JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
16 September 2013(*)
(Competition – Agreements, decisions and concerted practices – Spanish market for penetration bitumen – Decision finding an infringement of Article 81 EC – Annual market-sharing and price-fixing arrangements – Evidence of participation in the cartel – Calculation of the amount of the fine)
In Case T‑462/07,
Galp Energía España, SA, established in Alcobendas (Spain),
Petróleos de Portugal (Petrogal), SA, established in Lisbon (Portugal),
Galp Energia, SGPS, SA, established in Lisbon,
represented by M. Slotboom and G. Gentil Anastácio, lawyers,
applicants,
v
European Commission, represented by F. Castillo de la Torre, acting as Agent, assisted initially by J. Rivas Andrés, lawyer, and by M. Heenan Bróna, Solicitor, and subsequently by J. Rivas Andrés, lawyer,
defendant,
APPLICATION, principally, for annulment in whole or in part of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen (Spain)) and, in the alternative, for reduction of the fine imposed on the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot (Rapporteur), President, M.E. Martins Ribeiro and A. Popescu, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 24 January 2013,
gives the following
Judgment
Background to the dispute
1        By Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen Spain), a summary of which is published in the Official Journal of the European Union of 29 December 2009 (OJ 2009 C 321, p. 15; ‘the contested decision’), the Commission of the European Communities found that the 13 companies to which that decision was addressed had participated in a complex of market-sharing and price-coordinating agreements in the road construction penetration bitumen business in Spain (excluding the Canary Islands) and imposed fines of between EUR 6 435 000 and EUR 83 850 000 on 10 of those companies.
2        Those 10 companies brought actions against that decision, by applications lodged at the Court Registry between 18 and 20 December 2007:
–        Repsol Lubricantes y Especialidades, SA, formerly Repsol Lubricantes YPF y Especialidades, SA, Repsol Petróleo, SA and Repsol, SA, formerly Repsol YPF, SA (together ‘Repsol’), in Case T‑496/07;
–        Productos Asfálticos (PROAS), SA, in Case T‑495/07;
–        Compañía Española de Petróleos (CEPSA), SA, in Case T‑497/07;
–        Nynäs Petroleum AB and Nynas Petróleo, SA (together ‘Nynäs’), in Case T‑482/07;
–        Galp Energía España, SA, Petróleos de Portugal (Petrogal), SA and Galp Energia, SGPS, SA (together ‘Petrogal’, ‘Galp’ or ‘the applicants’), in the present case.
1.     Relevant market
3        The product concerned by the infringement is penetration bitumen used for road construction. Bitumen is a by-product produced during the distillation of specific heavy crude oils. Around 85% of the bitumen produced in the European Union is used for road construction and maintenance, as an adhesive in the production of asphalt where it is used to bind the stones together. The remaining 15% is used in other fields of construction, for example in the construction of airport runways and car parks, and in industrial applications, such as roofing and pipe coating.
4        Approximately 80% of the bitumen used for road construction and maintenance is not subject to further processing: this is called penetration bitumen. The remaining 20% of bitumen used in road construction and maintenance is accounted for by bitumen which is further processed, such as bitumen emulsions, which are produced by mixing penetration bitumen with water using an emulsifying agent (used in road maintenance more than in construction), and modified bitumen, which is obtained by mixing penetration bitumen with a chemical product, usually polymers, in order to enhance its performance (polymer modified bitumen or PMB) (recitals 4, 9 et seq. to the contested decision).
5        Recital 15 to the contested decision defines the relevant market as being penetration bitumen, without any further processing, used for road construction and maintenance (‘penetration bitumen’ or ‘bitumen’).
6        That definition of the relevant market is confirmed as follows by recital 513 to the contested decision:
‘… this case concerns a cartel between sellers of the same product in the same business area, namely penetration bitumen in Spain …’.
7        The value of the Spanish penetration bitumen market is estimated at EUR 286 400 000 for 2001, the last full year of the infringement (recital 67 to the contested decision).
2. Undertakings in question
8        In Spain there are, on the one hand, three bitumen producers, Repsol, CEPSA‑PROAS and the BP group, of which BP plc is the holding company and of which BP España, SA and BP Oil España, SA are subsidiaries operating in Spain (together ‘BP’) and, on the other hand, a number of importers, including Nynäs and Petrogal (recitals 63 and 64 to the contested decision).
Repsol Group
9        Repsol Productos Asfálticos, SA (RPA) became Repsol YPF Lubricantes y Especialidades on 12 December 2001 (‘RPA/Rylesa’). RPA/Rylesa was owned 99.99% from 1991 to 2002 by Repsol Petróleo, itself a subsidiary owned 99.97% by Repsol YPF, the ultimate parent company of the Repsol group. That international group of oil and gas companies is present mainly in Spain and Latin America.
10      RPA/Rylesa produces and markets bitumen products. One of Repsol Petróleo’s activities is the production of penetration bitumen and the sale thereof to RPA/Rylesa in order to be marketed.
11      Two other companies of the Repsol Group, Petróleos del Norte, SA (‘Petronor’) and Asfalnor, SA, carry out a penetration bitumen‑related activity in Spain.
12      In 1991, Petronor was owned 56.19% by Repsol YPF, and this shareholding increased to 85.98% on 31 December 1992. Asfalnor was owned 60% by Petronor in 1991 and, in April 1992, companies of the Repsol group owned 80% of it (60% by Petronor and 20% by Repsol YPF) (recital 395 to the contested decision).
13      Petronor produces bitumen which, between 1990 and 1998, it sold to Asfalnor and, on occasions, to RPA/Rylesa, in order to be marketed. Since 1999, Petronor has been selling bitumen directly to third parties.
14      Asfalnor marketed bitumen between 1990 and 1998. It bought bitumen from Petronor and, on occasions, from RPA/Rylesa. Since 1999, Asfalnor has been acting as Petronor’s agent.
15      RPA/Rylesa and Petronor achieved a turnover of EUR 97 500 000 in Spain from their sales of penetration bitumen to third parties in 2001, that is 34.04% of the relevant market. The consolidated total turnover of the Repsol Group was EUR 51 355 000 000 in 2006, the year preceding the adoption of the contested decision (recitals 16 to 26 and 67 to the contested decision).
CEPSA-PROAS
16      CEPSA is an international group of companies in the energy sector whose shares are publicly listed and is present in several countries. PROAS, which has been a wholly-owned subsidiary of CEPSA since 1 March 1991, markets bitumen produced by CEPSA and produces and markets other bitumen products (recital 31 to the contested decision).
17      PROAS achieved a turnover in Spain of EUR 90 700 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 31.67% of the relevant market. The consolidated total turnover of CEPSA in 2006 was EUR 18 474 000 000 (recitals 44 and 67 to the contested decision).
BP
18      BP Oil España achieved a turnover in Spain of EUR 43 500 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 15.19% of the relevant market. The consolidated total turnover of BP in 2006 was EUR 211 776 000 000 (recitals 35, 42 and 43 to the contested decision).
Nynäs Group
19      The Nynäs group, of which Nynäs Petroleum AB, a Swedish company, is the ultimate holding company, produces and sells bitumen internationally. Nynas Petróleo markets bitumen in Spain (recitals 46 and 53 to the contested decision).
20      From 22 May 1991 until 1999 Nynas Petróleo was wholly owned by the holding company Nynäs International BV. During the same period Nynäs International BV was itself a wholly-owned subsidiary of Nynäs Petroleum (recital 438 to the contested decision).
21      In 1999 Nynäs Petroleum acquired from Nynäs International the entire issued share capital of Nynas Petróleo, which remained a wholly-owned subsidiary of Nynäs Petroleum until 2003 (recital 439 to the contested decision). Nynäs International was wound up on 12 June 2003. Following its dissolution its share capital was repaid to Nynäs Petroleum, which thus became its economic successor and took over liability for the infringement previously committed by Nynäs International, which had ceased to exist as a separate legal entity (recital 440 to the contested decision).
22      The Nynäs group has no production facilities in Spain but has one bitumen depot in Villagarcía de Arosa, in Galicia (Spain). Nynas Petróleo has its headquarters in Madrid (Spain) and its business activity is the sale and marketing of bitumen in Spain (recital 53 to the contested decision).
23      Nynas Petróleo achieved a turnover in Spain of between EUR 14 000 000 and EUR 15 000 000 from its sales of penetration bitumen to third parties during the business year 2001, that is 4.89% to 5.24% of the relevant market. The consolidated total turnover of the Nynäs group in 2006 was EUR 1 941 000 000 (recitals 54 and 67 to the contested decision).
Petrogal Group
24      Between 1990 and 2003 the shares in Galp Energía España (formerly Petrogal Española, SA) were held as to 89.29% by Petróleos de Portugal and as to 10.71% by Tagus, RE, an insurance company which was itself controlled as to 98% by Petróleos de Portugal. Since 2003 Galp Energía España has been a wholly-owned subsidiary of Petróleos de Portugal, which has been a wholly-owned subsidiary of Galp Energia, SGPS since 22 April 1999 (recitals 56, 57, 59, 456, 458 to the contested decision).
25      Galp Energía España’s business activity is the sale and marketing of bitumen in Spain. Its turnover for bitumen sales to unrelated parties in Spain was EUR 13 000 000 in 2001, the last full year of the infringement, that is 4.54% of the relevant market. The consolidated total turnover of Galp Energia, SGPS amounted to EUR 12 576 000 000 in 2006 (recitals 61 and 67 to the contested decision).
3. Administrative procedure
26      By letter of 20 June 2002 BP informed the Commission of an alleged cartel relating to the road bitumen market and submitted an application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). The application consisted of a letter and eight annexes describing the alleged anti-competitive activities on the Spanish bitumen market (recital 79 to the contested decision).
27      At a meeting with the Commission’s services on 25 June 2002 BP enlarged upon its application for immunity and produced supporting documents. BP submitted further information on 4, 8 and 10 July 2002 (recital 80 to the contested decision).
