62007TJ0439_EN
Parties
Grounds
Operative part
Parties
In Case T-439/07,
Coats Holdings Ltd,
established in Uxbridge, Middlesex (United Kingdom), represented by W. Sibree, C. Jeffs, K. O’Connell, and J. Boyce, Solicitors, and D. Anderson QC,
applicant,
v
European Commission,
represented by F. Castillo de la Torre and K. Mojzesowicz, acting as Agents,
defendant,
APPLICATION for, primarily, annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicant and, in the alternative, annulment or reduction of the fine imposed on the applicant,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 7 July 2011,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicant, Coats Holdings Ltd (‘Coats’), is a leading manufacturer and supplier of industrial sewing and embroidery threads and the world’s second largest supplier of zip fasteners after the YKK group. It produces a full range of lightweight polyester, nylon, metal and moulded zips. In 1988 it acquired Opti, and since that acquisition, it has used the name of that company as a brand for zip fasteners. After 1988 the ‘zip fastener’ business of Coats was renamed Coats Opti.
2. The fastener manufacturing sector can be divided into two main categories: (i) zip fasteners; and (ii) ‘other fasteners’, consisting of different types of press buttons/snap buttons/press fasteners, clamp fasteners, hooks, eyelets, jeans buttons, rivets and accessories in metal and plastic for the leather and garments industries.
3. On 7 and 8 November 2001 the Commission of the European Communities (now the European Commission) carried out investigations pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] EC and [82] EC (OJ English Special Edition 1952-1962, p. 87) at the premises of several Community producers of hard haberdashery, other haberdashery and thread (including Entaco Ltd, Coats plc and William Prym GmbH & Co. KG), and also at the premises of the Fachverband Verbindungs- und Befestigungstechnik (‘VBT’).
4. On 26 November 2001 the Prym group and the Coats group, relying on the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), applied for leniency in relation to the zip fastener sector.
5. By letter of 22 February 2002 Coats supplied certain information to the Commission.
6. On 8 August 2003 Stocko (now YKK Stocko Fasteners), relying on the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’), applied for leniency in relation to ‘other fasteners’.
7. The Commission subsequently sent several requests for information under Article 11 of Regulation No 17 to a number of parties concerned.
8. On 16 September 2004 the Commission addressed a statement of objections (‘the statement of objections’) concerning ‘other fasteners’, attaching machines and zip fasteners to Prym Fashion, William Prym, Éclair Prym, Fiocchi Prym, Fiocchi Snaps France, YKK Stocko Fasteners, YKK Holding Europe, YKK Corp., Coats, A. Raymond, Berning & Söhne, Berning France, Scovill Fasteners Europe (formerly Unifast), Scovill Fasteners and VBT.
9. Those undertakings and the association in question had access to the Commission’s investigation file in the form of a CD-ROM copy, which was sent to them on 1 October 2004.
10. On 12 November 2004 the Prym group, relying on the 2002 Leniency Notice, submitted an application for immunity or, in the alternative, a reduction in the amount of the fines relating to ‘other fasteners’.
11. By fax of 18 November 2004 the Prym group submitted a supplement to its application. By e-mails of 3, 4 and 11 January 2005 respectively the Prym group sent further information to the Commission. By e-mail of 27 January 2005 the Prym group sent an additional application for leniency pursuant to the 2002 Leniency Notice.
12. On 18 February 2005 the YKK group, relying on the 2002 Leniency Notice, submitted an application for a reduction in the amount of the fines relating to ‘other fasteners’.
13. On 25 February 2005 the YKK group supplemented that application.
14. The evidence provided in support of the applications submitted by the Prym group and the YKK group pursuant to the 2002 Leniency Notice, enabled the Commission to send, on 7 March 2006, a supplementary statement of objections (‘the supplementary statement of objections’).
15. That supplementary statement of objections relating to ‘other fasteners’, attaching machines and zip fasteners was addressed to A. Raymond, Berning & Söhne and Berning France, Coats and Coats Deutschland, Éclair Prym, Prym Fashion, Fiocchi Prym, Scovill Fasteners Europe, Scovill Fasteners, William Prym, YKK Corp., YKK Holding Europe, YKK Stocko Fasteners, and VBT. The CD-ROM containing the Commission’s file was sent to the parties on 13 March 2006.
16. The supplementary statement of objections covered the same products as the statement of objections and, where necessary, corrected, refined, consolidated and widened the objections identified in that statement of objections. In the supplementary statement of objections the Commission did not systematically mention all the infringements defined in the statement of objections, notably when there had been no change in relation to those infringements following the applications made pursuant to the 2002 Leniency Notice.
17. A hearing took place on 11 July 2006.
18. After consulting the Advisory Committee on Restrictive Practices and Monopolies and in the light of the final report of the hearing officer, the Commission adopted on 19 September 2007 Decision C(2007) 4257 final relating to a proceeding pursuant to Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union
of 26 February 2009 (OJ 2009 C 47, p. 8).
19. Pursuant to Article 1(3) of the operative part of the contested decision, in respect of the cooperation between, first, YKK Holding and YKK Europe Ltd, second, Coats Holdings and Coats Deutschland and, third, Prym Fashion and Éclair Prym Group on the zip fasteners market (‘the tripartite cooperation between the YKK, Coats and Prym groups’), in particular the following undertakings were considered to have infringed Article 81 EC, for the periods indicated, by exchanging price information, by discussing prices and price increases between themselves, and by agreeing on a methodology to fix minimum prices for standard products on the European market:
– Coats Holdings, from 28 April 1998 to 12 November 1999;
– Coats Deutschland, from 28 April 1998 to 12 November 1999.
20. Pursuant to Article 1(4) of the contested decision, in respect of the bilateral cooperation between Coats Holdings and William Prym/Prym Fashion on the ‘other fasteners’ and zip fasteners markets (‘bilateral cooperation between the Coats and Prym groups’), the following undertaking was considered to have infringed Article 81 EC, for the periods indicated, by agreeing to share the haberdashery market with other undertakings by preventing the Coats Group from entering the European market for ‘other fasteners’:
– Coats Holdings, from 15 January 1977 to 15 July 1998.
21. On the basis of the findings of fact and the legal assessments made in the contested decision, the Commission imposed on the undertakings concerned fines calculated pursuant to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the [CS] Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’) and the 1996 and 2002 Leniency Notices.
22. The second indent of Article 2(3) of the contested decision provides for the imposition of the following fine for the tripartite cooperation between the YKK, Coats and Prym groups: Coats Holdings and Coats Deutschland, jointly and severally: EUR 12 155 000.
23. The second indent of Article 2(4) of the contested decision provides for the imposition of the following fine for the bilateral cooperation between the Coats and Prym groups: Coats Holdings: EUR 110 250 000.
24. In Article 4 of the contested decision, the undertakings listed in Article 1 are ordered to immediately bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.
25. By Decision C(2011) 2070 final of 31 March 2011, the Commission decided, after evaluating the impact of the fines on the financial situation of one of the companies concerned, other than the applicant, and after examining the claim made by that company that it was not in a position to pay the fine, to reduce in part the initial amount of the fine imposed on it.
Procedure and forms of order sought by the parties
26. By application lodged at the Court Registry on 4 December 2007, the applicant brought the present action.
27. Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.
28. In the context of measures of organisation of procedure adopted on 7 February 2011, the Court invited the Commission to produce certain documents. The Commission complied with that request within the specified time limit.
29. Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
30. By letter lodged at the Court Registry on 20 June 2011, the applicant made certain observations on the report for the hearing which had been sent to it on 14 April 2011, in relation to the importance of the case-law regarding the burden and standard of proof.
31. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 7 July 2011.
32. The applicant claims that the Court should:
– primarily, annul Article 1(4) and Article 2(4) of the contested decision in so far as they concern it;
– in the alternative, annul or reduce the fine imposed on it in Article 2(4) of the contested decision;
– order the Commission to pay the costs.
33. The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
34. In support of its action, which relates solely to the bilateral cooperation between the Coats and Prym groups, the applicant puts forward five pleas in law, alleging:
– first, breach of the Commission’s obligation (i) to adduce evidence of the infringement and (ii) to comply with the standard of proof necessary in that regard;
– second, infringement of Article 25(5) of Regulation No 1/2003;
– third, absence of proof of a single and continuous infringement;
– fourth, infringement of Article 6(3)(d) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’); and
– fifth, incorrect application of the Guidelines.
The first plea, alleging a breach of the Commission’s obligation (i) to adduce evidence of the infringement and (ii) to comply with the standard of proof necessary in that regard
Arguments of the parties
35. The applicant maintains, in substance, that the Commission’s examination of all the evidence is vitiated by manifest errors of assessment such that the Commission has not discharged its obligation to prove that the Coats group was part of a bilateral market-sharing with the Prym group lasting from January 1977 to July 1998. The Commission did not observe the principles set forth by this Court in the judgment of 12 September 2007 in Case T-36/05 Coats Holdings and Coats
v Commission, not published in the ECR, paragraph 71 (‘judgment in Coats ’), concerning the burden of proof, namely that the Commission was required to adduce evidence in support of its ‘firm conviction’ that there has been an infringement and to interpret doubt in favour of the defendant.
36. The Commission contests the applicant’s arguments.
Findings of the Court
37. In so far as the parties are at odds as regards the division of the burden of proof between them and, more generally, as to whether the rules applicable to proof of an infringement of Article 81 EC and of the applicant’s participation in such an infringement have been complied with or not, it is first necessary to set out the law applicable in this area.
