62014TJ0449
JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2018 (
*1
)
[Text rectified by order of 4 May 2020]
(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Illegal nature of the inspection decision — Reasonable time — Principle of sound administration — Principle of personal responsibility — Joint and several liability for payment of the fine — Sufficient proof of the infringement — Duration of the infringement — Fines — Proportionality — Equal treatment — Unlimited jurisdiction)
In Case T‑449/14,
Nexans France SAS, established in Courbevoie (France),
Nexans SA, established in Courbevoie,
represented by G. Forwood, lawyer, M. Powell, A. Rogers and A. Oh, Solicitors,
applicants,
v
European Commission, represented initially by C. Giolito, H. van Vliet and A. Biolan, and subsequently by C. Giolito and H. van Vliet, acting as Agents, and by B. Doherty, Barrister,
defendant,
APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicants and, in the alternative, a reduction of the fine imposed on the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of A. M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 21 March 2017,
gives the following
Judgment
I. Background to the dispute
A. The applicants and sector concerned
1
The applicants, Nexans France SAS, and its parent company, Nexans SA, are French undertakings active in the submarine and underground power cable production and supply sector.
2
Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.
B. Administrative procedure
3
By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’).
4
From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of Prysmian SpA and Prysmian Cavi e Sistemi Srl, and at the applicants’ premises.
5
On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J‑Power Systems submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.
6
During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.
7
On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Sumitomo Electric Industries, Hitachi Cable, J‑Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas, SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicants.
8
Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
9
By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to the applicants, and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, the applicants brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.
10
On 2 April 2014, the Commission adopted its Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’).
C. Contested decision
1.
The infringement at issue
11
Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
12
In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel consisted of two aspects, namely:
–
the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as the ‘R members’, the Japanese undertakings, referred to as ‘A members’, and, lastly, the South Korean undertakings, referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers;
–
the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).
13
The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).
14
The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having participated successively in the cartel (‘Pirelli’), and Prysmian Cavi e Sistemi Energia and the Japanese undertakings Furukawa Electric, Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking J‑Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group, it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings Ltd, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of that decision).
2.
The applicants’ liability
15
Nexans France was found liable on the basis of direct participation in the cartel from 13 November 2000 to 28 January 2009. Nexans was found liable for the infringement as the parent company of Nexans France, from 12 June 2001 until 28 January 2009 (recitals 712 and 714 of the contested decision).
3.
The fines imposed
16
Article 2(c) and (d) of the contested decision imposes (i) a fine of EUR 4903000 on Nexans France (in respect of the period from 13 November 2000 to 11 June 2001) and (ii) a fine of EUR 65767000 on Nexans France, jointly and severally with Nexans (in respect of the period from 12 June 2001 to 28 January 2009).
17
In calculating those fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to that provision (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on setting fines’).
18
In the first place, as regards the basic amounts of the fines, after establishing the appropriate value of sales in accordance with point 18 of the 2006 Guidelines on setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement in accordance with points 22 and 23 of those guidelines. In that regard, it considered that the infringement, by its very nature, was among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the European Economic Area (EEA). In addition, it considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R cartel configuration, the European undertakings had allocated power cable projects among themselves in the context of the European cartel configuration. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of that decision).
19
In so far as concerns the multipliers to reflect the duration of the infringement, the Commission used a multiplier of 8.16 for Nexans France, which reflected the period from 13 November 2000 to 28 January 2009, and a multiplier of 7.58 for Nexans, which reflected the period from 12 June 2001 to 28 January 2009. For Nexans France, the Commission also included in the basic amount of the fine an additional amount, namely the entry fee, of 19% of the value of sales. The basic amount thus calculated came to EUR 70670000 (recitals 1011 to 1016 of the contested decision).
20
In the second place, the Commission found no aggravating circumstances that could affect the basic amounts of the fine of the cartel participants, with the exception of ABB. On the other hand, in so far as mitigating circumstances are concerned, it decided to reflect in the fines the role played in the implementation of the cartel by each of the various undertakings. Accordingly, it reduced the basic amount of the fines imposed in respect of the fringe cartel participants by 10% and the basic amounts of the fines imposed in respect of the undertakings whose involvement had been moderate by 5%. It also granted Mitsubishi Cable Industries and SWCC Showa Holdings, in respect of the period preceding the creation of Exsym, and LS Cable & System and Taihan Electric Wire, an additional reduction of 1% on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. On the other hand, no reduction in the basic amounts of the fines was granted to the undertakings belonging to the core group, which includes the applicants (recitals 1017 to 1020 and 1033 of the contested decision). Applying the 2006 Guidelines on setting fines, the Commission also granted Mitsubishi Cable Industries an additional reduction of 3% on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).
II. Procedure and forms of order sought
21
By application lodged at the Registry of the General Court on 17 June 2014, the applicants brought the present action.
22
By way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the General Court (Eighth Chamber) put certain questions to the parties for a written response and requested that the Commission produce documents.
23
As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has therefore been assigned.
24
The parties replied to the Court’s questions within the prescribed period. The Commission produced one of the documents requested and sought the adoption of a measure of inquiry in order to produce the other documents whose production was requested by the Court, namely the transcripts of the oral statements provided by J‑Power Systems in the context of its joint application for immunity with Hitachi Cable and Sumitomo Electric Industries. By order of 17 January 2017, the President of the Eighth Chamber of the General Court adopted a measure of inquiry requiring the Commission to produce the transcripts in question. The Commission complied with that measure of inquiry on 24 January 2017.
25
Acting upon a proposal of the Judge-Rapporteur, the General Court decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 21 March 2017.
26
The applicants claim that the Court should:
–
annul the contested decision in so far as it relies on documents obtained from Nexans France illegally;
–
annul the contested decision in so far as it found that Nexans France participated in an infringement before 22 February 2001;
–
reduce the amount of the fines imposed on them to an amount that corresponds to a shorter duration and a reduced gravity factor;
–
order the Commission to pay the costs;
27
The Commission contends that the Court should:
–
dismiss the application;
–
order the applicants to pay the costs.
III. Law
28
In the application, the applicants put forward claims for the annulment of the contested decision as well as a claim for reduction of the fines imposed on them.
29
In the first place, the claims for annulment are aimed at obtaining the annulment in whole or in part of the contested decision in so far as (i) it relies on documents obtained from Nexans France illegally and (ii) it found that Nexans France participated in the infringement before 22 February 2001.
30
The applicants put forward two pleas in law in support of their claims for annulment. The first plea alleges infringement of Article 20(2) to (4) of Regulation No 1/2003, of the Commission’s Decision of 9 January 2009 (‘the Inspection decision’), of the rights of the defence and of Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’). The second plea alleges an error of assessment in relation to the determination of the date on which Nexans France’s participation in the cartel began.
31
In the second place, the claim for reduction of the amount of the fines imposed on them is intended as a request that the Court substitute its assessment for that of the Commission in order to take account of the errors made by the Commission in relation to elements of the calculation of those fines, namely, the duration of Nexans France’s participation in the infringement and the gravity factor.
32
In support of their claim for reduction of the amount of the fines imposed on them, the applicants rely, in addition to the Commission’s error in relation to the duration of the infringement which is contested in the context of the second plea of the action, on a specific plea, alleging a manifest error of assessment and infringement of the obligation to state reasons and the principle of equal treatment in setting the gravity factor for the calculation of the fines.
A. The claim for annulment
1.
The first plea in law, alleging lack of legal basis, infringement of the inspection decision, the rights of the defence, Article 20(2) to (4) of Regulation No 1/2003 and of Article 7 of the Charter
33
The applicants argue that certain steps taken by the Commission during the unannounced inspection to which they were required to submit from 28 to 30 January and on 3 February 2009, in accordance with the Commission’s decision of 9 January 2009 (‘the inspection decision’), are unlawful and that the information that the Commission obtained in that context should not have been admitted in the administrative procedure or taken into account in the contested decision.
34
The applicants thus take issue with the fact that the Commission’s inspectors made copies of several sets of emails found on Mr J.’s computer and on that of Mr R., as well as a copy of the entire hard drive of Mr J.’s computer, and took those copies away with them to search for material relevant to the investigation at the Commission’s premises in Brussels (Belgium) (‘the measures at issue’).
35
First, the applicants submit that, in doing so, the Commission officials exceeded the powers conferred on them by Article 20(2) of Regulation No 1/2003. In particular, they claim that, under Article 20(2)(c) thereof, those agents cannot remove or copy material without having first examined it. Otherwise, a Commission inspection could be limited to simply taking a copy of a company’s entire computer system — including a large amount of material wholly irrelevant to the investigation — to review at its leisure at its premises in Brussels.
36
Second, in the applicants’ submission, the copying of this data by the Commission, in order to review it at a later date at its own premises in Brussels, exceeded the terms of the inspection decision, which limited the geographic scope of the inspection to the premises of Nexans alone.
