JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2018 (*)
(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Proof of the infringement — Duration of participation — Public distancing — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)
In Case T‑450/14,
Sumitomo Electric Industries Ltd, established in Osaka (Japan),
J-Power Systems Corp., established in Tokyo (Japan),
represented by M. Hansen, L. Crocco, J. Ruiz Calzado and S. Völcker, lawyers,
applicants,
v
European Commission, represented by C. Giolito, H. van Vliet and J. Norris-Usher, acting as Agents, and by M. Gray, Barrister,
defendant,
ACTION pursuant to Article 263 TFEU for 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, an application for a reduction in the amount of the fine imposed on the applicants in that decision,
THE GENERAL COURT (Eighth Chamber),
composed of A. M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 30 March 2017,
gives the following
Judgment
Background to the dispute
The applicants and the sector concerned
1        The applicants, Sumitomo Electric Industries Ltd (‘Sumitomo’) and J-Power Systems Corp. (‘JPS’), are Japanese undertakings active in the underground and submarine power cable production and supply sector. Sumitomo has been active in that sector at least since 18 February 1999. JPS was a joint venture owned, at the time of its creation, by Sumitomo in equal shares with another Japanese undertaking in the sector, Hitachi Cable Ltd (‘Hitachi’). Sumitomo and Hitachi transferred responsibility for their power cable production and export sales to JPS as from 1 October 2001 and for their respective activities concerning sales to Japanese electric power companies and other customers as from October 2004. On 1 April 2014, Hitachi sold its shares in JPS to Sumitomo.
2        Underground power cables are used under the ground and submarine power cables are used under water for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage, and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of power cables and the necessary additional equipment, installation and services. High 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.
The administrative procedure
3        By letter of 17 October 2008, the Swedish company ABB AB (‘ABB’) 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 provided 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 the French companies Nexans SA and Nexans France SAS and the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl.
5        On 2 February 2009, Sumitomo, Hitachi and JPS submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction in their amount, in accordance with point 27 of the Leniency Notice (‘the joint application for immunity’). 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 opened a procedure and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group, Inc., Sumitomo, Hitachi, JPS, 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 and Taihan Electric Wire Co. Ltd.
8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder, including in so far as it concerned high voltage submarine and underground power cables. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.
10      On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’).
The contested decision
The infringement at issue
11      Article 1 of the contested decision states that several 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 cable 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 contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
12      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole and were therefore an integral part of a single and continuous infringement. More specifically, according to the Commission, the cartel comprised:
–        the ‘A/R cartel configuration’, which included the European undertakings, generally referred to as the ‘R’ members, the Japanese undertakings (including, inter alia, the applicants, referred to as the ‘A’ members, and lastly the South Korean undertakings, referred to as the ‘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 ‘home territory’, under which the Japanese and Korean producers would refrain from competing for projects in the European producers’ ‘home territory’, while the European producers stayed 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 that 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; and
–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be implemented 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 classified 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 of the cartel to include, on the one hand, the European undertakings Nexans France, the subsidiary entities of Pirelli & C., formerly Pirelli SpA, which participated successively in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia, and, on the other hand, the Japanese undertakings Furukawa Electric, Fujikura and their joint venture Viscas, as well as Sumitomo, Hitachi and their joint undertaking JPS (recitals 545 to 561 of the contested decision). Next, it identified a group of undertakings which were not 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 (recitals 562 to 575 of the contested decision). Lastly, the Commission considered that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of the contested decision).
The liability of the applicants and the fines imposed on the applicants
15      Sumitomo was found liable on the basis of its direct participation in the cartel from 18 February 1999 to 30 September 2001. Between 1 October 2001 and 10 April 2008, Sumitomo had, according to the Commission, participated in the cartel indirectly, through JPS. In so far as JPS is concerned, the Commission considered that it had participated directly in the cartel between 1 October 2001 and 10 April 2008 (recitals 942 to 944 and 955 of the contested decision).
16      Under Article 2(k) and (m) of the contested decision a fine of EUR 2 630 000 was imposed on Sumitomo, and a fine of EUR 20 741 000 on Sumitomo jointly and severally with JPS and Hitachi.
17      In calculating the amount of 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 Article 23(2)(a) (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on the method of setting fines’).
18      In the first place, as regards the basic amount of the fines, after establishing the appropriate value of sales, in accordance with point 18 of the 2006 Guidelines on the method of 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 nature, constituted one of 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). The Commission also 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 shared 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      As regards the multipliers relating to the duration of the infringement, for Sumitomo, the Commission applied a multiplier of 2.58 for the period from 18 February 1999 to 30 September 2001, and of 6.5 for the period from 1 October 2001 to 10 April 2008. For JPS, the Commission applied a multiplier of 6.5, for the period from 1 October 2001 to 10 April 2008. The Commission also included in the basic amount of the fines an additional amount, namely the ‘entry fee’, of 17% of the value of sales. The amounts thus calculated came to EUR 4 782 000 for Sumitomo, for its direct participation in the cartel and EUR 37 711 000 for JPS (recitals 1011 and 1016 of the contested decision).
20      In the second place, the Commission found there to be no aggravating circumstances that could affect the basic amounts of the fine of the cartel participants, with the exception of ABB. By contrast, as regards mitigating circumstances, the Commission decided to reflect in the amount of the fines the level of participation of each of the various undertakings in the implementation of the cartel. Accordingly, it reduced the basic amount of the fine to be imposed on the fringe cartel participants by 10% and the basic amount of the fine to be imposed on the undertakings whose involvement in the cartel had been moderate by 5%. The Commission also granted Mitsubishi Cable Industries and SWCC Showa Holdings an additional reduction of 1%, in respect of the period preceding the creation of Exsym, and LS Cable & System and Taihan Electric Wire, 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. By contrast, no reduction in the basic amount of the fines was granted to the undertakings belonging to the core group, which includes the applicants (recitals 1017 to 1020 of the contested decision). Moreover, pursuant to the 2006 Guidelines on the method of setting fines, the Commission granted Mitsubishi Cable Industries an additional reduction of 3% of its fine on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of the contested decision).