38. It is apparent from Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), and the settled case-law regarding the application of Articles 81 EC and 82 EC, that, in the area of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C-185/95 P Baustahlgewebe
v Commission
[1998] ECR I-8417, paragraph 58; Joined Cases C-2/01 P and C-3/01 P BAI and Commission
v Bayer [2004] ECR I-23, paragraph 62; and Case T-201/04 Microsoft
v Commission
[2007] ECR II-3601, paragraph 688). In that regard, it must produce sufficiently precise and coherent proof to establish that the alleged infringement took place (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink
v Commission [1984] ECR 1679, paragraph 20; Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeytiö and Others
v Commission [1993] ECR I-1307, paragraph 127; and Joined Cases T-185/96, T-189/96 and T-190/96 Riviera Auto Service and Others v Commission [1999] ECR II-93, paragraph 47).
39. Where, in establishing an infringement of Articles 81 EC and 82 EC, the Commission relies on documentary evidence, the burden is on the undertakings concerned not merely to submit an alternative explanation for the facts found by the Commission, but to show that the evidence relied on in the contested decision is insufficient to establish the existence of an infringement (see, to that effect, Joined Cases T-25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others
v Commission
(known as ‘ Cement ’) [2000] ECR II-491, paragraphs 725 to 728, and Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others
v Commission
[2004] ECR II-2501, paragraph 187). It must be considered that, in a case such as the present one, where the Commission relies on direct evidence, the burden is on the undertakings concerned to show that the evidence adduced by the Commission is insufficient. Such a reversal of the burden of proof does not infringe the principle of the presumption of innocence (see, to that effect, Case C-235/92 P Montecatini
v Commission
[1999] ECR I-4539, paragraph 181).
40. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 180 and the case-law cited).
41. The items of evidence on which the Commission relies in the decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 185 and the case-law cited).
42. It is also necessary to take account of the fact that anti-competitive activities take place clandestinely, and accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others
v Commission [2004] ECR I-123, paragraphs 55 to 57).
43. Furthermore, the case-law shows that it is sufficient for the Commission to establish that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, in order to prove to the requisite legal standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking concerned to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C-199/92 P Hüls
v Commission [1999] ECR I-4287, paragraph 155; Case C-49/92 P Commission
v Anic Partecipazioni
[1999] ECR I-4125, paragraph 96; and Aalborg Portland and Others
v Commission, paragraph 42 above, paragraph 81).
44. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants reason to believe that it subscribed to what was decided there and would comply with it ( Aalborg Portland and Others
v Commission, paragraph 42 above, paragraph 82).
45. As regards the probative value which should be attached to the various pieces of evidence, it must be noted that the sole criterion relevant for evaluating freely adduced evidence is the reliability of that evidence (see Case T-44/00 Mannesmannröhren-Werke
v Commission
[2004] ECR II-2223, paragraph 84 and the case-law cited; Case T-50/00 Dalmine v Commission
[2004] ECR II-2395, paragraph 72, and JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 273). According to the generally applicable rules on evidence, the credibility and, therefore, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and the soundness and reliable nature of its contents ( Cement, paragraph 39 above, paragraph 1053; Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc
v Commission
[1991] ECR II-867, II-869, at II-956). In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events (Case T-157/94 Ensidesa
v Commission
[1999] ECR II-707, paragraph 312, and Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v Commission
[2003] ECR II-5761, paragraph 181) or by a direct witness of those events ( JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 207). Furthermore, it should be noted that the mere fact that the information has been provided by undertakings which sought to benefit from the 1996 or 2002 Leniency Notices does not call its probative value into question.
46. It is settled case-law that no provision or any general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, 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 Treaty ( JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 192 and the case-law cited).
47. Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. None the less, in view of the inherent logic of the procedure provided for in the 1996 and 2002 Leniency Notices, the fact of seeking to benefit from their application in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notices (see, to that effect, Case T-120/04 Peróxidos Orgánicos
v Commission [2006] ECR II-4441, paragraph 70, and the judgment of 8 July 2008 in Case T-54/03 Lafarge
v Commission, not published in the ECR, paragraph 58).
48. In particular, where a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence ( JFE Engineering and Others v Commission, paragraph 39 above, paragraphs 211 and 212; Joined Cases T-109/02, T-118/02, T-122/02, T-125/02 and T-126/02, T-128/02 and T-129/02, T-132/02 and T-136/02 Bolloré and Others
v Commission [2007] ECR II-947, paragraph 166; and Lafarge
v Commission, paragraph 47 above, paragraph 59).
49. None the less, statements made by the undertakings concerned in the context of an application for leniency pursuant to the 1996 or 2002 Leniency Notices must be assessed with caution and, in general, cannot be regarded as particularly reliable evidence if they have not been corroborated by other evidence.
50. According to settled case-law, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (Case T-38/02 Groupe Danone
v Commission
[2005] ECR II-4407, paragraph 285; Bolloré and Others
v Commission, paragraph 48 above, paragraph 167; and Lafarge
v Commission, paragraph 47 above, paragraph 293).
51. Finally, it should be noted that, in recital 215 of the contested decision, the Commission stated that the objective of the bilateral cooperation between the Coats and Prym groups was to share the haberdashery market by preventing the Coats Group from entering the European ‘other fasteners’ market.
52. The question whether, in the contested decision, the Commission relied on sufficiently credible, precise and conclusive evidence to establish, in the context of a global assessment and after examining the explanations or alternative justifications provided by the applicant, that the infringement found in Article 1(4) of the contested decision took place must be assessed in the light of the rules set out in paragraphs 38 to 50 above.
– The 1975 meeting (recital 217 of the contested decision)
53. The applicant submits that the Commission misinterpreted the minutes of the 1975 meeting between the applicant and William Prym, in considering that the meeting constituted a preparatory stage to market-sharing, whereas it is clear from the minutes of the meeting that the meeting focused exclusively on anodyne discussions concerning exclusive and joint distribution and commitments on the part of the distributor not to manufacture or distribute competing products. That interpretation is corroborated by a note of 27 October 1975 from Mr E.F. to Mr A.P. (senior) and Mr D.P. relating to a meeting between Mr F. and Mr B. on 17 October 1975.
54. It is apparent from the applicant’s argument that it does not dispute either the holding of the meeting nor having attended it. On the other hand, it does dispute the Commission’s interpretation of the minutes of that meeting.
55. Recital 217 of the contested decision states:
‘In 1975, [the] Coats and Prym [groups] agreed to cooperate in the area of sales and distribution for a large number of countries worldwide by acting as joint trading companies or exclusive distributors of each other’s products, according to their respective market strength in each country. The minutes of a meeting held in Stolberg [Germany] on 16/17 November 1975 outlines the framework for this cooperation between the two groups.’
56. A significant part of the minutes of the Stolberg meeting dealt with domestic trade: ‘Within the framework of these principles the following general lines of agreement emerged on which basis further detailed discussions at market level, will continue’. Point 2.5 of the minutes states the following in relation to Italy:
‘[The] Prym [group] will not introduce its zip fastener.’
57. The note of 27 October 1975, referred to above, reflects the content of a discussion with Coats which is reported to have taken place on 17 October 1975 in Glasgow (United Kingdom) and contains a point I, entitled ‘Marketing’, which states:
‘Exceptions to the rule, such as Italy, which we envisaged from the outset, must be considered in depth.’
58. The applicant states, in the footnote 2 of the application, that ‘Coats Italy acquired a stake in Lamprom, a privately owned Italian zip manufacturer and licensee of Opti [acquired by Coats in 1989], and acquired full control in 1975/6’.
59. It is apparent from all of the foregoing that the minutes refer not only to ‘anodyne discussions concerning exclusive and joint distribution and commitments on the part of the distributor not to manufacture or distribute competing products’, as the applicant claims, but also to the sharing of the Italian zip fastener market. In addition, the list of participants shows that the meeting was held between the upper-management of the two undertakings.
60. Moreover, it should be noted that the Commission did not determine the meeting of 16 and 17 November 1975 to be the start date of the infringement, but relied on that document, which predates the date on which the Commission determined the infringement to have begun, namely 15 January 1977, so as to better examine the evidence relating to the period of infringement. There was nothing to prevent the Commission from taking account of the steps preparatory to the setting-up stricto sensu
of the cartel, in order to establish the economic situation which preceded it and explained the setting-up of the cartel, or in order to establish and evaluate the respective roles played by the members of the cartel in conceiving, setting up and implementing it. In the same way, moreover, the Commission may take account of the stage subsequent to the infringement period stricto sensu, in order to evaluate, under the Leniency Notice or on account of any attenuating circumstances, the actual cooperation of the undertakings in reporting their cartel (Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others
v Commission
[2004] ECR II-1181, ‘ Tokai I ’, paragraph 304).
61. Furthermore, the document of 15 January 1977, which will be examined below, states:
‘The general principles governing the [bilateral cooperation between the Coats and Prym groups] are as stated in the Stolberg [Minutes] of 16/17 November 1975, amplified as follows …’
– The document of 15 January 1977 (recitals 218 to 222 of the contested decision)
62. The applicant claims that the Commission ignored the fact that the document of 15 January 1977, on which it relied in the contested decision, is not signed and is incomplete, and that there is no indication of who at Coats or at William Prym drafted it or gave their oral assent to it, since there is no evidence of written assent. All those elements are useful indicia for the purpose of evaluating the probative value of documents of that type. In the applicant’s view, it follows implicitly from the concept of complete cooperation and explicitly from the 2002 Leniency Notice that the Commission ought to have requested William Prym to submit evidence from former employees in order to be able to claim leniency.
63. It is apparent from those arguments that the applicant does not dispute the existence of the document of 15 January 1977. It does, however, dispute the Commission’s interpretation thereof.
64. Recitals 218 and 219 of the contested decision read as follows:
‘(218) Working on the basis of this framework for cooperation, Coats and William Prym entered into a general market sharing agreement for the haberdashery sector, as is clear from the written agreement dated 15 January 1977 (hereafter “1977 Agreement”), according to which Coats undertook “not to engage, either directly or by association, in the manufacture of hard haberdashery ... or the distribution of competitive hard haberdashery in Europe without the prior consent of [William] Prym”. On the other hand, [William] Prym undertook “not to engage, either directly or by association, in the manufacture of sewing or handicraft threads etc ... or in the distribution of competitive sewing and handicraft threads etc in Europe without the prior consent of Coats”.
