62010TJ0398
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
15 July 2015 (
*1
)
‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price-fixing, market-sharing and exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure’
In Case T‑398/10,
Fapricela — Indústria de Trefilaria, SA, established in Ançã (Portugal), represented initially by M. Gorjão-Henriques and S. Roux, lawyers, and subsequently by T. Guerreiro, R. Lopes and S. Alberto, lawyers,
applicant,
v
European Commission, represented by F. Castillo de la Torre, P. Costa de Oliveira and V. Bottka, acting as Agents, and by M. Marques Mendes, lawyer,
defendant,
APPLICATION for annulment and variation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011,
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 16 October 2014,
gives the following
Judgment (
1
)
…
Procedure and forms of order sought
56
By application lodged at the Court Registry on 8 September 2010, Fapricela brought the present action.
57
By separate document lodged at the Court Registry on the same date, the applicant applied for suspension of the operation of the contested decision. That application was dismissed by order of 15 July 2011 in Fapricela v Commission (T‑398/10 R, EU:T:2011:395) and the costs were reserved. The applicant lodged an appeal against that decision, which was dismissed by order of 20 April 2012 in Fapricela v Commission (C‑507/11 P(R), EU:C:2012:231).
58
By document of 12 December 2010, Fapricela amended its pleas and the form of order sought following the adoption of the first amending decision and submitted an amended application.
59
By decision of 6 June 2011, the Court requested the Commission to supply it with the second amending decision. The Commission complied with that request on 17 June 2011.
60
Following the adoption of the second amended decision, Fapricela again amended its pleadings and the form of order sought, by a document lodged at the Registry on 29 July 2011.
61
The written procedure ended on 21 November 2011, when the Commission lodged the rejoinder in the language of the case.
62
The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 3 October 2013.
63
The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 7 February 2014.
64
On 14 March 2014, the applicant wrote to the Court concerning payment of an advance on the fine imposed by the Commission and stating that an arrangement to discharge the fine was under discussion.
65
On 9 April 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to the applicant and the Commission.
66
By letters of 8 May and 2 June 2014 respectively, the Commission and the applicant complied with those measures.
67
On 14 May 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.
68
Fapricela claims that the Court should:
—
annul Articles 1, 2 and 3 of the contested decision in so far as they relate to it;
—
in the alternative, significantly reduce the amount of the fine imposed on the applicant;
—
order the Commission to pay the costs.
69
The Commission contends that the Court should:
—
dismiss the action;
—
order Fapricela to pay the costs.
Law
70
The applicant puts forward seven pleas in law in support of its action.
71
The first plea alleges infringement of Article 101 TFEU and breach of the principle of personal responsibility, the principle that the penalty must be applied to the offender, the principles of the presumption of innocence, equality of arms and equal treatment, and also breach of the rights of the defence and failure to state reasons. Fapricela maintains, in essence, that it did not participate in Club Europe, that it was not aware of that club (first part) and that, accordingly, the Commission was wrong to consider that it had participated in a single and continuous infringement as defined in the contested decision (second part). It also claims that the Commission was wrong to find that the applicant had participated in the agreement relating to strand (third part).
72
The second plea alleges breach of the principles of proportionality and equal treatment and the principle that the penalty must be applied to the offender. Fapricela submits, in essence, that the 2006 Guidelines contain a structural flaw which, through the application of the maximum amount of 10% of turnover, leads to heavier fines being imposed on small undertakings and also that, in the present case, the Commission did not take account, under the head of proportionality, and beyond the maximum amount of 10% of turnover, of a series of factors that ought to have led to a reduction of the amount of the fine whereby the Commission penalised it.
73
The third plea alleges an error in the calculation of the duration of Fapricela’s participation in Club España, since, in the applicant’s submission, the Commission wrongly took into consideration a period from October 2000 to March 2001 during which the applicant had left the cartel.
74
The fourth plea alleges breach of the 2006 Guidelines and of the principle of equal treatment, in that the Commission erred in not granting a reduction of the fine on the basis of ability to pay.
75
When amending its pleas and the form of order sought following the adoption of the first, and then the second, amending decisions, Fapricela put forward, in turn, two additional pleas, alleging, first, breach of the rights of the defence and of essential procedural requirements and failure to state reasons and, second, infringement of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and of Article 47 of the Charter of Fundamental Rights of the European Union.
76
At the hearing, the applicant withdrew the second additional plea.
77
Last, at the hearing, the applicant put forward a new plea and maintained, in essence, that the Commission had breached its rights of defence by not communicating to it the first amending decision, in which it amended the initial decision as regards the value of sales which it took into consideration for the purposes of calculating the amount of the fine.
78
It is appropriate to examine, in turn, the plea submitted at the hearing, alleging breach of Fapricela’s rights of defence (notification of the first amending decision), the first two parts of the first plea (awareness of Club Europe and a single and continuous infringement), the third plea (distancing from Club España between October 2000 and 9 April 2001), the third part of the first plea (non-participation in the cartel relating to strand in the context of Club España), the second plea (disproportionate nature of the fine and gravity of the infringement which the applicant is found to have committed), the fourth plea (the applicant’s inability to pay) and, last, the first additional plea put forward when the applicant amended its pleas and the form of order sought.
I – The plea submitted at the hearing, alleging that the Commission breached the rights of the defence by failing to communicate the first amending decision to the applicant
79
The applicant maintains, in essence, that its rights of defence were breached, both in the context of the administrative procedure and before the Court, in so far as the Commission did not communicate to it the first amending decision, in which it amended the initial decision as regards the value of sales taken into consideration for the purposes of the calculation of the amount of the fine.
80
Without prejudice to the fact that the amount relating to the value of sales was communicated to the Commission by the applicant at the Commission’s request on 16 June 2009 (see Annex B1 to the defence), which the applicant, moreover, admitted at the hearing, it should be pointed out that the first amending decision is annexed to the pleading amending the pleas and form of order sought submitted by the applicant on 12 December 2010 and, furthermore, that the letter dated 29 October 2010 whereby the Commission notified that decision to the applicant is also annexed to that pleading.
81
Contrary to the applicant’s assertions, therefore, the first amending decision was indeed notified to it and it exercised its rights of defence by amending its pleas and the form of order sought following that notification.
82
Accordingly, without there being any need to rule on the admissibility of that plea, which the applicant submitted for the first time at the hearing, it must be rejected as factually incorrect.
II – First two parts of the first plea, alleging infringement of Article 101 TFEU and breach of the principle of personal responsibility, the principle that the penalty must be applied to the offender, the principles of the presumption of innocence, equality of arms and equal treatment, and also breach of the rights of the defence and failure to state reasons
A – The contested decision
83
According to recital 659 to the contested decision:
‘Fapricela was present in the meeting in Madrid on 17 May 2001 (see Annex 4). … In particular, referring to a meeting of 6 July 2001 (it is probably intended to refer to the meeting of 17 May 2001), it claims that there is no clear reference to a comparison with Club Italia. The Commission however observes that the contemporaneous notes of this meeting read “[t]he subject of this meeting for the Spanish and Portuguese producers was to explain to Tréfileurope that their Iberian agreement concerning PS worked perfectly well (as in Italy: client lists, volumes per client and total volumes.”’
84
The Commission concluded that Fapricela was aware of Club Europe only from the date of the meeting of 17 May 2001 (recital 660 to the contested decision).
85
That belated awareness of Club Europe was taken into consideration by the Commission when it determined the percentage of the value of sales taken into consideration to reflect the gravity of the infringement (recitals 949 and 953 to the contested decision).
B – Findings of the Court
1. Outline of the principles applicable to the burden of proof and the evaluation of evidence
86
According to settled case-law on the burden of proof, it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (judgment of 16 November 2006 in Peróxidos Orgánicos v Commission, T‑120/04, ECR, EU:T:2006:350, paragraph 50; see also, to that effect, judgments of 17 December 1998 in Baustahlgewebe v Commission, C‑185/95 P, ECR, EU:C:1998:608, paragraph 58, and of 7 January 2004 in Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraph 78). The duration of the infringement is an intrinsic element of an infringement under Article 101(1) TFEU, the burden of proof of which is borne principally by the Commission (judgments of 7 July 1994 in Dunlop Slazenger v Commission, T‑43/92, ECR, EU:T:1994:79, paragraph 79, and in Peróxidos Orgánicos v Commission, EU:T:2006:350, paragraph 51).
87
That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, judgments in Aalborg Portland and Others v Commission, cited in paragraph 86 above, EU:C:2004:6, paragraph 79, and in Peróxidos Orgánicos v Commission, cited in paragraph 86 above, EU:T:2006:350, paragraph 53).
88
As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered evaluation of evidence (judgments of 25 January 2007 in Dalmine v Commission, C‑407/04 P, ECR, EU:C:2007:53, paragraph 63, and of 8 July 2004 in JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, ECR, EU:T:2004:221, paragraph 273). Since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between operators, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment in Aalborg Portland and Others v Commission, cited in paragraph 86 above, EU:C:2004:6, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law (judgment of 21 September 2006 in Technische Unie v Commission, C‑113/04 P, ECR, EU:C:2006:593, paragraph 166).
89
The Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (see judgments of 6 July 2000 in Volkswagen v Commission, T‑62/98, ECR, EU:T:2000:180, paragraphs 43 and 72 and the case-law cited, and of 25 October 2005 in Groupe Danone v Commission, T‑38/02, ECR, EU:T:2005:367, paragraph 217 and the case-law cited). However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient, in fact, if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (judgments in JFE Engineering and Others v Commission, cited in paragraph 88 above, EU:T:2004:221, paragraph 180, and in Groupe Danone v Commission, EU:T:2005:367, paragraph 218; see also, to that effect, judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94, ECR, EU:T:1999:80, paragraphs 768 to 778 and, in particular, paragraph 777). As regards the duration of the infringement, the case-law requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (judgments in Technische Unie v Commission, cited in paragraph 88 above, EU:C:2006:593, point 169; Dunlop Slazenger v Commission, cited in paragraph 86 above, EU:T:1994:79, paragraph 79; and Peróxidos Orgánicos v Commission, cited in paragraph 86 above, EU:T:2006:350, paragraph 51).