37
Third, the applicants submit that the measures at issue infringed their rights of defence, inasmuch as they prevented them from defending their interests. They maintain that the prolongation of the inspection by one and a half months prevented them from being able properly to assess whether or not to submit an application for immunity, since, during that time, it was impossible for them to assess what significant added value they could provide over and above the evidence already gathered by the Commission.
38
Fourth, the applicants claim that since, in the present case, the inspection started in France, but continued in Belgium, the Commission should have given notice, in accordance with Article 20(3) and (4) of Regulation No 1/2003, to the Belgian Competition Authority (Belgium) that the inspection was continuing in that country.
39
Fifth, the applicants claim that, in so far as the copying ‘en masse’ of material which had not been examined by the Commission beforehand did not fall within the scope of the Commission’s powers under Regulation No 1/2003, such removal constitutes an arbitrary and disproportionate intervention by the Commission in the sphere of the their private activities, which Article 7 of the Charter is designed to protect.
40
The Commission disputes the applicants’ arguments.
41
Before responding to the parties’ arguments, it is appropriate to recall briefly the manner in which the inspection carried out by the Commission officials at the applicants’ premises was conducted.
(a)
The conduct of the inspection
42
As is apparent from the account of the facts set out in the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), on 28 January 2009, Commission inspectors, accompanied by representatives of the autorité française de la concurrence (French Competition Authority), visited the premises of Nexans France in Clichy (France) in order to carry out an inspection pursuant to Article 20(4) of Regulation No 1/2003. They notified to the undertaking the inspection decision referring to ‘Nexans, together with all the companies it directly or indirectly controls, including Nexans France’ and the explanatory note on the inspections.
43
The inspectors stated that they wished to examine the documents and the computers of certain Nexans France employees, namely Mr R. (Deputy Managing Director and Marketing Director — ‘High Voltage’ Business Group), Mr B. (Managing Director — ‘High Voltage’ Business Group) and Mr J. (Sales and Marketing Director of the ‘High Voltage Land Business’ Unit). The inspectors were informed that Mr J. was absent travelling and had his computer with him and that he would not return until Friday 30 January 2009.
44
The inspectors first examined the paper documents in the offices of Mr R., Mr B. and Mr J., and in the office of their shared assistant. They then transferred the computers of Mr R., Mr B. and Mr D. (Project Director — ‘High Voltage’ Business Group) to the meeting room made available to them. Using forensic information technology (‘FIT’), they took copy-images of the hard drives of those computers and prepared them for indexation which was to finish the following day. At the end of the first day of the inspection, Mr J.’s office and the meeting room made available to the inspectors were sealed. On the second day of the inspection, the search for information on those copy-images continued. At the end of the day, the meeting room made available to them was again sealed.
45
On the third day of the inspection, the inspectors were able to examine the laptop of Mr J., who had returned to the office. Initially, no copy-image of the content of that computer was made, but by using the FIT it was possible for the files, documents and emails that had been deleted to be looked at and to determine that those documents were relevant to the investigation. The inspectors decided to make a copy-image of that hard drive. However, by that point in the investigation, they no longer had sufficient time to make such a copy. They therefore decided to make a copy of selected data and place them on data-recording devices (‘the DRDs’) which they planned to take back with them to Brussels. The data related to two sets of emails found on Mr J.’s laptop which were recorded on DRDs labelled JABR 12 and JABR 13. They also copied a set of emails found on Mr R.’s computer on to two DRDs labelled JABR 14 and JABR 15. Those four DRDs were placed in envelopes which were sealed and then signed by one of the applicants’ representatives. Those sealed envelopes were taken back to the Commission’s offices in Brussels. Mr J.’s computer and a DRD containing password-protected documents found in his office were placed in a cupboard, which was sealed by the inspectors. The hard drives of the Commission’s computers used for the purpose of the searches were subsequently wiped and, after that process, no longer contained any of the files taken during the inspection. The inspectors informed the applicants that they would notify them of the date on which the inspection would be continued. The applicants stated that they would prefer any inspection of the hard drive of Mr J.’s computer to take place at the premises of Nexans France, rather than in the Commission’s offices.
46
The inspectors returned to the premises of Nexans France on Tuesday 3 February 2009. They opened the sealed cupboard containing the DRD found in Mr J.’s office and his computer. They inspected the DRD at the premises, printed and kept two documents extracted from the DRD and returned it to the applicants’ representatives. They then made three copy-images of the hard drive of Mr J.’s computer which were recorded on three DRDs. The inspectors gave one of the three DRDs to the applicants’ representatives and placed the other two in sealed envelopes which they took back to Brussels, after taking formal note of the fact that the applicants disputed the legitimacy of that procedure. The inspectors stated that the sealed envelopes would only be opened on the Commission premises in the presence of the applicants’ representatives.
47
The sealed envelopes containing the DRDs that the Commission took away were opened in its offices in Brussels on 2 March 2009 in the presence of the applicants’ lawyers. The documents recorded on those DRDs were examined and the inspectors printed out those which they considered relevant for the purposes of the investigation. A second paper copy of those documents and a list of them were given to the applicants’ lawyers. The examination of all the data recorded on the DRDs in question lasted eight days and was completed on 11 March 2009. The office in which the documents and the DRDs were examined was sealed at the end of each working day, in the presence of the applicants’ lawyers, and opened again the following day, also in their presence. At the end of that process, the hard drives of the computers on which the Commission’s inspectors worked were wiped.
(b)
The alleged lack of legal basis of the measures at issue
48
The applicants essentially submit that the Commission officials exceeded the powers conferred on the Commission by Article 20(2) of Regulation No 1/2003 by making a copy-image of the hard drive of Mr J.’s computer and the sets of emails found on that computer and on Mr R’s computer, so that a search for material relevant to the investigation could be conducted at the Commission’s premises in Brussels.
49
As a preliminary point, it should be recalled that, as provided in Article 4 of Regulation No 1/2003, ‘for the purpose of applying Articles [101] and [102] of the Treaty, the Commission shall have the powers provided for by this Regulation’.
50
Article 20(1) of Regulation No 1/2003 provides that, in order to carry out the duties assigned to it by that regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.
51
As regards the Commission’s powers to conduct an inspection, Article 20(2) of Regulation No 1/2003 provides, inter alia, as follows:
‘The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:
…
(b)
to examine the books and other records related to the business, irrespective of the medium on which they are stored;
(c)
to take or obtain in any form copies of or extracts from such books or records;
(d)
to seal any business premises and books or records for the period and to the extent necessary for the inspection;
…’
52
In the present case, the practice of making a copy-image of a hard drive of a computer or a copy of data stored on a digital data carrier takes place in the context of the operation of FIT, which Commission officials use during inspections. As the Commission describes in its pleadings, without being challenged in this respect by the applicants, that technology involves using specific software to search the hard drive of a computer or any other digital-data carrier for relevant information in the light of the subject matter of the inspection by using keywords. That search requires a preliminary stage called ‘indexation’, during which the software puts all the letters and words on the hard drive of a computer or other digital data carrier under inspection in a catalogue. The duration of that indexation depends on the size of the digital data carrier in question, but this generally takes a considerable amount of time. In that situation, Commission officials generally make a copy of the data contained on the undertaking’s digital data carrier under inspection in order to index the data stored on that carrier. In the case of a computer hard drive, that copy may take the form of a copy-image. That copy-image makes it possible to obtain a true copy of the hard drive under inspection, containing all the data on that hard drive at the precise moment that the copy is made, including files which have apparently been deleted.
53
In that regard, it should first be stated that, in so far as (i), as was explained in paragraph 52 above, the copying of data stored on the digital data carrier of an undertaking under inspection is carried out for the purposes of indexation and (ii) that indexation is intended to make it possible to then search for documents relevant to the investigation, making such a copy falls within the scope of the powers conferred on the Commission by Article 20(2)(b) and (c) of Regulation No 1/2003.
54
Contrary to the applicants’ submission, it is not apparent from Article 20(2)(b) and (c) of Regulation No 1/2003 that the Commission’s power to take or obtain copies of or extracts from the books and records related to the business of an undertaking under inspection is limited to the books and records related to the business that it has already reviewed.
55
Moreover, it should be observed that such an interpretation could undermine the effectiveness of Article 20(2)(b) of that regulation, in so far as, in certain circumstances, the examination of the books and records related to the business of the undertaking under inspection may necessitate the copying of such books or business records beforehand, or be simplified, as in the present case, by that copying.
56
Consequently, given that making the copy-image of the hard drive of Mr J.’s computer and copies of sets of emails found on that computer and Mr R.’s computer was part of the process by which the Commission officials operated the FIT, the purpose of which was to search for information relevant to the investigation, it fell within the scope of the powers provided for in Article 20(2)(b) and (c) of Regulation No 1/2003.