(219) A clause in the 1977 Agreement stated that the commitments expressed therein, even though being legally not enforceable, “reflect the spirit of the Coats-[William] Prym agreement and as such constitute a moral obligation binding upon both parties”.’
65. The document of 15 January 1977 reads as follows:
‘The general principles governing the [bilateral cooperation between the Coats and Prym groups] Prym are as stated in the Stolberg [Minutes] of 16/17 November 1975, amplified as follows:
With the exception of existing situations (listed in Schedule a) Coats undertakes:
(1) Not to engage, either directly or by association, in the manufacture of hard haberdashery (listed in Schedule b — based on Italian contract excluding machine needles) or the distribution of competitive hard haberdashery in Europe without the prior consent of [William] Prym;
(2) In the rest of the world, not to engage, either directly or by association, in the manufacture of hard haberdashery without prior consent of Prym or the distribution of competitive hard haberdashery without prior consultation with [William] Prym.
[William] Prym undertakes:
(1) Not to engage, either directly or by association, in the manufacture of sewing and handicraft threads etc. (listed in Schedule c) or in the distribution of competitive sewing and handicraft threads etc in Europe without the prior consent of Coats;
(2) In the rest of the world, not to engage, either directly or by association, in the manufacture of sewing and handicraft threads etc without prior consent of Coats or in the distribution of competitive sewing and handicraft threads etc without prior consultation with Coats.
It is recognised that these commitments are not legally enforceable but nonetheless they reflect the spirit of the Coats-[William] Prym agreement and as such constitute a moral obligation binding upon both parties.’
66. That document itself refers to the Stolberg meeting held on 16 and 17 November 1975 and, more specifically, it is apparent that it aims to supplement the general principles which were discussed at that meeting. That document reflects the details of the commercial cooperation between the two undertakings.
67. As regards the applicant’s complaint regarding the lack of probative value of the document of 15 January 1977, it must be found that the reliability of that document is not necessarily reduced by the fact that it has not been signed. First, the fact that that document is unsigned is quite normal since it is a note relating to a meeting the anti-competitive object of which was a reason for its author to leave the least trace possible (see, to that effect, Case T-11/89 Shell
v Commission
[1992] ECR II-757, paragraph 86). Second, it can be assumed from the date on that document (15 January 1977) that it was drawn up at the time of the facts (see, to that effect, Bolloré and Others
v Commission, paragraph 48 above, paragraph 173). Third, in so far as a document contains specific information corresponding to that contained in other documents, it must be held that those items of evidence reinforce each other (see, to that effect, JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 275). Fourth, as the Court noted, inter alia, in Joined Cases T-305/94, T-306/94, T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others
v Commission [1999] ECR II-931, paragraph 715), in order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.
68. It should be noted, in that regard, that the application made by the Prym group pursuant to the 2002 Leniency Notice includes the following passage, cited in recital 220 of the contested decision:
‘By an agreement dated 15 January 1977, which is still in force today, Coats and [William] Prym shared out the haberdashery market. Neither party may become active in the other party’s market segment without the latter’s consent. Coats was and still is responsible for the soft haberdashery market segment (sewing thread, embroidery cotton, wool); [William] Prym was and is responsible for the hard haberdashery segment (needles and press studs).
Under the 1976/1977 framework agreement, Coats and [William] Prym decided to merge their complementary product ranges of sewing thread, embroidery cotton and wool (soft haberdashery) and zip fasteners, press studs and needles (hard haberdashery) for marketing purposes. The idea behind this was that sewing thread requires a needle and that these two products should be marketed jointly through a single sales channel. The framework agreement was designed to ensure that each firm grew stronger in its respective core business area, and in particular could expand by internationalising its market position, and at the same time that marketing synergies could be achieved by eliminating duplication. Under the agreement, each firm undertook not to invest in the other party’s area without the latter’s consent.
At the same time, it was agreed that Coats would acquire a 24.9% stake in [William] Prym, combined with the stipulation that Coats would have the right to appoint a director on its executive board and two members on its advisory board. Coats exercised both rights up until 1994.’
69. The circular of 20 January 1977 of Coats Patons (‘the 1977 circular’) confirms that Coats acquired 24.9% of the share capital of William Prym, and the appointment of a member of its board of directors (Mr J.G.) and two members of supervisory council (Mr B. and Mr W.H.).
70. The statements of Mr A.P. support, supplement and confirm the content of the agreement of 15 January 1977 (‘the 1977 agreement’). So far as concerns the probative value of those statements, which is disputed by the applicant, it should be noted that, although some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, since they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact remains that the applicant’s argument is not in line with the inherent logic of the procedure provided for in the 1996 and 2002 Leniency Notices. The fact of seeking to benefit from them in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel under investigation. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the applicant undertaking, and thereby jeopardise its chances of benefiting fully under the relevant leniency notices (see paragraphs 47 and 48 above). Moreover, it is apparent from recital 246 of the contested decision that, as regards the applications for leniency made by the Prym group pursuant to the 1996 and 2002 Leniency Notices, the Commission exercised some caution, since it sought to corroborate that statement by other evidence. Thus, contrary to what the Prym group stated in its applications, the Commission did not find the infringement to have ended in 2004, but as of the meeting of 15 July 1998.
71. None the less, point 5 of the affidavit of Mr M.F., dated 11 May 2006, states the following under the heading ‘The 1977 Agreement and relations between Coats and [William] Prym from the 1970 to 1990’:
‘5 Although I had never seen the 1977 Agreement prior to the [supplementary statement of objections], I can understand why Coats and [William] Prym might have entered into such an understanding in 1977. In January 1977 Coats had purchased a 24.9% shareholding in [William] Prym and an agreement would have been consistent with what I would describe as the ‘grand plan’ of [Mr B.] and [Mr E.F.], who were at the time Managing Director of J & P Coats Ltd (the thread business of Coats Patons PLC) and [William] Prym’s Geschäftsführer, respectively. Based on their meeting in 1975, the acquisition of Coats’ stake in [William] Prym and the joint ventures set up in the 1970s and 1980s I would say that [Mr B.] and [Mr E.F.] had, starting in the mid-1970s, envisaged a very close cooperation between Coats and [William] Prym in combined marketing and distribution. I do not think, however, that they would have intended to carve up markets between the two companies by agreement. A move by Coats in the 1970s into hard haberdashery (other than by buying [William] Prym), or by [William] Prym into thread, would have been highly improbable. There would, therefore, have been no value in a commitment from Coats not to enter into hard haberdashery, on the one hand, nor in a commitment from [William] Prym not to enter into thread production, on the other.’
72. It follows that Mr M.F. recognises that, even if he was not aware of such an agreement, he was perfectly able to understand the reasons why the two undertakings would have reached such an agreement (following the acquisition by Coats of 24.9% of William Prym’s share capital). By contrast, according to M.F., they did not intend to divide up the markets concerned between them.
73. In that regard, it should be noted that the Commission confirmed, in recital 223 of the contested decision, that it had other evidence confirming the content of the document sent by the Prym group, namely the extract from the speech of Mr D.P. of 9 November 1988 (see paragraphs 87 to 89 below), the note prepared by Mr A., dated 12 December 1991 (see paragraphs 90 to 94 below), and the minutes of the meeting with Coats Patons of 11 February 1993 (see paragraphs 95 to 100 below). That evidence will be examined below.
74. As regards the applicant’s statement that it can be inferred from the notion of full cooperation and is explicit from the 2002 Leniency Notice that the Commission should have requested William Prym to furnish evidence from former employees in order to be able to benefit from that notice, it must be found that the notice in no way required William Prym to provide statements from former employees to be able to benefit from a reduction of the fine imposed. Consequently, that complaint cannot be upheld.
– The letter of 12 April 1977 (recital 224 of the contested decision)
75. In the applicant’s submission, the Commission misinterpreted a letter of 12 April 1977 from Mr S. (Coats’ marketing director) to Needles Industries Ltd (‘NIL’) as referring to a market-sharing cartel, when on a proper reading it relates to exclusive distribution agreements in Europe and to Coats’ acquisition of a strategic shareholding in William Prym. That letter ought to be read in the context of the various distribution initiatives launched at the meeting of 16 and 17 November 1975. Those initiatives are referred to in a draft circular letter to senior managers dated January 1976.
76. Recital 224 of the contested decision reads as follows:
‘As early as April 1977, Coats made a clear reference in a letter to NIL, dated 10 April 1977, to a Coats-[William] Prym Agreement and a NIL-[William] Prym marketing Committee which ensured “that transactions were conducted within the spirit as well as the letter of the Coats-[William] Prym Agreement”. It is further stated that the “basic principle you [(NIL)] should bear in mind is that Prym [was] to be regarded as [a partner] and not as friendly rival ... In the event of any significant disagreement or any uncertainty as to the application of the Coats-[William] Prym Agreement to specific markets or to specific problems, [NIL] should always consult the appropriate Market Manager in Glasgow [Coats].’
77. It should be noted, at the outset, that the letter is actually dated 12 April 1977.
78. The applicant refers to a letter of January 1976 and the circular of 1977 to show that the evidence in the Commission’s file also shows that there was lawful cooperation, and does so to deny the value of the other evidence showing unlawful cooperation.
79. However, the letter of January 1976 shows, in addition to the existence of lawful cooperation, the need to respect, in principle, market positions at that time on the markets on which there was already competition with NIL. It contains the following passage in that regard:
‘In markets where competition with NIL already exists, it has been agreed in principle that current market positions will be respected. In the case of fasteners, [William] Prym [is] in competition with Opti/LF in only a few European markets and discussions are taking place with Opti/LF in order to demonstrate that an association with [William] Prym is not incompatible with our present global arrangements.’