28      On 19 July 2002, the Commission granted BP conditional immunity from fines in accordance with point 8(a) of the 2002 Leniency Notice (recital 81 to the contested decision).
29      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 1959-1962, p. 87), as subsequently amended, inspections were carried out on 1 and 2 October 2002. Repsol, PROAS, BP, Nynäs and Petrogal were concerned (recital 82 to the contested decision).
30      BP supplied further information on 21 October 2002 concerning the alleged anti‑competitive activities on the relevant market (recital 83 to the contested decision).
31      On 5 November 2003 the Commission’s services interviewed Mr A.T., manager of the ‘Bitumen’ Department of BP España, pursuant to BP’s obligation to cooperate. Following that interview, BP supplied technical information concerning bitumen on 1 December 2003 (recital 84 to the contested decision).
32      On 6 February 2004 the Commission sent the undertakings concerned a first round of requests for information pursuant to Article 11(3) of Regulation No 17 and also sent BP an informal request for information (recital 85 to the contested decision).
33      Repsol submitted most of its response on 6 April 2004 and the remainder on 20 April 2004. PROAS provided its responses concerning the Spanish market on 21 April 2004 (recital 86 to the contested decision).
34      By fax of 31 March 2004 Repsol submitted a leniency application to the Commission pursuant to the 2002 Leniency Notice, together with a corporate statement (recital 87 to the contested decision).
35      On 2 April 2004 an additional request for information was sent to Repsol concerning the documents found during the inspection carried out at its premises, to which Repsol replied on 22 April 2004 (recital 88 to the contested decision).
36      By fax of 5 April 2004 PROAS submitted an application to the Commission pursuant to the 2002 Leniency Notice, together with a corporate statement (recital 89 to the contested decision).
37      On 20 April 2004 Repsol filed two bundles of documents further to its application pursuant to the 2002 Leniency Notice (recital 90 to the contested decision).
38      On 24 October 2005 the Commission sent the companies concerned a second round of requests for information, pursuant to Article 18(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) (recital 91 to the contested decision).
39      Repsol and PROAS replied on 8 November and 18 November 2005, respectively (recital 92 to the contested decision).
40      On 29 March 2006 the Commission sent Repsol and PROAS a third request for information and also sent BP an informal request for information. Repsol replied on 5 April 2006, BP on 6 April 2006 and PROAS on 7 April 2006 (recitals 93 and 94 to the contested decision).
41      In order to clarify the extent to which BP, Nynäs and Petrogal had been involved in the cartel, the Commission sent a fourth request for information to Repsol and PROAS on 26 April 2006 to which Repsol and PROAS replied on 9 May 2006 (recitals 95 and 96 to the contested decision).
42      On 22 May 2006 the Commission sent Repsol, PROAS and Petrogal a fifth request for information, concerning liability issues. PROAS replied on 29 May 2006, and Repsol and Petrogal on 30 May 2006 (recitals 98 and 99 to the contested decision)
43      By letters of 2 August 2006 the Commission informed Repsol and PROAS, pursuant to point 26 of the 2002 Leniency Notice, that it intended to apply to them, pursuant to point 23(b) of that notice, a reduction of any fine imposed of between 30 and 50% for Repsol and between 20 and 30% for PROAS (recitals 100 and 101 to the contested decision).
44      On 22 August 2006, the Commission took the decision to initiate the procedure in this case (third citation of the contested decision).
45      Between 24 and 28 August 2006 the Commission notified to BP, Repsol, CEPSA‑PROAS, Nynäs and Petrogal the statement of objections adopted on 22 August 2006 (recital 102 to the contested decision and third citation of that decision).
46      The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) replaced, as from 1 September 2006, the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’).
47      BP, Repsol, PROAS (apart from CEPSA), Nynäs and Petrogal exercised their right of access to the parts of the Commission’s file that were available only at the Commission’s premises (recital 103 to the contested decision).
48      BP, Repsol, CEPSA-PROAS, Nynäs and Petrogal responded in writing within the prescribed period to the objections raised against them (recital 104 to the contested decision).
49      All the addressees of the contested decision, with the exception of Repsol Petróleo, Repsol YPF and CEPSA, availed themselves of their right to an oral hearing. The hearing was held on 12 December 2006 (recital 105 to the contested decision).
50      On 16 February 2007 the Commission sent all the undertakings concerned a request for information in order to obtain confirmation or corrected figures relating to penetration bitumen sales previously supplied and also information relating to the turnover of each group for the business year 2006 (recital 106 to the contested decision).
4. Contested decision
Finding of the infringement
51      The contested decision finds that the 13 companies to which it is addressed infringed Article 81 EC by participating in a complex of agreements and concerted practices in the marketing of penetration bitumen on the Spanish territory (excluding the Canary Islands).
52      In the infringement, the Commission identified two components: first, market‑sharing; and, second, price coordination, which consisted in agreements to increase or decrease bitumen prices by an equivalent amount and to implement them at the same time (recital 366 to the contested decision).
53      The various types or components of unlawful conduct which were identified are as follows:
–        the establishment of sales quotas;
–        the allocation of volumes of the product and customers between all participants in the cartel, on the basis of those quotas;
–        the monitoring of the implementation of the market-sharing and customer‑sharing arrangements, through the exchange of information on sales volumes;
–        the establishment of a compensation mechanism to correct deviations from the market-sharing and customer-sharing arrangements;
–        the agreement on the variation of bitumen prices and the time at which the new prices would apply;
–        participation in regular meetings and other contacts in order to agree on the above restrictions of competition and to implement or modify them as required (recital 373 to the contested decision).
54      In the first place, the Commission described the market-sharing activities on the basis of the statements submitted by BP, Repsol and PROAS in their applications pursuant to the 2002 Leniency Notice and in their replies to the Commission’s requests for information (recital 122 to the contested decision).
55      The Commission considered that the existence of those activities was confirmed by contemporaneous evidence, namely documents obtained during the inspections and other contemporaneous documents submitted in applications for immunity from fines, that is to say applications pursuant to the 2002 Leniency Notice, or in replies to requests for information (recital 123 to the contested decision).
56      It is apparent from BP’s application for immunity from fines that when that undertaking began to produce penetration bitumen in Spain in July 1991 it found that Repsol and PROAS were involved in an ongoing market‑sharing agreement and that BP was required to participate in that agreement in order to enter the market with some degree of success (recital 119 to the contested decision).
57      Other bitumen suppliers present on the Spanish market coordinated their sales with Repsol, PROAS and BP: Nynäs and Petrogal participated in the cartel, Nynäs at least from 1991, and Petrogal at least from 1995 (recital 120 to the contested decision).
58      According to the statements submitted by Repsol and PROAS, the parties to the cartel effected contacts for the purpose of market-sharing around a negotiating table known as the ‘asphalt table’, composed of the companies of the Repsol group (RPA/Rylesa, Asfalnor and Petronor), PROAS and BP, but also of Nynäs and Petrogal, although the latter two companies participated only in the discussions concerning their areas of influence and did so on a bilateral basis with Repsol or PROAS, and not with other members of the cartel (recitals 124 and 129 to the contested decision).
59      The Commission identified the following phases in the market-sharing mechanism in question implemented within the cartel that was found to have existed:
(a)      an in-house market analysis, carried out around September, during which each producer separately prepared a market study for the following year estimating bitumen consumption in Spain;
(b)      an in-house pre-distribution of the market, carried out around October, with each bitumen producer preparing a draft market distribution document to be submitted in the negotiations with its competitors;
(c)      an agreement on the size of the market, that is to say, total bitumen consumption forecast for the following year, concluded around November between Repsol, PROAS and BP;
(d)      negotiations on the provisional distribution of the market thus agreed, carried out in December/January;
(e)      the annual market-sharing agreement: between 1994 and 2000 the competent sales managers of Repsol and PROAS normally held closing discussions in December/January in order to resolve any remaining issues concerning the distribution of the market. The document containing the market-sharing agreement for a given year was called ‘PTT’ or ‘Petete’;
(f)      communication of information to and negotiations with Nynäs and Petrogal; once the distribution of the market had been agreed by the three bitumen producers, Repsol or PROAS held a meeting with Nynäs and another meeting with the applicants in order to inform them of and negotiate the sales volumes and customers that would be allocated to each of them in their respective areas of influence (recital 130 to the contested decision).
60      In the second place, the Commission found that the price coordination activities provided the necessary support for the market-sharing arrangements by ensuring that the agreed allocation of volumes and customers would not be affected by the application of independent pricing policies by suppliers (recital 290 to the contested decision).
61      The Commission described the price arrangements on the basis of the voluntary statements made by BP, Repsol and PROAS and on their replies to the requests for information. It then presented a chronological overview of the contemporaneous documents in its possession that confirmed the price arrangements described in those statements (recital 291 to the contested decision).
62      The price variations and the date on which they were to be implemented were generally decided on between Repsol and PROAS, which then informed BP, Nynäs and Petrogal of their conclusions (recital 354 to the contested decision).
63      The Commission then found that the complex of agreements or concerted practices had the object of restricting competition in Spain (excluding the Canary Islands), a substantial part of the internal market (recital 371 to the contested decision).
64      The Commission recalled that, according to the case-law, there is no need to take into account the actual effects of an agreement when it has as its object the prevention, restriction or distortion of competition within the common market. Consequently, it is not necessary to show actual anti-competitive effects where the anti-competitive object of the conduct in question is proved (recital 375 to the contested decision).
65      The same applies to concerted practices. Although, according to Article 81 EC, the concept of a concerted practice requires not only concertation between undertakings but also conduct on the market resulting from the concertation and having a causal connection with it, it may be presumed, subject to proof to the contrary, that undertakings taking part in such concertation and remaining active in the market will take account of the information exchanged with competitors in determining their own conduct on the market, all the more so when the concertation occurs on a regular basis and over a long period. Such a concerted practice is then caught by Article 81 EC even in the absence of anti-competitive effects on the market (recital 331 to the contested decision).