21      In the third place, the Commission decided to grant ABB immunity from fines and to reduce the fine imposed on JPS, Sumitomo and Hitachi by 45% in order to take account of the cooperation of those undertakings within the framework of the Leniency Notice. In that regard, it stated that JPS, Sumitomo and Hitachi had supplied a significant number of oral statements which were further supported by documentary evidence, and that they had facilitated its task of establishing the infringement, especially with regard to the Japanese and South Korean part of the cartel. The Commission considered that the evidence provided by those three undertakings had added significant value, within the meaning of point 24 of the Leniency Notice, to the evidence already in its possession. However, according to the Commission, the value of the evidence provided by JPS and its parent companies and of the cooperation offered by them was diminished by their claims that JPS had partly suspended its participation in the cartel between July 2004 and October 2005. In addition, throughout the investigation, they had been unclear and contradictory about the date on which JPS had ended its participation in the cartel. In view of those factors, the Commission decided to reduce the fine imposed on JPS and its parent companies by 45%, rather than by the 50% requested (recitals 1060 to 1065 of the contested decision). The Commission also refused to grant the applicants any additional reduction in the amount of the fine on account of their cooperation outside the scope of the Leniency Notice (recitals 1039 and 1040 of the contested decision).
Procedure and forms of order sought
22      By application lodged at the Court Registry on 17 June 2014, the applicants brought the present action.
23      By order of 16 September 2016, the General Court (Eighth Chamber, former composition) adopted, on the basis of Article 91(b) of its Rules of Procedure, a measure of inquiry ordering the Commission to produce, within a month, certain confidential oral statements made by the applicants in the context of their joint application for immunity. The Commission complied with that request within the prescribed period.
24      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.
25      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 30 March 2017.
26      The applicants claim that the Court should:
–        annul the contested decision in so far as it holds them liable for a single, complex and continuous infringement including the European configuration and the A/R configuration of the cartel or, in the alternative, substantially reduce the fine imposed on them;
–        in the alternative, annul Article 1(8)(a) and (c) of the contested decision in so far as it holds them liable for an infringement during the period from 26 July 2006 to 10 April 2008;
–        in the further alternative, annul Article 2(m) of the contested decision and reduce the fine imposed on them in view of their substantially limited involvement in the cartel during the period from 26 July 2006 to 10 April 2008;
–        order the Commission to pay the costs.
27      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
Preliminary observations
The admissibility before the Court of certain oral statements made by the applicants, which the Commission relied upon
28      In its pleadings, the Commission relies on oral statements made by the applicants in the context of its joint application for immunity.
29      In their reply of 31 October 2016 to the Court’s written questions, the applicants dispute the admissibility before the Court of those oral statements, or at least some of them, on the ground that they constitute new evidence against them, which was not mentioned or examined in the statement of objections or in the contested decision.
30      In that regard, it must be noted that, in so far as some of those oral statements concern the first plea in law, which the applicants have withdrawn (see paragraph 37 below), that argument has become devoid of purpose. Furthermore, the oral statements which concern the second plea in law are referred to in recitals 423 and 942 to 944 of the contested decision and recitals 458 and 478 of the statement of objections as well as in the relevant footnotes. The applicants’ line of argument therefore has no basis in fact.
The scope of the dispute
31      In their application, the applicants put forward a claim for annulment of the contested decision as well as a claim for reduction in the amount of the fine imposed on them.
32      As regards the claim for annulment, the applicants principally seek partial annulment of the contested decision, in so far as it concerns them and holds them liable for a single, complex and continuous infringement including the European cartel configuration. In the alternative, they seek annulment of Article 1(8)(a) and (c) of the contested decision, in so far as it holds them liable for an infringement during the period from 26 July 2006 to 10 April 2008. Finally, in the further alternative, they seek annulment of Article 2(m) of the contested decision.
33      In support of their claim, the applicants put forward three pleas in law. By the first plea in law, alleging infringement of Article 101 TFEU, they criticise the Commission for holding them liable for a single, complex and continuous infringement of Article 101 TFEU involving the A/R cartel configuration and the European cartel configuration, without proving to the requisite legal standard the existence of an overall plan with a single anticompetitive objective concerning both cartels. By the second plea in law, raised in the alternative and also alleging infringement of Article 101 TFEU, they claim that the Commission erred in fact and in law in determining the duration of the participation of JPS in the infringement, in particular in so far as the Commission holds them liable for the infringement committed by JPS after 26 July 2006. By the third plea in law, invoked in the further alternative and alleging infringement of Article 23(3) of Regulation No 1/2003, they claim that, in calculating the amount of the fine, the Commission failed to take into account JPS’s substantially limited participation in the infringement after 26 July 2006.
34      The claim for a reduction in the amount of the fine imposed on the applicants is, first, linked to the first head of claim, by which the applicants ask the Court, inter alia, to reduce the amount of the fine significantly in order to take account of their lack of participation in the European cartel configuration. Second, it is linked to the third head of claim, by which the applicants ask the Court to exercise its unlimited jurisdiction to reduce the amount of the fine in order to take account of their substantially limited participation in the cartel during the period between 26 July 2006 and 10 April 2008.
35      In addition, in its application, the applicants have also sought annulment of the contested decision in its entirety. In support of that claim, they put forward a plea in law alleging infringement of an essential procedural requirement and of the rights of the defence, in that the contested decision relied to a decisive extent on evidence that the Commission had seized illegally during inspections at the premises of Nexans and Nexans France. However, the validity of those inspections was confirmed by the judgment of the Court of Justice of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030) in so far as concerns high voltage submarine and underground power cables. Accordingly, the applicants explicitly withdrew that claim in their reply.
36      By letter of 20 March 2017, the applicants informed the Court that they were withdrawing the first plea in law, alleging that the Commission had failed to prove the existence of a single, complex and continuous infringement to the requisite legal standard. At the hearing on 30 March 2017, they stated that they were withdrawing the principal head of claim for annulment of the contested decision or for a reduction in the amount of the fine imposed on them, since that claim was based on the first plea in law.
37      It is therefore necessary to examine in turn the claim for annulment and the claim for a reduction of the fine.
The claim for annulment
The second plea in law, alleging errors of fact and law in determining the duration of JPS’s participation in the infringement
38      The second plea in law, which alleges infringement of Article 101 TFEU, is put forward in support of the alternative claim for annulment of Article 1(8)(a) and (c) of the contested decision.
39      By that plea in law, the applicants complain that the Commission made an error of assessment and erred in law in concluding that their indirect participation in the cartel continued until 10 April 2008. According to the applicants, their participation ceased in July 2006, contemporaneously with the formation by Nexans France and Viscas of a joint venture for the joint manufacturing of high voltage power cables in Japan.