57
Second, to the extent that the applicants’ line of argument must be interpreted to mean that they take issue with the Commission officials for having placed in the investigation file the copies of the sets of emails found on Mr R.’s computer and on Mr J.’s computer as well as the copy-image of the hard drive of Mr J.’s computer without having checked beforehand whether the documents contained on those copies were relevant to the subject matter of the inspection, it cannot succeed.
58
As is apparent from paragraphs 42 to 47 above, it is only after having found, when reviewing the documents contained in the copies of the sets of emails found on Mr R.’s computer and on Mr J.’s computer as well as on the copy-image of the hard drive of Mr J.’s computer, at the Commission’s premises in Brussels and in the presence of the applicants’ representatives, that some of those documents were prima facie relevant in the light of the subject matter of the inspection, that the Commission officials finally placed a paper version of the documents in question in the investigation file.
59
It must therefore be held that, contrary to the applicants’ submission, the Commission officials did not place directly in the investigation file the documents contained in the copies of the sets of emails found on Mr R.’s computer and on Mr J.’s computer as well as on the copy-image of the hard drive of Mr J.’s computer without having checked beforehand whether they were relevant to the subject matter of the inspection.
60
Third, with respect to the applicants’ argument that the Commission officials did not have the power to search for information relevant to the investigation contained on the copy-image of the hard drive of Mr J.’s computer, and in the copies of the sets of emails found on that computer and on Mr R.’s computer at the Commission’s premises, it should be pointed out that, contrary to the applicants’ claim, Article 20(2)(b) of Regulation No 1/2003 does not provide that the examination of the books and records related to the business of undertakings under inspection must be carried out exclusively at their premises if, as in the instant case, that inspection could not be completed within the timeframe initially envisaged. It merely requires the Commission to offer, when examining documents at its premises, the same guarantees to undertakings under inspection as those required of the Commission when conducting an on-the-spot examination.
61
It should be noted that, at the hearing, in reply to a question put by the Court, the applicants conceded that they did not take issue with the Commission, when it reviewed the copy-image of the hard drive of Mr J.’s computer and the copies of the sets of emails found on that computer as well as on Mr R.’s computer at its premises in Brussels, for having acted differently from the manner in which it would have acted had that examination taken place at the applicants’ premises. The applicants merely claimed that carrying out such a review at the Commission’s premises had deprived them of the assistance of the employees competent to provide explanations to the Commission on the documents examined during that review.
62
In that regard, it is sufficient to note that the applicants do not claim that the Commission objected to the possibility of their representatives being assisted by some of their employees when the copies in question were examined at the Commission’s premises.
63
In any event, it should be recalled that, as is apparent from the statement of facts set out in paragraphs 46 and 47 above, the copies in question were taken to Brussels in sealed envelopes, that the envelopes containing those copies were opened and examined on the date agreed with the applicants and in the presence of their representatives, that the Commission’s premises at which that examination took place were duly protected by being sealed, that the documents extracted from the data that the Commission decided to append to the investigation file were printed out and listed, and that copies thereof were provided to the applicants and that, at the end of the examination, the copy-image of the hard drive of Mr J.’s computer and the copies of the sets of emails found on that computer and on Mr R.’s computer were definitively wiped.
64
In the light of the foregoing, it must be concluded that, during the inspection, the Commission did not go beyond the powers conferred on it by Article 20(2) of Regulation No 1/2003. The applicants’ complaint in that regard must therefore be rejected.
(c)
The alleged infringement of the inspection decision
65
As regards the applicants’ argument that the Commission officials infringed the scope of the inspection decision by searching for information relevant to the investigation on the copy-image of the hard drive of Mr J.’s computer and in the copies of the sets of emails found on that computer and on Mr R.’s computer at the Commission’s premises, it should be recalled that, in accordance with the case-law of the Court of Justice, the statement of reasons for that decision limits the powers conferred on the Commission’s agents by Article 20(2) of Regulation No 1/2003 (judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 60).
66
In the present case, as regards (i) the geographic scope of the inspection decision, it should be noted that the second paragraph of Article 1 of that decision states as follows:
‘The inspection can take place in all premises controlled by the company, and in particular at the offices located at the following address: 4-10 Rue Mozart, 92110 Clichy, France.’
67
It is therefore apparent from the inspection decision that, although the inspection ‘[could]’ take place in ‘all premises controlled’ by the applicants, and in particular at the offices located in Clichy, contrary to what the applicants claim, the inspection was not required to be conducted exclusively at their premises. Therefore, it did not rule out the possibility of the Commission continuing the inspection in Brussels.
68
As regards (ii) the temporal scope of the inspection decision, it should be pointed out that Article 2 thereof determined the date from which the inspection could take place, but did not specify the date by which it had to be completed.
69
It is true that the absence of any specific date by which the inspection had to be completed does not mean that the inspection could go on indefinitely, since the Commission is, in that regard, required to observe a reasonable time limit in accordance with Article 41(1) of the Charter.
70
However, in the context of this plea, the applicants do not claim that the period of one month which elapsed between the inspection being conducted at the applicants’ premises and the continuation of that inspection in Brussels was unreasonable.
71
It follows that, contrary to what the applicants claim, the inspection decision did not preclude the Commission officials’ continuing the search for material relevant to the investigation on the copy-images of the hard drives of the computers of certain Nexans France employees at the Commission’s Brussels premises.
72
Moreover, in the light of the foregoing, it must be held that the Commission did not infringe the scope of the inspection decision by taking the measures at issue when conducting the inspection. The applicants’ complaints in that regard must therefore be rejected.
(d)
The alleged infringement of the rights of the defence
73
The applicants claim that the suspension of the process of selecting the documents relevant to the subject matter of the investigation between 3 February and 2 March 2009, the date on which the sealed envelopes containing the data-recording devices on which the set of emails of certain Nexans France employees and the copy-image of the hard drive of Mr J.’s computer had been copied were opened, prevented them from being able properly to assess whether or not to submit an application for immunity, since, during that time, it was impossible for them to determine the added value of the other information in their possession. They claim that the Commission thus infringed their rights of defence.
74
In that regard, it should be borne in mind that, in accordance with point 10 of the Leniency Notice, immunity cannot be granted ‘if, at the time of the submission [of the information and evidence], the Commission had already sufficient evidence to adopt a decision to carry out an inspection in connection with the alleged cartel or had already carried out such an inspection’.
75
In the present case, as the Court confirmed in paragraph 93 of the judgment of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), the Commission had sufficient evidence in relation to high voltage submarine and underground power cables to order the inspection that was conducted at the premises of Nexans. It follows that the applicants could not have benefited from immunity from fines under the Leniency Notice.
76
Admittedly, in accordance with point 23 of the Leniency Notice, undertakings disclosing their participation in an alleged cartel affecting the European Union that do not meet the conditions to benefit from immunity from fines may be eligible to benefit from a reduction of any fine that would otherwise have been imposed. According to point 24 of that notice, in order to qualify for this, an undertaking must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession.
77
However, the applicants remained in possession of the data which had been copied by the Commission officials. They were thus fully able to determine what information was not in those digital copies and which, in the light of the subject matter of the inspection, was capable of adding significant value with respect to the evidence already in the Commission’s possession.
78
Moreover, even if, as the applicants essentially submit, the Commission already possessed hard drives of computers containing the information which could have been submitted in their application for partial immunity, it should again be recalled that the fact that the Commission made copies of the set of emails of certain Nexans France employees and the copy-image of the hard drive of Mr J.’s computer does not mean that it inspected the drives and that it had already had access to the information set out in them. Such an inspection continued only after the copies in question were extracted from the sealed envelopes in Brussels. In that context, the applicants were still able to examine the content of that hard drive and of those emails and to inform the Commission about documents or evidence contained on them that might add value to the evidence already gathered by the Commission in the context of the investigation.
79
It follows that, contrary to the applicants’ submission, the Commission did not prevent them from being able to assess whether or not to submit an application for partial immunity.
80
To the extent that the applicants claim that their rights of defence were infringed, it should be recalled that the measures of inquiry adopted by the Commission during the preliminary investigation stage, in particular the investigation measures and the requests for information, suggest, by their very nature, that the Commission suspects that an infringement has been committed, which may have major repercussions on the situation of the undertakings under suspicion. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (see, to that effect, judgment of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 79 and the case-law cited).
81
However, in the present case, the very fact that the electronic data in question was examined not at the premises of Nexans France in Clichy but at the Commission’s premises in Brussels is irrelevant to the question whether the applicants’ rights of defence were observed, since it has been established that the DRDs on which the copies of the electronic data at issue were recorded were taken to Brussels in sealed envelopes, that the Commission gave a copy of those data to the applicants, that the envelopes containing the DRDs with those data were opened and examined further on the date agreed with the applicants and in the presence of their representatives, that the Commission’s premises at which that examination took place were duly protected by being sealed, that the documents extracted from the data that the Commission decided to append to the investigation file were printed out and listed, and that copies thereof were provided to the applicants and that, at the end of the examination, the content of all the DRDs and the computers used to examine them was definitively wiped.