66      None the less, in the present case, the Commission took the view that, on the basis of the elements presented in the contested decision, it had also proved that the cartel agreements had been implemented and that they had probably produced actual anti-competitive effects (recital 376 to the contested decision).
67      Moreover, the Commission considered it established that the staff of Galp Energía España (formerly Petrogal Española) had participated in the cartel. In the light of the case‑law on the presumption that a parent company actually exercises decisive influence over its wholly-owned subsidiary, and given the shareholding relationship between Galp Energía España, Petróleos de Portugal and Galp Energia, SGPS, the Commission considered that Galp Energía España, Petróleos de Portugal and also, from 22 April 1999, Galp Energia, SGPS constituted a single undertaking for the purposes of the application of Article 81(1) EC (recital 459 to the contested decision).
Calculation of the amount of the fines
68      The Commission recalled that, under Article 23(2) of Regulation No 1/2003, it may by decision impose fines on undertakings where, either intentionally or negligently, they infringe Article 81 EC. The Commission also stated that, under Article 15(2) of Regulation No 17, which was applicable at the time of the infringement, the fine for each undertaking participating in the infringement could not exceed 10% of its total turnover in the preceding business year and that Article 23(2) of Regulation No 1/2003 lays down the same limitation (recital 496 to the contested decision).
69      The Commission considered that each of the two restrictions of competition established, namely the horizontal market-sharing arrangements and the price‑coordination, was by its nature among the most serious types of infringements of Article 81 EC, which, according to the case‑law, are capable of warranting the classification of ‘very serious’ infringements solely on the basis of their nature, without there being any need for such conduct to cover a particular geographic area or have a particular impact (recital 500 to the contested decision).
70      The Commission took the view that it was not possible to measure the actual impact of the cartel on the market, due inter alia to insufficient information on likely bitumen net price developments in Spain in the absence of the arrangements. The Commission took the view that it was not required to demonstrate precisely the actual impact of the cartel on the market or to quantify it, but that it could confine itself to estimates of the probability of such an effect. In any event, the Commission considered that the cartel agreements were effectively implemented and that it was likely that the cartel arrangements produced actual anticompetitive effects (recital 501 to the contested decision).
71      In view of the nature of the infringement, the Commission considered that Repsol, PROAS, BP, Nynäs and Petrogal had committed a very serious infringement of Article 81 EC and stated that this conclusion was irrespective of whether the cartel had had a measurable impact on the market. The Commission added that it took account of the fact that the collusion concerned only the Spanish market (recital 509 to the contested decision).
Determination and adjustment of the ‘starting amount’ of the fine
72      The Commission set the ‘starting amount’ of the fines to be imposed, taking into account the gravity of the infringement, the estimated value of the relevant market, namely EUR 286 400 000 in 2001, the last full year of the infringement, and the fact that the infringement was limited to sales of bitumen in one Member State. In the light of those factors, the Commission set the starting amount of the fines at EUR 40 000 000 (recital 510 to the contested decision).
73      The Commission then placed the undertakings to which the contested decision was addressed in different categories, defined by reference to their relative importance on the relevant market, for the purposes of applying differential treatment, in order to take account of their effective economic capacity to cause significant damage to competition. In order to do so, the Commission relied on their shares, expressed in values of sales, of the Spanish market for penetration bitumen in 2001 (recitals 511 and 512 to the contested decision).
74      Repsol and PROAS, whose shares of the relevant market amounted to 34.04% and 31.67%, respectively, were placed in the first category, BP, with a market share of 15.19%, in the second category, and Nynäs and Petrogal, whose market shares were between 4.54 and 5.24%, in the third category. On that basis, the starting amounts of the fines to be imposed were adjusted as follows (recitals 514 and 515 to the contested decision):
–        category 1, for Repsol and PROAS: EUR 40 000 000;
–        category 2, for BP: EUR 18 000 000;
–        category 3, for Nynäs and Petrogal: EUR 5 500 000.
75      In order to set the amount of the fines at a level that would ensure a sufficient deterrent effect, the Commission considered it appropriate to apply a multiplier of 1.8 and 1.2 respectively to the fines to be imposed on BP and Repsol, by reference to their total turnover for 2006, the last year preceding the adoption of the contested decision, but not to apply a multiplier to the fines to be imposed on PROAS, Nynäs and Petrogal (recital 521 to the contested decision).
76      The starting amounts of the fines were therefore adjusted as follows: (recital 522 to the contested decision):
–        Repsol: EUR 48 000 000;
–        PROAS: EUR 40 000 000;
–        BP: EUR 32 400 000;
–        Nynäs: EUR 5 500 000;
–        Petrogal: EUR 5 500 000.
Duration of the infringement
77      The Commission considered that Repsol and PROAS should be held liable for their participation in the infringement from 1 March 1991 to 1 October 2002, namely a period of 11 years and 7 months.
78      The Commission considered that BP should be held liable for its participation in the infringement from 1 August 1991 to 20 June 2002, namely a period of 10 years and 10 months.
79      The Commission considered that Nynas Petróleo should be held liable for its participation in the infringement from 1 March 1991 to 1 October 2002, namely a period of 11 years and 7 months, and that Nynäs Petroleum should be held liable for its participation in the infringement from 22 May 1991 to 1 October 2002, namely a period of 11 years and 4 months.
80      Lastly, the Commission considered that Galp Energía España (formerly Petrogal Española) and Petróleo de Portugal should be held liable for their participation in the infringement from 31 January 1995 until 1 October 2002, namely a period of 7 years and 8 months, and Galp Energia, SGPS, from 22 April 1999 to 1 October 2002, namely a period of 3 years and 5 months (recital 523 to the contested decision).
81      The Commission increased the starting amount of the fines by 10% for each full year of the infringement, and by 5% for each additional period of at least six months but less than a year. The increases to be applied to the starting amount of the fines were therefore as follows (recitals 524 and 525 to the contested decision):
–        Repsol: 115%;
–        PROAS: 115%;
–        BP: 105%;
–        Nynäs:
–        Nynas Petróleo: 115%;
–        Nynäs Petroleum: 110%;
–        Petrogal:
–        Galp Energía España and Petróleos de Portugal: 75%;
–        Galp Energia, SGPS: 30%.
82      The amounts of the fines to be imposed on each undertaking were therefore as follows (recital 526 to the contested decision):
–        Repsol: EUR 103 200 000;
–        PROAS: EUR 86 000 000;
–        BP: EUR 66 420 000;
–        Nynäs:
–        Nynas Petróleo: EUR 11 825 000;
–        Nynäs Petroleum: EUR 11 550 000;
–        Petrogal:
–        Galp Energía España and Petróleos de Portugal: EUR 9 625 000;
–        Galp Energia, SGPS: EUR 7 150 000.
Attenuating circumstances
83      The Commission compared the applicants’ role with the roles of Repsol, PROAS and BP and considered whether a reduction of the amount of the fines was justified. The Commission considered it appropriate to distinguish the different role played by the applicants by taking into account their more limited involvement in the infringement and decided to reduce the amount of the fines by 10% (recitals 566 and 567 to the contested decision).
84      The final amount of the fine thus came to EUR 8 662 500 for Galp Energía España and Petróleos de Portugal and to EUR 6 435 000 for Galp Energia, SGPS (recital 568 to the contested decision).
5. Operative part of the contested decision
85      The operative part of the contested decision is worded as follows:
‘Article 1
The following undertakings infringed Article 81[(1) EC] by participating, during the periods indicated, in a complex of agreements and concerted practices in the penetration bitumen business which covered the territory of Spain (excluding the Canary Islands) and which consisted in market-sharing arrangements and price coordination:
…
[Galp Energía España] and [Petróleos de Portugal], from 31 January 1995 to 1 October 2002; [Galp Energia, SGPS], from 22 April 1999 to 1 October 2002.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
…
[Galp Energía España] and [Petróleos de Portugal] jointly and severally liable for the payment of EUR 8 662 500; of which, [Galp Energia, SGPS], jointly and severally liable for the payment of EUR 6 435 000.
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringement referred to in that Article, insofar as they have not already done so.
They shall 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.
Article 4
This Decision is addressed to:
…
[Galp Energía España]
[Petróleos de Portugal]
[Galp Energia, SGPS]’.
Procedure and forms of order sought
86      By application lodged at the Court Registry on 19 December 2007, the applicants brought the present action.
87      The applicants claim that the Court should:
–        hear under oath Mr V.C., who was responsible for the bitumen sales of Petrogal Española (now Galp Energía España) from 1992 to 2007, and, if necessary, Mr C.B.F., Mr J.M.D. and Mr J.T.M., the authors of the statements in Annexes A.9, A.10 and A.11 to the application;
–        principally, annul the contested decision in its entirety; or
–        in the alternative, annul Articles 1, 2 and 3 of the contested decision in so far as they relate to the applicants; or
–        in the alternative, annul Article 2 of the contested decision, in so far as it imposes a fine on the applicants; or
–        in the alternative, reduce the fine imposed on the applicants by Article 2 of the contested decision;
–        order the Commission to pay the costs.
88      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
89      Principally, the applicants submit claims seeking annulment of the contested decision in its entirety and not in so far as it concerns them.
90      However, a decision adopted in a competition matter with respect to several undertakings, although drafted and published in the form of a single decision, must be seen as a set of individual decisions finding that each of the addressees is guilty of the infringement or infringements of which they are accused and imposing on them, where appropriate, a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the European Union judicature, and remains binding on those addressees which have not applied for its annulment (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 99 and 100).
91      Accordingly, the applicants are not entitled to seek the annulment of the contested decision in so far as it concerns other addressees.
92      As to the remainder, the applicants’ claims seek, principally, the annulment of the contested decision in so far as it concerns them and, in the alternative, a reduction of the fine which was imposed on them.
93      It is necessary to distinguish, within the claims for annulment, on the one hand, the heads of claim seeking annulment of Article 1 and Article 3 of the contested decision and, on the other hand, the heads of claim seeking annulment of Article 2 of the contested decision, which will be examined in conjunction with the heads of claim in the alternative seeking a reduction of the fine.