90
As regards the probative value to be placed on the various pieces of evidence, it should be emphasised that the only relevant criterion for the assessment of freely adduced evidence relates to its credibility (judgment in Dalmine v Commission, cited in paragraph 88 above, EU:C:2007:53, paragraph 63; see judgment of 8 July 2004 in Mannesmannröhren-Werke v Commission, T‑44/00, ECR, EU:T:2004:218, paragraph 84 and the case-law cited, and judgment in JFE Engineering and Others v Commission, cited in paragraph 88 above, EU:T:2004:221, paragraph 273). According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (judgment of 15 March 2000 in Cimenteries CBR and Others v Commission, T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95, paragraph 1053; Opinion of Judge Vesterdorf, acting as Advocate General in Rhône-Poulenc v Commission, T‑1/89, EU:T:1991:38). It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events (judgment of 11 March 1999 in Ensidesa v Commission, T‑157/94, ECR, EU:T:1999:54, paragraph 312) or by a direct witness of those events (see, to that effect, judgment in JFE Engineering and Others v Commission, cited in paragraph 88 above, EU:T:2004:221, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, judgment of 16 December 1975 in Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, EU:C:1975:174, paragraphs 175 and 179). Furthermore, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see, to that effect, judgment in JFE Engineering and Others v Commission, cited in paragraph 88 above, EU:T:2004:221, paragraphs 207, 211 and 212).
91
Furthermore, it has consistently been held that the disclosure of information to one’s competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 101 TFEU (see judgment of 8 July 2008 in BPB v Commission, T‑53/03, ECR, EU:T:2008:254, paragraph 178 and the case-law cited).
92
Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the Court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point (judgments in JFE Engineering and Others v Commission, cited in paragraph 88 above, EU:T:2004:221, paragraph 177, and in Groupe Danone v Commission, cited in paragraph 89 above, EU:T:2005:367, paragraph 215). In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the 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, according to the case-law of the Court of Justice, reaffirmed in Article 47 of the Charter of Fundamental Rights, are protected in the EU legal order. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. (judgments of 8 July 1999 in Hüls v Commission, C‑199/92 P, ECR, EU:C:1999:358, paragraphs 149 and 150 and in Montecatini v Commission, C‑235/92 P, ECR, EU:C:1999:362, paragraphs 175 and 176, and judgment in Groupe Danone v Commission, cited in paragraph 89 above, EU:T:2005:367, paragraph 216).
93
Furthermore, the existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement has been proved by that evidence (judgment in Cimenteries CBR and Others v Commission, cited in paragraph 90 above, EU:T:2000:77, paragraph 726).
94
Last, the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63; of 30 September 2003 in Germany v Commission, C‑301/96, ECR, EU:C:2003:509, paragraph 87; and of 22 June 2004 in Portugal v Commission, C‑42/01, ECR, EU:C:2004:379, paragraph 66).
2. The merits of the first part of the first plea, relating to the absence of awareness of the pan-European aspect of the cartel
95
The applicant contests, in essence, the evidence relied on by the Commission as regards the infringement period before 17 May 2001 and the infringement between 17 May 2001 and 19 September 2002.
a) The infringement period before 17 May 2001
96
Fapricela disputes, in essence, the relevance of the evidence relied on by the Commission concerning two meetings held on 25 November 1999 and 18 October 2000, which according to the Commission suggests that the applicant was already aware at that time of the European dimension of the cartel.
97
It must be pointed out, however, that the Commission did not take that evidence, or those meetings, into account, as they did not seem to be sufficiently decisive to substantiate the conclusion that Fapricela was aware of the European dimension of the cartel before 17 May 2001.
98
The arguments put forward by the applicant concerning those two meetings are therefore inoperative and must be rejected.
b) The period between 17 May 2001 and 19 September 2002
99
The applicant disputes, in essence, the relevance of the evidence gathered by the Commission which, it maintains, confirms that the applicant was aware of the European dimension of the cartel as from 17 May 2001.
100
Two meetings were relied on by the Commission as establishing Fapricela’s awareness of the existence of Club Europe. These were the meetings held on 17 May and 6 July 2001.
101
It should be made clear that the Commission refers, in its written pleadings, to ‘other meetings’ in which the applicant participated and at which the pan-European dimension of the cartel was discussed, without specifying what those other meetings were. However, examination of the contested decision and, in particular, Annex 4 thereto does not make it possible to establish what those meetings were and it must be stated that the contested decision merely refers to the meetings of 17 May and du 6 July 2001.
102
It is therefore appropriate to examine the evidence relied on by the Commission as regards each of those two meetings.
The meeting of 17 May 2001
103
It is apparent from the table in Annex 4 to the contested decision that Fapricela attended that meeting and it does not deny having done so.
104
On the other hand, it puts forward, in essence, a series of general arguments, which also apply to the meeting of 6 July 2001. In the first place, it did not participate in, nor was it invited to, Club Europe meetings in the Iberian peninsula, or any international meeting held outside the Iberian peninsula. That is confirmed, first, by the fact that there is no reference in the contested decision to the applicant’s having participated in meetings of Club Europe or of the Eurostress Information Service (‘ESIS’), the main association of PS producers, or on the fringe of that association; second, by the fact that the applicant is not mentioned in section 9.1.5.1.7., which concerns negotiations involving Spain and Portugal; and, third, by the fact that the applicant’s participation in the extended Club Europe in 2002 (see paragraph 48 above) was not foreseen. In the second place, the applicant did not operate outside the Iberian market. In the third place, it joined the cartel at a late stage. In the fourth place, the other members did not regard the applicant as forming part of the pan-European agreement. In the fifth place, everything, and in particular the coordination model attributed to Tycsa, shows that the other members attempted to exclude the applicant from that pan-European agreement.
105
The applicant also puts forward a series of arguments dealing specifically with the meeting of 17 May 2001. In the first place, it does not recall that Tréfileurope attended that meeting and emphasises that its participation is not mentioned in the notes drawn up on that occasion (p. 30044 of the administrative file). In the second place, the applicant claims that those notes disclose only a bilateral discussion between Emesa and Tréfileurope in which the applicant was not involved. In the third place, Tréfileurope’s participation could, at most, be regarded only as an attempt to enter Club Europe and it cannot be inferred that anything other than the Iberian agreement was discussed with that undertaking. In the fourth place, there is no evidence to establish that Club Italia was discussed during that meeting, and that includes the document on page 34552 of the file. In the fifth place, the applicant claims that, even if information about Club Italia had been exchanged, that would not be relevant for the purpose of showing that Fapricela was aware of the extra-Iberian dimension of the cartel. In the sixth place, the applicant disputes the relevance of the evidence on pages 30044, 30045, 20008 to 20011, 20063, 11690, 11691, 11697, 11698 and 34612 of the file. In the seventh place, it submits that, in any event, those documents were not communicated to it during the administrative procedure, which constitutes a breach of its rights of defence and of the adversarial principle. In the eighth place, the applicant denies that its market shares in the European Union were discussed at that meeting and, in particular, it takes issue with the interpretation in that regard which the Commission puts on the evidence on page 30666 of the file.
– The communication of the evidence to Fapricela
106
When questioned in writing by the Court, Fapricela acknowledged having received the DVD sent to it by the Commission on 8 October 2008.
107
It also acknowledged on that occasion having been advised by the Commission that the confidential documents connected with the leniency applications, as itemised on the DVD sent to it on 8 October 2008, could be consulted at the Commission’s premises.
108
Fapricela then acknowledged, at the hearing on 16 October 2014, that all the evidence relied on by the Commission, to which the applicant claimed in its written pleadings not to have been given access, was either in its possession and annexed to its application, or available on the DVD sent to it by the Commission, or available for consultation at the Commission’s premises.
109
Fapricela therefore withdrew its complaint relating to breach of its rights of defence.
– Tréfileurope’s presence at the meeting of 17 May 2001
110
It should be pointed out that Fapricela does not dispute the Commission’s assertion that Tréfileurope’s presence at the meeting of 17 May 2001 is confirmed by Tréfileurope itself in its statements of 11 June 2003 (on page 34552 of the file) and also by Emesa’s notes and the information supplied by Tycsa (see Annex 4 to the contested decision, the point relating to the meeting of 17 May 2001).
111
The Court considers, in the light of that evidence, that it is therefore established to the requisite legal standard that Tréfileurope was present at that meeting and that the applicant’s denials in that respect should be rejected.
– The content of the discussions with Tréfileurope at the meeting of 17 May 2001
112
Fapricela and the Commission differ as to both content of the meeting of 17 May 2001, as reported by the Commission in Annex 4 to the contested decision, and the way in which it must be interpreted.
113
Fapricela and the Commission are agreed that it was stated that Club España worked ‘perfectly well’, but the applicant maintains, in essence, that the Commission is wrong to infer that the pan-European aspect of the cartel was discussed with Tréfileurope. It submits, moreover, that none of the evidence confirms that any reference to Club Italia was made at that meeting.
114
It should be observed at the outset that the Commission does not find, in the contested decision, that Club Europe or the cartel as a whole were discussed. The only discussion mentioned in Annex 4 to the contested decision relates to Club Italia, which leads the Commission to consider that the participants in that meeting must, from that time, have been aware of the pan-European extent of the cartel.
115
Before determining whether a discussion of Club Italia can allow the Commission to hold all the participants in the meeting liable for the entire cartel and, in particular, its pan-European aspect, it is appropriate, however, to ascertain to what extent the Commission has established to the requisite legal standard the content of the discussions that took place at that meeting.
116
It is apparent from the Commission’s pleadings that the documentary evidence on which it relies as regards the content of the discussion between the members of Club España and Tréfileurope is the statement made by Tréfileurope in connection with its application for leniency (page 34552 of the administrative file, Annex E2).
117
It is apparent from that statement that:
‘The object of that meeting, on the part of the Spanish and Portuguese producers, is to explain to Tréfileurope that their Iberian agreement relating to prestressing wire was working perfectly well (as in Italy: client lists, volume per client and volume of each [producer] per client). They also informed Tréfileurope of the price increases agreed among them.’
118
The words ‘as in Italy’ could give the impression that Tréfileurope stated at the meeting that Club España operated in the same manner as Club Italia. That is the Commission’s theory.
119
However, it cannot be precluded that that indication is a mere reference to a comparison between Club España and Club Italia made by Tréfileurope’s representative when that paragraph was drafted, without there having been any reference to that comparison between the two clubs at the meeting.
120
The Court considers, consequently, that that evidence cannot suffice on its own to establish that the participants in the meeting of 17 May 2001 actually discussed Club Italia on that occasion.
121
Furthermore, the Commission identifies, in footnotes to Annex 4 to the contested decision, evidence from Emesa and Tycsa, which it produced in answer to a written question from the Court (Annex E3).
122
However, it must be observed that that other evidence, including the e-mail from Mr P., merely confirms that a meeting was held on 17 May 2001, in which Tréfileurope participated, but does not establish to the requisite legal standard the content of a discussion about Club Italia that took place on that occasion.
123
It is also appropriate to reject the argument, put forward by the Commission at the hearing, that it follows from those notes that an exchange concerning prices in Italy took place during that meeting, which is not apparent from the evidence adduced.
124
There is therefore some doubt as to the content of the meeting, which must operate to the advantage of the applicant.
125
Consequently, it must be considered that the Commission has not established to the requisite legal standard that the applicant must necessarily have been aware of Club Europe as from the meeting of 17 May 2001.