82
The applicants’ complaint alleging infringement of their rights of defence must therefore be rejected as unfounded.
(e)
The alleged infringement of Article 20(3) and (4) of Regulation No 1/2003
83
The applicants take issue with the Commission for having continued the examination of the copy of the sets of emails of certain Nexans France employees and the copy-image of the hard drive of Mr J.’s computer at its premises in Brussels without giving prior notice of this to the Belgian Competition Authority.
84
In that regard, it should be borne in mind that (i) pursuant to Article 20(4) of Regulation No 1/2003, ‘the Commission shall take [inspection] decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted’ and (ii), pursuant to Article 20(3) thereof, ‘in good time before the inspection, the Commission shall give notice of the inspection to the competition authority of the Member State in whose territory it is to be conducted’.
85
The ratio legis of Article 20(3) and (4) of Regulation No 1/2003, set out in recital 24 of that regulation, is to enable the competition authorities of the Member States to cooperate actively in the exercise by the Commission of its powers under Article 20(1) thereof in matters relating to inspections.
86
To that effect, Article 20(5) of Regulation No 1/2003 specifies that ‘officials of as well as those authorised or appointed by the competition authority of the Member State in whose territory the inspection is to be conducted shall, at the request of that authority or of the Commission, actively assist the officials and other accompanying persons authorised by the Commission’ and that ‘to this end, they shall enjoy the powers specified in paragraph 2’.
87
In the present case, it is not disputed that the Commission consulted the Competition Authority (France) before the inspection decision was adopted. Moreover, it is not disputed that the Commission gave due notice to that authority before the inspection at the premises of Nexans France. Furthermore, it is not contested that the Commission’s inspectors were accompanied by representatives of that authority during the inspection at the premises of Nexans France.
88
In the present case, it must therefore be held that the Commission complied with the requirements of Article 20(3) and (4) of Regulation No 1/2003.
89
That finding cannot be called into question by the applicants’ line of argument.
90
Contrary to the applicants’ submission, it does not follow from Article 20(3) and (4) of Regulation No 1/2003 that the Commission was required ‘to consult’ or ‘give notice’‘in good time’ to the Belgian Competition Authority, when it planned, for practical reasons, to continue at its premises in Brussels the examination of documents started in the context of an inspection conducted pursuant to Article 20 of Regulation No 1/2003 in the territory of another Member State. This requirement applies only when it intends to conduct an inspection at the premises of an undertaking located in Belgium.
91
It follows that the applicants’ complaint alleging that the Commission infringed Article 20(3) and (4) of Regulation No 1/2003 must be rejected as unfounded.
(f)
The alleged breach of Article 7 of the Charter
92
The applicants essentially submit that, to the extent that the measures at issue exceeded the Commission’s powers under Regulation No 1/2003, those measures also breached the principle of the need for protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any person, whether natural or legal.
93
In that regard, it should be recalled that, as was found in paragraph 64 above, the measures at issue did not exceed the Commission’s powers under Regulation No 1/2003. Therefore, to the extent that the applicants link the complaint alleging breach of Article 7 of the Charter to a previous finding of infringement of Article 20(2) of Regulation No 1/2003, that complaint must be rejected as unfounded.
94
Moreover, to the extent that the complaint alleging breach of Article 7 of the Charter must be interpreted as an independent claim, the applicants’ line of argument is based on a premiss identical to that used as a basis for the argument relating to the infringement of Article 20(2) of Regulation No 1/2003, namely that the Commission officials made a copy of the sets of emails found on the computers of Mr R. and Mr J. as well as a copy-image of the hard drive of Mr J.’s computer and placed those copies directly in the investigation file without checking beforehand that the documents contained therein were relevant to the subject matter of the investigation.
95
As was found in paragraphs 48 to 72 above, that premiss is incorrect, such that the applicants’ line of argument alleging a breach of Article 7 of the Charter has no basis.
96
The applicants’ line of argument that the documents that the Commission took during the inspection at their premises could not be used in support of the contested decision since they were obtained unlawfully must therefore be rejected.
97
Moreover, it is also necessary to reject the applicants’ line of argument that the contested decision could not be based on the documents taken during the Commission’s inspection at Prysmian’s premises on the ground that the Commission used the same method to gather those documents as it did during its inspection at their own premises. On the assumption that, as the applicants merely assert, the documents placed in the file following the inspection at Prysmian’s premises were so placed according to the same method as that at issue in the present case, it is sufficient to note that the Court has rejected as unfounded the applicants’ arguments alleging the unlawfulness of that method.
98
It follows from all the foregoing considerations that the copies of the electronic data in question were not obtained illegally. Consequently, contrary to what the applicants claim, the Commission could legitimately use that data to support its conclusions relating to the existence of the infringement found in the contested decision.
99
It follows from all the foregoing considerations that the first plea must be rejected as unfounded.
2.
The second plea in law, alleging an error of assessment in the determination of the starting date of the applicants’ participation in the infringement
100
The applicants maintain that the Commission erred in concluding that Nexans France’s participation in the infringement began on 13 November 2000. Any such participation did not begin until 22 February 2001, when certain Nexans employees, namely Mr R. and Mr J., attended an A/R meeting organised in London (United Kingdom) to address the allocation of underground and submarine power cable projects.
101
The applicants claim that, considered as a whole, the evidence in the file does not establish to the requisite legal standard that employees of Nexans France participated in the A/R meeting of 29 November 2000 in Kuala Lumpur (Malaysia).
102
Moreover, the applicants observe that, although the Commission, correctly, does not hold them liable for an infringement prior to 13 November 2000, it infers that they participated in the infringement after that date from the fact that the infringement had already been in existence since 18 February 1999. However, the applicants submit that the existence of that infringement, at least from 18 February 1999, is not established to the requisite legal standard, contrary to what the Commission asserts in recital 1064 of the contested decision.
103
First of all, in the applicants’ submission, the Commission relied in that regard solely on evidence supplied by certain leniency applicants, namely Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems, which is mere hearsay evidence whose reliability is called into question by the Commission itself. ABB’s statements in the context of its application for immunity which the Commission invokes are also unreliable.
104
Next, contrary to what is indicated in the contested decision, the leniency statements in the Commission’s possession confirm that, during 1999 and until the beginning of 2001, the cartel was not yet in existence. The evidence in the file from Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems merely shows that certain power cable producers met but were unable to reach an agreement. Moreover, the evidence from ABB merely shows that there was an attempt at legitimate and pro-competitive cooperation in the context of a legitimate consortium.
105
Lastly, the applicants contest the probative value of the direct evidence cited in the contested decision used to confirm the existence of the infringement from 18 February 1999. Most of that evidence is made up of diary notes which are general, difficult to understand and do not give any information on the content of any meetings, or even their participants.
106
The Commission disputes the applicants’ arguments.
107
In relation to the date chosen by Commission as the starting date of Nexans France’s participation in the infringement, it should be pointed out that both Nexans France and Nexans have their origins in the power cable activities of the group composed of [confidential] (
1
) and its various subsidiaries.
108
Thus, on 13 November 2000, a subsidiary of [confidential], namely [confidential], transferred most of its underground power cable activities to one of its subsidiaries, Vivalec, whose name was subsequently changed to Nexans France. That transfer of activities also included the transfer of various employees, such as Mr B., Mr R. and Mr J. Over the following months, the remaining power cable activities held by various subsidiaries of [confidential] were transferred to a wholly‑owned subsidiary of [confidential] called [confidential]. Subsequently, but before 12 June 2001, Nexans France and [confidential] were sold to Nexans, a newly-created subsidiary of [confidential]. On 12 June 2001, [confidential] divested almost 80% of the equity of Nexans when the latter was floated on the stock exchange and became independent of the group [confidential]. [confidential] subsequently divested all its equity in Nexans which became the ultimate parent company of the Nexans group (recitals 709 and 711 of the contested decision).
109
In the contested decision, the Commission stated that the evidence demonstrates that the [confidential] employees who were transferred on 13 November 2000 to Vivalec, which subsequently became Nexans France, participated directly in the infringement from 18 February 1999 until 28 January 2009. It decided not to send the statement of objections to the companies of the group composed of [confidential] and its subsidiaries. Moreover, it did not take a position on whether Nexans France was liable for participation in the cartel before 13 November 2000 as successor of [confidential]. However, it decided to choose that date as the starting date of Nexans France’s participation in the infringement. As regards Nexans, it was held liable as parent company for the conduct of Nexans France only as of 12 June 2001 (recitals 710, 711 and 912 of the contested decision).