80. Moreover, as regards the letter of 12 April 1977, the applicant does not state why Mr S. was prevented from ‘referring openly, [in a letter to NIL], to a … market-sharing agreement’.
– The Hugenpoet agreement (recitals 225 and 226 of the contested decision)
81. The applicant maintains that the Commission has adduced no evidence to corroborate the existence of the ‘Hugenpoet agreement’, apart from Mr A.P.’s statement, and that it failed to take account of the evidence against the existence of such an agreement, for example, the fact that William Prym pursued its business as a manufacturer of zip fasteners. The only action put forward by the Commission to support the existence of the Hugenpoet agreement is the fact that Prym outsourced its raw chain supply to Opti. However, the applicant asserts that Prym had continued to manufacture zip fasteners, and the outsourcing was done for cost reasons and not as part of a withdrawal from the zip fastener sector (see, in that regard, its response to the additional statement of objections).
82. The applicant considers that the annulment of the Commission’s finding is of considerable importance in the light of the gravity and duration of any alleged infringement. It follows that, even on the most favourable view of the case for the Commission, there is a period of 11½ years (from Coats’ letter to NIL of 12 April 1977 to William Prym’s Beirat (supervisory council) of 9 November 1988) in relation to which there is no evidence that the alleged infringement continued.
83. Recitals 225 and 226 of the contested decision state the following:
‘(225) According to [William] Prym, in the early 1980s, [itself], Coats and Opti, an independent hard haberdashery manufacturer until 1988, met within the frame of what was called the Hugenpoet agreement. [William] Prym writes: “This meant that each firm in the triumvirate was prohibited from producing and marketing the products which the other two produced and marketed. As a result, Opti sold [William] Prym its hard haberdashery marketing and packaging business in Holland ... A further result was that [William] Prym indicated its readiness to withdraw in turn from the zip fastener market. As a first step it stopped its bulk production of zip fasteners in the early 1980s and then for many years obtained supplies from Opti under a supply agreement”. [The] Prym Group (through what [William] Prym calls the “zip fastener chain supply agreement”) withdrew from the production of the main component of zip fasteners as of the early 1980’s and became a minor actor in this business until 1 July 1998 (mainly active in Germany), when Prym Fashion acquired 50% of the zip business of Bonduel Sarl and merged it with Prym Fashion’s limited zip business into a joint venture called Bonduel-Prym. Bonduel-Prym was renamed Eclair Prym after it was fully acquired by Prym Fashion in 2001.
(226) According to Coats, [William] Prym’s allegations concerning the Hugenpoet agreement are vague and inconsistent. [William] Prym acknowledges that no written record of the Hugenpoet agreement exists. However, Coats does not challenge the fact that [William] Prym did withdraw from the zip chain manufacturing business, which, according to [William] Prym’s submission, was done following the … Hugenpoet agreement and was the first step towards its commitment to withdraw from the zip manufacturing area. In any event, the Commission acknowledges that the existence of the Hugenpoet agreement is not supported by any written evidence. The Commission, however, considers that this event, as described by [William] Prym, demonstrates how the situation on the haberdashery market was changing and how Coats and [William] Prym were adapting their arrangement of market sharing to these developments. Parallel to the general market sharing for the haberdashery market, zip fasteners were the only area of overlap (in addition to needles). However, none of the undertakings were major players on the same geographical markets. [The] Prym Group was producing and distributing zips mostly in Germany and Austria and only small volumes in the neighbouring markets. Whereas in Austria, Coats was distributing zips together with Prym, in Germany it neither produced nor distributed zips before its acquisition of Opti.’
84. It is apparent from recital 226 of the contested decision that the Commission recognised that the statement in the Prym group’s applications to benefit from the 1996 and 2002 Leniency Notices, regarding the existence of the Hugenpoet agreement, is not corroborated by any written evidence. However, the Hugenpoet agreement shows, in the Commission’s view, the development of the situation on the market and the relationship between the undertakings concerned. At the time of the 1977 agreement, their priority was to separate their main markets, assigning hard haberdashery items to William Prym and thread to Coats, whereas the zip fastener sector constituted one of the two areas where their activities overlapped.
85. The applicant’s argument that William Prym continued to manufacture zip fasteners and that the outsourcing of its raw chain supply was done for cost reasons and not as part of a withdrawal from the zip fastener sector could be corroborated, in part, by the supply contract concluded between Opti and William Prym, which expired on 31 March 1999. By contrast, with the exception of the applicant’s assertion as to the continuation of William Prym’s manufacturing of zip fasteners, the file does not contain any evidence supporting the claim that William Prym continued with that activity.
86. So far as concerns the probative value of the statements of the Prym group, the Commission itself admits that the latter cannot be used as sufficient evidence of the agreement to share markets concluded in the 1970s. However, it submits that, even if account is not taken of the Hugenpoet agreement, the existence of the agreement to share markets dating back to the 1970s cannot be denied. It adds that the existence of the Hugenpoet agreement is also plausible in light of the Prym group’s criticism of the acquisition of Opti. Even if the existence of an agreement had not been corroborated by evidence dating from the time of the infringement, the Prym group’s statement in that regard refers to a period (the 1980s) in relation to which the Commission regards itself as holding enough evidence to prove the infringement. Moreover, the Commission argues, given that the Prym group’s statement proved to be reliable in other regards and that it went against its own interests, there is also no reason to doubt its credibility in relation to the existence of that agreement.
– The Beirat meeting of 9 November 1988 (recitals 227 to 230 of the contested decision)
87. The applicant claims, in substance, that the Commission misinterpreted the minutes of William Prym’s Beirat of 9 November 1988 as a reference to the 1977 agreement. In the applicant’s view, it was more probably a reference to a report commissioned by William Prym (see recitals 227 and 230 of the contested decision). No credible evidence of the existence of the Hugenpoet agreement has been produced. Consequently, there is a gap of more than 11 years in the alleged continued application of the 1977 agreement.
88. The speech at issue here was delivered by Mr D.P. on 9 November 1988 to William Prym’s Beirat, shortly after Coats’ acquisition of the zip fastener manufacturer, Opti.
89. It is in fact evident from that speech that Mr D.P. accused Mr B., CEO of Coats and a member of William Prym’s Beirat, of having failed to respect Coats’ obligations towards William Prym by purchasing Opti without consulting it, contrary to the in terests of William Prym that had been set out in writing.
– William Prym’s memorandum of 12 December 1991 (recital 231 of the contested decision)
90. The applicant claims, in substance, that the Commission failed to take account of William Prym’s memorandum of 12 December 1991, which suggests that the content of the 1977 agreement could be known only to two persons and that, following the respective death and retirement of those persons (Mr B. and Mr E.F.), the agreement was not sent to William Prym’s general management. The applicant asserts that the reference in that note to an agreement concluded in 1975 corresponds in reality to the meeting in Stolberg held on 16 and 17 November 1975. The applicant notes that the Commission made the same incorrect interpretation of a legitimate commitment not to compete in the case which gave rise to the adoption of Commission Decision C(2004) 4221 final of 26 October 2004 relating to a proceeding under Article 81 [EC] (Case COMP/F-1/38.338 — PO/Needles). In that case, Coats was protected both as the exclusive purchaser from Entaco by an obligation placed on Entaco not to compete in Coats’ main sales territories. The Commission considered that this amounted to market-sharing, but in Coats, paragraph 35 above, the Court annulled that finding and held that there had been legitimate protection. The applicant refers, in particular, to paragraph 150 of that judgment.
91. Recital 231 of the contested decision states the following:
‘Coats quotes the memorandum of 12 December 1991 contained in the Commission file. It suggests that the [memorandum] was probably prepared by Mr A. of [William] Prym as the initials “vA” can be found on the top of the memo. The first paragraph of the document explicitly refers to the negotiations of 1975 for the distribution agreement and sharing of areas between [William] Prym and Coats. The negotiation leaders were Mr B. (Coats) and Mr E.F. ([William] Prym). Coats cites this document to support its argument that the text of the 1977 agreement, even if it was concluded, was made available only to the negotiators, namely Mr B. and Mr E.F. This evidence clearly indicates the existence of a market sharing agreement, which established the partitioning of markets between [William] Prym and Coats. By bringing this evidence to [the] Commission’s attention, Coats contradicts its previous arguments that such [an] agreement did not exist. Furthermore, the fact that its text was accessible only to Mr B. and Mr E.F. in 1991 does not necessarily mean that their successors were unaware of its existence. The memorandum of 12 December 1991 clearly refers to the market sharing agreement, [the] existence of which was not confidential. Therefore, more persons were aware of the existence of such agreement already in 1991. In any event, documents discussed in recitals (232) to (234), (237), (239), (240) and (242) prove that the relationship between [William] Prym and Coats continued to evolve around market sharing even after Mr B. and Mr E.F.’s departure from the management of the two companies’.
92. It is clear from the memorandum of 12 December 1991 that an agreement to share markets was entered into in 1975 following the negotiations led by Mr B. and Mr E.F., as a condition of close cooperation. Moreover, according to the author of that memorandum, the result of those negotiations was noted in a confidential document, which was accessible only to the negotiators themselves. Finally, in the second paragraph of that memorandum, Mr A. states that, in his view, the main element of the agreement was a statement whereby William Prym committed itself not to become commercially active directly or indirectly in the area of hand sewing and embroidery thread, whereas Coats committed itself, beyond the already tolerated exception regarding NIL and Linhas Corrente Ltda Brasil, not to develop directly or indirectly any commercial activity in the area of hard haberdashery.
93. Consequently, the applicant’s argument that the content of the 1977 agreement could have been known only by two persons and, following, the respective death and retirement of Mr B. and Mr E.F., it had not been sent to William Prym’s general management, cannot be upheld, since it is established that, on 12 December 1991, at the very least, the author of the memorandum knew of the existence and the content of such an agreement.