40      First, the applicants claim that the Commission failed to adduce sufficient evidence, in the contested decision, to demonstrate that JPS participated in the cartel after July 2006.
41      In that regard, the applicants submit that, during the period from July 2006 to September 2007, the Commission found no more than ten contacts between JPS and the other participants, some of which took place either in the course of legitimate cooperation between competitors or social interaction with JPS staff who were no longer involved in international sales. Moreover, all those contacts concerned projects situated outside the EEA. The applicants maintain that the Commission based its finding concerning JPS’s continuous commitment to the ‘home territory’ agreement on a single oral statement made by ABB filed in the context of its application for immunity and relating to a meeting between ABB and JPS which was not anticompetitive in nature.
42      In addition, the applicants submit that, since September 2007, JPS had put an end to even occasional exchanges and instances of ad hoc cooperation with its competitors in relation to projects in the ‘export territories’. They claim that the contested decision does not refer to any contact between JPS and the other participants during the period from September 2007 to April 2008. They also rely on evidence confirming that, during that period, JPS was unwilling to engage in that kind of contact with its competitors and that it did not respond to numerous solicitations from those competitors.
43      Second, the applicants maintain that the Commission failed to take sufficient account of the evidence demonstrating that JPS distanced itself from the ‘home territory’ agreement.
44      In that regard, they claim that JPS began to withdraw from the cartel from July 2004 and that the creation of the joint venture by Nexans France and Viscas in July 2006 meant that, from its point of view, the protection by the ‘home territory’ agreement had ended, and that it was necessary to define new commercial strategies. After that event, JPS distanced itself from the cartel publicly, firmly and unequivocally, first, by announcing its withdrawal at the meeting in Baveno (Italy) in October 2006. Next, JPS adopted an independent commercial policy on the European market, in the context of which it sought to develop its presence in Europe by concluding a commercial alliance in the form of a technical collaboration with ABB, or, to a lesser extent, with Prysmian. Finally, after a period of adaptation in order to establish commercial relationships, JPS tendered independently for three projects relating to wind farms in Europe, more specifically in the United Kingdom, namely the Thanet (19 June 2007), Greater Gabbard (31 August 2007) and Ormonde (11 December 2007) projects.
45      Third, the applicants claim that, in order to compensate for the insufficient evidence pointing to JPS’s continued involvement in the cartel after July 2006, the Commission attempted to support its findings with a number of inferences that are based on incorrect premisses, contradicted by the evidence.
46      The Commission disputes the applicants’ arguments.
–       The requirements of the case-law concerning evidence
47      According to settled case-law, the burden of proving an infringement of Article 101 TFEU rests on the Commission (judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, EU:C:1999:356, paragraph 86 and the case-law cited). It is required to produce sufficiently precise and consistent evidence to support the conviction that the infringement was committed (see judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 217 and the case-law cited).
48      However, it is not necessary for every item of evidence produced to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if all the evidence relied on by the Commission, viewed as a whole, meets that requirement (judgments of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 47, and of 24 March 2011, Aalberts Industries and Others v Commission, T‑385/06, EU:T:2011:114, paragraph 45).
49      It is also necessary to take into account that anticompetitive activities take place clandestinely, meetings are held in secret, the associated documentation is reduced to a minimum, the evidence discovered by the Commission is normally only fragmentary and sparse, and, accordingly, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 55 to 57, of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26 and the case-law cited, and of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 42).
50      Moreover, as anticompetitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the economic operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 82 and the case-law cited).
51      Likewise, given that the Commission is often required to prove the existence of an infringement many years after it was committed, where several of the undertakings involved have not actively cooperated in the investigation, it would be excessive to require it to adduce evidence of the specific mechanism by which the anticompetitive aim was achieved. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced with regard to the operation of an illegal agreement in circumstances in which the existence and anticompetitive purpose of the agreement had none the less been sufficiently established (judgment of 12 December 2014, Eni v Commission, T‑558/08, EU:T:2014:1080, paragraph 36).
52      Moreover, the Commission must prove not only the participation of an undertaking in an infringement, but also its duration. With regard to determining the duration of the participation of a given undertaking in an infringement, if there is no evidence capable of directly establishing the duration of an infringement, the Commission must adduce, at least, evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 235 and the case-law cited).
53      Finally, any doubt on the part of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 48 of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 50 and the case-law cited).
–       The Commission’s finding that JPS’s participation in the cartel ended on 10 April 2008
54      At the outset, it should be noted that the contested decision contains several inconsistencies arising from the file as regards the date of the end of JPS’s participation in the cartel. It is necessary to clarify this by examining the documents on which the Commission based its findings.
55      In recital 943 of the contested decision, the Commission stated the following:
‘JPS has given differing accounts concerning the definitive end date of its participation in the cartel. JPS has argued that it first decided to end its participation in market coordination discussions in July 2004. Ad hoc contacts continued however and in October 2005, JPS attended the meeting in the Mitsui Guest House … In October 2006, at the Baveno A/R meeting …, JPS claims to have informed the other participants that it would not participate in any further meetings. According to one corporate statement, at a meeting with Nexans [France] in 2007, JPS would then have made clear that it would not participate in any further coordination with competitors. In another corporate statement, JPS claims that this meeting took place on 10 April 2008 … In its reply to [the statement of objections], JPS however argues that it ended its participation in July 2006, upon the establishment of the Nexans-Viscas joint venture.’
56      In recital 438 of the contested decision, the Commission stated the following:
‘Mr [J.] and Mr [R.] (Nexans [France]) visited JPS, Exsym and Viscas for a series of bilateral meetings in Tokyo on 9 and 10 April 2008. According to JPS, at the meeting between JPS and Nexans, Mr [S.] and Mr [Y] (JPS) told Mr [J.] and Mr [R.] to cease contacting JPS. JPS argues that it thereby ended its participation in the cartel …’
57      According to the Commission, in the context of their joint application for immunity, JPS and its parent companies themselves admitted to having ended their participation in the cartel on 10 April 2008. However, as the Commission states in recital 943 of the contested decision, and as is apparent from the file before the Court, in particular from point 253 of the joint response of JPS and its two parent companies to the statement of objections and from the applicants’ oral statement of 17 December 2009, which was filed in the context of their joint application for immunity, JPS and its parent companies maintained that JPS had withdrawn from the cartel two years earlier, in July 2006.