110
It follows from the foregoing that the date of 13 November 2000, which the Commission chose as the beginning of Nexans France’s participation in the infringement, in fact marks only the date of transfer to Vivalec — which subsequently became Nexans France — of the activities of [confidential] which were concerned by an infringement which, according to the Commission, already existed; that transfer also concerned the principal employees of those companies who were involved in the anticompetitive practices, namely Mr B., Mr R. and Mr J.
111
It follows that the examination of whether this plea is well founded must focus on the question whether, on 13 November 2000, the infringement which is the subject of the contested decision and was classified by the Commission as single and continuous already existed and whether the employees concerned of [confidential], who were transferred to Vivalec, which became Nexans France, had already participated in its implementation before that date, so that their participation in the A/R meeting of 22 February 2001 in London can be regarded only as a continuation of their earlier anticompetitive activities. In that regard, it is not necessary to ascertain whether the Commission was correct to fix the beginning of the infringement as 18 February 1999. What matters in the present case is not whether that infringement began on 18 February 1999, but whether it still existed on 13 November 2000 at the latest and whether the employees concerned had been involved in that infringement before that meeting.
112
First of all, as regards the question whether the infringement existed before 13 November 2000, it is apparent from recitals 137 to 157 of the contested decision, which refer to the statements of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems in the context of their joint application for immunity and to the contemporaneous documents that they provided in the context of that application, that, between 18 February 1999 and 22 February 2001, the representatives of [confidential], and in particular Mr J. and Mr R., participated in several meetings whose purpose was to draw up rules on allocating submarine and underground power cable projects located in various parts of the world or to allocate those projects to the cartel participants. The meetings concerned were the A/R meetings held on 18 February 1999 in Zurich (Switzerland), on 24 March 1999 in Kuala Lumpur, on 3 and 4 June 1999 in Tokyo (Japan), on 26 July 1999 in London and on 19 October 1999 in Kuala Lumpur. In relation to 2000, the Commission mentioned that four meetings were held, on 1 and 2 March, 11 May, in July and on 29 November (recital 146 of, and Annex I to, the contested decision). It also found that, according to the notes in the diary provided by Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems, Mr R. and Mr J. had participated in those meetings on behalf of [confidential].
113
As regards the content of those meetings, the evidence cited by the Commission in the contested decision, in particular the meeting notes reproduced in the contested decision, report discussions relating to the drawing up of a market-sharing agreement, notably the creation of a ‘home territory’ agreement and an agreement on sharing the ‘export territories’ according to a predetermined quota. The Commission also relies on evidence confirming that projects were already being allocated as of 1999. In that regard, it reproduces in that decision a model position sheet, a document that made it possible to note and manage the allocations of the power cable projects to the various cartel participants. According to the Commission, the discussions at the abovementioned meetings also related to the possibility of involving European undertakings such as ABB, Brugg Kabel and Sagem in those agreements, and to the need to appoint a Japanese coordinator in order to ensure smooth communication between the two sides of the cartel.
114
Moreover, the Commission finds that the evidence adduced by Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems in the context of their joint application for immunity on which the Commission relied to demonstrate the existence of the cartel before 13 November 2000 was corroborated by ABB’s oral statements in the context of its application for immunity and by the contemporaneous documents that ABB submitted in the context of that application. In recitals 149 and 150 of the contested decision, the Commission refers to ABB’s statements relating to a meeting between an ABB employee and [confidential] employee in April 2000 and to the retaliation that ABB allegedly faced in May 2000 from Pirelli for having won a project in Italy, which was the territory reserved for Pirelli. In recital 151 thereof, it also reproduces the content of an email and internal notes confirming that in April 2000 ABB was already involved in the ‘home territory agreement’ and in the subsequent sharing of the European projects among the R members of the cartel.
115
Next, the evidence that the Commission cites also confirms that the [confidential] employees played an important role in the drawing up and operation of the agreements that constitute the infringement. Not only were they active in the context of the cartel as of the meeting of 18 February 1999 in Zurich, but, as is apparent from the notes of the meeting of 26 July 1999 in London cited in recital 141 of that decision, they undertook to involve other European undertakings in the cartel. Moreover, as the Commission observed in recital 154 thereof, the oral statements of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems make it possible to confirm that it was Mr J., namely [confidential] employee, who was the author of the first position sheet on which the Commission relied in the contested decision and which dates from September 2000.
116
It should be noted that the manner in which the cartel operated did not change when Vivalec, which became Nexans France, took over [confidential] activities. The same persons continued to represent the undertaking at cartel meetings, playing the same role in the context of the infringement. In particular, after November 2000, Mr J. continued to be responsible for preparing and updating the position sheets and performing the duties of secretary of the ‘R group’ who was responsible for contacts with the ‘A side’ of the cartel (see, in particular, recitals 94, 96, 99 and 211 of the contested decision).
117
Lastly, the single and continuous nature of the infringement and the fact that the evidence gathered by the Commission does not mention an interruption in the cartel between the beginning of 1999 and the beginning of 2001 should be noted. It is also apparent from the contested decision that the representatives of [confidential], Mr R. and Mr J., were present at the cartel meetings in both 1999 and 2000, although, as the Commission points out in recital 146 of the contested decision, they may not have attended all the meetings held in 2000.
118
The fact that certain members of staff of [confidential] may have been absent from one of the cartel meetings in 2000 cannot cast doubt on the continuity of the participation of the undertaking concerned in the cartel, in particular in the light of the content of the notes of the A/R meeting of 22 February 2001 in London, the meeting which, in the applicants’ submission, marks the beginning of Nexans France’s participation in the cartel. Those notes contain a list of those present, on which the word ‘[confidential]’ appears beside the names of the Nexans France employees, Mr J. and R., indicating that they were former [confidential] employees. Moreover, those notes mention the launch of Nexans France’s activities, specify that the floating of Nexans on the stock exchange had been postponed but confirmed and that [confidential] would thereafter be a telecommunications undertaking. Thus, contrary to the applicants’ submission, the notes of that meeting confirm that Nexans France’s participation in that meeting was merely a continuation of the earlier collusive activities of Mr [J.] and Mr [R.] after the power cable manufacturing business within the group composed of [confidential] and its subsidiaries had been restructured.
119
It is apparent from that material that the Commission had established that, by the middle of 2000 at the latest, the cartel had already been set up and that [confidential], represented in particular by Mr R. and Mr J., was one of the founder members of that cartel. Moreover, it follows from that material that the Commission was right to find that Nexans France’s participation in the cartel was merely a continuation of the practices implemented by the [confidential] employees from the beginning of 1999. The Commission did not therefore err in finding that Nexans France’s participation in the cartel began on 13 November 2000, the date on which Vivalec, which became Nexans France, took over the activities of [confidential] in the field of underground power cables, including the employees directly involved in the cartel.
120
The applicants’ arguments are incapable of calling that conclusion into question.
121
First, it should be pointed out that the applicants attempt to call into question the probative value of the evidence gathered by the Commission by presenting and analysing different elements in isolation. They examine separately the various statements of leniency applicants and the contemporaneous evidence that those leniency applicants submitted in the context of their applications.
122
In that regard, although the Commission is required to produce precise and consistent evidence to establish that there has been an infringement of Article 101(1) TFEU, it is not necessary for every item of evidence that it produces to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the Commission, viewed as a whole, meets that requirement. Thus, the items of evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of that provision by an undertaking must not be assessed separately, but as a whole (see judgments of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 51 and the case-law cited, and of 12 December 2014, Repsol Lubricantes y Especialidades and Others v Commission, T‑562/08, not published, EU:T:2014:1078, paragraphs 152 and 153 and the case-law cited). Moreover, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26).
123
In the present case, as was explained in paragraphs 112 to 115 above, the evidence that the Commission put forward in the contested decision confirms that there was unlawful contact between the European and Japanese submarine and underground power cable producers, that a complex agreement on market sharing was drawn up between them and that that agreement was implemented from the beginning of 1999. That evidence also confirms that the employees of [confidential], which became Vivalec, then Nexans France, played a key role in those contacts.
124
Second, contrary to the applicants’ submission, the Commission’s conclusions relating to the existence of the infringement during the period from the beginning of 1999 until the beginning of 2001 are not based solely on the evidence that Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems provided it in the context of their joint application for immunity. Whilst it is true that the Commission relies most often on that evidence in support of its observations, it also relies on the evidence that ABB adduced that refers expressly to [confidential] participation in the infringement.
125
The applicants are mistaken as to the significance of recital 1064 of the contested decision when they assert that the Commission itself confirmed that it relied solely on the statements of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems to establish the existence of the infringement during its early period. In that recital, which is in the section of the contested decision dedicated to the assessment of the joint cooperation of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems as second leniency applicant for the purpose of setting the fine, the Commission merely found that the information supplied by those leniency applicants amounted to compelling evidence for the purposes of point 26 of the Leniency Notice, that is to say, evidence with high probative value. It further noted that it was able to establish the existence of the infringement from 18 February 1999 until 1 March 2001 solely on the basis of that information, which does not in itself preclude the possibility that it possessed other evidence relating to that period, in particular that provided by ABB, which was the first to contact the Commission and begin to cooperate within the framework of that notice.