The meeting of 6 July 2001
126
It should be recalled that, in Annex 4 to the contested decision, it is stated, with regard to that meeting, that:
‘Notes of this meeting also contain a table with volume of strand and market share allocation in Spain, Portugal and the rest of Europe for GSW, Aceralia and Fapricela (the total of their share being 100%, and showing that, at least in this period, only GSW and Aceralia had exports to the rest of Europe, while Fapricela sold only strand in the Iberian countries).’
127
The Commission contends that the information in the notes found at Tycsa’s premises (page 30066 of the administrative file, in Annex VII to the application, page 895) leaves no doubt as to the scope of that meeting.
128
However, the factors taken into consideration by the Commission relate to the market shares in Spain, Portugal and the rest of the EU of GSW, Aceralia and Fapricela, and appear in the table on the bottom left of the document.
129
Those factors merely show in reality that certain members of Club España sold outside Spain, which, on the other hand, does not show that there was any discussion of Club Europe at that meeting, as those two aspects of the cartel are clearly separate.
130
Consequently, it must be considered that the Commission has not adduced proof that, as from 6 July 2001, the applicant was necessarily aware of the pan-European aspect of the cartel.
131
The first part of the first plea must therefore be upheld.
3. The merits of the second part of the first plea, alleging that the Commission erred in characterising the infringement as single and continuous
132
Fapricela maintains, in essence, in the context of the second part of its first plea, that as it was not aware of the pan-European aspect of the cartel it cannot be found to have participated in a single and continuous infringement between 2 December 1998 and 19 September 2002.
133
It should be borne in mind that it is settled case-law that restrictive practices can be regarded as constituent elements of a single anti-competitive agreement only if it is established that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation in them constitute the expression of its accession to that agreement (judgments in Cimenteries CBR and Others v Commission, cited in paragraph 90 above, EU:T:2000:77, paragraphs 4027 and 4112, and of 16 June 2011 in Putters International v Commission, T‑211/08, ECR, EU:T:2011:289, paragraph 31 et seq.).
134
Thus, it follows from that case-law that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants (judgment in Putters International v Commission, cited in paragraph 133 above, EU:T:2011:289, paragraph 35).
135
Conversely, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgment of 6 December 2012 in Commission v Verhuizingen Coppens, C‑441/11 P, ECR, EU:C:2012:778, paragraph 44).
136
However, that cannot relieve that undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. Nor is the fact that an undertaking did not take part in all aspects of an anti-competitive arrangement or that it played only a minor role in the aspects in which it did participate material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine (judgment in Commission v Verhuizingen Coppens, cited in paragraph 135 above, EU:C:2012:778, paragraph 45).
137
However, a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (judgment in Commission v Verhuizingen Coppens, cited in paragraph 135 above, EU:C:2012:778, paragraph 46).
138
It follows that, where the conditions set out in the preceding paragraph are satisfied, if the Court of the European Union finds that the Commission has not proved to the requisite legal standard that, when participating in one of the forms of anti-competitive conduct comprising a single and continuous infringement, the undertaking was aware of the other anti-competitive conduct adopted by the other participants in the cartel in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk, the only inference which that Court must draw is that the undertaking may not be attributed liability for that other conduct and, in consequence, may not be attributed liability for the single and continuous infringement as a whole, and, to that extent alone, the contested decision must be held to be unfounded (judgment in Commission v Verhuizingen Coppens, cited in paragraph 135 above, EU:C:2012:778, paragraph 47).
139
In the present case, it has not been established to the requisite legal standard that Fapricela was aware of the extra-Iberian and pan-European dimension of the cartel and of the overall plan characterising the cartel either as from 17 May 2001 (see paragraph 125 above) or as from 6 July 2001 (see paragraph 130 above).
140
Furthermore, it must be held that the Commission does not rely in the contested decision on any other evidence after 6 July 2001 that would establish that Fapricela was aware of Club Europe before 19 September 2002, the date on which the infringement ceased.
141
Consequently, it has not been shown that Fapricela was aware of Club Europe during the infringement period established in its case.
142
The Commission is therefore wrong to consider that the applicant committed a single and continuous infringement between 2 December 1998 and 19 September 2002 characterised by participation in Club España during that period and by the admittedly belated awareness of Club Europe, as from May 2001, as this second component of the single infringement has not been established.
4. Interim conclusion
143
Since the first and second parts of the first plea must be upheld, it is appropriate to annul in part Article 1 of the contested decision, in that it finds that the applicant infringed Article 101(1) TFEU by participating in, in addition to an infringement of that provision on the Iberian market, a cartel covering the internal market and then within the EEA.
III – Third plea, alleging an error in the duration of the infringement which Fapricela is found to have committed as regards its participation in Club España
144
Fapricela submits, in essence, that the Commission was wrong to find that it participated continuously in Club España from 2 December 1998 until 19 September 2002. It maintains that it distanced itself from Club España between October 2000 and 9 April 2001 and that it engaged in competitive conduct during that period.
A – The contested decision
145
According to recitals 529 and 530 to the contested decision:
‘(529)
Fapricela … submits that it would only have been involved in the infringement in the periods 1999 [to] February 2000 [and] April [to] July 2001 (whilst admitting that it re-started the cartel activities as of 18 April 2001, it did not consider itself a member of the cartel; Fapricela claims that the other members would have known this) and that it participated (only formally) in the period August 2001 [to] September 2002. Fapricela also refers to its alleged explicit refusal to attend the meeting of 28 March 2001 and alleges that it did not pay for the ESIS membership fee in 2000. Fapricela concludes that its liability should be excluded as of March 2001 and that the Commission should consider that it did not effectively participate in the cartel in the period August 2001 [to] September 2002.
(530)
It follows from the evidence described in Annex 4 and in sections 9.2.2.1 [to] 9.2.2.5 that from 2 December 1998 until the Commission’s inspections Fapricela regularly and continuously participated in Club España meetings and that, in its absence, its case was discussed. Fapricela’s alleged refusal to attend one meeting on 28 March 2001 cannot be [regarded] as a distancing from a cartel (see recital 589). On the contrary, Fapricela continued to participate in the cartel meetings less than one month thereafter (i.e. on 18 April 2001, see recital 529 and Annex 4). Furthermore, Fapricela’s alleged absence at the meetings between October 2000 and April 2001 is contradicted by the evidence listed in Annex 4 which shows that Fapricela participated in the meetings on 18 October 2000, 23 March 2001, 9 April 2001 and 18 April 2001. Fapricela did not submit any further evidence that it had, at any moment, publicly distanced itself from what was agreed in the meetings and thus from the cartel (see recital 588). Fapricela in addition admits that it participated in the meeting of 9 April 2001, at which an agreement to increase prices per segments of customers as of June 2001 was reached, and that until September 2002, it regularly and continuously participated in Club España meetings. Therefore, the Commission concludes that Fapricela participated uninterruptedly in Club España from 2 December 1998 until 19 September 2002.’
B – Findings of the Court
1. Outline of the principles relating to distancing
146
It is settled case-law that when it is established that an undertaking has participated in anti-competitive meetings between competing undertakings, it is for that undertaking to put forward evidence to establish that its participation in those meeting was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. If an undertaking’s participation in such a meeting is not to be regarded as tacit approval of an unlawful initiative or as subscribing to what is decided there, the undertaking must publicly distance itself from that initiative in such a way that the other participants will think that it is putting an end to its participation, or it must report the initiative to the administrative authorities (see judgments of 3 May 2012 in Comap v Commission, C‑290/11 P, EU:C:2012:271, paragraphs 74 and 75 and the case-law cited, and of 7 February 2013 in Slovenská sporiteľňa, C‑68/12, ECR, EU:C:2013:71, paragraph 27 and the case-law cited).
2. The merits of the third plea
a) Outline of the evidence taken into consideration by the Commission in the contested decision
147
It is appropriate to bear in mind the evidence taken into consideration in the contested decision concerning Fapricela’s participation in Club España between 18 October 2000 and 9 April 2001.
148
The Commission finds, first of all, that Fapricela participated in the meeting of 18 October 2000, and states:
‘Tycsa … Discussions on the strategy to be followed for strand. One of the unofficial meetings with Portuguese and Spanish producers, at many of which prices, sales restrictions and clients were discussed according to Emesa … also Arcelor España amongst others: allocation of quota: Fapricela 20%, Tycsa 40%, Emesa 40%. Also discussion on allocated tons: “Tréfilunion 3000 tonnes Portugal… Global, strand = 88000 tons … Fapricela declares 300T/… in Spain” (original in Spanish)’.
149
As regards January and February 2001, without having a list of participants, the Commission mentions:
‘Copies in Emesa notebook on total sales of wire on the Iberian market for the 1st trimester 2001 listing: “Proderac, GSW (Tycsa + [TQ]), Aceralia (Emesa + Galycas), Socitrel and Fapricela” with deviations calculated between real sales and agreed quotas (“%real and %ac”, original in Spanish).’
150
As regards the meeting of 15 March 2001, the Commission does not find that Fapricela participated, but nonetheless states:
‘At the meeting 4 copies are distributed on sales on (1) the “Iberian market” in January and February 2001, involving Proderac, GSW (Tycsa + [CTQ]), Aceralia (Emesa + Galycas), Socitrel and Fapricela …’
151
As regards the meeting of 23 March 2001, the Commission mentions the presence of Socitrel, ‘also representing Fapricela’; it notes, in respect of that meeting, that ‘[a]fter a dispute between Fapricela, Tycsa and Emesa was solved regarding which company would supply a certain client, Fapricela “promised to continue the agreement which gave such good results” (original in Spanish) (footnote)’ and that ‘[f]inally, also supplies and prices of strand were discussed, with regard to a particular client’.
152
As regards April 2001, the Commission states that ‘[a] document found at Tycsa (footnote) on sales in Spain/Portugal with deviations from the agreed quotas for Emesa, Galycas, GSW, Socitrel, Fapricela and Proderac for January, February, March + the total of the first quarter of 2001 (footnote)’.
153
Last, it is common ground that Fapricela participated in the meeting of 9 April 2001.
b) Arguments of the parties
154
Fapricela maintains, in essence, that:
—
as from October 2000 it gradually distanced itself and from that time it publicly refused to participate in the meetings until in March 2001;
—
it adopted autonomous and competitive conduct during that period, this being established by the fact that its sales increased by 400% in March 2001;
—
it resumed its participation as from 9 April 2001, but did so under pressure from the other cartel members.
155
In addition, it disputes, in essence:
—
that Socitrel represented it at the meeting of 23 March 2001;
—
the evidence put forward by the Commission:
—
concerning the fact that its prices were discussed in January and February 2001;
—
concerning the content of the discussions that took place at the meetings of 15 and 23 March 2001;
—
and it claims that some of that evidence was not communicated to it by the Commission.
156
It maintains that it has adduced sufficient evidence to the contrary to place the burden of proof on the Commission.