58      In that regard, it should be noted that the statements made by the applicants in their joint application for immunity were inconsistent and lacked clarity concerning JPS’s leaving the cartel. Moreover, as noted in paragraph 21 above, it is precisely that lack of clarity that weakened, in the Commission’s view, the value of the evidence adduced by the applicants in the context of their joint application for immunity and led to a reduction in the amount of the fine in an amount below that requested (a reduction of 45% rather than 50%, as requested).
59      The applicants’ oral statements corroborate the different dates referred to by the Commission in recitals 943 and 438 of the contested decision. [confidential](1)
60      The reasons which led the Commission to consider 10 April 2008 to be the date on which the applicants’ participation in the cartel ended are summarised in recital 944 of the contested decision as follows:
‘The available evidence, as presented in Section 3, demonstrates that JPS continued to participate in meetings and other contacts concerning the cartel until 10 April 2008 … According to JPS, those contacts did not concern the home territory arrangement or they relate only to ad hoc contacts concerning the allocation of projects in the export territories. It is clear however that JPS, through its continued participation in meetings and contacts until 10 April 2008 did not relieve itself of its liability through a complete and open dissociation from the whole cartel as required by the case-law. While the contacts between some of the parties may have taken a different shape from mid-2004 onwards, there is no evidence that JPS expressed a genuine will to dissociate itself from the cartel. Any change in its actions would appear to stem from an increase in measures to hide the most dangerous aspects of the cartel from discovery by the antitrust authorities. The fact that, according to JPS, the 2007 evidence relates to allocation of projects in the export territories is not sufficient to conclude that it had withdrawn from the cartel. By its nature, the home territory arrangement did not require continuous contacts and JPS has not pointed to any evidence that it communicated its withdrawal from this part of the single and continuous arrangement. Moreover, while JPS claims that it attempted to obtain projects in the EEA in 2007, it is clear that the other participants still assumed that JPS would respect the home territories agreement as can be seen from [recital 437].’
61      In that regard, it should be noted that, according to the case-law of the Court of Justice, a public distancing from the cartel is required in the case of participation of an undertaking in an anticompetitive meeting, in order to rebut the presumption that such a meeting is unlawful. By contrast, with regard to participation in an infringement that took place over several years rather than in individual anticompetitive meetings, the absence of public distancing is only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 20 to 23).
62      It must be noted that it is the understanding which the other members of a cartel have of the intention of the undertaking concerned which is of critical importance when assessing whether it sought to distance itself from the unlawful agreement (judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 62, and of 11 July 2014, Esso and Others v Commission, T‑540/08, EU:T:2014:630, paragraph 40).
63      It follows that, contrary to what the Commission maintains, in the present case, the mere fact that JPS did not distance itself publicly from the cartel until 10 April 2008 is not in itself sufficient to find that JPS participated in the cartel up to that date. It is therefore necessary to assess that fact in the light of other evidence adduced by the Commission in the contested decision, confirming the applicants’ participation in the cartel. That overall assessment is particularly necessary, in the present case, because it is common ground between the parties that the Commission has adduced no evidence of JPS’s participation in an anticompetitive meeting between September 2007 and 10 April 2008.
–       The evidence of JPS’s participation in the ‘home territory’ agreement after July 2006
64      The applicants claim that the evidence relied on in the contested decision concerning their participation in the cartel during the second half of 2006 and during 2007 relates only to their participation in the ‘export territories’ agreement. According to the applicants, only their participation in the ‘home territory’ agreement may be regarded as an infringement of Article 101 TFEU.
65      The applicants claim, inter alia, that the meetings invoked by the Commission in the contested decision, in which JPS participated, concerned projects in:
–        China, the Middle East and South America (projects discussed during the meeting in Baveno (Italy) of 6 October 2006 between JPS, Viscas, Prysmian and Nexans France) (see recital 410 and point 375 of Annex I to the contested decision);
–        the Middle East (discussions between Nexans France and the Japanese and South Korean suppliers on the fringe of the International Cablemakers Federation conference in Chicago (United States) between 18 and 22 October 2006) (see point 376 of Annex I to the contested decision);
–        Libya (meeting between Nexans France and JPS in May 2007 in Paris (France)) (recital 422 and point 390 of Annex I to the contested decision);
–        Qatar (meeting in Tokyo (Japan) from 27 to 28 June 2007 between Nexans France, JPS and Exysm) (recital 423 and point 394 of Annex I to the contested decision).
66      It follows from examination of the file that the Commission has established to the requisite legal standard that the applicants participated in the ‘home territory’ agreement up to 10 April 2008. In that context, the applicants’ participation in meetings concerning the allocation of projects located in the ‘export territories’ is not the only evidence relied on by the Commission, but one of the factors which it was able to take into account.
67      As regards JPS’s participation in the ‘home territory’ agreement after the joint venture of Nexans France and Viscas was established, the Commission stated, in recital 425 of the contested decision that on 10 or 11 June 2007, a representative of JPS, Mr S., met a representative of ABB. In the context of its application for immunity, ABB submitted that [confidential].
68      That oral statement made by ABB confirms that, in June 2007, JPS was still involved in the ‘home territory’ agreement.
69      The applicants do not dispute that the meeting in question took place, but maintain that they had a legitimate aim, namely to develop cooperation with ABB in order to reinforce JPS’s presence in Europe and to allow it to take part in calls for tender in the territory of the EEA, inter alia, in response to the creation of the joint venture between Nexans France and Viscas. The applicants also submit that that evidence cannot be regarded as sufficient for the purpose of establishing their participation in the ‘home territory’ agreement, in so far as it concerns a mere statement made in the context of an application for immunity submitted by ABB, which is not corroborated by any other factual evidence.
70      In that regard, it is apparent from the case-law that the statement of an undertaking which is accused of having participated in a cartel, a statement whose accuracy is contested by several of the other undertakings concerned, cannot be regarded as constituting sufficient evidence of the existence of an infringement committed by those undertakings if it is not supported by other evidence, but the ‘degree of corroboration required’ may be lower as a result of the reliability of the statements at issue (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 189).
71      Furthermore, it is apparent, more specifically, from the principle of the unfettered evaluation of evidence that the question whether, or to what extent, evidence may corroborate other evidence is not governed by specific rules, in particular in relation to the type or source of evidence capable of corroborating other evidence, but only by the criterion relating to the credibility of the evidence (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 190).
72      Finally, according to the case-law, seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction in the amount 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 his chances of benefiting fully under the Leniency Notice (see judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 50 and the case-law cited).