94      The applicants put forward the same pleas in support of their claims seeking annulment of Article 2 of the contested decision, which relates to the fine, as they do in support of their claims in the alternative seeking variation of the amount of the fine.
1. The claims for annulment of Article 1 and Article 3 of the contested decision
95      The applicants put forward six pleas, alleging (i) breach of the principle of sound administration, (ii) breach of substantial procedural requirements and of the obligation to state reasons, (iii) illegality of the findings that the applicants were involved in the system of monitoring the application of the market-sharing and customer-allocation agreements and also in the compensation mechanism, (iv) illegality of the findings that the applicants had participated in customer allocation, (v) illegality of the finding that the applicants participated in the price‑coordination activities, and, lastly, (iv) illegality of the finding relating to the duration of the applicants’ participation in the infringement.
First plea for annulment, alleging breach of the principle of sound administration
Arguments of the parties
96      The applicants take issue with the Commission for having failed to carry out a fair, careful and impartial investigation, in breach of the principle of sound administration laid down in Article 41 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 at Nice (OJ 2000 C 364, p. 1) and applied by the European Union Courts. The Commission failed to fulfil its obligation to distance itself sufficiently from the leniency applications submitted by Repsol and PROAS and incorrectly substituted the vague and inconsistent accusations made by those two undertakings for its own investigation.
97      The Commission’s finding that the applicants participated in the cartel is essentially and unconditionally based, first, on the untrue accusations which Repsol and PROAS made against the applicants in their leniency applications and in their responses to the requests for information and, second, on the statements made by Mr J.L.F., an employee of PROAS, and by Mr J.B., an employee of Repsol, during the hearing on 12 December 2006.
98      By aligning over their statements, Repsol and PROAS succeeded in minimising the risk that the Commission would ‘dissect’ their leniency applications and discover that the complaints against the applicants were unfounded. In particular, the leniency applications submitted by Repsol and PROAS and their subsequent statements clearly agree as to the duration of the applicants’ participation in the infringement and their alleged involvement in price collusion.
99      The fact that Repsol and PROAS lodged their leniency applications within three working days of each other, one and a half years after the inspections and seven weeks after the first request for information, contributes to the very strong impression that those two undertakings had aligned their leniency strategy. That impression is reinforced by their more or less simultaneous responses to the requests for information of 29 March and 26 April 2006.
100    In order to demonstrate the Commission’s failure to fulfil its obligation to investigate, the applicants also rely on an extract from the interview between the Commission’s staff and Mr A.T., the manager of BP España’s ‘Bitumen’ department, on 5 November 2003:
‘Commission: Do you think [that] Nynäs and Petrogal take what is imposed on them because they are so small that they cannot do anything? Why don’t they just compete?
BP: I don’t know exactly but perhaps it was because their aspirations were certainly met with the number they were getting because a camion arriving with, let’s say, a small number and then getting a certain small number but sufficient or enough, then it could be, but I don’t know, that could be a question for them.
Commission: Unfortunately we cannot discuss with them, it is only you we can ask.’
101    There is no reason why the Commission should have found it impossible to discuss with the applicants the issues raised in the interview with BP; for example, the Commission could have sent a request for information.
102    Contrary to the findings set out at recital 125 to the contested decision, which relies on the inaccurate assertions of Repsol and PROAS, the asphalt table was attended solely by the three bitumen producers on the relevant market, Repsol, PROAS and BP, and not by the importers. All the evidence shows that Repsol and PROAS, and to a lesser extent BP, jointly carried out all the phases of the annual market-sharing arrangement described at recital 130 to the contested decision. As Repsol confirmed in its leniency application, ‘in the so-called “asphalt table”, that existed from 1991 to 2002’, only ‘the most important companies in the sector’ – with the exception, therefore, of the applicants – were part of the regular exchanges of available market information held in order to fix quotas and customers.
103    The interviews between the Commission’s agents and BP’s representatives clearly revealed that the applicants did not participate in the asphalt table meetings. For example, when asked whether the applicants had participated in the same exchanges of views as BP, BP stated that ‘Petrogal was not part of the discussions, because we haven’t met’.
104    However insignificant the applicants’ share of the Spanish bitumen market and their participation in the infringement may have been, Repsol and PROAS succeeded in creating, for the purposes of their leniency applications, the incorrect impression that the applicants’ role was much more significant. Repsol thus incorrectly stated, without any justification: ‘Both Nynäs and Petrogal were active members of the asphalt table’.
105    BP explained the applicants’ involvement in the infringement in a much more favourable way than Repsol or PROAS and correctly depicted their involvement as being much more limited. During the interview of 5 November 2003 BP stated: ‘The monitoring was only the three companies [Repsol, PROAS and BP] so the other two [‚Nynäs and Petrogal] were not part of the monitoring.’
106    In line with the accusations made by PROAS and Repsol, and contrary to BP’s immunity application, the Commission consistently interpreted the very small number of contemporaneous documents to the applicants’ detriment. The Commission’s description in its defence of the contemporaneous evidence which it puts forward in order to substantiate the applicants’ involvement in the market‑sharing arrangements shows that the Commission is able to adduce only a very limited amount of incriminating evidence and that the applicants’ involvement in those arrangements was very limited.
107    The overview of that evidence clearly shows that:
–        the applicants’ role in the market-sharing arrangements was very limited;
–        there is no contemporaneous evidence that the applicants took part in customer allocation and in the monitoring and compensation mechanisms as described in the contested decision;
–        there is no contemporaneous evidence to substantiate that the applicants participated in any agreement whatsoever on sales quotas from 1998, or at least after September 1998.
108    The same applies to the contemporaneous evidence put forward by the Commission to substantiate the applicants’ involvement in the price‑coordination activities. Of the four documents mentioned at paragraph 16 of the defence, only the e-mail internal to the applicants of 18 October 2000 and the reply to that e‑mail of 19 October 2000 relate to the applicants and they do not constitute evidence of the applicants’ involvement in the price-coordination activities.
109    Lastly, the applicants maintain that in the defence the Commission incorrectly tries to reverse the burden of proof.
110    The Commission contends that the present plea should be rejected.
Findings of the Court
111    According to settled case-law, there is no general provision or principle of European Union law which prohibits the Commission from using statements against an undertaking which have been provided by other undertakings involved in the infringement. Statements made pursuant to the Leniency Notice cannot therefore be regarded as devoid of probative value on that ground alone (see Case T‑214/06 Imperial Chemical Industries v Commission [2012] ECR II‑0000, paragraph 58 and the case-law cited).
112    Although some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is understandable, since they might tend to play down the importance of their contribution to the infringement and maximise that of others, none the less, given the inherent logic of the procedure provided for in the Leniency Notice, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the cartel in question to submit distorted evidence (see Imperial Chemical Industries v Commission, paragraph 59 and the case-law cited).
113    Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking seeking to benefit, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (see Imperial Chemical Industries v Commission, paragraph 59 and the case-law cited).
114    On that point, it should be borne in mind that the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 35).
115    None the less, the risk that the undertaking concerned might not benefit fully under the Leniency Notice, a risk which, as was stated at paragraph 113 above, encourages it to cooperate sincerely with the Commission, including by the submission of evidence or statements running counter to its interests, cannot be placed on the same footing as a coercive measure implemented by the Commission requiring that undertaking to admit to the existence of an infringement. The application of the Leniency Notice stems initially from an initiative by the undertaking in question which seeks to benefit from the provisions of that notice and not from unilateral action taken by the Commission which is imposed on that undertaking.
116    Accordingly, in the absence of any coercive measure requiring the undertaking to incriminate itself, statements by that undertaking admitting the existence of an infringement are not devoid of probative value.
117    Thus, when a person admits that he committed an infringement and therefore admitted the existence of facts other than those whose existence could be directly inferred from the available information, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Statements which run counter to the interests of the declarant must therefore in principle be regarded as particularly reliable evidence (see Imperial Chemical Industries v Commission, paragraph 60 and the case-law cited).
118    However, 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 (see Imperial Chemical Industries v Commission, paragraph 61 and the case-law cited).
119    For the purpose of examining the probative value of statements by undertakings which have submitted an application for leniency, the Court takes into account inter alia the strength of consistent evidence supporting the relevance of those statements and the absence of evidence demonstrating that they have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings (see Imperial Chemical Industries v Commission, paragraph 62 and the case-law cited).
120    The arguments put forward by the applicants in the context of the present plea must be examined in the light of the foregoing case‑law.
121    In that regard, the applicants essentially put forward two complaints. First, the applicants criticise the probative value of the statements of Repsol and PROAS as set out in their leniency applications, their responses to the requests for information and the statements of their employees. Second, the applicants rely on shortcomings displayed by the Commission, in the investigation of the case, in reaching the finding of the applicants’ participation in the infringement.
122    With respect to the first complaint, the applicants claim, in the first place, that the statements of Repsol and PROAS are biased, since they systematically seek to accentuate Petrogal’s role, thereby casting doubt on their probative value.
123    The Court observes, as regards specifically the responses of Repsol and PROAS to the Commission’s requests for information, that those responses must a priori be considered reliable since, if they were untrue or distorted, their author would be exposed to fines under Article 15(1)(a) and (b) of Regulation No 17 and Article 23(1)(a) of Regulation No 1/2003.
124    Next, certain material in the file contradicts the accusatory nature that the applicants attribute to the statements of Repsol and PROAS with respect to the applicants.
125    As regards PROAS, it is apparent from recital 488 to the contested decision that PROAS stated in its response of 7 April 2006 to a request for information that the applicants were not present at the asphalt table in 2002.
126    That statement appears to be exculpatory with respect to the applicants.
127    As regards Repsol, at paragraph 3.55 of their application, the applicants state themselves as follows:
‘As Repsol confirmed in its leniency application, “in the so-called ‘asphalt table’, that existed from 1991 to 2002”, only “the most important companies in the sector” were part of the regular exchanges of available market information in order to fix quotas and clients.’