157
Last, the applicant takes issue with the Commission for not having responded in the contested decision to the arguments which it had put forward in the context of the administrative procedure and, as an incidental point, it disputes the reference year taken by the Commission as regards the value of sales to be taken into consideration, given its alleged exit from the cartel between October 2000 and April 2001.
158
The Commission disputes those arguments.
c) The breach of the applicant’s rights of defence
159
As regards the alleged breach of Fapricela’s rights of defence, on the ground that certain evidence was not communicated to it by the Commission, reference should be made to paragraphs 106 to 109 above and it should be recalled that at the hearing the applicant withdrew that complaint.
d) The meeting of 18 October 2000
160
As regards the meeting of 18 October 2000, Fapricela acknowledged, following the written questions put by the Court and again at the hearing, that it had participated in that meeting.
161
Furthermore, it must be stated that Fapricela has adduced no evidence of having publicly distanced itself at the meeting of 18 October 2000.
162
It relies solely on elements subsequent to that meeting (pages 20058 to 20060 of the administrative file, to which it refers in paragraph 172 of the application, concern the ‘dispute’ that took place at the meeting of 23 March 2001) in order to draw the conclusion that its ‘absence’ at the meetings held after the meeting of 18 October 2000 and up to the meeting of 9 April 2001 means that it distanced itself at the meeting of 18 October 2000.
163
In addition, it is apparent from Annex 4 to the contested decision that at that meeting the strategy to be followed for strand and the allocation of quotas, in particular to Fapricela, and the tonnages allowed to, among others, Fapricela were discussed (see paragraph 148 above), and the applicant has adduced no evidence that would have proved that the Commission’s findings were untrue.
164
The applicant’s arguments must therefore be rejected.
e) The meetings held in January and February 2001
165
As for the meetings held in January and February 2001, it must be pointed out that it is apparent from Annex 4 to the contested decision that the data relating to ‘total sales of wire on the Iberian market for the 1st trimester’ and ‘deviations calculated between real sales and agreed quotas’ of various undertakings including Fapricela were in Emesa’s possession. Annex 4 refers to pages 27946, 28544 to 28549 and 33622 of the administrative file.
166
First, Fapricela maintains that page 27946 is a simple page with nothing on it and that it was not granted access to page 33622. Second, page 28544 contains a table with sales data for January, February and March 2001, which could not have been drawn up in January or February 2001, but only afterwards, and it is possible that that table includes data supplied by Fapricela after it returned to Club España. Third, pages 28546 and 28547 contain data relating to the same period, with no indication of the date on which they were drawn up, but which come after the preceding table, which already contains data for March. Fourth, as regards the table of sales forecasts for March (page 28548), which is alleged to have been drawn up on 15 March 2001, the sales which it attributes to Fapricela are lower than those indicated in the table on page 28544 of the file. That difference between the figure of forecasts made on 15 March 2001 and the figure of sales actually made supports the assertion that during that period the applicant distanced itself from Club España. The participants in Club España did not have access to actual figures relating to Fapricela’s sales and claimed that those figures fell significantly, which can be understood only in a context of an attempt to exclude from the market an undertaking that refused to participate in Club España.
167
First, it should be stated that pages 27946 and 33622 are wholly irrelevant as regards the period January to February 2001, since they are respectively a blank page containing only the word ‘notebook’ and the first page of the leniency application submitted by Arcelor España, SA, Mittal Steel Company NV and its subsidiaries and by Tréfileurope and its subsidiaries, which contains nothing relating to the period January to February 2001.
168
Second, it is apparent from the reply to the written questions put to the Commission by the Court that pages 28544 to 28549 of the administrative file would in reality be relevant as regards the meeting of 15 March 2001 (paragraph 15 of the Commission’s reply). It should therefore be stated that the references to those pages in Annex 4 to the contested decision are incorrect.
169
Third, pages 28544 to 28549 of the administrative file contain different tables relating to sales of the different members of Club España for January, February and March 2001, with their upward or downward movements, and also a table (page 28548) of sales forecasts as at 15 March 2001.
170
There is a difference, as Fapricela states, between the table of sales forecasts as at 15 March 2001 and the table (page 28544) relating to sales for March 2001.
171
It should be observed, however, that it cannot be inferred from pages 28544 to 28549 that meetings were held in January and February 2001.
172
At most, it could be said that sensitive data concerning Fapricela’s sales for January, February and March 2001 were available to Emesa, although it is not possible to identify when those data came into its possession. The simultaneous existence of tables of forecasts, and also of tables not of forecasts relating to March 2001, also gives the impression that those data were gathered after January and February 2001.
173
However, the applicant submits that it may have supplied those data itself, perhaps following its return to Club España.
174
Consequently, it must be held that the evidence adduced by the Commission does not establish that those data were communicated to Emesa during January and February 2001, even if it remains more than likely that they were communicated to the other cartel members by the applicant itself at an indeterminate time, but which, for certain of those data, is likely to be in mid-March, since those ‘forecast’ data relating to Fapricela’s sales for 15 March 2001 were in Emesa’s possession, while the fact that those data were ‘forecast’ leads to the assumption that they were communicated before that date.
f) The meeting of 15 March 2001
175
First, Fapricela denies having participated in that meeting. However, it must be pointed out that the Commission did not find in the contested decision that the applicant participated in that meeting, but only that sensitive Fapricela data were discussed at that meeting. Fapricela’s claims must therefore be rejected as inoperative.
176
Second, Fapricela disputes in essence the relevance of a number of pages in the administrative file (33622, 11690 and 11691, 11485, 11492 and 11493, 20061) to which reference is made in Annex 4 to the contested decision concerning that meeting, since they do not relate specifically to the meeting of 15 March 2001.
177
It should be observed that pages 33622, 11690 and 11691, 11485, 11492 and 11493 and 20061 do not in fact relate specifically to the meeting of 15 March 2001 and are not capable of establishing what was discussed at that meeting.
178
Third, Fapricela denies, in essence, being the source of the sensitive data relating to it that were discussed at the meeting of 15 March 2001 (pages 20062, 30035 and 30036 of the administrative file) and submits that those data were inaccurate.
179
In the first place, it should be observed that Fapricela is correct to suggest that the reference to the data relating to its sales on page 20062 of the administrative file — which comes from Emesa’s notes — is preceded by the words ‘it is known that’.
180
However, such a reference does not preclude the applicant being at the origin of that information (see paragraphs 173 and 174 above).
181
In the second place, it should be observed that pages 30035 and 30036 of the administrative file — which come from Tycsa — mention Fapricela’s sales (and in particular sales in January and February 2001 and forecast sales in March 2001: page 30036) and also the quota available to it (page 30035).
182
In the third place, it is also necessary to have regard to pages 28544 to 28549 of the administrative file — documents in Emesa’s possession — which are also referred to in connection with the meeting of 15 March 2001 in Annex 4 to the contested decision.
183
It should be observed that there are certain differences between the figures in the tables in Emesa’s possession and those mentioned in Tycsa’s contemporaneous notes:
—
January Spain: Emesa: table on page 28544: 157; table on page 28547: 157; Tycsa page 30066: 157;
—
January Portugal: Emesa: table on page 28544: 582; table on page 28547: 582; Tycsa page 30066: 582;
—
February Spain: Emesa: table on page 28544: 168; table on page 28547: 168; Tycsa page 30066: 166;
—
February Portugal: Emesa: table on page 28544: 628; table on page 28547: 628; Tycsa page 30066: 686;
—
Emesa: forecast March — as at 15 March 2001 Spain: table on page 28548: 100; Tycsa: forecast March: page 30066: 200;
—
Emesa: forecast March — as at 15 March 2001 Portugal: table on page 28548: 200; Tycsa: forecast March page 30066: 600;
—
March Spain: Emesa: table on page 28544: 636; Tycsa page 30066: no reference;
—
March Portugal: table on page 28544: 1709; Tycsa page 30066: no reference.
184
However, it must be stated that the data relating to January and February are similar or very close and that they may have been corrected by reference to the most recent data available, the tables having in all likelihood been prepared in advance and the data in Tycsa’s notes being updated data.
185
Furthermore, as regards a meeting held on 15 March 2001, no conclusion can be drawn from the differences between the forecast figures for sales during March in the tables available to Emesa and in Tycsa’s contemporaneous notes, since in any event Fapricela did not participate in that meeting.
186
Nor can any conclusion be drawn from the fact that there are differences — which the applicant points out — between forecast sales as at 15 March 2001 for Spain and Portugal (on page 28548 of the administrative file) and the recorded sales for Spain and Portugal for March 2001 (on page 28544 of the administrative file), which appear in a table necessarily drawn up at the end of March 2001 at the earliest.
187
In conclusion, it must be held that sensitive and precise data relating to Fapricela, which the latter has not shown to be inaccurate, were discussed at the meeting of 15 March 2001.
188
In such circumstances, as it must be held that the applicant has provided no plausible alternative explanation as to why the other members of Club España had such precise data relating to it in their possession, the most likely explanation is, as the Commission maintains, that those data may have been communicated by the applicant itself.
189
The applicant has therefore failed to establish that no probative value — even limited — can be placed on the matters taken into consideration by the Commission concerning the meeting of 15 March 2001.
g) The meeting of 23 March 2001
190
As regards the meeting of 23 March 2001, at which, according to the Commission, Socitrel was present, ‘also representing Fapricela’, it should be noted that, according to the contested decision, ‘[a]fter a dispute between Fapricela, Tycsa and Emesa was solved regarding which company would supply a certain client, Fapricela “promised to continue the agreement which gave such good results” (original in Spanish) (footnote)’ and that ‘[f]inally, also supplies and prices of strand of Fapricela, Emesa and Tycsa were discussed, with regard to a particular client’.
191
The applicant denies that Socitrel represented it and maintains, in essence, that the minutes of that meeting confirm that there was a disagreement between it and the other members of Club España and, accordingly, that the applicant distanced itself from that club.
192
However, those arguments must be rejected.
193
In fact, according to the Emesa notes on page 20060 of the administrative file:
‘The meeting commences, with Mr S. offering to act as “representative” of Mr T. [of Fapricela], who refused to attend the meeting. Mr S. decided to call him to present the most sincere apologies of Tycsa and Emesa, whose attitude particularly upset the director of Fapricela; it appears that he accepts the apologies and promises to continue with the agreement which has given such good results. He gives his assurance that [J.C.] will attend the next meetings.’
194
That minute of the meeting leads the Court to consider that, following a dispute between, on the one hand, Fapricela and, on the other, Emesa and Tycsa, Fapricela decided not to attend the meeting. However, Mr S. interceded with a view to ironing out the differences between those companies. Mr T., of Fapricela, accepted Emesa’s and Tycsa’s apologies and stated that Fapricela intended to continue the agreement between the members of Club España and that Fapricela would attend the next meetings of that club, which it did around two weeks later, with effect from 9 April 2001.