73      In the present case, the meeting in question involved only ABB and JPS. Accordingly, even if JPS is alone in contesting the accuracy of ABB’s statement on the nature of that meeting, that challenge by it weakens the value of ABB’s statement as evidence of JPS’s participation in the ‘home territory’ agreement. Thus, ABB’s statement must be supported by other evidence of JPS’s participation in that agreement.
74      The contested decision refers to such evidence.
75      First, in recital 428 and point 395 of Annex I to the contested decision, the Commission refers to an exchange of emails on 2 August 2007 between Mr J., of Nexans France, and Mr C., of Viscas, coordinator of the A members at the time. In that email exchange, Mr C. confirms that ‘no one had submitted an offer for a wind farm project in Germany’. That email must be understood as confirming that no Japanese undertaking, including JPS, had participated in that project, which, at least indirectly, constitutes evidence of the continuing commitment on the part of JPS to the ‘home territory’ agreement in August 2007 and supports ABB’s statement relating to its meeting with JPS in June 2007.
76      Second, it is apparent from recital 437 of the contested decision that, on 7 March 2008, the coordinator of the R members, Mr. J., of Nexans France, sent Mr I., of Viscas, the then coordinator of the A members, an email concerning JPS’s participation in a cable project for a wind farm in the United Kingdom, worded as follows:
‘We have noted with surprise A (JP) involvement through a company called Eclipse in a (UK) SM project Ormonde … Please clarify.’
77      First, it must be held that that email, assessed together with ABB’s statement referred to in paragraph 67 above and the exchanges between Nexans France and Viscas referred to in paragraph 75 above, confirms that JPS continued its commitment to the ‘home territory’ agreement after June 2006. It constitutes evidence that JPS decided to alter its conduct on the European market only when, without agreement with the other members of the cartel, it submitted a tender for the Ormonde project in December 2007.
78      Next, that email confirms the Commission’s argument that JPS’s participation in the agreements comprising the cartel continued until spring 2008, in so far as Mr J. expressed his surprise to see the appearance of an A member in the European territory. That surprise confirms that, at the time of that email, the ‘home territory’ agreement was still applicable and considered binding for all members of the cartel.
79      Furthermore, it follows from that email that, even by tendering for the Ormonde project in December 2007, JPS failed to withdraw openly, firmly, unequivocally and publicly from the ‘home territory’ agreement. Mr J. stated that JPS submitted a tender ‘through a company called Eclipse’. Admittedly, it has been clarified that Eclipse was the wind farm developer responsible for the call for tenders and that the tenderer was Mitsubishi Cable Industries. Nevertheless, that does not undermine the finding of JPS’s failure openly, firmly, unequivocally and publicly to withdraw.
80      Finally, the strong reaction of Mr J., to the presence of JPS in the context of the Ormonde project contrasts with the lack of any reaction on the part of the European members of the cartel to JPS’s participation in procurement procedures relating to two other wind farm projects in the United Kingdom, namely Thanet and Greater Gabbard, for which, according to the applicants’ statements, JPS submitted bid on 19 June and 31 August 2007 respectively. As regards the Greater Gabbard project, the applicants claim that JPS tried to bid for that project by creating a consortium with Prysmian, which rejected that proposal. Following that refusal, JPS submitted a bid independently. However, it is not apparent from the contested decision that JPS’s tender caused a reaction on the part of the other cartel members, whereas, as is clear from recital 435 and point 401 of Annex I to the contested decision, that project was the subject of discussions between Prysmian and Nexans France. As regards the Thanet project, allegedly won by a consortium made up of Prysmian and Siemens, the contested decision does not give details of the circumstances of its award and does not refer to any reaction on the part of the other cartel members.
81      The strong reaction of Mr J. to JPS’s participation in the procurement procedure relating to the Ormonde project, and the silence in respect of the Thanet and Greater Gabbard projects, permit the view to have been taken, with a sufficient degree of plausibility, that the fact that JPS submitted its bid for those two contracts was probably not unexpected for the other cartel members. Accordingly, Mr J.’s email, obtained by the Commission during the inspections at the premises of Nexans France, weakens the evidential value of the statements made by JPS and its parent companies in the context of their joint application for immunity, as attached to the application, and contradicts the applicants’ arguments based on those statements, to the effect that JPS’s participation in those three projects indicated a genuine desire on the part of JPS to distance itself from the ‘home territory’ agreement and to enter the EEA market.
82      Third, the evidence gathered by the Commission concerning JPS’s participation in the allocation of projects in the ‘export territories’, in particular, its participation in anticompetitive meetings with other members of the cartel, also corroborates the evidence relating to its participation in the ‘home territory’ agreement.
83      It follows from the contested decision that, from the start, the ‘home territory’ agreement and the ‘export territories’ agreement were discussed together as part of a single overall agreement. That link between the two agreements is confirmed by contemporaneous documents submitted by the applicants relating to discussions at the A/R meeting held in Zurich (Switzerland) on 18 February 1999, in the presence of representatives of Sumitomo and Hitachi, which, according to the Commission, marked the start of the infringement. Extensive evidence relied on by the Commission in the contested decision confirms that the discussions which took place at the A/R meetings concerning both the sharing of projects in the ‘export territories’ and the implementation of the ‘home territory’ agreement (see, inter alia, recitals 157 to 162, 173 to 175, 179, 185 or 193 of the contested decision concerning the meetings organised in 2001, recitals 198 to 200, 214, 221 or 228 of the same decision, concerning the meetings organised in 2002, recitals 245 to 247, 251 or 258 of that decision concerning the meetings organised in 2003 and recitals 301 and 303 of that decision concerning the meetings organised in 2004). The applicants do not dispute that fact, at least with regard to the period from February 1999 to the end of the first half of 2004. The evidence gathered by the Commission, which the applicants do not dispute, also shows that, even though the number of meetings fell in 2005 and the members of the cartel became more cautious after the discovery of the cartel in the gas-insulated switchgear (GIS) sector (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, concerning Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) around the end of the first half of 2004 (recitals 301 and 342 of the contested decision), the ‘home territory’ agreement continued to be applied (see, inter alia, the exchanges and communications between representatives of Nexans France, Pirelli, Exysm and LS Cable & System referred to in recitals 328 and 343 of the contested decision).
