, when the statement of objections was sent, that is before the applicants submitted their statements relating to the notification and account loading mechanism, the Commission knew that that very mechanism was in place between the participants to the cartel from 1988 to 2002, since that information was provided in both ABB’s statements and in Mr M’s witness statement. Consequently, it cannot be considered that the applicants’ statements at issue related to facts of which the Commission was previously unaware or, a fortiori, that they could affect the gravity of the infringement or its duration. Therefore, the Commission did not err in refusing to apply point 23 of the Leniency Notice in that regard.
341. Consequently, the second part of the fourth plea must be rejected.
c) The third part, alleging an error in the assessment of the facts relating to the duration
– Arguments of the parties
342. The applicants reaffirm, first, their position that the Commission failed to establish continuity of the purpose of the infringement from 15 April 1988 to 11 May 2004. Second, they submit that the finding of their participation in an infringement after July 2002 is undermined by the changes made to the structure and nature of the arrangements at that time, and in particular by their rejection of Alstom’s proposal of 10 July 2002 that an arrangement be entered into regarding the European market.
343. The Commission considers the applicants’ arguments to be unfounded.
– Findings of the Court
344. The applicants’ arguments raised in the context of this part of the plea are the same as those already dealt with in the context of the second and third pleas. The arguments relating to the continuity of the purpose of the cartel and to the changes made to it have been examined in paragraphs 301 to 303 above. Similarly, the relevance of Hitachi’s rejection of the proposal made by Alstom on 10 July 2002 has been examined in paragraphs 185 to 193 above.
345. It is apparent from the passages at issue that the evidence raised by the applicants does not enable it to be concluded that the Commission erred, first, in finding that a continuous infringement existed which pursued the same economic objective from 15 April 1988 to 11 May 2004 and, second, in considering that the common understanding and, consequently, the applicants’ participation in the infringement, continued beyond July 2002.
346. Accordingly, the third part of the fourth plea must be rejected as, consequently, must the fourth plea in its entirety.
2. The fifth plea, alleging that the Commission calculated the applicants’ fines by means of a method which infringed the principles of equal treatment and proportionality
a) Arguments of the parties
347. The applicants submit that the Commission infringed the principles of equal treatment and proportionality in applying a deterrence multiplier of 2.5 to Hitachi, while applying the lowest multiplier of 1.25 to ABB. In their view, whereas Hitachi is a minor operator in the GIS sector and its conduct was not likely to harm competition on the common market substantially, ABB is the largest supplier in that sector worldwide and is established in Europe. In addition, unlike ABB, Hitachi is not a repeat offender. In so far as that is relevant in preventing future anti‑competitive conduct, it should have been taken into account when determining the applicable deterrence multipliers. In addition, the application of deterrence multipliers significantly outstripped any consideration of the applicants’ small market share.
348. The Commission considers the applicants’ arguments to be unfounded.
b) Findings of the Court
349. It is apparent from recital 491 of the contested decision that the Commission deemed it necessary to apply a deterrence multiplier to the undertakings with a particularly high turnover. On the basis of the worldwide turnover of the undertakings concerned, the Commission applied deterrence multipliers of 1.25 to ABB and of 2.5 to Hitachi.
350. The applicants complain that that calculation reflects neither ABB’s power on the worldwide and European GIS markets nor the fact that ABB has been fined in the past for an infringement of Article 81 EC. However, it is apparent from recital 491 of the contested decision that the purpose of applying a deterrence multiplier was not to take account of those two factors, but to reflect the disparity in size of the various undertakings which participated in the cartel. The taking into account of that latter element is in line with both point 1 A of the Guidelines on the method of setting fines and the case‑law according to which, when the Commission calculates the amount of the fine, it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 119 to 121).
351. The proportionality of the deterrence multipliers applied to ABB and to Hitachi in relation to their size can easily be verified by reference to a graph showing all the deterrence multipliers applied in relation to the respective turnovers of the undertakings concerned. On that graph, the multipliers of all the undertakings concerned, with the exception of Siemens, are in a line. This implies that the deterrence multiplier applied to Hitachi is proportionate to that applied to ABB and that, consequently, Hitachi was not treated unfairly compared with ABB.
352. Moreover, as regards the other factors raised by the applicants, it must be noted that ABB’s weight on the GIS market does indeed constitute a relevant factor, since it is a direct indicator of the capacity of that undertaking to harm competition. In the present case, that factor was taken into account when determining the starting amount, since ABB was classed, together with Siemens, in the first group on the basis of their total worldwide sales. Thus, ABB’s starting amount was five times greater than that of Hitachi and JAEPS.
353. As regards repeated infringements, it must be pointed out that deterrence is an objective of the fine and that the need to ensure it is a general requirement which must be a reference point for the Commission throughout the calculation of the fine and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective (Case T‑15/02 BASF
v Commission
[2006] ECR II‑497, paragraph 226). Thus, the Commission was entitled to take that factor into account when assessing the aggravating circumstances as opposed to when determining the deterrence multipliers. In recital 510 of the contested decision, the Commission thus increased ABB’s fine by 50% pursuant to point 2 of the Guidelines on the method of setting fines, while the fine was not increased on that basis for any of the applicants.
354. In the light of all of the above, the fifth plea must be rejected, along with the applicants’ first claim in the alternative that Article 2 of the contested decision be annulled in so far as it concerns them.
355. Since no separate plea was raised in support of the applicants’ second claim in the alternative, seeking annulment or a reduction of the fines imposed on them, the action must be dismissed in its entirety.
Costs
356. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Dismisses the action;
2. Orders the applicants to pay the costs.