195
Consequently, although there is no reason to consider that Fapricela was formally represented by Socitrel at that meeting, its argument that its attitude at that meeting confirms that it distanced itself from Club España must be rejected.
h) The meeting of 9 April 2001
196
It is common ground that the applicant participated in the meeting of 9 April 2001 and it does not deny having taken an active part in the discussions that took place at that meeting.
197
Fapricela merely submits that it did indeed rejoin Club España on that occasion, but that it did so under pressure from the other members of the club; this claim will be examined in paragraph 204 et seq. below.
i) Interim conclusion on the meetings held between 18 October 2000 and 9 April 2001
198
In conclusion, the Court considers, in the light of the evidence gathered by the Commission, that:
—
Fapricela participated in the meeting of 18 October 2000 and there is nothing to indicate that it distanced itself on that occasion;
—
Fapricela did not attend the Club España meetings held in November and December 2000;
—
between January and 15 March 2001, sensitive information concerning Fapricela was exchanged and at least discussed by the other members of Club España at the meeting of 15 March 2001 and it is likely that that information was communicated by Fapricela itself;
—
a crisis that had arisen between Fapricela and two members of Club España was resolved at the meeting of 23 March 2001, when Fapricela stated that it would take part in the next meetings;
—
Fapricela fully participated in the Club España meetings again as from 9 April 2001.
j) The applicant’s autonomous and competitive conduct between 18 October 2000 and 9 April 2001
199
As regards the applicant’s argument that it acted in an autonomous and competitive manner between 18 October 2000 and 9 April 2001, it should be observed that Fapricela has adduced no evidence capable of substantiating that assertion.
200
Admittedly, its sales did increase in March 2001 by comparison with January and February 2001 (see Annex VII to the application, page 33900) and exceeded its forecasts (see Annex VII to the application, page 33903).
201
However, that circumstance cannot in itself suffice to prove that Fapricela left the cartel and, in particular, that it did so for a period of around six months, from October 2000 until 9 April 2001.
202
In fact, that circumstance must be assessed in its context — Fapricela was present at the meeting of 18 October 2000, information relating to it was exchanged in the first quarter of 2001, it agreed to put an end to a dispute between it and two other members of Club España at the meeting of 23 March 2001 and to take part again in the next meetings, which it did with effect from the meeting of 9 April 2001 — and the Commission’s theory that this may have been a means of applying pressure in order to negotiate an increase in its quota is a more plausible explanation of those facts than the explanation put forward by the applicant, in view of the actual content of the meeting of 23 March 2001 (see paragraphs 190 to 195 above).
203
The argument put forward by the argument in the alternative, that that alleged intention to adopt an autonomous and competitive position on the market lasted for at least one month, which seems even less credible, but tends, on the contrary, to confirm the Commission’s theory that that increase in sales reflected a stance taken by Fapricela in order to secure a renegotiation of its quota, should also be rejected.
k) The arguments relating to the pressure applied to the applicant to rejoin the cartel
204
The applicant’s argument that it rejoined the cartel in April 2001 solely because its competitors put pressure on it to do so must also be rejected.
205
The applicant has failed to adduce the slightest evidence to substantiate its theory.
206
Furthermore, and in any event, even on the assumption that the applicant did adduce evidence to that effect, it should be borne in mind that it is settled case-law that pressure which is brought to bear by undertakings and which is intended to lead other undertakings to participate in an infringement of competition law does not, however great, absolve the undertaking concerned of its responsibility for the infringement committed or in any way alter the gravity of the infringement and cannot constitute a mitigating circumstance for the purposes of calculating fines, sine the undertaking concerned could have reported any pressure to the competent authorities and made a complaint to them (see judgment of 19 May 2010 in Chalkor v Commission, T‑21/05, ECR, EU:T:2010:205, paragraph 72 and the case-law cited).
l) Conclusion on the merits of the third plea
207
In conclusion, and on the basis of the evidence before it, the Court considers that Fapricela did not distance itself from Club España between 18 October 2000 and 9 April 2001.
208
The most that is established is that a disagreement involving Fapricela arose during that period, and was overcome on 23 March 2001, which led the applicant to resume its regular participation in the ensuing Club España meetings.
209
However, the mere fact that an undertaking goes through a period of disagreement or crisis within a cartel does not suffice to establish that it distanced itself from the cartel (see, to that effect, judgments of 5 April 2006 in Degussa v Commission, T‑279/02, ECR, EU:T:2006:103, paragraphs 127 to 137, and of 27 September 2006 in Archer Daniels Midland v Commission, T‑329/01, ECR, EU:T:2006:268, paragraphs 246 to 248).
210
Fapricela’s argument that it distanced itself from Club España between 18 October 2000 and 9 April 2001 must therefore be rejected.
211
Nor, therefore, can the applicant’s argument concerning the reference year that ought to have been chosen by the Commission in relation to the value of sales to be taken into consideration for the purposes of calculating the amount of the fine succeed.
212
It must be stated, moreover, that the contested decision contains a statement of reasons that makes it possible to understand the reasons why the Commission rejected the applicant’s argument that it had distanced itself from the cartel.
213
For the remainder, it should be borne in mind that, according to consistent case-law, the Commission is not required, in the contested decision, to verify and respond to every allegation of the parties put forward during the administrative procedure, but it is required, in accordance with the provisions of Article 296 TFEU, to set out its reasoning in a clear and unequivocal fashion, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review (see judgment of 27 September 2012 in Koninklijke Wegenbouw Stevin v Commission, T‑357/06, ECR, EU:T:2012:488, paragraph 32 and the case-law cited).
214
The third plea must therefore be rejected in its entirety.
IV – Third part of the first plea, relating to the extent of the market for the products affected by the agreement in which Fapricela participated in the context of Club España
215
Fapricela maintains, in essence, that the Commission has failed to establish that the applicant participated in Club España, between 2 December 1998 and 19 September 2002, as regards the market for strand, and disputes the evidence taken into consideration by the Commission with respect to the meetings of 23 March and 7 June 2001.
A – Admissibility of the third part of the first plea, alleging that there is no evidence of the applicant’s participation in the cartel so far as strand is concerned (i) between 2 December 1998 and 7 June 2001 or, in the alternative, between 2 December 1998 and 23 March 2001, and (ii) between 7 June 2001 and 19 September 2002
216
The Commission submits, in essence, that the applicant’s argument that it did not participate in the Iberian cartel concerning strand is inadmissible, as it was submitted only at the stage of the reply.
217
It should be observed that it follows, in passing, from paragraph 15 of the application, which is in the introductory part, and from paragraph 54, which concerns the question of Fapricela’s participation in or awareness of Club Europe, that the applicant also intends to call into question the products that formed the subject matter of the Iberian agreement so far as it was concerned.
218
It should be emphasised that that argument is also put forward, in the context of the second plea, as regards the determination of the rate of gravity of the infringement and the breach of the principle of proportionality (paragraphs 133 and 145 of the application).
219
It was only in the light of the Commission’s more structured response in that respect that the applicant submitted its argument in such a way as to make it appear as a separate part of the first plea (see paragraphs 49 to 54 of the reply).
220
It should be borne in mind that, indeed, according to settled case-law, under Article 48(2) of the Rules of Procedure of 2 May 1991, no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which have come to light in the course of the procedure. However, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible (judgment of 28 April 2010 in Gütermann and Zwicky v Commission, T‑456/05 and T‑457/05, ECR, EU:T:2010:168, paragraph 199).
221
Furthermore, arguments the substance of which is closely connected to a plea set out in the application initiating the proceedings cannot be regarded as new pleas and may be submitted at the stage of the reply or the hearing (see, to that effect, judgment of 12 June 1958 in Compagnie des hauts fourneaux de Chasse v High Authority, 2/57, ECR, EU:C:1958:5).
222
It must be considered that, in the present case, and in the light of the application, the more structured argument submitted by Fapricela at the stage of the reply concerning its non-participation in Club España as regards strand is not a new plea, but corresponds to the concept of amplifying an existing complaint.
223
The third part of the first plea must therefore be declared admissible.
B – Outline of the evidence taken into consideration by the Commission in the contested decision
224
In the first place, the Commission relies on the discussions that took place at the meeting of 23 March 2001. It observes that:
‘[A] discussion took place between Tycsa and Emesa regarding strand sales and prices, observing that Fapricela had complained that it was difficult to sell strand in Spain. It was noted that they had fixed the price at 98 Escudos until June and thereafter at 102 Escudos (footnote 785). Independent handwritten notes found at Tycsa corroborate the main discussions (namely on closed orders — volume/price — client by client in Portugal) held in this meeting (footnote 786)’ (recital 512 to the contested decision).
225
In the second place, it is apparent from the contested decision that at the meeting of 7 June 2001 the first part of that meeting, which took place in the morning and which Fapricela attended, was devoted entirely to renegotiation of the Iberian market for strand (recital 515 to the contested decision and Annex 4 to the contested decision; the Commission refers in particular to pages 19997 and 19998 (information supplied by Emesa) and to pages 30046 and 30047 (handwritten notes by Tycsa) of the administrative file).
226
In the third place, it is apparent from recitals 484 and 491 to the contested decision and from Annex 4 thereto, and in particular from the material relating to the meetings of 1 June 1993, 20 April 1995, September, October and November 1995, 3 and 9 September 1996, 22 January and 18 November 1997, the end of December 1997 and 28 January 1998, that from the outset the undertakings participating in Club España exchanged information and agreed on the allocation of market shares and the fixing of prices concerning strand.
227
Last, in the fourth place, it is apparent from Annex 4 to the contested decision, and in particular from the material relating to the meetings of 14 April and 21 September 1999, 8 September, 18 October, 15, 20 and 22 December 2000, 23 March, 17 May, 18 June and 6 July 2001 and 31 May 2002, and also from recitals 502, 504, 506, 508, 510, 512, 515 to 517 and 521 to the contested decision, that during the period when Fapricela participated in Club España, negotiations and the exchange of sensitive information concerning strand continued. It is apparent, in particular, from Annex 4 that Fapricela was present at the meeting of 8 September 2000, during which a minimum price for strand was fixed for 2001, and at the meeting of 18 October 2000, during which market shares for strand were allocated.
C – The merits of the third part of the first plea
228
First, it should be observed that Fapricela merely disputes the evidence taken into consideration by the Commission with respect to only two meetings, held on 23 March and 7 June 2001 respectively.
229
However, it does not challenge the contested decision as regards the content of the discussions on strand that took place at the meetings of 14 April and du 21 September 1999, 8 September, 18 October, 15, 20 and 22 December 2000, 17 May, 18 June and 6 July 2001 and 31 May 2002.
230
It should be observed, admittedly, that the Commission does not state, in Annex 4 to the contested decision, who the participants in the meetings held on 14 April and 21 September 1999, 15, 20 and 22 December 2000 and 31 May 2002 were, but merely states that discussions on strand took place at those meetings.