84      In the light of that evidence, the applicants’ argument that the meetings in which they participated in the second half of 2006 and in 2007 concerned only project sharing in the ‘export territories’ and can therefore confirm only their participation in that agreement is not plausible. On the one hand, it is unlikely that, after several years of collaboration, the European undertakings decided to continue to share the projects located in the ‘export territories’ with the Japanese undertakings, while accepting the risk that they would compete with them in their home territory. On the other hand, the less significant amount of evidence relating to the functioning of the ‘home territory’ agreement is explained by the fact that that agreement relies on a simple concept which may be implemented easily, without requiring continuous communication between the undertakings concerned (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 123). It may also be explained by the intention of the cartel members to hide the most dangerous aspects of their cartel and their fear of infringement proceedings, which grew from the time of the discovery of the GIS sector cartel around the end of the first half of 2004 (recital 301 of the contested decision).
85      More specifically as regards the meetings whose scope is contested by the applicants, in the contested decision, the Commission referred to six meetings between JPS and its competitors which were held during the period between the creation of the joint venture between Viscas and Nexans France in July 2006 and September 2007. Those meetings are as follows:
–        a meeting in Karlskrona (Sweden) between ABB and JPS, held on 15 September 2006 (point 373 of Annex I to the contested decision);
–        a meeting in Baveno (Italy) between JPS, Viscas, Prysmian and Nexans France, held on 6 October 2006 (recital 410 and point 375 of Annex I to the contested decision);
–        meetings on the fringe of the International Cablemakers Federation conference in Chicago (United States) between Nexans France, Prysmian, JPS and Viscas, held on 18 and 22 October 2006 (point 376 of Annex I to the contested decision);
–        a bilateral meeting in New York (United States) between Mr R. of Nexans France and Mr J. Y. of JPS, held on 12 December 2006 (point 379 of Annex I to the contested decision);
–        a bilateral meeting in Paris (France) between Mr J. of Nexans France and Mr S. of JPS, held in May 2007 (recital 422 and point 390 of Annex I to the contested decision);
–        a meeting in Tokyo (Japan), between Nexans France, JPS and Exsym, held on 27 or 28 June 2007 (point 394 of Annex I to the contested decision).
86      Even supposing that, as the applicants claim, the objective of the meeting in Karlskrona (Sweden) was not anticompetitive and concerned a legitimate planned collaboration between JPS and ABB, with the latter confirming this, and that the meeting in New York between Mr J., and Mr J. Y. was of a private nature, the fact remains that JPS continued to meet its competitors who were members of the ‘home territory’ agreement without distancing itself publicly and unequivocally from that agreement.
87      Furthermore, as regards the meeting between Nexans France, JPS and Exsym in Tokyo (Japan), held on 27 or 28 June 2007, it should be noted that, according to the applicants, that meeting concerned only the allocation of a project in Qatar and JPS’s representative initially refused to participate. However in point 394 of Annex I to the contested decision, the Commission states, relying on the evidence submitted by JPS and gathered during the inspections at the premises of Nexans France, that, in addition to the examination of a non-EEA project, the purpose of that meeting was to discuss and allocate several submarine cable projects, including the Greek project ‘Evia Attika’. Even though, according to the Commission’s description, Greece belonged to the ‘export territories’, it must be noted that the Commission thus gathered evidence confirming that that anticompetitive meeting, in which JPS participated, concerned a project located within the EEA. Moreover, as regards a Thai project, the evidence states ‘JPS to check’, which suggests that JPS’s participation in that meeting was not merely passive.
88      It follows from the foregoing that the evidence collected by the Commission confirms to the requisite legal standard that JPS participated in the ‘home territory’ agreement until 11 December 2007, when, without the agreement of its competitors, it decided to participate in the Ormonde project. However, given the fact that JPS did not bring its participation in that project to the attention of the other members of the cartel and that, in general, it did not take an unequivocal and definitive position with regard to its participation in the cartel at that time, the date on which it submitted its tender in the context of that project cannot be regarded as the date on which its participation in the cartel ended.
89      It follows that the Commission was entitled to accept, in accordance with the case-law cited in paragraph 52 above and without erring in law, that it was only when JPS had clearly enjoined the other participants in the cartel, in the present case Mr J. and Mr R., of Nexans France, to refrain from contacting it, which happened at the meeting held in Tokyo (Japan) on 10 April 2008, that it definitively put an end to its participation in the infringement of Article 101 TFEU.
–       The evidence put forward by the applicants for the purpose of claiming that they publicly distanced themselves from the cartel
90      The arguments put forward by the applicants concerning the absence of any communication between JPS and the other members of the cartel during the period from September 2007 to April 2008, and the evidence adduced which, according to the applicants, confirm that they distanced themselves publicly from the ‘home territory’ agreement, and the cartel as a whole, cannot undermine the finding set out in paragraph 89 above.
91      In that regard, first, the applicants claim that an exchange of emails between a representative of Exsym and Mr R., of Nexans France, dating from the start of December 2007, and the notes taken by Mr J., during an A/R meeting on 3 December 2007, confirm that, at that time, JPS was unwilling to discuss any illegal arrangements, thereby making the allocation of any project impossible.
92      Second, the applicants claim that JPS did not reply to the repeated requests addressed to it in September 2007 by Mr A., of Prysmian. They claim that the only answer they sent to those requests is dated 8 February 2008. On that day, in reply to an email from Mr J., of Nexans France concerning the subcontracting of a project located outside the EEA, containing a tender price proposal for a new project, Mr S., of JPS, wrote the following:
‘Dear Mr. [J.], I have found your mail possibly contains sensitive information I may not access without legitimate arrangement. JPS’ compliance program instructs employees to return mail of potential problem promptly, without going into … details. I appreciate it if you would understand the situation or double check it with your compliance department.’
93      As regards the admissibility of that email of 8 February 2008, it should be noted that, although, by its content, it constitutes significant exculpatory evidence, its existence is not addressed in the contested decision. Furthermore, although the applicants attached a copy of that email to their application, they submit, in footnote 103 that that document was ‘not in the Commission’s file’.
94      However, the fact that that document was not brought to the attention of the Commission during the administrative procedure, including in the context of the applicants’ joint application for immunity, cannot affect its admissibility as evidence in the proceedings before the Court.
95      As the Court of Justice has confirmed, when reviewing the legality of acts of the EU institutions, the General Court must carry out an in-depth review of Commission decisions under Article 101 TFEU, taking into account all the elements submitted by the applicants, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72).