128    That statement of Repsol, as cited by the applicants in their pleadings, appears to be exculpatory with respect to them given that their market share in the relevant sector was only 4.54% in 2001.
129    Moreover, the applicants have failed to establish that the various statements of Repsol and PROAS are aligned.
130    The case-file shows that the closeness in the timing of Repsol’s and PROAS’s leniency applications, on 31 March and 5 April 2004, respectively, is explained by the fact that the Commission sent those two undertakings, on 6 February 2004, the first request for information, which revealed to them that the Commission planned to continue its investigation after having used the information obtained during the inspections carried out on 1 and 2 October 2002.
131    Similarly, the closeness in the timing of the responses of Repsol and PROAS to the Commission’s requests for information is also explained by the deadlines for replying prescribed by the Commission.
132    Lastly, the concordance of the content of the leniency applications of Repsol and PROAS, in particular as regards the applicants’ participation in the price arrangements, is more likely to establish the finding of the applicants’ participation in the infringement than to call in question the credibility of those statements.
133    In the second place, the applicants submit that BP’s statement according to which the monitoring system relating to the market-sharing and customer-allocation arrangements concerned only Repsol, PROAS and BP, and not the applicants, is such as to cast doubt on the objectivity of the statements made by Repsol and PROAS.
134    It must be stated that the contested decision does not reveal an express reference to the applicants in the various parts of the statements of Repsol and PROAS analysed in recitals 174 to 189 to the contested decision relating to the monitoring system. Thus, the statements made by Repsol and PROAS did not provide the Commission with any information relating to the applicants’ possible participation in that system.
135    In the third place, the applicants submit that BP’s statement that it never met the applicants during the discussions is such as to cast doubt on the objectivity of the statements made by Repsol and PROAS.
136    It should be noted, as footnote 95 in fine to the contested decision reveals, that BP confirmed during the interview of 5 November 2003 with the Commission’s staff that Repsol and PROAS held separate discussions with the applicants, something which was not contested by the applicants and which, in any event, the applicants have failed to establish as false.
137    The Commission moreover found at recital 129 to the contested decision, without being challenged by the applicants in that regard, that they had participated only in the discussions concerning their area of influence and on an exclusively bilateral basis, that is to say with Repsol and PROAS, jointly or separately, and not with the other members of the cartel.
138    Lastly, in the fourth place, the applicants claim that, in the contested decision, the Commission wrongly relied on the inaccurate assertions of Repsol and PROAS, according to which the asphalt table was attended by Repsol, PROAS, BP, Nynäs and the applicants.
139    The Court notes that, by that claim, the applicants contest, in essence, not the procedure carried out by the Commission culminating in the adoption of the contested decision, but that the findings made by the Commission in that decision were established. Accordingly, the merits of that claim will be examined in the light of the arguments put forward by the applicants in the third, fourth, fifth and sixth pleas, by which they contest their participation in the cartel.
140    In any event, the abovementioned claim is not sufficiently developed in the context of this plea to enable the Court to assess its merits.
141    It is apparent from the foregoing considerations that the applicants have failed to establish that the statements of Repsol and PROAS are devoid of probative value.
142    As regards the second complaint, the applicants submit, in the first place, that the Commission’s finding of the applicants’ participation in the infringement relies too heavily on the statements of Repsol and PROAS.
143    It should be noted that the Commission also relied, in its finding of the applicants’ participation in the infringement, on material from BP, as is apparent from footnotes 84, 95 and 471 to the contested decision.
144    Similarly, it is apparent from the text of and the footnotes to the contested decision that the Commission also relied, in its finding of the applicants’ participation in the infringement, on documents found during the inspections carried out on 1 and 2 October 2002 at the undertakings concerned, that is to say even before the leniency applications of Repsol and PROAS had been lodged, on 31 March and 5 April 2004, respectively. Those documents were found not only at the premises of PROAS (see footnotes 190, 213, 214, 215, 216, 219, 236, 302 and 324 to the contested decision), but also at the applicants’ premises (see footnotes 208, 310, 366 and 367 to the contested decision).
145    In the light of the matters set out above and the case‑law recalled at the beginning of the section devoted to the Court’s assessment of this plea, it must be stated that, in the contested decision, the Commission relied, in order to corroborate the statements of Repsol and PROAS, on sufficient material unrelated to those statements, so that it is possible to conclude that the Commission did not display shortcomings in the investigation of the case.
146    In the second place, the applicants rely on the statement made by the Commission’s staff during their interview of 5 November 2003 with Mr A.T., the manager of BP España’s ‘Bitumen’ department; according to that statement, the Commission’s staff indicated that they could not put questions to the applicants.
147    In that regard, it should be recalled that, at that stage of the administrative procedure, the Commission had in its possession only the information communicated by BP in the context of its leniency application and the documents gathered during the inspections of 1 and 2 October 2002. Moreover, the Commission had not yet sent requests for information to the undertakings concerned by those inspections, that is to say, inter alia, to the applicants. In that context, the statement of the Commission’s staff would appear to be less an indication of a lack of impartiality or care with respect to the applicants and more the simple observation that the procedure had reached a certain stage at which the Commission was not yet in a position to put questions to the applicants.
148    Furthermore, the applicants do not even claim that the Commission failed to examine, when it could have put questions to them at a later stage of the administrative procedure, the factual points raised in the passage of the interview of 5 November 2003 on which the applicants rely.
149    In the third place, the applicants criticise the small amount of contemporaneous evidence adduced by the Commission in order to establish their participation in the various aspects of the infringement.
150    It should be noted that, as has been stated above, the Commission relied, for its findings on the applicants’ participation in the infringement, on a considerable number of documents found during the inspections carried out on 1 and 2 October 2002 at the undertakings concerned (see footnotes 190, 208, 213, 214, 215, 216, 219, 236, 302, 310, 324, 366 and 367 to the contested decision).
151    The applicants also rely on the lack of probative value of a number of items of contemporaneous evidence adduced by the Commission in order to corroborate the statements of Repsol and PROAS.
152    It should be noted that the items of evidence on which the Commission relies in the contested 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 (Imperial Chemical Industries v Commission, paragraphs 53 to 55).
153    Thus, even if it were established that a number of the items of evidence allegedly showing that the applicants participated in one of the aspects of the infringement are devoid of probative value, the Court must still take account of the other items of evidence on which the Commission relied in reaching that conclusion.
154    The applicants’ criticism concerning the lack of probative value of some of the contemporaneous evidence adduced by the Commission in order to corroborate the statements of Repsol and PROAS can therefore be assessed, for each item of evidence, only in the context of the plea contesting the applicants’ participation in the aspect of the infringement to which that item of evidence relates.
155    Accordingly, that argument must be rejected in so far as it supports the present plea. However, the probative value of the evidence on which the Commission relied will be examined in the context of the pleas contesting the legality of the finding of the applicants’ participation in the various aspects of the infringement.
156    Consequently, the applicants have failed to demonstrate that the statements of Repsol and PROAS were biased or fallacious in respect of the applicants or that they were vitiated by errors or inaccuracies such as to call in question their reliability. In addition, the applicants have failed to establish that the Commission displayed shortcomings, in the investigation of the case, in reaching the finding of the applicants’ participation in the infringement.
157    The present plea cannot therefore succeed.
Second plea, alleging breach of essential procedural requirements and of the obligation to state reasons
Arguments of the parties
158    The applicants observe that, as they explained in the first plea, alleging breach of the principle of sound administration, the Commission failed to fulfil its obligation to carry out a careful and independent investigation. It relied on false, vague and inconsistent statements by PROAS and Repsol concerning the applicants’ involvement in the component parts of the infringement forming the subject‑matter of the contested decision.
159    It follows that the evidence adduced was insufficient. Accordingly, the Commission has committed a breach of essential procedural requirements and the obligation to state reasons in its finding concerning the applicants’ involvement in the component parts of the infringement forming the subject-matter of the contested decision.
160    In the first place, the applicants observe that the Commission failed to explain how the e-mail of 29 August 2002, relating to swap agreements, must be regarded as evidence of the applicants’ participation in the market-sharing arrangements forming the subject‑matter of the contested decision.
161    The Commission has failed to fulfil its obligation to state reasons for its finding that the applicants were involved in customer allocation to the same extent as PROAS, Repsol, BP and Nynäs. The Commission is neither clear nor explicit in relation to the evidence on which it relies to support its finding that the applicants were involved in customer allocation. The Commission fails to provide an explanation at recital 335 to the contested decision as to the way in which the applicants were involved in preparing the internal documents and the charts showing the allocation.
162    The Commission has also breached its obligation to state reasons for its finding:
–        that the applicants were involved, to the same extent as PROAS, Repsol, BP and Nynäs, in the monitoring system and the compensation mechanism;
–        that the applicants were involved in price discussions with PROAS, Repsol, BP and Nynäs;
–        that they were involved, after March 1998, in any of the component parts of the infringement.
163    Nor has the Commission explained why, in view of the applicants’ limited involvement in the infringement, the basic amount of the fine imposed on them was reduced by only 10%.
164    In the second place, the applicants claim that the reasoning in Chapter F of the contested decision, on remedies, is insufficient. The Commission considers that the level of the applicants’ participation in the infringement was the same as that of the other members of the cartel, but it explicitly states that the evidence shows that that is not so.
165    On the one hand the Commission claims to have established that the applicants fully participated in the alleged infringement. At recital 539 to the contested decision, the Commission thus finds that ‘Nynäs and Petrogal participated in both the market-sharing arrangements and the price-coordination aspects of the cartel’. The Commission then adds that ‘[t]o that effect, they held annual negotiations or at the very least annual discussions with Repsol and PROAS’ and that ‘Nynäs and Petrogal also requested or were at least informed of price variations and agreed to apply them in parallel to their competitors’. The Commission concludes at recital 543 to the contested decision that the applicants’ conduct ‘does not call into question [their] full involvement in the infringement’ and then finds in Article 1 of that decision that the applicants participated in the same infringement as Repsol, PROAS and BP.