231
On the other hand, Fapricela is found by the Commission in the contested decision to have participated in the meetings of 8 September and 18 October 2000 (Fapricela, moreover, confirmed at the hearing that it had participated in the latter meeting), 17 May, 18 June and 6 July 2001. Furthermore, the Commission puts forward various evidence, mentioned in Annex 4 to the contested decision, that shows that strand was discussed at those meetings.
232
Fapricela has put forward no argument designed to contest its participation in those meetings or the content of the discussions that took place at them.
233
Second, as regards the meeting of 23 March 2001, Fapricela repeats its argument that it did not participate in that meeting and denies that Socitrel represented it on that occasion.
234
However, although there is nothing to indicate that Socitrel did represent Fapricela at that meeting, that argument should nonetheless be rejected, for the reasons stated at paragraphs 194 and 195 above.
235
Next, it is apparent from Annex 4 to the contested decision and from the evidence gathered by the Commission and referred to in that annex that, at the meeting of 23 March 2001:
‘The parties also discussed, client by client, the offers made or to be made, including for strand. … Finally, also supplies and prices of strand of Fapricela, Emesa and Tycsa were discussed, with regard to a particular client.’
236
It is also stated in recital 512 to the contested decision that:
‘[a] discussion took place between Tycsa and Emesa regarding strand sales and prices, observing that Fapricela had complained that it was difficult to sell strand in Spain. It was noted that they had fixed the price at 98 Escudos until June and thereafter at 102 Escudos ... Independent handwritten notes found at Tycsa corroborate the main discussions (namely on closed orders — volume/price — client by client in Portugal) held in this meeting …’
237
Thus, and contrary to Fapricela’s contention, those indications do not in any way establish that it did not participate in the meeting concerning strand, but show that exchanges of information coming, in particular, from Fapricela took place concerning strand, as confirmed by two different sources, namely Tycsa and Emesa.
238
Third, as regards the meeting of 7 June 2001, it should first of all be borne in mind that the content of the meeting is described as follows in Annex 4 to the contested decision:
‘Meeting on strand in the morning and on wire in the afternoon. Quotas and prices were discussed for Aceralia, Tycsa and Fapricela (“Acer, Tyc, Fabr”), as well as client allocated for Tycsa, Fapricela, Aceralia and Trefilerías Quijano (“Tyc, Fab, Acer, TQ”). There was also discussion on client allocation regarding public works.
Morning: the 3 participating undertakings renegotiated their agreement to divide the Iberian market for strand. Fapricela’s quota would increase (from 20%, see 18.10.2000) to 25%, to the detriment of the other two groups (decrease (from 40%, see 18.10.2000) to 37.5%). Detailed discussion on allocation of customers, including the establishment of a list of the main producers of prefabricated components in Portugal and Spain according to their consumption of strand (in decreasing order), identifying the current supplier(s) of these producers (consumers) with the aim [of] allocating these customers among Tycsa, Emesa and Fapricela. Implementation of a special form of client allocation regarding those projects that required large quantities of strand and that are carried out by a consortium of different companies (original in Spanish): UTES (“Unión Temporal de Empresas”): the first work auctioned by UTES would be gained by Fapricela, with a certain fixed price per ton, since the others would have offered higher prices; the second work would be artificially assigned to Tycsa, the third to Emesa, and this sequence would be repeated successively. It is stated that “Proderac must communicate its clients’ list or no information will be shared with it” (original in Spanish).’
239
In the first place, it should be stated that Fapricela does not deny having participated in that meeting.
240
In the second place, the evidence gathered by the Commission (documentary evidence originating with GSW, Tycsa/Celsa, Emesa and Galycas) establishes that the meeting was devoted to strand in the morning and wire in the afternoon and that Fapricela attended the part of the meeting at which strand was discussed.
241
In the third place, it must be stated that, in answer to the Commission’s arguments, the applicant merely maintains that its participation in that meeting does not suffice to prove that it participated in the cartel on that market before that date and after that date.
242
However, it must be pointed out that Fapricela does not deny that an exchange of sensitive information concerning it took place at that meeting.
243
Fourth, the Commission is correct to claim that, during the period when Fapricela participated in Club España, agreements or concerted practices and exchanges of sensitive information concerning strand took place continuously (the Commission refers in that regard to Annex 4 to the contested decision and more particularly to the evidence relating to the meetings of 14 April and 21 September 1999, 15, 20 and 22 December 2000 and 31 May 2002, and also to recitals 502, 504, 506, 508, 510, 512, 515 to 517, 521 and 530 to the contested decision).
244
In the light of the foregoing, the Court considers that there is a body of sufficiently precise and consistent evidence to establish that, in the context of its participation in Club España, Fapricela, contrary to its assertions, also participated in the agreement or concerted practice in its entirety, including in relation to strand.
245
The third part of the first plea must therefore be rejected.
V – Second plea, alleging breach of the principles of proportionality and equal treatment and of the principle that the penalty must be personal to the offender
A – Outline of the contested decision
246
According to recital 949 to the contested decision:
‘(949)
... for Socitrel, Proderac, Fapricela and Fundia, undertakings which were participating exclusively in Club España (covering Spain and Portugal only) or — for the latter undertaking — in the Addtek coordination, and for which awareness of the single and continuous infringement could only be established at a very late stage of the infringement (17 May 2001 and 14 May 2001 respectively, see section 12.2.2.4), the Commission takes into account the more limited geographical scope in determining the proportion of the value of the sales. The situation is different for the other Club España participants (Emesa/Galycas, Tycsa/Trefilerías Quijano) who participated simultaneously at several levels of the cartel and/or for which awareness of the single and continuous infringement is established at a much earlier stage. Also for the Club Italia participants the situation is different from Socitrel, Proderac and Fapricela as the geographic scope of Club Italia largely overlaps with that of the pan-European arrangements and is thus much larger than the geographic scope of Club España (Spain and Portugal).’
247
According to recital 953 to the contested decision:
‘(953)
Given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement (see section 19.1.3.1) and the geographic scope (see section19.1.3.3), the proportion of the value of sales to be taken into account should be 16% for the Fundia undertaking, 18% for the undertakings Socitrel, Fapricela and Proderac and 19% for all other undertakings.’
248
Furthermore, according to recitals 987 and 988 to the contested decision:
‘(987)
Also Fapricela [claims] that [it] participated to a limited extent in the cartel and refer[s] to [its] attendance at a limited number of meetings and/or to interruptions in [its] participation in the cartel meetings for several periods. Fapricela also invokes that it never exercised any coordination activities.
(988)
The Commission notes that Fapricela systematically participated in and contributed to over 30 Club España meetings between 1998 and 2002, in which it fully participated in the quota and client allocation arrangements and in fixing of prices and in which it shared commercially sensitive information with the other Club España participants, as it admits itself. In 2001 Fapricela also explicitly “promised to continue the agreement which gave such good results”, showing its satisfaction with the cartel after a dispute was resolved (see recital 509). Its role can therefore not be qualified as “substantially limited” under the 2006 Guidelines on fines, nor as passive or one of a mere follower under the 1998 Guidelines on fines, even if it did not act as coordinator. Finally, as already explained in recital 527 onwards and in particular in recital 530, Fapricela’s allegation that it interrupted its participation in the cartel during certain periods is contradicted by the evidence.’
249
Last, as regards Fapricela’s substantially reduced role, it is apparent from the contested decision that:
‘(1016)
… Fapricela claims that on at least one occasion it succeeded in gaining a client from Emesa by applying a lower price than Emesa … and Fapricela moreover refer to conflicts with the other cartel members …
...
(1018)
The Commission first notes that most of the evidence submitted consists mainly of data certified only by the submitting company itself. In any event, occasional cheating regarding fixed prices and/or quotas or clients allocation does not in itself prove that a party has not implemented the cartel agreements. Internal conflicts, rivalries and cheating are typical of any cartel, in particular if they have a long duration (sell also recitals 604 and 680). The circumstance that a company would not have respected certain of the agreements does therefore not mean that it did not implement of the cartel agreements and adopted a fully competitive behaviour on the market.
(1019)
The implementation of the cartel agreements was ensured through the monitoring scheme (see sections 9.1.6, 9.2.1.7 and 9.2.2.5) and the very frequent cartel meetings among competitors at which confidential information was regularly exchanged, allowing the parties to compare their figures and/or revise quotas, prices and the allocation of customers. It is established that … Fapricela … — like of the addressees of this Decision — participated regularly in meetings at which prices, quotas and clients were discussed and monitored (see also section 9, section 14 and Annexes 2, 3 and 4) …
...
(1022)
In conclusion, it is apparent that none of the parties proved that it actually avoided implementing the offending agreements by adopting competitive conduct on the market or that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation. Consequently, no attenuating circumstance can be retained on the grounds of non-implementation/substantially limited role.
(1023)
The Commission is however prepared to accept that Proderac and Trame had a limited participation in the infringement. This is due to the fact that these participants operated on the periphery of the cartel, entered into a more limited number of contracts with other cartel participants and participated only to a limited extent in the infringement.’
B – Preliminary considerations
250
Fapricela devotes extensive argument, in its written pleadings, to the alleged structural defect in the 2006 Guidelines, which, in essence, means that small (single product) undertakings are penalised more heavily than large (multi-product) undertakings.
251
However, when questioned at the hearing about the meaning of paragraph 57 of the reply, Fapricela confirmed that it did not mean to challenge the lawfulness of the 2006 Guidelines, but only their application by the Commission in the present case.
252
The present plea may therefore be divided into two parts, alleging, first, that the fine is disproportionate and that the Commission failed to take various elements into consideration when determining the rate of gravity of the infringement and the additional amount applied for deterrence and, second, breach of the principle of equal treatment.
C – First part of the second plea, alleging that the fine is disproportionate and that the Commission failed to take various elements into consideration when determining the rate of gravity of the infringement and the additional amount applied for deterrence
1. Outline of the principles
253
It should be borne in mind that, in accordance with the 2006 Guidelines:
‘13.
In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.
…
19.
The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20.
The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
21.
As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22.
In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23.
Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’
254
According to settled case-law, in fixing the amount of the fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as, in particular, the role played by each of the parties to the infringement and the threat that infringements of this type pose to the objectives of the EU. Where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see judgments of 8 July 1999 in Hercules Chemicals v Commission, C‑51/92 P, ECR, EU:C:1999:357, paragraph 110 and the case-law cited, and in Cimenteries CBR and Others v Commission, cited in paragraph 90 above, EU:T:2000:77, paragraph 4949 and the case-law cited).
255
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, where appropriate, when the fine is determined (judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 90; Aalborg Portland and Others v Commission, cited in paragraph 86 above, EU:C:2004:6, paragraph 86; and Commission v Verhuizingen Coppens, cited in paragraph 135 above, EU:C:2012:778, paragraph 45).