96      As regards the context of that email of 8 February 2008, it must be noted that, in an email of 6 December 2007, addressed to Mr R. on the subject of the possible allocation of a non-EEA project, the representative of Exsym stated that ‘urgent/direct discussion with [Viscas was] required’, while acknowledging that he had ‘no idea about JP[S]’. A few days later, on 10 December 2007, in a further email to Mr R., he explained that he had spoken to JPS and that he had been ‘informed that they [had] no intention to discuss this case with others and [were] not willing to make any arrangement’. He went on to state the following:
‘Therefore, we are obliged to keep this case as open and free.’
97      According to the applicants, that exchange of emails, demonstrating JPS’s refusal to cooperate with its competitors is consistent with the notes of Mr J. of Nexans France relating to the A/R meeting of 3 December 2007, in which JPS did not take part; Mr J. stated in those notes that the situation was ‘for the time being still difficult with JPS’ (recital 434 of the contested decision). The applicants claim that those exchanges, viewed together with Mr S.’s email of 8 February 2008 and JPS’s participation in the Ormonde project in December 2007, confirm that it had already distanced itself from the cartel as from September 2007.
98      It is true that the evidence relied on by the applicants suggests that, towards the end of 2007 and at the start of 2008, JPS attempted to distance itself to a certain extent from the allocation of projects located in the ‘export territories’. Furthermore, it follows from the contested decision that, in refusing to contact its competitors, JPS invoked the competition law ‘compliance policy’ which was said to be applied within the undertaking.
99      However, those documents also show that the other participants in the cartel continued to contact JPS. The other participants therefore still believed that JPS was a member of the cartel and that decisions relating to projects located in the ‘export territories’ should be discussed with it. Furthermore, it follows from the examination of the applicants’ arguments in paragraphs 76 to 81 above, that, until 7 March 2008 at least, the other participants in the cartel thought that JPS was complying with the ‘home territory’ agreement.
100    According to the case-law referred to in paragraph 62 above, public distancing from a cartel must be assessed according to the objective perception of the other participants in the cartel and not according to the subjective perception of the undertaking which claims that it has distanced itself.
101    In that regard, it follows from the case file that, towards the end of 2007, the cartel was already disintegrating, in particular following the intention of JPS, a significant player on the Asian side, to withdraw. However, contrary to what the applicants claim, JPS’s attempts were not firm and unequivocal and, overall, rather show a hesitant approach on the part of JPS towards the cartel. Such an approach is characteristic of an undertaking which, while wishing not to lose the benefits of participating in an anticompetitive agreement, tries to avoid the risks associated with that participation.
102    Accordingly, it must be held that that the Commission correctly defined that approach as a failure on the part of JPS to distance itself publicly from the whole of the cartel, including from the ‘home territory’ agreement.
103    It should be noted that that lack of public distancing forms part of a body of evidence consisting of ABB’s statement relating to its meeting with JPS on 10 or 11 June 2007 (paragraph 67 above), the exchange of emails of 2 August 2007 between Mr J., of Nexans France, and Mr C., of Viscas (see paragraph 75 above), the email of 7 March 2008 from Mr J. of Nexans France to Mr I. of Viscas (see paragraph 76 above), and JPS’s continuing participation in meetings concerning the allocation of projects located in the ‘export territories’ (paragraphs 82 to 85 above). All that evidence, taken together, constitutes sufficient evidence of JPS’s continuous participation in the infringement of Article 101 TFEU until 10 April 2008, notwithstanding JPS’s tender for the Ormonde project of 11 December 2007 and Mr S.’s email of 8 February 2008.
104    It follows that the Commission was right to find, in Article 1(8)(a) and (c) of the contested decision that Sumitomo participated in an infringement of Article 101 TFEU during the period from 18 February 1999 to 10 April 2008 and that JPS, the joint venture that it created with Hitachi, participated in that infringement during the period from 1 October 2001 to 10 April 2008.
105    It follows from all the foregoing that the second plea in law must be rejected.
The third plea in law, alleging an error of assessment of the gravity of the infringement in the calculation of the amount of the fine
106    The third plea in law, alleging infringement of Article 23(3) of Regulation No 1/2003, is invoked in support of the third head of claim seeking, in the further alternative, annulment of Article 2(m) of the contested decision.
107    By that plea in law, the applicants submit that the case-law relating to the setting of fines requires the Commission to assess the gravity of the infringement on an individual basis and in the light of any variation in that gravity over time. The fact that an undertaking has played only a minor role in the aspects of the infringement in which it participated should be taken into account when assessing the gravity of the infringement and, as the case may be, when determining the amount of the fine. Moreover, pursuant to point 29 of the 2006 Guidelines on the method of setting fines, the Commission should take into account the substantially limited involvement of an undertaking in an infringement when assessing the gravity of the infringement for the purpose of setting the basic amount of the fine or, in the alternative, when adjusting the basic amount in accordance with mitigating or aggravating circumstances.
108    According to the applicants, the Commission, in the contested decision, refused to recognise JPS’s substantially limited participation in the infringement between July 2006 and April 2008 as a mitigating circumstance. During that period, JPS did not participate in any discussions or allocations within the framework of the ‘home territory’ agreement, had only sporadic, ad hoc contacts concerning projects located outside the EEA and did not contribute to any form of unlawful cooperation. The Commission confined itself to treating the applicants in the same manner as it treated Nexans France, Pirelli, Prysmian and Viscas for the sole reason that they had all belonged to the core group of participants in the cartel. Thus, ignoring the case-law, the Commission failed to assess the gravity of the infringement on an individual basis and in the light of any variations in that gravity over the years.
109    The Commission disputes the applicants’ arguments.
110    Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. As is apparent from the 2006 Guidelines on the method of setting fines, the Commission’s methodology when calculating fines consists of two stages. First, the Commission determines a basic amount for each undertaking or association of undertakings. That basic amount makes it possible to reflect the gravity of the infringement at issue, by taking into account, in accordance with point 22 of those guidelines, a number of factors specific to it, such as the nature of the infringement, the combined market shares of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. Second, the Commission may adjust that amount upwards or downwards in the light of aggravating or mitigating circumstances which characterise the participation of each of the undertakings concerned (see, to that effect, judgment of 25 October 2011, Aragonesas Industrias y Energía v Commission, T‑348/08, EU:T:2011:621, paragraphs 260 and 264 and the case-law cited).
111    Point 29 of the 2006 Guidelines on the method of setting fines provides for adjustment of the basic amount of the fine in accordance with certain mitigating circumstances. To that effect it sets out a non-exhaustive list of circumstances capable of leading, under certain conditions, to a reduction in that basic amount. In the absence of any binding indication in those guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraphs 548 and 549 and the case-law cited).