94. As regards the applicant’s argument that the memorandum refers to the agreement concluded in 1975, which corresponded, in reality, to the meeting held in Stolberg on 16 and 17 November 1975, it is sufficient to note that the fact that the agreement could have been concluded orally in 1975 and confirmed in the minutes of that meeting does not preclude a paper version of that agreement from having been drawn up in 1977 (see also paragraph 67 above).
– The meeting of 11 February 1993 (recital 232 of the contested decision)
95. The applicant maintains that the Commission was wrong to take the view that a statement made by Mr J.G., representing William Prym, dated 11 February 1993, referred to a market-sharing agreement, when the Court had held that that statement did not implicate Coats and the Commission had not demonstrated ‘the anti-competitive nature of the meeting’, still less that the statement referred to the 1977 agreement ( Coats, paragraph 35 above, paragraph 91).
96. The Commission pointed out, at the hearing, that, in paragraph 91 of Coats, paragraph 35 above, the Court examined the meeting at issue in isolation, since at the time it was not privy to a range of information like the Court is today, which led the Court, in that judgment, to consider that the meeting did not have an anti-competitive object.
97. It is apparent from the applicant’s argument that it is not disputing either the holding of the meeting or its presence at the meeting. On the other hand, it submits that the Commission has not shown, to the requisite legal standard, the anti-competitive nature of that meeting, and it disputes the Commission’s interpretation of Mr J.G.’s statement.
98. As regards the first assertion, it should be noted that it is apparent from point 11 of the minutes of the meeting of 11 February 1993 that Mr J.G. alluded to the background of the relationship between Coats and William Prym, the latter being regarded as responsible for hard haberdashery. According to him, Coats was morally required to resolve the situation regarding NIL in place at that time, so that the original intention of Coats’ controlling the manufacture of soft haberdashery and Prym being the supplier of hard haberdashery could finally be achieved.
99. So far as concerns paragraph 91 of Coats, paragraph 35 above, it should be noted that the Court examined there the agreements in the needle sector, concluded between William Prym and Entaco, of which Coats was not a direct signatory. Entaco and William Prym had signed a framework agreement, which came into force on 10 September 1994. That agreement was entered into by the parties with a view to acquiring NIL’s finishing and packaging business (formerly held by Coats Holdings) and took effect on the date of that acquisition. The Court concluded, in that case, that the anti-competitive nature of the meeting of 11 February 1993 had not been established beyond doubt, in particular, because the words ‘there was a moral obligation on Coats to tidy up the present [NIL] situation’ were relatively ambiguous in the context of the sale of a business and were not necessarily a reference to market sharing, in so far as they could equally mean that Coats was required to accept William Prym’s earlier offer instead of selling NIL to Entaco. The Court also stated that the rest of the minutes had no relevance.
100. So far as concerns the second assertion, it should be noted that it is apparent from the statement of Mr J.G., noted in the minutes of the meeting at issue, read in conjunction with the provisions of the 1977 agreement (see paragraph 65 above), that that agreement continued to impose on each party the obligation not to establish themselves on the other’s markets. That is also the reason why the Commission referred to that note (see recital 232 of the contested decision).
– The sale of Coats’ shareholding in William Prym (recitals 233 to 236 of the contested decision)
101. The applicant claims, in substance, that the Commission did not take account of the fact that the 1995 Cooperation Agreement and the September 1997 Umbrella Agreement (‘the 1997 Umbrella Agreement’) marked a distinct change in relations between Coats and Prym and that they would have been redundant if the 1977 agreement had prevailed.
102. In the first place, the applicant maintains that the commercial relations between Coats and William Prym had changed fundamentally since Coats sold its shareholding in William Prym at the end of 1994. In the second place, as regards the 11 June 1996 meeting (see recital 233 of the contested decision), it submits that it concerned only cooperation on distribution. It refers, in particular, to the corollary of the designation as exclusive distributor, namely an obligation not to manufacture or distribute competing products. In the third place, as regards the Commission’s theory, developed in recitals 234 and 236 of the contested decision, that the 1997 Umbrella Agreement confirms that ‘Coats and [William] Prym were still acting in a spirit of sharing markets with non-compete strategies’, the applicant maintains that the Commission has failed to adduce the slightest evidence of a causal link between the Umbrella Agreement and the 1977 agreement. The applicant concludes that what might have existed in the past was superseded by a limited arrangement for cooperation in distribution on markets aimed at individuals.
103. Recital 233 of the contested decision states:
‘In December 1994 Coats sold its stake in William Prym to the Prym family, which took effect as of 31 December 1994. According to [the applications made by the Prym group pursuant to the 1996 and 2002 Leniency Notices], in February 1995 the co-operation between Coats and [William] Prym in the European market was placed on a regular footing, and both parties agreed that its continuation would be of interest for both parties. [The] Prym Group, however, did not submit more information as to exactly how this was done. [William] Prym and Coats met on 11 June 1996 in Stolberg … where Mr D.[G.] of Coats stated:
“Coats Craft distribution strategy in Europe is to cooperate wherever possible with leading suppliers of branded products such as [William] Prym and not to introduce own brands. If a partnership arrangement is implemented then Coats would withdraw existing own brands.”’
104. The Commission refers to recital 234 of the contested decision to show that, after 1995, following Coats’ sale of its stake in William Prym, the two undertakings were still acting in a spirit of sharing markets with non-compete strategies. This, it states, is confirmed by the Prym group.
105. Point 9 of the Prym group’s application for leniency pursuant to the 2002 Leniency Notice states:
‘[William] Prym wished to ensure by means of this agreement that the marketing of Prym products through Coats’ marketing channels remained secure. The Umbrella Agreement regulates cooperation in both the industrial and the commercial sector. Coats, for its part, was interested in marketing further products through its costly marketing apparatus. It was particularly interested in [William] Prym’s strong branded products.’
106. The applicant states that that agreement was indeed signed on 3 September 1997 and established a broad framework for joint distribution of consumer haberdashery products (see recital 235 of the contested decision). It submits that it is hard to see why there would have been a need for the 1997 agreement if the 1977 agreement had actually continued to apply, as the latter ‘laid down the principles that neither party would distribute products competing with the other party’s’ (see its response to the supplementary statement of objections).
107. Point 5 of the 1997 Umbrella Agreement states:
‘The agreement will cover hard haberdashery and elastics products, manufactured or sourced, packaged and branded by Prym Consumer, thread and related accessory projects manufactured or sourced and branded by Coats, plus other products as appropriate to individual markets.’
108. In that regard, it should be noted, first of all, that, in the Commission’s view, the memorandum relating to the meeting of 11 June 1996 and the signing of the 1997 Umbrella Agreement are not, in themselves, evidence of the existence of a cartel, but they also do not indicate that Coats had withdrawn from such a cartel.
109. Secondly, in recital 236 of the contested decision, the Commission claimed that the 1977 agreement provided, first, that Coats and Prym Consumer would set up exclusive supply and distribution contracts for their respective products, that is to say hard haberdashery manufactured by Prym Consumer and soft haberdashery manufactured by Coats and, second, that a framework agreement would establish rules for the joint distribution of the parties’ products, but not regulate the manufacturing or distribution of the competing products.
110. However, it should be noted that the second finding is erroneous, since it is apparent from point 5 of the framework agreement cited in paragraph 107 above that that agreement also covered the exclusive distribution of competing products (hard haberdashery manufactured by William Prym and thread and related accessory projects manufactured by Coats), plus other specific products.
111. None the less, the Commission rightly states that 20 years had passed since the initial 1977 agreement to share markets and that the new agreement was concluded after the commercial relations between the two undertakings had been modified, following the sale of Coats’ shareholding in William Prym.
– The acquisition of Bonduel by William Prym and the 15 July 1998 meeting (recitals 237 to 245 of the contested decision)
112. The applicant submits that the Commission was wrong to take the view that the minutes of the meeting held in Stolberg on 15 July 1998 referred to the 1977 agreement. According to the applicant, those minutes referred solely to the agreement between William Prym and Opti for its raw chain supply (see paragraph 81 above) and also to the 1997 Umbrella Agreement.
113. At the hearing, the applicant pointed out that the Commission had itself admitted, during the present proceedings, that none of the notes concerning that meeting shows that a cartel existed. The Commission’s case, relating to the period after 1995, is thus based on the notes of a single meeting, namely that of 15 July 1998.
114. According to the applicant, the handwritten notes which it produced are much more detailed than the typed notes of the same meeting and, unlike those notes, were drawn up at the time of that meeting. As for the credibility of those notes, the applicant emphasises that they were drawn up by Mr A.P., and do not transcribe Mr M.F.’s words verbatim. Furthermore, in his second affidavit Mr M.F. provided a perfectly plausible and legitimate explanation for his observations.
115. It is apparent from recitals 237 to 245 of the contested decision that the Commission based its decision, first, on the minutes of the meeting of 15 July 1998 and, second, on the applications for leniency of the Prym group made pursuant to the 1996 and 2002 Leniency Notices.
116. The typed notes of 7 November 2001, signed by Mr A.P., relating to the meeting which took place on 15 July 1998 with Mr M.F., state the following:
‘[Mr M.F.] generally spoke about the case Bonduel Prym. MF has shown his disappointment about the information which was delivered on short notice. The critics were especially based upon the fact that AP was not discussing the zip fasteners problems with Coats Opti in general meetings and that it was not brought to one’s attention that the agreement was not valid anymore.
…
The fact that, with the acquisition of Opti in 1988, [William] Prym was also not included in the negotiations, was not mentioned.
...
[Mr M.F.] brought up the question, whether Prym would see the constellation, that one would be free in the industry business and Coats could enter the fastener (press-buttons) markets respectively [William] Prym could enter the thread market. This question has to be answered cleanly and clearly.’