256
It must also be borne in mind that, in the calculation of the amount of fines imposed on undertakings which have participated in an infringement, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s power in that area. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the rules of EU competition law are fully effective (see judgments of 12 November 2009 in SGL Carbon v Commission, C‑564/08 P, EU:C:2009:703, paragraph 43 and the case-law cited, and of 5 December 2013 in Caffaro v Commission, C‑447/11 P, EU:C:2013:797, paragraph 50 and the case-law cited).
257
Furthermore, the principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued. In the context of calculating fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In that context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgments of 27 September 2006 in Jungbunzlauer v Commission, T‑43/02, ECR, EU:T:2006:270, paragraphs 226 to 228 and the case-law cited, and Gütermann and Zwicky v Commission, cited in paragraph 220 above, EU:T:2010:168, paragraph 264 and the case-law cited).
2. The merits of the first part of the second plea
258
Fapricela puts forward a number of arguments in support of the first part of its second plea, alleging that the fine is disproportionate and that various factors were not taken into account when determining the rate of the gravity of the infringement and the additional amount applied for deterrence.
259
First, Fapricela maintains that it is the undertaking whose participation in the cartel was the shortest.
260
However, the duration of the infringement must not be confused with the gravity of the infringement (Article 23(3) of Regulation No 1/2003) and, moreover, it must be pointed out that the Commission did not err in fixing the duration of the applicant’s participation in Club España at the period from 2 December 1998 to 19 September 2002.
261
Second, the applicant submits that its participation was limited to the Iberian peninsula.
262
However, it must be pointed out that the Commission properly took that factor into account by taking into consideration, in respect of the value of sales, only the value of Fapricela’s sales in the Iberian peninsula (see paragraph 246 above).
263
Third, the applicant asserts that its minor role was not taken into account. It also maintains that it played only a passive role in the cartel and not a leading role, unlike other Iberian undertakings, such as Tycsa and Emesa. Thus, it never had a coordinating function, unlike, for example, Tycsa, and it maintained competitive conduct on the market.
264
However, the Commission rejected the applicant’s assertions in that regard in recitals 988 and 1019 to 1022 to the contested decision and it must be held that, in its application, Fapricela does not in any way establish that those findings were incorrect.
265
That argument cannot therefore succeed.
266
Fourth, the applicant claims that in 2001 it had the third lowest turnover among the addressees of the contested decision, although it received the seventh highest fine.
267
That circumstance has no impact on the amount of the fine, however, since it is not the undertaking’s turnover, but only the value of the undertaking’s sales of goods directly or indirectly connected to the infringement, in the relevant geographic sector within the territory of the EEA, that is taken into consideration by the Commission when it determines the basic amount of the fine.
268
Fifth, Fapricela maintains that it rejoined Club España only at a late stage.
269
However, that factor was taken into consideration by the Commission when it determined the duration of the infringement which the applicant was found to have committed.
270
Sixth, Fapricela maintains that the fact that it had participated in a lower number of meetings than the other cartel members was not taken into account.
271
That argument is essentially confused, however, with the argument relating to what Fapricela claims to be the minor role which it played in Club España, which cannot succeed, for the treasons stated in paragraphs 263 to 265 above.
272
It should be pointed out, moreover, that Fapricela participated in more than 30 meetings in the period during which it formed part of Club España.
273
The fact that it did not attend all the cartel meetings during the infringement period found in its case is irrelevant in that regard, since it has been established that the applicant participated continuously in the infringement between 2 December 1998 and 19 September 2002.
274
Seventh, as regards Fapricela’s argument that it did not participate in the cartel relating to strand during a specific period, that argument formed the subject matter of the third part of the first plea, which must be rejected as unfounded (paragraph 244 above).
275
Eighth, as regards the applicant’s argument that it did not participate in the meeting of 23 March 2001 and distanced itself from the cartel between October 2000 and April 2001, it will be recalled that that argument must be considered to be unfounded (see paragraph 210 above).
276
Ninth, Fapricela claims that the agreements were not implemented, that a price war was being waged between the cartel members and that there was a situation of keen competition on the market, as confirmed by the extremely small profit margins during the infringement period.
277
However, that argument cannot succeed.
278
It must be borne in mind that secret cartels, by their very nature, frequently operate in an atmosphere of mistrust. However, the existence of an atmosphere of mistrust does not necessarily affect the actual impact of the cartel (judgment of 27 September 2006 in Roquette Frères v Commission, T‑322/01, ECR, EU:T:2006:267, paragraphs 172 and 174).
279
The Commission observes in that regard that internal conflicts, rivalry and treachery are a feature of all cartels, especially when they are of long duration.
280
It must be pointed out that the applicant has not adduced the slightest shred of evidence in support of its claims that the agreements were not implemented — whether by the members of Club España or by the applicant — and that a price war was being waged within Club España during the infringement period, from 1998 to 2002, ascribed to it.
281
The evidence, and in particular the content of the discussions that took place during that period as described in the contested decision, in particular in Annex 4 thereto, show, on the contrary, increasingly renewed coordination that included Fapricela.
282
In addition, the fact that the members of a cartel have occasionally distanced themselves from the arrangements does not mean that they did not implement the collusive arrangements. An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (judgment of 14 May 1998 in Cascades v Commission, T‑308/94, ECR, EU:T:1998:90, paragraph 230).
283
Last, the figures submitted by Fapricela in paragraph 147 of the consolidated application concerning its profit margins are wholly unsubstantiated by certified and probative accounts and do not in any way show that it did not take part in the agreements concerned or that it did not implement them.
284
Tenth, Fapricela claims in essence that it never participated in, or was aware of, the pan-European dimension of the cartel, which has an impact on the gravity of the infringement which it was found to have committed.
285
It will be recalled that the first two parts of the first plea must be upheld, since it is not established that the applicant was aware of Club Europe.
286
In fact, the Commission specifically took into account, when setting at 18% the rate of gravity of the infringement committed by, in particular, Fapricela, Proderac and Socitrel, of the belated awareness of the pan-European dimension of the cartel by those three members of Club España.
287
It must therefore be stated that the Commission thereby made an error with respect to Fapricela.
288
The same applies to the additional amount for deterrence, the rate of which is set, in the contested decision, by reference to and on the basis of the reasoning applied with regard to the rate of the gravity of the infringement (see recital 962 to the contested decision).
D – Second part of the second plea, alleging breach of the principle of equal treatment
289
The applicant maintains, in essence, that there has been a breach of the principle of equal treatment, since it was not granted a reduction comparable to that which the Commission granted to Arcelor and Ori Martin when adopting the second amending decision.
290
Furthermore, Fapricela claims that that principle was breached when, first, it was treated in the same way as Socitrel and Proderac although its situation may be distinguished from that of those two undertakings; second, when it was granted a reduction of only 1% for gravity by comparison with the undertakings — in particular Emesa and Tycsa — for which the rate of the gravity of the infringement was set at 19%, although the undertakings in that category all committed a much more serious infringement than that committed by the applicant; and, third, that it ought to have been treated less severely than Fundia, which participated in an agreement concerning a much larger customer, Addtek, than those concerned by the agreement in which the applicant participated.
291
It should be borne in mind that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (see judgment of 3 May 2007 in Advocaten voor de Wereld, C‑303/05, ECR, EU:C:2007:261, paragraph 56 and the case-law cited).
292
As regards the first complaint, it must be stated that the reasons that led to the adoption of the second amending decision — namely that, for the application of the 10% maximum amount, the turnover of the subsidiary involved in the cartel was taken into consideration instead of the group turnover — cannot lead to a reduction of the amount of the fine imposed on Fapricela, who is not in a situation comparable to that of Arcelor, SLM or Ori Martin, since it was not acquired by another undertaking after the end of the infringement period.
293
It cannot therefore rely on a breach of the principle of equal treatment in such circumstances.
294
As regards the second complaint, it should first of all be borne in mind that in the contested decision (recital 953) the Commission established three categories for the purposes of determining the rate of gravity, relying on the nature of the infringement committed (recitals 939 to 945), combined market share (recital 946) and the geographic scope of the cartel (recitals 947 to 949):
—
one category at 16%, which applied only to Fundia and is justified by the fact that that undertaking took part only on the Addtek ‘coordination’ (recital 939);
—
one category at 18%, that rate being justified on the basis of two criteria: participation exclusively in Club España and belated awareness of the pan-European dimension of the cartel; Socitrel, Proderac and the applicant are in that category (recital 949);
—
one category at 19%, in which all the other undertakings that participated in the cartel are to be found (recital 953).
295
First, it should be stated that Fapricela’s situation is not comparable to Fundia’s, since the latter was held liable, in essence, only because of the ‘coordination’ of sales to a single customer, namely Addtek, whereas Fapricela participated in an infringement characterised by market-sharing (quota-fixing), customer-allocation and horizontal price-fixing in the context of the Iberian market.
296
Second, Emesa and Tycsa participated actively in the Zurich Club (one from 1992 and the other from 1993) and in Club Europe, whereas Fapricela did not participate in either of those clubs.
297
The gap between the rates of the respective categories in which Emesa and Tycsa, on the one hand, and the applicant, on the other, were placed is admittedly small, but it must be borne in mind that, according to point 23 of the 2006 Guidelines, horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition and, as a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.
298
It must be stated that, in the present case, in view of the nature of the infringement referred to in recital 939 to the contested decision (market-sharing/quota fixing, customer-allocation and horizontal price-fixing), the rate of gravity applied by the Commission for the category that committed the infringement is towards the lower end of the scale (between 15 and 30%), which means that the difference with another category that committed an infringement also characterised by horizontal price-fixing agreements, market-sharing and limitation of production will be small.
299
Furthermore, it should also be stated that the distinction which the Commission has drawn between the category including Emesa and Tycsa, on the one hand, and the category including Socitrel, Fapricela and Proderac, on the other hand, is based on objective factors.
300
The applicant cannot therefore rely, on the sole basis of that small difference between the two rates of gravity applied by the Commission, on a breach of the principle of equal treatment.
301
Third, in the case of Fapricela, Socitrel and Proderac a rate of 18% for gravity was applied instead of 19%, on the ground that they participated only in Club España and that they became aware only at a late stage of the pan-European dimension of the cartel.
302
However, it will be recalled that it has not been established that Fapricela was aware of the pan-European dimension of the cartel (see above, the first and second parts of the first plea).
303
The Commission was therefore not entitled to include Fapricela in the same category as Socitrel and Proderac.
304
The second part of the second plea must therefore be upheld.
305
For the remainder, however, the applicant’s argument that the duration of Socitrel’s participation in the cartel was longer than the applicant’s must be rejected, since that factor must be taken into consideration in the calculation of the duration of the infringement and not in the assessment of its gravity.