112    It follows from the third indent of point 29 of the 2006 Guidelines on the method of setting fines that the Commission may find that mitigating circumstances exist and reduce the basic amount of the fine ‘where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’ (judgment of 11 July 2013, Commission v Stichting Administratiekantoor Portielje, C‑440/11 P, EU:C:2013:514, paragraph 114). The same applies even if the burden of proof is on the Commission to establish, subject to review by the EU judicature, the degree of gravity of the conduct of the undertakings which it intends to sanction, taking into account all of the relevant circumstances (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 108).
113    However, the Commission is not required to recognise the existence of a mitigating circumstance consisting of the non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting its very functioning, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. In that context, the fact that an undertaking which has been proved to have participated in collusion on market-sharing with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed (see judgment of 17 December 2014, Pilkington Group and Others v Commission, T‑72/09, not published, EU:T:2014:1094, paragraph 391 and the case-law cited).
114    Moreover, although an exclusively passive role of an undertaking participating in the infringement was expressly cited as a potential mitigating circumstance in 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), it is no longer explicitly included among the mitigating circumstances which may be accepted under the 2006 Guidelines on the method of setting fines. That reflects a deliberate political choice no longer to ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy (judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 253).
115    An ‘exclusively passive or follow-my-leader’ position in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anticompetitive agreements. It is clear from case-law that the factors that may indicate that an undertaking has played a passive role in a cartel include the situation where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel and also that where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, having regard to all the relevant circumstances of the individual case (judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 254).
116    Finally, it should be noted that the fact that the members of a cartel have occasionally distanced themselves from the arrangements does not mean that they did not implement the collusive arrangements. An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (judgment of 14 May 1998, Cascades v Commission, T‑308/94, EU:T:1998:90, paragraph 230).
117    In the present case, first, it follows from the case file that the applicants played a significant role in the context of the cartel and that, for a long time, JPS served as coordinator of the A members. The applicants, while claiming that their participation in the cartel after July 2006 was reduced, do not dispute the Commission’s decision to categorise them among the members of the ‘core group’ of the cartel.
118    Next, it follows from the examination of the second plea in law put forward in support of the claim for annulment that, after the creation of the joint venture by Viscas and Nexans France in July 2006, the applicants continued to participate in the ‘home territory’ agreement in the same way as the other Japanese undertakings. During the period between July 2006 and September 2007, they also participated in six anticompetitive meetings with the other members of the cartel. Such participation in the cartel cannot be regarded as substantially limited.
119    Finally, as regards the last period of the applicants’ participation in the cartel, between September 2007 and April 2008, it must be noted that the Commission has not established the existence of any contact between JPS and the other members of the cartel. However, it must be borne in mind, in the context of a long-running cartel which did not require frequent contact, that that fact does not distinguish the infringement committed by the applicants from that committed by other undertakings concerned and demonstrates neither the alleged ‘exclusively passive’ nature of its role nor the alleged limited nature of their involvement.
120    Given the assessments made in paragraphs 64 to 105 above, in particular those relating to JPS’s tender for the Ormonde project in December 2007 (see paragraphs 76 to 81, 88 and 99 to 103 above), it must be held that the applicants have in no way demonstrated that their involvement in the infringement was substantially limited and that, accordingly, they had in fact withdrawn from the collusion in which they had participated, by adopting a competitive conduct on the market within the meaning of the third indent of point 29 of the 2006 Guidelines on the method of setting fines (see paragraphs 111 and 113 above).
121    It follows that, even if the applicants did not comply, in practice, with some decisions taken in the context of the cartel, their argument that they should have had the benefit of the mitigating circumstance referred to in the third indent of point 29 of the 2006 Guidelines on the method of setting fines cannot be accepted.
122    Consequently, it cannot be held that, by refusing to recognise that, during the period in question, the applicants substantially limited their involvement in the cartel, the Commission failed to assess, on an individual basis, the gravity of the infringement committed by them and, accordingly, infringed Article 23(3) of Regulation No 1/2003.
123    It follows that the third plea in law must be rejected.
The claim that the fine should be reduced
124    It must be noted that, by their third head of claim, the applicants ask the Court, inter alia, to reduce the amount of the fine imposed on them in view of their substantially limited involvement in the cartel during the period from 26 July 2006 to 10 April 2008.
125    It follows from the case-law that the review of legality is supplemented by the unlimited jurisdiction which the EU Courts were afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the amount of the fine or penalty payment imposed. It must, however, be pointed out that the exercise of unlimited jurisdiction is not equivalent to an own-motion review and that proceedings before the EU Courts are inter partes. With the exception of pleas involving matters of public policy which the Court is required to raise of its 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).
126    In the present case, first, it should be noted that, since no irregularity or illegality vitiates the contested decision, the claim for reduction in the amount of the fine submitted by the applicants cannot succeed in any event, in so far as they ask the Court to draw conclusions, with respect to the amount of the fine, from such illegalities or irregularities. Second, it should be noted that there is no evidence capable of justifying a reduction in the amount of the fine.
127    Accordingly, the claim that the fine should be reduced must be rejected.
128    It follows from all the above considerations that the action must be dismissed in its entirety.
Costs
129    Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
130    Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Commission, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Sumitomo Electric Industries Ltd and J-Power Systems Corp. to pay the costs.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
A.M. Collins
Registrar
President
Table of contents
Background to the dispute
The applicants and the sector concerned
The administrative procedure
The contested decision
The infringement at issue
The liability of the applicants and the fines imposed on the applicants
Procedure and forms of order sought
Law
Preliminary observations
The admissibility before the Court of certain oral statements made by the applicants, which the Commission relied upon
The scope of the dispute
The claim for annulment
The second plea in law, alleging errors of fact and law in determining the duration of JPS’s participation in the infringement
–
The requirements of the case-law concerning evidence
–
The Commission’s finding that JPS’s participation in the cartel ended on 10 April 2008
–
The evidence of JPS’s participation in the ‘home territory’ agreement after July 2006
–
The evidence put forward by the applicants for the purpose of claiming that they publicly distanced themselves from the cartel
The third plea in law, alleging an error of assessment of the gravity of the infringement in the calculation of the amount of the fine
The claim that the fine should be reduced
Costs
* Language of the case: English.
1      Confidential information omitted.