117. According to the Commission, that shows, first, that Coats reacted in the same way to that acquisition as William Prym reacted when Coats acquired Opti in 1988 (see paragraph 89 above). Their respective reactions confirm the existence of a continuous arrangement between the two undertakings, based upon the 1977 Agreement (see recital 238 of the contested decision). Second, it can be inferred that Mr M.F. was referring to the sharing of the markets as established at the outset in the 1977 Agreement (see recital 243 of the contested decision). Third, it follows that the initial sharing of the markets between the two undertakings (hard haberdashery for one and soft haberdashery for the other) continued to be respected by them (see recital 245 of the contested decision).
118. The minutes of the meeting of 15 July 1998, which mention the fact that there should not be any competition in terms of prices with Opti, corroborate that finding. Moreover, it is apparent from the same passage of those minutes that William Prym was not interested in competing with Opti, especially not on prices. William Prym thus proposed discussing a solution to the zip fastener issue and the existing agreements. Furthermore, it was suggested that the undertakings at issue needed to enter into strategic dialogue.
119. Point 4 of those minutes reads:
‘The [U]mbrella [A]greement of Coats and [William] Prym was discussed …
Both parties explained that they have a lot of costs to bear in implementing this [U]mbrella [A]greement by paying costs for termination of established agreements, restructuring of the organisation and building up of new structures.’
120. The evidence referred to above corroborates the Commission’s finding that the two undertakings, on the zip fastener market, began to encounter problems with respect to that common product following a series of changes in their relationship over that period. None the less, in spite of the fact that they were competitors on the zip fastener market, they continued to respect their moral commitment not to compete and stated expressly that they were not interested in competing in relation to prices on that market.
121. As regards Mr M.F.’s affidavit of 24 April 2006, that statement was prepared by a representative of the applicant and sought to mitigate the applicant’s liability for the infringement found and that cannot, as a result, reduce the probative value of the documents found during the investigations and the explanations given in relation to those documents ( Lafarge
v Commission, paragraph 47 above, paragraph 379).
122. As regards the applicant’s assertion that, at that time, it did not provide any assurances concerning competition in relation to prices, it must be found that it does not dispute, however, that the Prym group clearly provided such an assurance. In any event, if the minutes of the meeting of 15 July 1998 are not sufficient, as such, to prove the infringement, they may certainly be taken into consideration as part of a precise and coherent body of evidence, as referred to in paragraphs 38 to 40 above.
123. So far as concerns the applicant’s arg ument that the Commission itself admitted, during the present proceedings, that none of the notes relating to the meeting of 15 July 1998 showed the existence of a cartel, it must be found that, in its pleadings, the Commission merely stated that those documents did not, as such, constitute evidence of a cartel, but also did not show that the applicant had withdrawn from such a cartel.
– The exculpatory evidence
124. The applicant submits that the Commission failed to take account of certain exculpatory evidence with respect to the existence of the market-sharing agreement:
– first, the minutes of a meeting held on 1 August 1989 between Coats and William Prym;
– second, the minutes of a meeting between Mr J.G. (William Prym) and Mr R.H. (Coats) on 11 September 1989;
– third, the fact that five of the six senior executives of Coats responsible for the sector over the last 10 years swore affidavits that they were not aware of the 1977 document, had not been informed of it and had never acted as though a market-sharing agreement of that type had existed.
125. As regards the first item of evidence, it should be noted that the minutes of the meeting of 1 August 1989, taken by Mr R.H. of Coats, states the following:
‘(2)(c) The “Euro Consumer” division has set, as one of its objectives, “to become the leading European supplier and marketer of a full range of all products in the category of Crafts” — this to include sewings, craft threads, zips, hard and soft haberdashery, craft kits etc.
(d) Desirably, this would be done with [William] Prym and not against [William] Prym …
(e) EF indicated that Coats strategy — i.e. (c), above — is no different to that which motivated the original 1976 decision — i.e. Coats should be the exclusive marketer for [William] Prym worldwide and this would be underpinned by a 25% Coats share in [William] Prym.
…
The meeting closed with agreement on both sides that the practical aspects of [the bilateral cooperation between the Coats and Prym groups] should be studied further, within certain parameters:
We should limit our study initially to Europe.
We would study mutual exclusivity — i.e. Coats are sole distributors and only sell [William] Prym products in the hard haberdashery range.
We should seek solutions to specific “problems” —
NIL
Opti: [William] Prym — zip fasteners
“World prices” vs German costs, i.e. is Stolberg viable as a manufacturing base long term for all products[?]’
126. The applicant maintains that it is apparent from those minutes that, if the 1977 agreement had been in force there would have been no need to study mutual exclusivity. That study would have been totally redundant, since Coats would already have been prohibited from distributing hard haberdashery that competed with [William] Prym’s products.
127. It should be noted that, in point 2(e) of the minutes of the meeting of 1 August 1989, Mr E.F. notes that the strategy proposed by Coats in point (c) does not differ from that which motivated the initial decisions of 1976, namely that Coats become the exclusive global distributor of William Prym and, in that context, obtain a 25% shareholding in William Prym.
128. The participants at the meeting of 1 August 1989 agreed to study the mutual exclusivity principle — pursuant to which Coats would be the exclusive distributor and, in the hard haberdashery sector, would sell only William Prym’s goods. Moreover, certain problems had to be resolved such as the Opti/William Prym situation. It should be noted, in that regard, that, in proceeding with the acquisition of Opti, Coats did not comply with its commitments in that field (see paragraph 89 above).
129. The fact that, ten years after the market sharing agreement, the two undertakings found it necessary to conclude a new agreement, does not mean that the initial agreement did not exist. The new agreement made it possible, in particular, to take account of developments which had taken place over the decade in question and enabled the participants to study in more depth the issue of exclusive distribution and to resolve certain problems, such as the acquisition of Opti by Coats.
130. As regards the second item of evidence, it must be found that point 10, entitled ‘United Kingdom’, of the minutes of the meeting of 11 September 1989, shows, first, that the applicant was already represented on the English hard haberdashery market and that it was aiming to develop a new brand called ‘Stitchpoint’. Second, after acquiring Tootal, Coats was set to obtain an additional brand of hard haberdashery in the United Kingdom. The issue of William Prym’s manufacturing of zip fasteners was also raised in the discussion on NIL.
131. In that regard, it must be found that the quotation to which the applicant refers concerns only the situation in the United Kingdom. The applicant had already been represented on that market (since the 1970s), thus at the time the initial agreement was concluded. The introduction of a new brand and the acquisition of Tootal thus neither modified the relationship between the two undertakings, nor their respective obligations. Consequently, the maintaining and reinforcement by Coats of its position on the United Kingdom market have no bearing, in this case, on the existence and the functioning of the cartel.
132. As regards the third item of evidence, namely the statements of five of the six senior executives of Coats, it should be noted that, although the statements were prepared by the applicant’s representatives with a view to mitigating its liability for the infringement found, that circumstance cannot deprive them, as such, of the value attached to such statements. However, the probative value of the documents found during the inspections and the explanations given in relation to those documents is not diminished by such statements either ( Lafarge
v Commission, paragraph 47 above, paragraph 379).
– Conclusion
133. In the light of the foregoing, it must be concluded that the 1977 agreement has probative value in corroborating, as part of the precise and coherent body of evidence relied on by the Commission (see paragraphs 38 to 40 above), some of the essential assertions in Mr A.P.’s statements relating to the existence of a market sharing agreement on the haberdashery market, preventing the Coats group from entering the European market for ‘other fasteners’ and the Prym group from entering the European thread market. That finding is also confirmed by other evidence examined above. Firstly, it is necessary to assess as a whole the documents discovered during the investigations, namely the letter of 12 April 1977, the minutes of the meeting of 11 February 1993, the minutes of the meeting of 11 June 1996, the 1997 Umbrella Agreement, the typed note of Mr A.P. of 7 November 2001 relating to a meeting with Mr M.F., held on 15 July 1998, and the minutes of the meeting of 15 July 1998. Secondly, it must be stressed that those documents are also supported by the documents submitted with the applications for leniency made by Prym group pursuant to the 1996 and 2002 Leniency Notices, namely the copy of the 1977 agreement, an extract of the speech of Mr D.P. of 9 November 1988 and a note drafted by Mr A., dated 12 December 1991. All of those items of evidence demonstrate that the close relationship between the undertakings concerned continued to exist during the period following the 1975 and 1977 agreements, and that, occasionally, that relationship was adjusted by means of further agreements, such as the 1990 Supply Agreement and the 1997 Umbrella Agreement.
134. As regards the question whether that evidence is such as to establish the duration of the infringement of which the applicant is accused, it should be recalled that it is normal for the activities which those practices and those anti-competitive agreements entail to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of competition law (see paragraph 42 above).
135. It is apparent from the analysis carried out in the context of the present plea that the applicant has not furnished sufficient probative evidence or an alternative plausible explanation to invalidate the documentary evidence referred to in the contested decision, which shows, on the contrary, that it participated in a bilateral market sharing agreement with the Prym group.
136. Therefore, it must be held that, in the contested decision, the Commission demonstrated to the requisite legal standard, in accordance with the rules set out in paragraphs 38 to 51 above, that the applicant participated in the infringement at issue and did so without committing the manifest errors of assessment alleged. The first plea must therefore be dismissed as unfounded.
137. Next, the Court considers it appropriate to examine the third plea, alleging a lack of proof of a single and continuous infringement, before examining the second plea, alleging an infringement of Article 25(5) of Regulation No 1/2003, given that the duration of an infringement is not only an integral part of that infringement and, as such, an inseparable part of any finding of an infringement, but also one of the conditions governing the limitation period in respect of proceedings for a continuing infringement ( Peróxidos Orgánicos
v Commission, paragraph 47 above, paragraph 21).
The third plea, alleging a lack of proof of a single and continuous infringement
Arguments of the parties
138. The applicant maintains that the Commission has failed to prove a continuous infringement from January 1975 to 15 July 1998 which would have permitted it to impose on it a fine for an infringement which had lasted for 21½ years. In recitals 339 and 347 of the contested decision, the Commission had considered that the infringement was single and continuous from January 1977 to July 1998, claiming to have proven that the market-sharing agreement had continued ‘on the basis of a number of items of documentary evidence collected by the Commission during the inspection and through the [applications for leniency made by the Prym group pursuant to the 1996 and 2002 Leniency Notices] and documentary evidence submitted by the Prym group’.