126
Third, contrary to the applicants’ submission, there is no reason to call into question the sincerity and reliability of the statements of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems, or indeed those of ABB.
127
According to the case-law, there is no provision or general principle of EU law that prohibits the Commission from relying, as against an undertaking, on statements made by other accused undertakings. If that were not the case, the burden of proving conduct contrary to Article 101 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the FEU Treaty (see judgment of 25 October 2005, Groupe Danone v Commission, T‑38/02, EU:T:2005:367, paragraph 285 and the case-law cited).
128
Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 94).
129
In the present case, it is true that the Commission called into question the reliability of the statements of Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems in their joint application for immunity. It consequently limited the amount of the reduction of the fine to be imposed on those undertakings from 50% to 45%. However, the Commission’s doubts did not concern the beginning of the infringement but solely the date on which J‑Power Systems withdrew from the cartel, since the leniency applicants gave different dates for that withdrawal. On the other hand, as regards the early period of the cartel, in recital 1064 of the contested decision the Commission emphasised that the evidence that Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems had supplied was compelling.
130
Moreover, contrary to the applicants’ submission, the statements lodged by Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems cannot be regarded as mere ‘hearsay’ evidence. They are statements made by those undertakings’ legal representatives, placed in context by contemporaneous evidence, such as extracts from agendas and the notes of the meetings. The evidence from Sumitomo Electric Industries, Hitachi Cable and J‑Power Systems is moreover corroborated by the evidence that ABB adduced in the context of its own application for immunity (see paragraph 114 above).
131
Moreover, the applicants’ claim that ABB appears to dispute the date that the Commission chose as the beginning of its participation in the cartel in the context of its action against the contested decision, registered under number T‑445/14, must be rejected as ineffective, since it has no bearing on the value of the evidence that ABB provided in its application for immunity which confirms the existence of the cartel from the middle of 2000.
132
Fourth, as regards the applicants’ argument that it is apparent from the leniency applicants’ statements that during 1999 and 2000, the cartel did not yet exist, it suffices to recall that, according to settled case-law, for there to be an agreement within the meaning of Article 101(1) TFEU, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of that provision can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraphs 85 and 86 and the case-law cited).
133
Moreover, it follows from the case-law that, according to the notion inherent in the Treaty provisions on competition, each economic operator must determine independently the policy which it intends to adopt on the market. Although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraphs 116 to 118 and the case-law cited).
134
In the present case, as is apparent from paragraphs 111 to 134 above, it has been established that, in 1999 and 2000, the representatives of the principal Japanese and European submarine and underground power cable producers, including those of Nexans France, met in order to draw up rules on allocating submarine and underground power cable projects located in various parts of the world or to allocate those projects to the cartel participants. Although it took a considerable amount of time to negotiate those rules, there can be no doubt that the representatives of the undertakings participating in those meetings shared a common intention to allocate among themselves markets for submarine and underground power cable projects and that they therefore concluded an anticompetitive agreement for the purposes of Article 101(1) TFEU.
135
It follows from all the foregoing considerations that the second plea must be rejected.
136
In the light of the foregoing, it must be held that the applicants have not succeeded in demonstrating the existence of an unlawful act or error committed by the Commission which would justify the annulment in whole or in part of the contested decision.
137
The claims for annulment must therefore be rejected.
B. The claim for reduction of the amount of the fines imposed
138
Before considering the applicants’ various claims for a reduction of the amount of the fines imposed on them, it should be borne in mind that the review of legality is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003 has conferred on the Courts of the European Union in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a review of legality of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas (judgment of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraphs 130 and 131).
139
The applicants seek a reduction of the fines imposed on them in order to take account of (i) the Commission’s error regarding the duration of Nexans France’s participation in the infringement and (ii) errors that the Commission made in relation to the gravity factor used against the applicants.
1.
The errors the Commission made in relation to the duration of Nexans France’s participation in the infringement
140
The duration of Nexans France’s participation in the cartel falls within the scope of the constituent elements of the infringement determined by the Commission in the contested decision. For this reason, it may not be examined by the EU Courts on the basis of Article 31 of Regulation No 1/2003 (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 77). Moreover, to the extent that the applicants’ request must be interpreted as a request that the Court substitute its own assessment for the Commission’s regarding the multiplier for duration the Commission used to calculate the amount of the fines imposed on the applicants, that request is based solely on the argument that the Commission erred in finding that Nexans France’s participation in the infringement began on 13 November 2000. However, that argument is ineffective in relation to the fine imposed on the applicants by Article 2(d) of the contested decision, since that fine was imposed on the applicants on account of the participation in the infringement by the undertaking that they constituted within the meaning of Article 101 TFEU, between 12 June 2001 and 28 January 2009. Moreover, examination of the second plea of the action, raised in support of the claims for annulment, disclosed no error by the Commission in finding that Nexans France’s participation in the infringement began on 13 November 2000. Since the applicants have not adduced any additional evidence which might justify changing the multipliers that the Commission used to calculate the basic amount of the fines that the contested decision imposed on them, it is necessary to reject their request for a reduction of the amount of those fines inasmuch as that request is based on the Commission’s alleged error as to the duration of Nexans France’s participation in the infringement.
2.
The third plea in law, alleging a manifest error of assessment and infringement of the obligation to state reasons and the principle of equal treatment in setting the gravity factor for the calculation of the fines
141
This plea is divided into three limbs. In the first limb, the applicants claim that the Commission made a manifest error of assessment and failed to give reasons by not reducing the gravity factor in light of evidence that any implementation of the infringement was partial, limited and largely ineffective. In the second limb, they submit that the Commission was wrong to increase that factor to take account of the combined market share of the parties. In the third limb, they claim that the Commission infringed the principle of equal treatment by applying that gravity factor to them.
142
Before examining the three limbs of this plea, it should be recalled that, pursuant to Article 23(2) and (3) of Regulation No 1/2003, the Commission may by decision impose on undertakings which have either intentionally or negligently infringed Article 101(1) TFEU fines the amount of which is determined by reference in particular to the gravity and the duration of the infringement.
143
In accordance with points 19 to 22 of the 2006 Guidelines on the method of setting fines, one of the two factors on which the basic amount of the fine is based is the proportion of the value of the sales concerned, which depends on the gravity of the infringement. The assessment of the gravity of the infringement is made on a case-by-case basis, taking account of all the relevant circumstances of the case. In order to decide on the proportion of the value of sales in a given case, the Commission has regard to a number of factors, such as the nature of the infringement, the combined market share of the undertakings concerned, the geographic scope of the infringement and whether the infringement has been implemented.
144
The Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see judgments of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 43 and the case-law cited, and of 14 March 2013, Dole Food and Dole Germany v Commission, T‑588/08, EU:T:2013:130, paragraph 662 and the case-law cited). However, when the Courts review the amount of the fine, they cannot use that margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the 2006 Guidelines on the method of setting fines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the amount of the fine in terms of the law and of the facts (judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 102). Similarly, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the EU judicature (judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 44).
145
In the contested decision, notably in recitals 997 to 1010 thereof, the Commission considered that, as regards the basic amount of the fine and the determination of the gravity, the infringement, by its very nature, was among the most harmful restrictions of competition, which, in its view, justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the EEA. In addition, it considered that the conduct of the European undertakings, including the applicants, had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R cartel configuration, the European undertakings had allocated power cable projects among themselves in the context of the European configuration of that cartel. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings.
146
It is in the light of those considerations that the three limbs put forward by the applicants must be examined.
(a)
The first limb of the third plea
147
The applicants state that, during the administrative procedure, they put forward arguments to show that the majority of power cable sales were unaffected by the infringement found in the contested decision. They submit that, by refusing to reduce the proportion of the value of sales in order to take account of the partial and largely ineffective implementation of the infringement, the Commission made a manifest error of assessment and vitiated the contested decision by its failure to give proper reasons in relation to their submission that the gravity factor should be reduced.
148
In that regard, the applicants state, first, that the ‘home territory’ agreement could not have had any effect on the European market, since, for technological and logistical reasons, the Japanese undertakings did not pose a real threat to the European producers on that market. Thus, even if there had been no agreement, the outcome of the European tenders cited in the contested decision would have been no different.