166    On the other hand, the Commission also recognises, sometimes at the same recitals to the contested decision, that the applicants did not fully participate in the infringement. At recital 543, the Commission considers that ‘the conduct of Nynäs and Petrogal may have been less active than that of other participants (because, for example, they did not participate in the compensation mechanism or in all the phases of the discussions leading to the annual market‑sharing agreement)’. Likewise, at recital 567, the Commission notes that ‘evidence shows that their involvement in other aspects of the infringements, namely the monitoring and compensation mechanisms and the price-coordination activities was less regular or [less] active than that of the other three participants’.
167    Contrary to the Commission’s contention at paragraph 109 of its defence, the applicants have not confused their involvement in the alleged infringement with the extent of their involvement.
168    In those circumstances, the reasoning in the contested decision does not enable the applicants fully to defend their rights before the Court. It follows that the contested decision does not satisfy the requirements of Article 253 EC and that Articles 1, 2 and 3 of the decision must be annulled in whole or in part, at least in so far as they relate to the applicants.
169    The Commission contends that the present plea should be rejected.
Findings of the Court
170    So far as necessary, it should be recalled that, as follows from the reply to the first plea, alleging breach of the principle of sound administration, the Commission did not infringe that principle.
171    With respect to the obligation to state reasons, it should be borne in mind, as a preliminary point, that the plea alleging an absence of reasons or inadequacy of the reasons stated must be distinguished from the plea based on the inaccuracy of the grounds of the contested act because of an error as to the facts or in the legal assessment of those facts. The latter aspect falls under the examination of the substantive legality of the contested act and not the infringement of essential procedural requirements and thus cannot give rise to an infringement of Article 253 EC (see, to that effect, Case C‑265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 114; Case T‑84/96 Cipeke v Commission [1997] ECR II‑2081, paragraph 47).
172    As an essential procedural requirement, the statement of reasons required under Article 253 EC must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, by analogy, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case‑law cited).
173    None the less, for the purposes of stating the reasons for a decision adopted to enforce the rules on competition, the Commission is required under Article 253 EC to set out at least the facts and considerations having decisive importance in the scheme of the decision, thereby enabling the court having jurisdiction and the persons concerned to know the circumstances in which it has applied European Union law (see, to that effect, Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95 and the case-law cited).
174    Moreover, the statement of reasons must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 169, and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR II‑0000, paragraph 151).
175    Lastly, the Court of Justice has stated that the reasoning may be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 372, and Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 46).
176    The arguments raised by the applicants in the context of the present plea must be examined in the light of that case‑law.
177    The applicants submit:
–        in the first place, that the Commission failed to fulfil its obligation to state reasons as regards, first, their participation in two aspects of the infringement, customer allocation and price coordination and, second, their participation in the infringement after March 1998;
–        in the second place, that the Commission did not set out in a sufficiently explicit manner, in the contested decision, the reasoning that it followed regarding the different treatment that it applied to the members of the cartel according to the extent of their participation;
–        in the third place, that the Commission contradicted itself, by stating both that the applicants had fully participated in the infringement and that they had not fully participated in it.
178    It is necessary to examine each of those three complaints separately.
– The extent and duration of the applicants’ participation in the infringement
179    As a preliminary point, it should be noted that the applicants’ line of argument is very general and is therefore hardly likely to call in question the adequacy of the statement of reasons for the contested decision, whereas the Commission explained therein that it inferred the applicants’ participation in the infringement from the self-incriminating and consistent statements of the leniency applicants, which were corroborated by contemporaneous documents.
180    The Court would also point out that the applicants’ claims relating to the lack of clarity and precision of the evidence adduced by the Commission fall within the scope not of breach of essential procedural requirements but of the examination of the probative value of that evidence and, accordingly, of the assessment of the substantive legality of the contested decision, which is examined in the context of the pleas contesting the merits of the Commission’s assessment of the applicants’ participation in the infringement.
181    As regards specifically customer allocation, the Commission found that the applicants had participated in that aspect of the infringement on the basis of a body of evidence – which is mentioned in particular in footnote 95 and at recitals 136, 139, 140, 225, 249, 254, 270 and 277 to the contested decision – including internal documents submitted in the form of charts, which, it is stated, had been found at Repsol’s or PROAS’s premises or submitted by them.
182    In that regard, the Commission was not obliged to explain why it did not consider it necessary that those charts had been drawn up with the applicants’ participation.
183    Moreover, the Commission was not obliged to provide a specific explanation as to why it found – as the applicants submit – that the applicants had participated, to the same extent as Repsol, PROAS, BP and Nynäs, in customer allocation.
184    The foregoing conclusions are even more compelling given that it is not necessary for the reasoning to go into all the relevant facts and points of law.
185    It follows from the foregoing that the Commission’s finding of the applicants’ participation in customer allocation is sufficiently reasoned.
186    With respect to the applicants’ participation in price coordination, it was referred to, inter alia, at recitals 295, 300, 301, 305, 306, 314 and 315 to the contested decision. In addition, the Commission set out in sufficient detail, at recital 356 to the contested decision, the material on which it based its finding of the applicants’ participation in that aspect of the infringement.
187    It is also clear from recital 356 to the contested decision that the Commission stated its reasons for taking the view that one fax alone from a customer of the applicants could not be considered to be an exculpatory item of evidence.
188    Lastly, the Commission explained in detail how, in its view, price coordination was achieved between the various participants in the infringement.
189    In the part of the contested decision which deals with the description of the price coordination, the Commission refers to meetings between Repsol, PROAS and, to a lesser extent, BP, during which price variations were decided upon (recitals 293, 295, 302, 303 and 304 to the contested decision) and to the two ways in which the applicants participated in that coordination: first, the communication of information during bilateral meetings or by telephone (recitals 296, 302, 305 and 306 to the contested decision) and, second, the submission by the applicants of requests for a price change (recitals 300, 301 and 306 to the contested decision).
190    Next, the Commission summarised the way in which prices were coordinated at recital 359 to the contested decision, where it states that, unlike Repsol, PROAS and BP, the applicants did not participate directly in the meetings during which price changes were decided upon and that either they themselves submitted occasional requests to Repsol and PROAS for a price variation or, at the very least, they were informed of the decisions reached in the meetings between Repsol, PROAS and sometimes BP.
191    It is apparent from the foregoing that the Commission’s finding of the applicants’ participation in price coordination is sufficiently reasoned.
192    As regards the issue whether the applicants participated in the infringement committed during the period from March 1998 to 1 October 2002, the Commission observes at recital 489 to the contested decision that the applicants have provided no evidence supporting their allegation that, in 1997, they informed the bitumen producers that they would cease collusive contacts with them. In the same recital, the Commission also states, referring to the case‑law which is in its view applicable, the reasons why it was unable to find that the applicants had put an end to their anti-competitive conduct. Moreover, the Commission presents the minutes drawn up by PROAS of the meeting of 17 September 1998 between Repsol, PROAS and the applicants as evidence establishing that the applicants held discussions with Repsol and with PROAS on market-sharing and provided those two undertakings with sales figures.
193    Moreover, at recital 490 to the contested decision, the Commission states that it established the applicants’ participation in the infringement until 1 October 2002 by relying on a body of consistent statements, to which it refers, and states that the various contemporaneous documents presented in the contested decision illustrate and confirm those statements. The Commission then sets out at recitals 491 and 492 under what conditions, in its view, the case-law considers evidence put forward by its services to be sufficient to establish that an infringement has continued over several years notwithstanding the existence of more or less long periods separating the manifestations of that infringement.
194    Lastly, with respect also to one of the items of evidence which enabled the Commission to find that the applicants had participated in the cartel until 2002, the Commission, contrary to the applicants’ submission, set out at recital 278 to the contested decision its precise reasons for having considered the e-mail of 29 August 2002 to be evidence of the applicants’ participation in the market‑sharing arrangements. In that recital, it explains why it considers that that e-mail concerns bitumen. The Commission goes on to note that it is apparent from the wording of that e-mail that a meeting with Repsol is considered opportune by Petrogal, and that a meeting was scheduled with CEPSA, the parent company of PROAS, with the clear purpose of clarifying the market situation and not ‘enter[ing] into a war’ with PROAS. The Commission concludes that the e-mail demonstrates that one of the goals of the applicants’ business strategy regarding bitumen in Spain was avoiding a ‘war’ with a competitor and that the applicants took steps to implement that strategy.
195    It is apparent from the foregoing that the Commission must be regarded as having provided a sufficient statement of reasons for its finding of the applicants’ participation in the infringement committed during the period March 1998 to 1 October 2002.
196    Consequently, the present complaint must be rejected.
–       The different treatment applied to the members of the cartel according to the extent of their participation in it
197    The Court notes that the Commission stated that it would take account of the differences of participation of the members of the cartel in the infringement by finding aggravating circumstances in the case of Repsol and PROAS leading to an increase in the amount of the fines by 30% and by finding attenuating circumstances in the case of the applicants leading to a reduction of the amount of the fine by 10% (recitals 536, 567 and 568 to the contested decision).
198    In particular, at recital 567 to the contested decision, the Commission justified the reduction of 10% of the amount of the fine applied to the applicants by their more limited involvement in certain aspects of the infringement. In that regard, the Commission was not obliged to provide a specific explanation as to why it did not grant a higher percentage reduction.
199    Consequently, the present complaint must be rejected.
–       The contradictory nature of the statement of reasons
200    The applicants submit that, in the contested decision, the Commission – in a contradictory manner – states both that they fully participated in the alleged infringement and that they did not fully participate in it.
201    To that effect, the applicants produce a list of seven extracts from the contested decision, taken in particular from recitals 543 and 567, a list which contains only rare explanations.
202    With respect to the market‑sharing and customer‑allocation arrangements, it should be noted that, at recital 543 to the contested decision, the Commission states, inter alia, that the full involvement of the applicants in the infringement is demonstrated by the fact that, throughout the entire duration of the infringement, they participated in the market‑sharing and customer‑allocation arrangements in their area of influence, but only in respect of the phase of the arrangements in which they intervened, which is set out at recital 130(f) to the contested decision.