306
The same applies as regards the number of meetings which Socitrel attended, since that factor, just as for Fapricela, has no impact on the continuous nature of the infringement which they committed (see paragraph 273 above).
E – Interim conclusion
307
In conclusion, the second plea must be upheld and, accordingly, it must be held that the determination of the basic amount of the fine is vitiated by an error.
308
Article 2 of the contested decision must therefore be annulled in so far as it imposes a fine on Fapricela.
…
VII– First additional plea, alleging breach of Fapricela’s rights of defence, breach of essential procedural requirements and failure to state reasons
A– The contested decision
400
When it adopted the first amending decision, the Commission supplemented recital 935 to the contested decision by inserting a table containing the values of sales taken into consideration for the various undertakings. As regards Fapricela, paragraph 6 of that table reads: ‘Fapricela: Reply dated 16 June 2009: 2.12.1998 [to]19.9.2002: [value of sales taken into consideration for Fapricela]’.
B– Findings of the Court
401
First, in so far as this plea overlaps in part with the plea raised at the hearing, alleging failure to notify the first amending decision to the applicant, leading to a breach of the applicant’s rights of defence, reference should be made to the findings of the Court in paragraphs 79 to 82 of this judgment.
402
Second, it should be emphasised that, by the first amending decision, the Commission corrected a number of material errors in the initial decision, but it did not amend the amount of the fine imposed on Fapricela.
403
In addition, the correction which the Commission made as regards the applicant was intended to make clear, in the contested decision, the value of sales as communicated to the Commission by Fapricela in its reply to the Commission dated 16 June 2009.
404
The applicant acknowledged at the hearing, moreover, that the basic amount of the fine had indeed been calculated by the Commission in the contested decision on the basis of the amount of the value of sales taken for Fapricela, which included the value of sales of strand by Fapricela.
405
The applicant cannot therefore claim that it was unable to understand, before the first amending decision, that the value of sales of strand was included in the value of sales taken into consideration for the purposes of the calculation of the amount of the fine.
406
Accordingly, the complaint alleging failure to state reasons in the initial decision on that point must be rejected.
407
Third, the first amending decision contains a statement of reasons explaining the errors which the Commission intended to correct and clearly states the amendments which it makes to the initial decision. Accordingly, the complaint alleging failure to state reasons in the first amending decision is also wholly unfounded on that point.
408
Fourth, on the assumption that, by its argument, Fapricela intends to maintain that it was not heard before the two amending decisions were adopted, which in its submission constitutes a breach of its rights of defence during the administrative procedure, it must be pointed out, in the first place, that the applicant was heard before the adoption of the initial decision, in accordance with the provisions of Regulation No 1/2003; in the second place, that the fist amending decision made only material corrections to the initial decision; in the third place, that the applicant does not indicate how the fact of being heard on the factors corrected by the Commission on the basis of the information communicated to it by the applicant during the administrative procedure would have altered the content of the contested decision in any way or have put the applicant in a better position to ensure its defence (judgment of 18 June 2013 in Fluorsid and Minmet v Commission, T‑404/08, ECR, EU:T:2013:321, paragraph 110); and, last, in the fourth place, that the amount of the fine imposed on Fapricela was not altered either by the first amending decision or by the second amending decision.
409
The second amending decision did, admittedly, alter the amount of the fines imposed on two undertakings, Arcelor and Ori Martin.
410
It must be pointed out that the reasons that led to the adoption of the second amending decision — namely the fact that, for the application of the maximum amount of 10%, the turnover of the subsidiary involved in the infringement was taken into consideration instead of the group turnover — was of no concern whatsoever to Fapricela, whose situation was quite different.
411
It cannot therefore rely on a breach of the principle of equal treatment in such circumstances, just as it cannot claim the right to be given a prior hearing.
412
For the same reasons, the applicant’s claims relating to a breach of the adversarial principle or the principle of sound administration must be rejected, since the amendments made by the second amending decision did not concern it.
413
Fifth, the applicant was in any event given the opportunity to amend its pleas and the form of order sought following the adoption of each of the two amending decisions, an opportunity of which it twice took advantage, and it cannot therefore maintain that the adoption of those decisions gave rise to any breach of its rights of defence.
414
The first additional plea must therefore be rejected in its entirety.
VIII– The claim for annulment of Article 3 of the contested decision
415
The applicant submits that Article 3 of the contested decision should be annulled.
416
This head of claim should be rejected, however, in so far as Article 3 of the contested decision is intended, by its first paragraph, to order the undertakings which have not yet brought the infringement to an end to do so. The applicant asserts that it brought the infringement to an end in September 2002. On the date on which it brought the action, the applicant therefore had no interest in obtaining the annulment of that provision of the contested decision.
417
The second paragraph of Article 3 also orders the undertakings to which the decision is addressed to refrain from any repeated infringement. It follows from the foregoing that Fapricela committed an infringement and that it must be the subject of a finding to that effect, which justifies its being ordered not to repeat the infringement.
418
The applicant’s claim for annulment of Article 3 of the contested decision must therefore be rejected in its entirety, as inadmissible in part and unfounded in part.
IX– The Court’s exercise of its unlimited jurisdiction
A– The calculation of the amount of the fine by the Commission
419
It is appropriate to bear in mind the factors taken into account by the Commission when it calculated the amount of the fine imposed on Fapricela:
—
value of sales of prestressing steel, including in the form or wire and strand, in 2001 (a);
—
proportion of the value of sales (b): 18%;
—
number of years (coefficient for duration) (c): 3.75;
—
percentage applied by way of additional amount (d): 18%;
—
total basic amount: ((a) x (b) x (c)) + ((a) x (d));
—
increase for aggravating circumstances: none;
—
reduction for mitigating circumstances: none;
—
total basic amount (unchanged);
—
application of the maximum of 10% of turnover: EUR 8874000;
—
reduction under the leniency scheme: none;
—
reduction on account of the undertakings’ inability to pay the fine, taking account of particular socio-economic circumstances: none;
—
final amount of the fine: EUR 8874000.
B– Outline of the principles
420
The unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU authorises that Court, in addition to carrying out a simple review of the legality of the penalty, which merely permits dismissal of the action for annulment or annulment of the contested measure, to substitute its own appraisal for the Commission’s and, consequently, to vary the contested measure, even without annulling it, and, taking into account all of the factual circumstances, to amend, in particular, the fine imposed where it is requested to appraise the amount of the fine (see, to that effect, judgments of 8 February 2007 in Groupe Danone v Commission, C‑3/06 P, ECR, EU:C:2007:88, paragraphs 61 and 62, and of 3 September 2009 in Prym and Prym Consumer v Commission, C‑534/07 P, ECR, EU:C:2009:505, paragraph 86 and the case-law cited).
421
Furthermore, under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.
422
The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union (see judgment of 8 December 2011 in Chalkor v Commission, C‑386/10 P, ECR, EU:C:2011:815, paragraph 56 and the case-law cited).
423
The Court of Justice has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (judgment in Chalkor v Commission, cited in paragraph 422 above, EU:C:2011:815, paragraph 57).
424
In that regard, it should be observed that, by its nature, the fixing of a fine by the Court is not an arithmetically precise exercise. Furthermore, the Court is not bound by the Commission’s calculations, or by its Guidelines, when it exercises its unlimited jurisdiction, but must carry out its own appraisal, taking all the circumstances of the case into account (see judgment of 12 December 2007 in BASF and UCB v Commission, T‑101/05 and T‑111/05, ECR, EU:T:2007:380, paragraph 213 and the case-law cited).
C– Findings of the Court in the present case
425
In the present case, in order to determine the amount of the fine intended to penalise Fapricela’s participation in the infringement, it follows from Article 23(3) of Regulation No 1/2003 that it is necessary to take into consideration, in addition to the gravity of the infringement, its duration, and it follows from the principle that penalties must be personal to the offender that the penalty must take account of the situation of each offender by reference to the infringement.
426
The infringement that Fapricela must be held to have committed is its uninterrupted participation in only Club España, since it has not been established that Fapricela was aware of Club Europe (see the first and second parts of the first plea, paragraphs 130 and 142 above).
427
As for the duration of the fine committed by Fapricela, it extends from 2 December 1998 to 19 September 2002, since it has not been established that Fapricela distanced itself from Club España between 18 October 2000 and 9 April 2001 (see paragraph 207 above).
428
As regards the gravity of the infringement committed by Fapricela, it should first of all be borne in mind that the Commission was wrong to consider that Fapricela was aware, even at a late stage, of the pan-European dimension of the cartel (see paragraph 130 above).
429
For the purposes of assessing the objective gravity of the infringement committed by Fapricela, that criterion cannot therefore be taken into consideration.
430
The infringement committed by Fapricela is therefore less serious than that committed by Socitrel and Proderac, to which it was assimilated by the Commission (recital 953 to the contested decision).
431
However, the infringement committed by Fapricela is more serious than that committed by Fundia. It is apparent from the contested decision that Fundia participated only in the ‘coordination’ of sales to a single customer, Addtek (recitals 935 and 953 to the contested decision), whereas it is apparent from the contested decision that Fapricela participated in ‘coordination’ relating to various other customers.
432
As for the value of sales to be taken into consideration, it is appropriate to refer to the value of sales relied on by the Commission in the contested decision, which includes strand, since it has been established that Fapricela also participated in the agreement concerning strand within Club España (see paragraph 244 above). The Commission was also correct to rely only on Fapricela’s sales Spain and Portugal (recital 949 to the contested decision).
433
It is not appropriate for the Court to take any mitigating or aggravating circumstance, or any other particular circumstance, into consideration. The fact that the applicant did not participate in Club España is already reflected in the fact that only its sales in Spain and Portugal were taken into account.
434
In the light of all of the foregoing, it must be held that the amount of the fine incurred by Fapricela cannot be less than EUR 17000000.
435
However, in application of the maximum amount of 10% provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, the amount of the fine imposed on Fapricela cannot exceed EUR 8874000.
436
In those circumstances, the Court decides that the amount of the fine to be imposed on Fapricela must be set at EUR 8874000, which constitutes an appropriate amount in the light of the nature, the duration and the gravity of the infringement committed by the applicant.
Costs
437
Under Article 134(3) of the Rules of Procedure, the parties are to bear their own costs where each party succeeds on some and fails on other heads. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
438
In the circumstances of the present case, the Court decides that each party must bear its own costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Annuls Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011, in so far as it finds that Fapricela — Indústria de Trefilaria, SA infringed Article 101(1) TFEU by participating, apart from in an infringement of that provision on the Iberian market, in a cartel covering the internal market then within the European Economic Area (EEA) and imposed on it a fine of EUR 8874000;
2.
Sets the amount of the fine imposed on Fapricela — Indústria de Trefilaria at EUR 8874000;
3.
Dismisses the action as to the remainder;
4.
Orders the parties to bear their own costs.
Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]
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)	Language of the case: Portuguese.
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)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.