149
Second, the applicants claim that the cartel concerned only a very small fraction of power cable sales in Europe. They state that, during the relevant period, they made over 4000 European power cable sales falling within the scope of the infringement. However, the statement of objections described fewer than 100 cases of tenders being manipulated. They submit that there is no single European market for underground and submarine power cables where all sales are procured in the same way and according to the same competitive conditions. Therefore, the Commission could not extrapolate from a fraction of power cable projects, in particular from projects intended for transmission system operators, in order to establish a broadly-based, market-wide infringement. The applicants further claim that the Commission failed to show that the infringement had any effect on prices charged to customers or prices paid by consumers.
150
Third, in the applicants’ submission, there is no evidence of an infringement of Article 101(1) TFEU for the majority of the power cable sales falling within the scope of the contested decision.
151
Fourth, the applicants claim that, even where there is evidence of an agreement between competitors regarding power cable sales, in a majority of cases that agreement could not be implemented. Among the reasons which prevented implementation of the agreement they cite, by way of example, a project which did not materialise, the cancellation of a public tender under discussion in the context of the cartel, a case of legitimate cooperation between power cable manufacturers, the case of a customer which did not seek competing bids, on account, in particular of its interest in technology patented by one producer in particular, and a case where a project was awarded to an undertaking which did not participate in the cartel, despite the fact that that project had been discussed by the cartel members. They further submit that their internal structure prevented implementation of the agreement, given that the members of staff who participated in the cartel meetings often had no contact with the teams which prepared the tenders. Similarly, the very long gestation period of power cable projects and changes in customers and tender specifications rendered initial contacts between the competitors ineffective.
152
The Commission disputes the applicants’ line of argument.
(1) The alleged error of assessment
153
It should be noted that the applicants essentially criticise the Commission for failing to take account, at the stage of setting the fines, of the limited nature, or indeed the absence, of any actual effects of the infringement on the relevant market. The applicants maintain in particular that the infringement did not ‘affect’ the majority of the power cable sales referred to in the statement of objections or that the agreement ‘could’ not ‘have had any effect on customers’, in particular on the prices which they were charged. Lastly, they argue that factual circumstances external to the cartel diminished its impact.
154
Moreover, some of the applicants’ arguments refer to the lack of evidence of the existence of the agreement. Indeed, the Commission’s reply to the applicants’ arguments addresses the issue of proving the existence of the infringement of Article 101(1) TFEU, in particular whether it is necessary to show the effects of an infringement consisting of market sharing, which may be classified as an infringement by object. The Commission essentially submits that, since the infringement established in the contested decision is an infringement by object, in accordance with settled case-law (see judgment of 13 December 2012, Expedia, C‑226/11, EU:C:2012:795, paragraph 35 and the case-law cited), it was not required to show its effects. It also refers to the case-law according to which the fact that an agreement having an anticompetitive object is implemented, even if only in part, is sufficient to preclude the possibility that the agreement had no effect on the market (judgment of 25 October 2005, Groupe Danone v Commission, T‑38/02, EU:T:2005:367, paragraph 148).
155
In the reply, the applicants clarified their comments, stating that their arguments on the limited implementation of the infringement and the absence of effects of the infringement on prices are made in relation to the gravity of the infringement, rather than to the finding of its existence. In the applicants’ submission, an anticompetitive agreement which has not been implemented in full and which in any event has no effect on the prices paid by customers has to be regarded as less serious than one that is fully implemented and causes harm to customers by increasing prices.
156
In that regard, it must be stated that most of the applicants’ arguments summarised in paragraphs 153 to 155 above stem from confusion between the concept of ‘implementation’ of the infringement, which appears in point 22 of the 2006 Guidelines on setting fines, and the concept of ‘actual impact on the market’ which, where this could be measured, could be taken into account by the Commission when setting fines, according to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines on setting fines’). According to the wording of point 22 of the 2006 Guidelines on the method of setting fines, which applies to the facts of the present case for the purpose of calculating the fine, the Commission does not necessarily have to take account of the actual impact on the market, or the absence thereof, as an aggravating or mitigating factor for the assessment of the gravity of the infringement. [As rectified by order of 4 May 2020] It is sufficient that, as in the present case, the proportion of the value of sales to be taken into consideration is justified by other factors capable of influencing the determination of gravity pursuant to that provision, such as the nature of the infringement, the combined market share of the parties concerned and its geographic scope.
157
Accordingly, to the extent that, by their arguments, the applicants seek to show that, for reasons beyond the control of the cartel members, the cartel was unable to produce its effects or achieve the expected results, those arguments must be rejected.
158
To the extent that the applicants’ line of argument must be regarded as meaning that they take the view that the Commission has failed to show that the infringement was implemented, it must also fail.
159
Indeed, the only argument advanced by the applicants which could be considered to fall within the sphere of implementation of the infringement is that Nexans France was unable to implement the agreements on account of its internal organisation, given that the members of staff who participated in the cartel meetings had no contact with the teams that prepared tenders. However, that argument cannot succeed, since the alleged inability to implement the guidelines arising from the agreements in question is insufficient to rebut the Commission’s finding, based on the evidence presented in the contested decision and not disputed by the applicants, that Nexans France, just like the other cartel members, generally complied with the ‘home territory’ agreement and participated in the sharing between the Asian producers and the European producers of power cable projects in the ‘export territories’, and in the sharing among the European producers of the power cable projects in the ‘export territories’ allocated to those producers and of the power cable projects in the ‘home territory’ of the European producers.
(2) The alleged infringement of the obligation to state reasons
160
As regards the complaint alleging failure to state reasons, it should be recalled that the statement of reasons required under Article 296 TFEU must be appropriate to the measure in question 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 carry out its review (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 147 and the case-law cited).
161
Contrary to the applicants’ submission, the Commission set out in recital 1007 of the contested decision the reason why it took the view, in reply to the arguments that the applicants put forward in the context of the administrative procedure, that the single and continuous infringement had been fully implemented. The Commission recalled that the EU Courts have confirmed that ‘the lack of implementation in full of the agreements does not mean that there was not … implementation in practice of the collusive agreements’ and that the fact that ‘[it] does not possess evidence of collusion in every Member State and Contracting Party that was covered by the cartel [does not] mean that the arrangement was not implemented’.
162
Similarly, in recital 1006 of the contested decision, the Commission responded to the applicants’ argument, also put forward during the administrative procedure, that the infringement had no effect on competition in the EEA by noting that, in so far as the arrangements sanctioned by the contested decision constituted an infringement of Article 101(1) TFEU, there was no need, for fining purposes, to prove the effects or to consider the magnitude of the impact of the arrangement on the market or on competition.
163
The fact that the case-law cited by the Commission in footnote 1413, in support of the explanation given in recital 1006 of the contested decision, is irrelevant and that that explanation does not constitute an appropriate basis for refusing to take into account the alleged lack of effects of the infringement in the EEA at the stage of assessing the infringement’s gravity (see paragraph 160 above) is of no consequence inasmuch as it is relied on in support of this complaint.
164
It is settled case-law that the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Objections and arguments which aim to challenge the merits of that measure are therefore ineffective in a plea alleging failure to state reasons, or that the reasons stated are insufficient (see, to that effect, judgments of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraphs 35 to 38, and of 15 June 2005, Corsica Ferries France v Commission, T‑349/03, EU:T:2005:221, paragraphs 52 and 59).
165
The first limb of the third plea must therefore be rejected.
(b)
The second limb of the third plea
166
The applicants observe that it is apparent from recitals 998 to 1010 of the contested decision that the Commission increased the proportion of the value of sales by 2% for all the undertakings on account of (i) the size of the combined market share of all the undertakings and (ii) the geographic scope of the infringement. They claim that the increase on account of the size of the combined market share is not well founded, given that a number of participants changed during the infringement and that, in particular, certain undertakings joined the infringement well after 18 February 1999 and ceased participation before the final date of 28 January 2009.
167
The Commission disputes the applicants’ line of argument.
168
It should be pointed out that, although, as the applicants submit, not all the undertakings involved in the cartel participated in it during the entire period, the fact remains that during most of its existence the cartel brought together the main European, Japanese and South Korean producers of high and extra high voltage submarine and underground power cables. In addition, over a period from the end of 2001 until 2006, the cartel was reinforced by the participation of smaller European suppliers such as Brugg Kabel, nkt cables, Safran and Silec Cable and, from the end of 2002 until mid-2005, by the participation of the South Korean suppliers. Moreover, as the Commission observes, without being challenged by the applicants, the number of operators on the relevant market which are not addressees of the contested decision is very small. Accordingly, it must be held, following an in-depth review, that the Commission was entitled to find, without erring, that all the addressees of the decision combined made up almost the entirety of the undertakings on the EEA market for high and extra high voltage submarine and underground power cables. The Commission was also entitled to take the view that that factor, as well as the almost worldwide reach of the cartel — which is not disputed by the applicants — increased the gravity of the infringement and consequently increased by 2% the proportion of the value of sales to be taken account.
169
The second limb of the third plea must therefore be rejected.