139. In the applicant’s view, the examination of the evidence in question shows huge gaps in time which are far too long for the Commission to be able to prove a single and continuous infringement. In reality, a period of 21 years elapsed between one unsigned document of uncertain provenance and a highly ambiguous document written by the very person making the confession. There is no evidence that the 1977 agreement was intended to apply for several years, since it is entirely silent as to the duration of its implementation.
140. The Commission observes, as regards the duration and the link between successive events and a single and continuous infringement, that an infringement of Article 81 EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged, in its view, on the ground that one or several elements of that series of acts or that continuous conduct could also constitute in themselves, taken in isolation, an infringement of that provision. Where the different actions form part of an ‘overall plan’ because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. As regards the gap in the evidence of the infringement between 1978 and 1990, the Commission takes the view that it had sufficient documentary evidence confirming the existence of the market-sharing agreement between the undertakings as from 1977.
Findings of the Court
141. It should first be recalled that the concept of a single infringement covers a situation in which a number of undertakings have participated in an infringement consisting in continuous conduct in pursuit of a single economic aim designed to distort competition or in individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object) ( BPB v Commission, paragraph 41 above, paragraph 257).
142. Next, it should be pointed out that an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. Where the various actions form part of an ‘overall plan’ because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others
v Commission, paragraph 42 above, paragraph 258).
143. In addition, according to settled case-law, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct as consisting in agreements, concerted practices and decisions of associations of undertakings (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 67 above, paragraphs 696 to 698; Case T-9/99 HFB and Others
v Commission [2002] ECR II-1487, paragraph 186; and Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II-4949, paragraph 159).
144. It must also be noted that the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, as object or effect, constitutes an essential element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective would deprive the concept of a single and continuous infringement of part of its meaning, since it would mean that different instances of conduct relating to a particular economic sector and prohibited by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various unlawful actions as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content (including the methods used) and, correlatively, the objective of the various unlawful actions in question (see, to that effect, BASF and UCB
v Commission, paragraph 143 above, paragraphs 179 to 181).
145. For objective reasons, therefore, the Commission may initiate separate procedures, find a number of separate infringements and impose a number of separate fines (see, to that effect, the judgment of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission (‘ Tokai II ’), not published in the ECR, paragraph 124).
146. Lastly, it should also be pointed out that, as a general rule, the characterisation of certain unlawful actions as constituting one and the same infringement affects, in principle, the penalty that may be imposed. A finding that multiple infringements exist may entail the imposition of a number of separate fines, each time within the limits laid down in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 ( BASF and UCB
v Commission, paragraph 143 above, paragraph 158).
147. It must therefore be determined whether the matters complained of with regard to the applicant form part of an overall plan intended to distort competition on the markets for ‘other fasteners’ and zip fasteners and, accordingly, form part of the single and continuous infringement constituted by the cartel on those markets.
148. In the present case, the Commission’s classification of the bilateral cooperation between the Coats and Prym groups as a single and continuous infringement led to its finding that there was a single cartel which lasted, at least, from 15 January 1977 to 15 July 1998 (see recitals 339 to 347 of the contested decision). It is therefore necessary to examine whether, in the light of the case-law cited in paragraphs 141 to 146 above, the Commission committed an error of law by qualifying the unlawful actions of which the applicant is accused as a single and continuous infringement on the basis of the evidence at its disposal (see recitals 217 to 245 of the contested decision), evidence which has been examined, for the most part, in the context of the first plea.
149. As regards the applicant’s argument that the examination of the evidence in question shows huge gaps in time, which are far too long for the Commission to able to prove a single and continuous infringement, it should be recalled that the fact that such evidence was not produced for certain specific periods does not preclude the infringement from being regarded as established over a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the cartel is shown to have operated during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the cartel, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (Case C-113/04 P Technische Unie
v Commission
[2006] ECR I-8831, paragraph 169).
150. Consequently, although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (Case T-18/05 IMI and Others
v Commission
[2010] ECR I-1769, paragraph 89).
151. In the present case, the Court has found, in its examination of the first plea, that the agreement at issue concerned the bilateral cooperation between the Coats and Prym groups. Under that agreement, Coats committed itself ‘not to engage, either directly or by association, in the manufacture of hard haberdashery ... without the prior consent of [William] Prym’. For its part, [William] Prym undertook ‘not to engage, either directly or by association, in the manufacture of sewing or handicraft threads etc ... without the prior consent of Coats’. Consequently, it must be concluded that the agreement at issue concerns the sharing of the market between two competitors.
152. Unlike a price-fixing agreement, under which participants are required to meet regularly to take account of the market evaluation to be able to adapt their conduct on that market during the period of the agreement, a market-sharing agreement, by definition, must be respected by the parties to the agreement with effect from its conclusion and may occasionally be adjusted either by amending the existing agreement or by means of other agreements.
153. It should be noted, in that context, that the Court has concluded, in paragraph 133 above, that the evidence gathered by the Commission during its investigations, the evidence set out in the Prym group’s applications for leniency pursuant to the 1996 and 2002 Leniency Notices, and the written evidence provided by the latter, demonstrate that the close relationship between the undertakings concerned continued to exist during the period following the 1975 and 1977 agreements, and that, occasionally, that relationship was adjusted by means of further agreements, such as the 1990 Supply Agreement and the 1997 Umbrella Agreement.
154. Consequently, the Commission was legitimately able to conclude that the parties adhered to a common plan which limited or was likely to limit their individual commercial conduct by determining the lines of their mutual action on the market (see recital 334 of the contested decision).
155. Therefore, the third plea must be rejected as unfounded.
The second plea, alleging an infringement of Article 25(5) of Regulation No 1/2003
Arguments of the parties
156. The applicant maintains that the Commission has not succeeded in demonstrating that any infringement continued beyond 19 September 1997, 10 years before the adoption of the contested decision, and that in application of Article 25(5) of Regulation No 1/2003 any fine is therefore time barred. Not only does the evidence of 15 July 1998 wholly fail to satisfy the requisite standard of proof, but it is also seriously undermined by the evidence given under oath by, in particular, Mr M.F. and by Mr K., who where were the relevant senior Coats executives at the time.
157. The Commission contends that it has gathered sufficient evidence to prove that the infringement continued at least until 15 July 1998. It is clear from the case-law of the Court of Justice, moreover, that Article 81 EC is also applicable to agreements which are no longer in force but which continue to produce their effects after they have formally ceased to be in force.
Findings of the Court
158. Article 25(1)(b) of Regulation No 1/2003 sets a limitation period of five years for infringements of the kind alleged against the applicant. Pursuant to the second sentence of Article 25(2), in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases. Under the first sentence of Article 25(3) of that regulation, any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period. Under Article 25(4) of that regulation, the interruption of the limitation period shall apply for all the undertakings or associations of undertakings which have participated in the infringement. Pursuant to Article 25(5), each interruption shall start time running afresh. However, the limitation period shall expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment.
159. It should be noted that the duration of the infringement constitutes not only an integral part of that infringement and, as such, an inseparable part of any finding of an infringement but also one of the conditions governing the limitation period in respect of proceedings for a continuing infringement ( Peróxidos Orgánicos
v Commission, paragraph 47 above, paragraph 21). Compliance with those rules entails a correct assessment by the Commission of the period in which the applicant participated in the infringement. Consequently, it needs to be assessed whether the Commission demonstrated to the requisite legal standard that the applicant’s participation in the infringement lasted at least until 19 September 1997 (that is ten years prior to the adoption of the contested decision), to enable the Court to determine whether the ten-year limitation period, provided for in Article 25(5) of Regulation No 1/2003, had expired or not.
160. As regards the question of the date on which the applicant’s participation in the infringement came to end, it is appropriate to recall, at the outset, the settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see, to that effect, Baustahlgewerbe v Commission, paragraph 38 above, paragraph 58, and Aalborg Portland and Others
v Commission, paragraph 42 above, paragraph 78).
161. Moreover, the duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this respect, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Case T-43/92 Dunlop Slazenger
v Commission [1994] ECR II-441, paragraph 79).
162. In addition, in the case of agreements which have ceased to be in force, it is sufficient, in order for Article 81 EC to apply, that they produce their effects beyond the date on which they formally come to an end (see Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 71, and Case T-59/99 Ventouris v Commission [2003] ECR II-5257, paragraph 182 and the case-law cited). It follows that the duration of an infringement must be appraised not by reference to the period during which an agreement is in force, but by reference to the period during which the undertakings concerned adopted conduct prohibited by Article 81 EC.
163. It should be noted that, according to Article 1(4) of the contested decision, the applicant’s participation in the infringement at issue was regarded as established for the period from 15 January 1977 to 15 July 1998. In the context of the present plea, the applicant calls into question that finding so far as concerns the period of infringement. In its view, the Commission has not succeeded in demonstrating that any infringement continued after 19 September 1997, namely 10 years prior to the adoption of the contested decision.
164. It is apparent from the assessment of the evidence made in the context of the first and third pleas above that the present case concerns a single and continuous infringement which lasted at least until 15 July 1998.
165. Consequently, it must be found that the period in question ran from 15 July 1998 to 19 September 2007, that is approximately for nine years and two months. Accordingly, the contested decision was adopted before the ten-year limitation period had expired.
166. It follows from all the foregoing that the second plea must be rejected.
Fourth plea, alleging an infringement of Article 6(3)(d) of the ECHR
Arguments of the parties
167. The applicant claims, in substance, that the Commission has infringed its procedural rights under Article 6(3)(d) of the ECHR and, more specifically, the right of everyone ‘to examine or have examined witnesses against him’ in proceedings of a criminal nature, as is the case here.