203    Apart from a minimal inaccuracy which has no bearing on the understanding of the reasoning followed in that regard by the Commission, an inaccuracy stemming from the fact that ‘duration of the infringement’ should be understood as ‘duration of their participation in the infringement’, which is unequivocally clear from the detailed explanations that the Commission devoted elsewhere in the contested decision to the starting and end date of participation in the cartel of each company concerned, it is not established that, in other parts of the contested decision, the Commission made an assessment contrary to its assertion in the extract from recital 543 mentioned in the previous paragraph.
204    In particular, the other extract from recital 543 and the extract from recital 567 to the contested decision, which are cited by the applicants in order to establish such a contradiction, do not relate to market-sharing or customer allocation as such, but specifically to the monitoring system and the compensation mechanism.
205    With respect to price coordination, it should be noted that the Commission states, at recital 543 to the contested decision, that the full involvement of the applicants in the infringement is demonstrated by the fact, inter alia, that, throughout the entire duration of the infringement, they coordinated with Repsol and PROAS price variations and the time of their implementation.
206    For the same reasons as those previously described at paragraph 203 above, it must be stated that the inaccuracy relating to the use of the expression ‘duration of the infringement’ is of no consequence.
207    Moreover, although the Commission states at recital 567 to the contested decision that the applicants’ involvement in the price‑coordination activities was less regular or active than that of Repsol, PROAS or BP, that finding does not contradict the assertion at recital 543 to the contested decision that the applicants participated in the price‑coordination activities throughout the entire duration of the infringement.
208    Indeed, at recital 359 to the contested decision, the Commission states that, unlike Repsol, PROAS and BP, the applicants did not participate directly in the meetings during which price changes were decided upon and that, either they themselves submitted occasional requests to Repsol and PROAS for a price variation, which BP also did sometimes, or, at the very least, they were informed of the decisions reached in the meetings between Repsol, PROAS and sometimes BP.
209    The applicants could therefore understand that, although they had participated in price coordination throughout the entire period of their involvement in the infringement, they had done so on a less regular or active basis than Repsol, PROAS and BP, since they were not present at the meetings during which price variations were adopted, even though they were informed of the results of those meetings and sometimes even initiated those variations.
210    It is apparent from the foregoing that, with respect to Chapter ‘F. Remedies’ of the contested decision, no contradiction relating to the market‑sharing and customer‑allocation arrangements as well as to price coordination has been established.
211    Consequently, since none of the applicants’ complaints has been upheld, the plea alleging that the contested decision contains an insufficient statement of reasons must be rejected.
Third plea, alleging illegality affecting the finding that the applicants were involved in the monitoring system and the compensation mechanism relating to the application of the market-sharing and customer-allocation arrangements
Arguments of the parties
212    The applicants take issue with the Commission for having infringed Article 81(1) EC and Article 23(2) of Regulation No 1/2003 and for having made a number of manifest errors of assessment and an error of law in concluding, at recitals 3, 335 and 373 to the contested decision, that in the context of the market-sharing arrangements in issue they participated in the system for monitoring the volumes and customers allocated to each participant in the cartel and in the compensation mechanism designed to correct any deviations from the market-sharing arrangements.
213    The applicants maintain that the Commission’s objection at recital 335 to the contested decision that they contributed to ‘ensuring the implementation of the volume and customer allocation by a monitoring system’ and the similar conclusions which it drew at recitals 3 and 373 are not based on any evidence, whether contemporaneous or non‑contemporaneous.
214    Not only is there an absence of non-contemporaneous evidence, but at recitals 198 to 289 to the contested decision the Commission did not adduce any contemporaneous evidence whatsoever to show that the applicants participated in a monitoring system.
–       Absence of non-contemporaneous evidence
215    Recitals 174 to 189 to the contested decision do not mention the applicants as undertakings involved in the monitoring system in issue and none of their employees is among the participants in the monitoring meetings listed in table 3, which is reproduced at recital 180 to that decision. In his statement, which there is no valid reason to disregard, Mr V.C. confirms in the following terms that the applicants were never involved in a monitoring system:
‘I noted the European Commission’s accusation that Galp Energía España … would have participated in a monitoring system and in a compensation scheme of the asphalt table. This is incorrect. Simply because we never were compensated, regardless of Galp Energía España[‘]s … sales volume. It is true that at a moment in time I realised that there was some sort of compensation system between the members of the asphalt table, however I never knew what these companies did with this system. Therefore, Galp Energía España … was never involved in any compensation mechanism.’
–       Absence of contemporaneous evidence
216    At recital 348 to the contested decision the Commission appears to maintain that the applicants’ participation in a monitoring system can be inferred from a passage in the minutes which PROAS took of a meeting held on 17 September 1998, cited at recital 242 to that decision and stating in the following terms that the applicants communicated sales figures to PROAS and Repsol:
‘According to the sales summary that they hand over to us, they have supplied outside what corresponds to them in the PTT.’
217    The applicants have no information relating to that meeting and are therefore unable to confirm that the minutes correctly represent a conversation that may or not have taken place or correctly report that the applicants handed over a ‘sales summary’.
218    The Commission is wrong to describe those minutes as constituting sufficiently precise and consistent evidence that the applicants participated in the monitoring system with PROAS, Repsol or BP and Nynäs.
219    In the first place, ‘us’ clearly refers only to PROAS. The Commission is therefore wrong to state at recital 348 to the contested decision that the minutes indicate that the applicants provided a sales summary to both PROAS and Repsol.
220    In the second place, the minutes refer only to a sales summary, apparently of a generic nature. All that can be inferred from that summary is that the applicants had sold a quantity of bitumen higher than their quota of 48 000 metric tonnes (‘MT’). There is no evidence that the alleged summary referred to customers.
221    In the third place, at recital 348 to the contested decision the Commission completely ignores the context in which the applicants’ sales summary was provided to PROAS. At the meeting of 17 September 1998 the applicants confirmed that they had distanced themselves from any involvement in the asphalt table.
222    In the fourth place, the applicants’ involvement clearly cannot be concluded solely from the fact that they may have provided figures which, according to PROAS, are assimilable to a sales summary, with an unknown content, which led PROAS to believe that the applicants made supplies ‘outside [the quota] that corresponds to them in the PTT’.
223    In the absence of any other evidence that the applicants willingly and consciously exchanged sales information with Repsol and PROAS on a regular basis, the Commission cannot maintain that the minutes constitute evidence that the applicants participated in a systematic monitoring system.
224    Furthermore, at recital 335 to the contested decision, the Commission refers in general, as evidence of a monitoring system, to a number of internal documents found at the premises of Repsol and PROAS, or submitted by those undertakings, which are not capable of demonstrating that the applicants participated in a monitoring system. Those internal documents include documents containing references to the applicants, including an internal chart prepared by PROAS, mentioned at recital 223 to the contested decision, and an internal chart prepared by Repsol, entitled ‘Chart data bitumen 1998’, described at recital 243 to that decision.
225    It is not clear from recital 335 to the contested decision that the Commission presents those documents as evidence relating to the applicants. In any event, it can be precluded that those documents can serve as evidence that the applicants participated in a monitoring system. Indeed, PROAS itself has acknowledged that the chart mentioned at recital 223 to the contested decision was prepared on the basis of market information gathered by its sales staff, which means that the applicants were not involved in gathering those figures. Likewise, the document submitted by Repsol referred to at recital 243 to the Decision is an internal document and there is no evidence whatsoever that the applicants provided any information to Repsol.
226    The Commission also ignored certain convincing exculpatory evidence relating to the applicants’ alleged participation in a monitoring system. BP clearly stated during an interview with the Commission that ‘the monitoring was only [Repsol, PROAS and BP] so [Nynäs and the applicants] were not part of the monitoring’. Indeed, the Commission acknowledged at recital 348 that ‘[the applicants] may not have participated in monitoring … discussions’.
227    The principle in dubio pro reo is applicable here: the Commission’s finding at recitals 3, 335 and 373 to the contested decision that the applicants were parties to a monitoring system is clearly not supported by sufficiently precise and consistent evidence.
228    As regards the compensation mechanism designed to correct any deviations from the volume and customer‑allocation agreements, the applicants deny having been involved in such a mechanism, contrary to the findings set out at recitals 3, 335 and 373 to the contested decision.
229    As in the case of the monitoring system, the applicants are not mentioned as participants in the description set out at recitals 190 to 200 to the contested decision, on the basis of the observations submitted by the three leniency applicants. In his abovementioned statement, Mr V.C. confirms that Galp Energía España was never involved in any compensation mechanism.
230    At recitals 190 to 197 to the contested decision, moreover, the Commission does not adduce any contemporaneous evidence whatsoever to show that the applicants participated in the compensation mechanism. In particular, none of the examples which the Commission provides at recital 197 to the contested decision in order to illustrate the functioning of that mechanism contains the slightest reference to the applicants.
231    It is logical that the applicants should not appear as participants in the compensation mechanism, since they were not involved in a monitoring system either and without monitoring there can be no compensation. BP’s statement that the monitoring concerned only Repsol, PROAS and BP therefore also constitutes exculpatory evidence in relation to the applicants’ involvement in a compensation mechanism. Indeed, the Commission acknowledges at recital 348 that ‘[the applicants] may not have participated in … compensation discussions’.
232    The Commission contends that recital 355 to the contested decision clearly states that not all the members of the cartel participated to the same extent in all aspects of the cartel. Likewise, recital 373 to that decision is a general description of the infringement taken as a whole and does not state that each member of the cartel fully participated in each of its aspects. As may be seen from recital 567 to that decision, the Commission acknowledges that the applicants’ and Nynäs’s involvement in some aspects of the infringement may have been more limited than that of the other three participants and it takes that factor into account in granting them a reduction of their fine.