(c)
The third limb of the third plea in law
170
The applicants argue that the Commission’s different treatment of the European undertakings and the Japanese undertakings in so far as concerns the proportion of the value of sales which it took into account to reflect the gravity of the infringement is contrary to the principle of equal treatment.
171
The applicants point out that the proportion of the value of sales which the Commission applied to the European undertakings was 2% greater than that which it applied to the other undertakings. In order to justify that different treatment, the Commission stated, in recital 999 of the contested decision, that, in addition to the allocation mechanisms of the ‘A/R cartel configuration’, ‘EEA projects were subject to further allocation among the European producers through the European cartel configuration’. The applicants state that, according to the Commission, ‘this part of the cartel, which was carried out exclusively by the European producers, increased the harm to competition already caused by the market-sharing agreement between the European, Japanese and [South] Korean producers, and therefore the gravity of the infringement’ and that ‘the further distortion caused by the European cartel configuration justifies an increase in the gravity percentage of 2% for those undertakings that participated in that aspect of the cartel’.
172
The applicants take issue with that different treatment, maintaining that the ‘European cartel configuration’ was not implemented exclusively by the European undertakings. They allege that it is clear from the contested decision that the Japanese and South Korean undertakings participated in discussions about specific projects of European customers. Moreover, they submit that the Commission failed to demonstrate in what way that configuration had ‘increased the harm to competition already caused’, or what the ‘further distortion’ consisted of.
173
The Commission disputes the applicants’ line of argument.
174
It should be recalled that, according to settled case-law, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the EU judicature. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgments of 27 June 2012, Bolloré v Commission, T 372/10, EU:T:2012:325, paragraph 85 and the case-law cited, and of 19 January 2016, Mitsubishi Electric v Commission, T 409/12, EU:T:2016:17, paragraph 108 and the case-law cited).
175
As regards the assessment of the gravity of the conduct of the European undertakings in comparison with the conduct of the Asian undertakings, in particular, the Japanese undertakings, the Commission classified the infringement in question as a single and continuous infringement composed of two configurations, namely the ‘A/R configuration’ of the cartel and the ‘European configuration’ of that cartel. The first configuration included (i) a ‘home territory’ agreement pursuant to which the Japanese and South Korean undertakings committed to leave the European ‘home territory’, reserved to the ‘R members’ of the cartel, in exchange for a reciprocal commitment by the ‘R members’ to leave the Japanese and South Korean ‘home territory’ and (ii) a sharing of the projects located in most of the rest of the world, called the ‘export territories’. As appears from paragraph 12 above, the second of those configurations was aimed at sharing among the European undertakings the projects located in the European ‘home territory’ and the projects allocated to the European side in the ‘export territories’.
176
The Commission’s reasons for finding that the two cartel configurations formed part of a single infringement are set out in recitals 527 to 619 of the contested decision. In that context, as regards the existence of a single objective connecting those configurations of the cartel, the Commission found as follows in recital 534 thereof:
‘The European cartel configuration (as well as the allocation among the Asia companies) was subordinate to the almost global arrangement and gave effect to it. Indeed, at the European R meetings, the European coordinator would relay the discussions that took place at the A/R meeting … To this end, the parties would often organise R meetings shortly after an A/R meeting … Moreover, at the R meetings, the parties expressed their interest in projects in the export territories that were to be discussed in the A/R meetings. Equally, the parties to the A/R meetings were also informed of the main discussions in the European cartel configuration … The European cartel configuration formed therefore an integral part of the overall plan.’
177
The Commission held most of the Japanese and South Korean undertakings liable for participation in the entire cartel, including in its European configuration. In particular, it held the Japanese undertakings placed in the core group of the cartel, that is to say Sumitomo Electric Industries, Hitachi Cable and their joint venture J‑Power Systems, and Furukawa Electric, Fujikura and their joint venture Viscas, liable for the entirety of that cartel.
178
However, in recital 537 of the contested decision, the Commission qualified the various undertakings’ level of participation in the cartel. It found as follows:
‘The core group of undertakings (Nexans, Pirelli/Prysmian, Furukawa [Electric], Fujikura and Viscas, Sumitomo [Electric Industries], Hitachi [Cable] and [J‑Power Systems]) was the same for both [submarine] and [underground] power cables, and applied both the home territory [agreement] and the arrangement for the allocation of projects in the export territories. While for obvious reasons the Japanese and [South Korean] companies were not involved in the European cartel configuration, Nexans and Pirelli/Prysmian were active in both.’
179
It was on the basis of this finding that the Commission concluded in recital 999 of the contested decision, to which the applicants refer, that the infringement committed by the European undertakings should be considered more serious than that committed by the Japanese undertakings and that therefore, on account of their involvement in the ‘European cartel configuration’, the proportion of the value of sales of the European undertakings used to calculate the basic amount of the fine should be increased by 2%.
180
In that regard, it must be held that, even if the applicants’ claim that the Japanese undertakings’ participation in the ‘European cartel configuration’ was similar to that of the European undertakings were proved, that is incapable of calling into question the Commission’s finding that the sharing of projects within the EEA constituted an additional factor which warranted punishment by an additional percentage to reflect the gravity of the infringement.
181
It should be pointed out that, in addition to the ‘A/R cartel configuration’, within which the European and Asian undertakings agreed in particular not to enter into their respective ‘home territories’, the European producers, including the applicants, shared among themselves the various power cable projects allocated to the R members of the cartel. In particular, it is apparent from recital 73 of the contested decision that this concerned both the allocation of the projects in the ‘export territories’ effected in the context of that configuration and the allocation of the projects to the R members in accordance with the ‘home territory’ agreement, that is to say the projects located in the ‘home territory’ of the European producers. Moreover, even though the sharing of the projects within that configuration and the sharing of the projects within the European cartel configuration were closely linked, as the Commission explains in recital 534 of that decision, the European cartel configuration implied a further commitment to allocating projects which went beyond the existing allocation rules in the ‘A/R cartel configuration’.
182
Furthermore, contrary to the applicants’ submission, there is no doubt that sharing high voltage submarine and underground power cable projects within the ‘European cartel configuration’ increased the harm to competition caused in the EEA by the ‘A/R configuration’ of that cartel.
183
It was therefore justified, as the Commission contends, that the assessment of the gravity of the conduct of producers participating in the ‘European cartel configuration’, in particular the European producers, should reflect the additional harm to competition within the EEA.
184
It follows that the applicants’ argument that the Commission made an error of assessment in taking the view that the Japanese undertakings had not participated to the same extent as the European undertakings in the ‘European cartel configuration’ is irrelevant to the assessment of whether the applicants were the subject of a breach of the principle of equal treatment.
185
If well founded that argument would justify an increase of the percentage of the value of sales which was used to calculate the fine imposed on the Japanese undertakings.
186
However, that matter is irrelevant to the percentage of the value of sales applied to the applicants in order to take account of the gravity of their conduct, since the principle of equal treatment does not found an entitlement to the non-discriminatory application of unlawful treatment (judgment of 11 September 2002, Pfizer Animal Health v Council, T‑13/99, EU:T:2002:209, paragraph 479).
187
It follows from the foregoing that the third limb of the third plea must be rejected, as must the plea as a whole.
188
Since the pleas in law and arguments raised by the applicants in support of their claim for variation have been rejected and there are no factors which, in the present case, might justify a reduction of the amount of the fines, the claims for such a reduction must be rejected.
189
In the light of all the foregoing considerations, it must be held that the action must be dismissed in its entirety.
IV. Costs
190
Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Nexans France SAS and Nexans SA to pay the costs.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
Registrar
President
Table of contents
I. Background to the dispute
A. The applicants and sector concerned
B. Administrative procedure
C. Contested decision
1. The infringement at issue
2. The applicants’ liability
3. The fines imposed
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The first plea in law, alleging lack of legal basis, infringement of the inspection decision, the rights of the defence, Article 20(2) to (4) of Regulation No 1/2003 and of Article 7 of the Charter
(a) The conduct of the inspection
(b) The alleged lack of legal basis of the measures at issue
(c) The alleged infringement of the inspection decision
(d) The alleged infringement of the rights of the defence
(e) The alleged infringement of Article 20(3) and (4) of Regulation No 1/2003
(f) The alleged breach of Article 7 of the Charter
2. The second plea in law, alleging an error of assessment in the determination of the starting date of the applicants’ participation in the infringement
B. The claim for reduction of the amount of the fines imposed
1. The errors the Commission made in relation to the duration of Nexans France’s participation in the infringement
2. The third plea in law, alleging a manifest error of assessment and infringement of the obligation to state reasons and the principle of equal treatment in setting the gravity factor for the calculation of the fines
(a) The first limb of the third plea
(1) The alleged error of assessment
(2) The alleged infringement of the obligation to state reasons
(b) The second limb of the third plea
(c) The third limb of the third plea in law
IV. Costs
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