168. The applicant maintains that the Commission cannot rely on Aalborg Portland and Others
v Commission, paragraph 42 above. In the present case, the Commission, after receiving the Prym group’s supplement to its application, referred to in paragraph 11 above, reopened its investigation and issued a supplementary statement of objections, which for the first time alleged that the applicant had participated in a market-sharing agreement over 21 years. Both the procedural background and the importance which the contested decision places on the new evidence supplied by William Prym lead to the inevitable conclusion that that evidence was given ‘decisive’ weight within the meaning of the case-law of the European Court of Human Rights.
169. In the applicant’s submission, the circumstances of the present case are different from those in Bolloré
v Commission, paragraph 48 above, paragraphs 86 to 89. In the first place, the identity of the person who made the statement on which the Commission based its finding of infringement in the present case, Mr A.P., was known and the applicant formally sought to examine him. In the second place, in so far as the Commission seeks to rely on this Court’s statement that the Commission is not a tribunal for the purposes of the ECHR, the applicant claims that it is for the Commission to ensure that the procedure as a whole complies with Article 6(3)(d) ECHR. In the third place, the Commission appears to rely on this Court’s assertion (on the basis of Case T-83/91 Tetra Pak
v Commission
[1994] ECR II-755, paragraph 235) that fines imposed for an infringement of a provision of competition law are not of a criminal-law nature.
170. The Commission claims, on that point, that Mr A.P. was present at the hearing held on 11 July 2006, during which all the participants had the opportunity to make an oral presentation of their arguments. When given the opportunity to do so, the applicant’s counsel decided to limit its intervention to giving a mere clarification of the compliance programme and making a general remark about the evidence used by the Commission and the Prym group’s statements. Consequently, although Coats was given the opportunity to put questions to the party of its choice, it did not take that opportunity.
Findings of the Court
171. It should be recalled that, whereas Article 6(3)(d) of the ECHR states that ‘[e]veryone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’, it is clear from settled case-law that the Commission cannot be described as a ‘tribunal’ within the meaning of that provision (Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission [1983] ECR 1825, paragraph 7).
172. It is also settled case-law that fundamental rights form an integral part of the general principles of law whose observance the European Union Courts ensure (Opinion 2/94 [1996] ECR I-1759, paragraph 33, and Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14). For that purpose, the Court of Justice and the General Court draw inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the Member States have collaborated or to which they are signatories. In that regard, the ECHR has special significance (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Kremzow, paragraph 14). Furthermore, Article 6(2) EU states that the European Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of law.
173. It is therefore necessary to examine whether, in the light of those considerations, the Commission failed to observe the rights of the defence, a fundamental principle of the European Union legal order (Case 322/81 Nederlandsche Banden-Industrie-Michelin
v Commission
[1983] ECR 3461, paragraph 7), by not offering the applicants the possibility of examining the witness, Mr A.P., directly.
174. In that regard, it should be noted that that principle requires that the undertakings and associations of undertakings concerned by an investigation into competition by the Commission be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (see Case T-314/01 Avebe v Commission
[2006] ECR II-3085, paragraph 49 and the case-law cited). By contrast, that principle does not require that those undertakings be afforded, in the administrative procedure, the opportunity themselves to cross-examine the witnesses heard by the Commission (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 42 above, paragraph 200).
175. In that regard, it is sufficient that the statements used by the Commission were provided in the file sent to the applicant, which may then challenge them before the judicature of the European Union ( Lafarge
v Commission, paragraph 47 above, paragraphs 147 to 149).
176. For the sake of completeness, it must be noted that, as stated by the Commission, although Mr A.P. was present at the hearing on 11 July 2006, the applicant did not take the opportunity to ask him questions. Moreover, nothing prevented the applicant from seeking to obtain the attendance and examination of witnesses on its behalf before the Court, by making an application for witnesses to be heard. However, the Court notes that the applicant did not make such an application.
177. In the light of those considerations, the applicant cannot rely on a breach of its right to examine or have examined witnesses testifying against it. Consequently, the fourth plea raised by the applicant must be rejected as having no factual or legal basis.
The fifth plea, alleging an incorrect application of the Guidelines on the method of setting fines
Arguments of the parties
178. The applicant submits that, when determining the increase of the fine for the duration of the infringement, the Commission ought to have exercised its discretion to apply a multiplier of 10% under paragraph 1B of the Guidelines on the method of setting fines. The Commission should not have automatically applied an increase of 215% for the duration of the infringement. It ought to have taken into account, first, the weakness of the evidence on which it relied in order to find the infringement; second, the long gaps between the pieces of evidence; third, the absence of any knowledge of the infringement on the part of the applicant’s senior management; and, fourth, the absence of any evidence of implementation of the infringement.
179. The applicant contends that the Commission has failed to fulfil that obligation in that, by its own admission, its consistent practice is to fix a maximum increase. While the facts in other cases (of significantly shorter duration) may have justified an increase of 10% per year, the Commission none the less does not escape its obligation to exercise its discretion properly.
180. The Commission contests the applicant’s arguments.
Findings of the Court
181. Before examining the pleas raised by the applicant, it should be pointed out that it is clear from recitals 489 and 692 of the contested decision that the fines which the Commission imposed for the infringement were imposed by virtue of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003. Moreover, the Commission fixed the amount of the fines by applying the method set out in the Guidelines and the 1996 Leniency Notice.
182. Whilst the Guidelines may not be regarded as rules of law, they nevertheless form rules of practice from which the Commission may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment (see Case C-397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I-4429, paragraph 91 and the case-law cited).
183. It is therefore for the Court to verify, when reviewing the legality of the fines imposed by the contested decision, whether the Commission exercised its discretion in accordance with the method set out in the Guidelines and, should it be found to have departed from that method, to verify whether that departure is justified and supported by sufficient legal reasoning. In that regard, it should be noted that the Court of Justice has confirmed the validity, first, of the principle of the Guidelines and, second, of the general method which is there indicated (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others
v Commission [2005] ECR I-5425, paragraphs 252 to 255, 266, 267, 312 and 313).
184. The self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulations No 17 and No 1/2003, as interpreted by the Court of Justice ( Dansk Rørindustri and Others v Commission, paragraph 183 above, paragraph 267).
185. Therefore, in areas where the Commission has maintained a discretion, for example as regards the starting amount of a fine or the uplift for duration, review of the legality of those assessments is limited to determining the absence of manifest error of assessment (see, to that effect, Case T-241/01 Scandinavian Airlines System
v Commission [2005] ECR II-2917, paragraphs 64 and 79).
186. Nor, in principle, does the discretion enjoyed by the Commission and the limits which it has imposed in that regard prejudge the exercise by the Court of its unlimited jurisdiction ( JFE Engineering and Others
v Commission, paragraph 39 above, paragraph 538), which empowers it to annul, increase or reduce the fine imposed by the Commission (see, to that effect, Case C-3/06 P Groupe Danone
v Commission
[2007] ECR I-1331, paragraphs 60 to 62, and Case T-368/00 General Motors Nederland and Opel Nederland
v Commission [2003] ECR II-4491, paragraph 181).
187. It follows that the mere fact that the Commission reserved for itself the possibility of increasing the fine per year of infringement — in the case of long-lasting infringements by up to 10% of the amount adopted for the gravity of the infringement — does not in any way oblige it to fix that uplift by reference to the intensity of the activities of the cartel or its effects, or of the gravity of the infringement. It is for the Commission to choose, in the context of its broad discretion (see paragraph 183 above), the uplift which it intends to apply in respect of the duration of the infringement (Case T-19/05 Boliden and Others
v Commission
[2010] ECR II-1843, paragraph 98).
188. The applicant’s arguments seeking to show that the Commission should have taken into account, first, the weakness of the evidence on which it relied in order to find the infringement; second, the long gaps between the manifestations of the cartel and, third, the absence of any knowledge of the infringement on the part of the applicant’s senior management, are inseparable from those raised in the context of the first and third pleas. Thus, since the Court concluded that the Commission did not commit any error in considering, on the basis of the various items of evidence at its disposal, that there was a single and continuous infringement which lasted from 15 January 1977 to 15 July 1998, the applicant’s arguments can only be rejected.
189. In so far as concerns the applicant’s argument that there was no evidence of implementation of the infringement, it should be noted that, under the last subparagraph of Article 15(2) of Regulation No 17, in fixing the amount of the fine regard must be had not only to the gravity of the infringement but also, to the duration of the infringement. It follows that the impact of the duration of the infringement on the basic amount of the fine must, as a general rule, be significant. Except in special circumstances, that militates against a purely symbolic increase of the starting amount on account of the duration of the infringement. Thus, where an agreement with an anti-competitive object is not implemented, it is nevertheless necessary to take account of the period during which the agreement existed, that is, the time between the date on which it was entered into and the date on which it was terminated (Case T-213/00 CMA CGM and Others
v Commission
[2003] ECR II-913, paragraph 280).
190. In the present case, the Commission found that the bilateral cooperation between the Prym and Coats groups had existed for 21½ years, namely for a long duration for the purposes of the Guidelines. Consequently, on that basis the Commission increased the starting amount of the fine imposed on the applicant by 215%. It should be noted that, in accordance with the third indent of Section 1B of the Guidelines, in respect of long-term infringements, the starting amount of the fine imposed to reflect gravity may be increased by up to 10% per year of infringement. It must thus be found that, in doing so, the Commission did not disregard its self-imposed rules in the Guidelines.
191. The fifth plea in law must therefore be rejected.
192. It is apparent from all of the foregoing considerations that none of the pleas raised by the applicant can be upheld. The action for annulment must therefore be dismissed in its entirety, without it being necessary, in the circumstances of the case, for the Court to exercise its unlimited jurisdiction to adjust the amount of the fine imposed on the applicant.
Costs
193. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Coats Holdings Ltd to pay the costs.