233    As regards the minutes of the meeting of 17 September 1998, it is irrelevant that the sales summary was provided to both PROAS and Repsol or only to PROAS, since both were direct competitors of the applicants. The reference to the applicants having exceeded their quota indirectly confirms the existence of a quota and constitutes evidence of a degree of monitoring. Recital 242 to the contested decision does not state that the sales summary refers to customers, but notes that the minutes show how the applicants provided their competitors with sales information which enabled them to monitor the extent to which the applicants were complying with the volumes allocated to them by the market‑sharing agreement or ‘PTT’.
234    The sales summary must be understood in the light of the minutes as a whole, which indicate that the applicants sought a general agreement on the market and the coordinated revision of all business lines on the Iberian market, in other words an even wider anti-competitive agreement. Last, the Commission did not claim that the minutes were evidence of a systematic exchange of information, but claimed that they were merely part of the evidence used to demonstrate the existence of the monitoring system applied in the cartel as a whole.
235    The applicants themselves acknowledge that their arguments relating to the extent of their participation in the monitoring system were taken into consideration by the Commission, as is clear from recital 348 to the contested decision. While the applicants may not have participated in monitoring discussions, the fact none the less remains that they contributed at their own level to the pursuit of the common objective of distorting competition on the Spanish bitumen market. Participation in meetings during which agreements of an anti-competitive nature were concluded is sufficient to prove participation in a cartel.
236    The wording of the statement of Mr V.C., which has greater credibility because it is contrary to the applicants’ interest, confirms that even if, as the applicants claim, they did not actively participate in the compensation mechanism, they were at least informed of its existence, which they do not deny at any point.
Findings of the Court
237    Where, as in the present case, it hears an action for the annulment of a decision applying Article 81(1) EC, the General Court must undertake in general a comprehensive review of the question whether or not the conditions for applying that provision are met (see Imperial Chemical Industries v Commission, paragraph 63 and the case-law cited).
238    According to settled case‑law, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement of Article 81(1) EC (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58). It must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see Imperial Chemical Industries v Commission, paragraph 53 and the case-law cited).
239    It is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the Commission will then have to resort to other evidence (Aalborg Portland and Others v Commission, paragraph 78).
240    Although according to those principles the legal burden of proof is borne either by the Commission or by the undertaking concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (Aalborg Portland and Others v Commission, paragraph 79).
241    It is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Imperial Chemical Industries v Commission, paragraph 54 and the case-law cited).
242    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 (see Imperial Chemical Industries v Commission, paragraph 56 and the case‑law cited).
243    Lastly, where the Court is in doubt the undertaking which is the addressee of the decision finding an infringement must have the benefit of that doubt, in keeping with the principle of the presumption of innocence which, as a general principle of European Union law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see Imperial Chemical Industries v Commission, paragraph 64 and the case-law cited).
244    It is in the light of those general observations that it is necessary to assess the evidence gathered by the Commission in support of the applicants’ participation in the infringement, whether in the context of the present plea or in the context of the other pleas by which the applicants’ participation in the infringement is contested.
245    In the context of the present plea, it is appropriate to examine in turn the applicants’ complaint relating to their participation in the monitoring system, and subsequently their complaint relating to their participation in the compensation mechanism.
246    As regards the applicants’ participation in the system of monitoring the market-sharing and customer-allocation arrangements, the Court notes that, as can be seen from paragraph 3.85 of the application, the applicants stated, without being challenged in that regard by the Commission, that, according to the statement made by Mr A.T., manager of the ‘Bitumen’ Department of BP España, during his interview of 5 November 2003 with the Commission’s staff, ‘the monitoring was only [Repsol, PROAS and BP] so the [the applicants] were not part of the monitoring’.
247    In addition, the contested decision makes no mention at any point of the applicants in the various parts of the statements of the three leniency applicants analysed at recitals 174 to 189 to the contested decision, which deal with that system. In particular, none of the applicants’ employees appears among the participants in the monitoring meetings mentioned in table 3, which is reproduced at recital 180 to the contested decision.
248    Lastly, as regards the contemporaneous documents, at recital 189 to the contested decision, the Commission refers to some of the recitals containing evidence establishing, in its view, the existence of the monitoring system. Recital 189 refers, inter alia, to recitals 213 and 223 to that decision, in which reference is made to the applicants. In addition, at recital 213 to that decision there is a footnote (181) in which reference is also made to the applicants.
249    It is necessary to examine the various items of evidence which, according to the Commission, supposedly demonstrate the applicants’ involvement in the monitoring system, in particular, the items set out in the recitals mentioned in the previous paragraph.
250    First, the Commission states, in the fourth paragraph of recital 213 to the contested decision, with respect to the sales chart relating to the first fortnight of December 1994, as follows:
‘Also worth noting is the handwritten scribble on the page which contains the sales chart for the first fortnight of December 1994:
“Petrogal 48
Nynäs 55/56” (…)
The Commission considers that the above-mentioned amounts refer to the theoretical volumes allocated by the cartel to Petrogal and Nynäs, as indicated by Repsol in its leniency application (see recital 154):
Petrogal: 48 000 tonnes;
Nynäs: 54 000 tonnes.
In response to a request for information, Repsol confirmed that the phrases “Petrogal 48” and “Nynäs 55/56” refer to the thousands of tonnes negotiated with Petrogal and Nynäs respectively as their participation in the Spanish market.’
251    Not only does that chart refer to a period prior to the starting date of the applicants’ participation in the cartel as found by the contested decision, namely on 31 January 1995, but, in addition, the handwritten scribble on that chart merely reproduces the theoretical volumes allocated to the applicants following the final stage of the annual market agreements which is referred to at recital 130(f) to the contested decision. Thus, those annotations do not relate to the applicants’ actual sales. They therefore have no probative value with respect to the applicants’ participation in the monitoring system.
252    Second, the PROAS chart entitled ‘Total market summary 1994’ (recital 223 to the contested decision), which contains a list of the main bitumen suppliers, which includes the applicants, cannot be used as evidence against the applicants either, since it predates the beginning of their participation in the infringement.
253    In addition, as is apparent from PROAS’s response to a request for information cited at recital 223 to the contested decision, that chart was prepared on the basis of market information gathered by PROAS’s sales staff, which does not permit the conclusion that that information was communicated by the applicants in the context of a system for monitoring the quotas.
254    Lastly, also according to recital 223 to the contested decision, the chart mentioned therein ‘might have been used to exchange information at the asphalt table’. It follows from the use of the conditional that it is not even certain that that chart was used to exchange information on which the monitoring system in issue is based.
255    Third, the ‘monitoring chart for 1995’, mentioned in footnote 181 (in limine) to the contested decision, which is a summary of theoretical sales, actual sales and the difference between the two, mentions the numbers, ‘3+1’, ‘2’ and ‘4’, which are associated with Repsol, PROAS and BP, respectively. That chart does not mention the applicants. Mention is also made later in that footnote of the ‘chart for 2001’ in which theoretical quotas and actual sales are compared. That chart relates only to ‘the three suppliers’, which necessarily means Repsol, PROAS and BP, since reference was made to them just before in the footnote.
256    The applicants’ absence from those follow‑up charts does not make it possible to consider those documents to be evidence of the applicants’ participation in the monitoring system.
257    Although footnote 181 (in fine) states that ‘Repsol explains the meaning of the numbers used to designate each supplier in the “charts”: 1: [Repsol], 2: PROAS, 3: Petronor, 4: BP, 5: Nynäs, 7: Petrogal, 9: Imports’, that clarification, which merely confirms the link between those numbers and the participants in the infringement, does not permit the conclusion that the applicants were mentioned in the follow-up charts referred to earlier in the footnote.
258    Fourth, nor can the sentence ‘[a]ccording to the sales summary that they hand over to us, they have supplied outside what corresponds to them in the PTT’, which appears in the minutes drawn up by PROAS of the meeting entitled ‘Meeting Petrogal on 17-09-98’ held, according to recital 236 to the contested decision, between Repsol, PROAS and the applicants, constitute an indication of the applicants’ participation in the monitoring system in issue.
259    It is apparent from the minutes of the meeting of 17 September 1998, minutes drawn up by PROAS and reproduced at recital 236 to the contested decision, that the applicants ‘[were awaiting] [a] response from the rest of the companies about the revision of all business lines for the Iberian market’ and that, ‘for as long as they [did] not have an answer to the proposal for a general agreement, they [would] continue to take the positions which they consider[ed] most convenient’.
260    The reference, in the minutes of the meeting of 17 September 1998, to a proposal for a general agreement made to the applicants’ two main competitors and to which the applicants were awaiting a response, and the communication, during that meeting, of information concerning the applicants’ bitumen sales figures, indicate that the discussions between the three undertakings during that meeting related to a negotiation concerning the sharing of the bitumen market.
261    In addition, the applicants submitted, without being contradicted in that regard by the Commission, that, from the business year 1998, they far exceeded the sales volume allocated to them in the context of the cartel, as can be seen from the applicants’ sales figures set out at paragraph 3.130 of the application. They state that, in respect of 1998, they sold 89 177 MT of bitumen.
262    Even though, in September 1998, not all those sales had probably yet been made, the difference between the volume in question and the quota allocated in the context of the cartel, namely 48 000 MT, is such that the communication to Repsol and PROAS of figures revealing that deviation cannot be interpreted as participation in a monitoring system, but rather as an argument for negotiating a new and larger quota.
263    Thus, by presenting to their competitors during the meeting of 17 September 1998 information on their bitumen sales figures which enabled those competitors to see that the applicants had sold well in excess of the amount corresponding to them under the PTT, the applicants cannot be regarded as having participated in the monitoring system.
264    For the sake of completeness, it should be added that the meeting which gave rise to the drawing up of the minutes in issue was held during the second period of the monitoring system, which, according to the extract from Repsol’s leniency application referred to at recitals 183 and 187 to the contested decision, started around 1996 and lasted until 2001. That extract reveals that the monitoring was carried out by telephone during that period, as meetings were no longer deemed necessary for that purpose. The absence, during the period in question, of any meetings devoted to the monitoring of the implementation of the market-sharing and customer-allocation arrangements confirms that the meeting in issue of 17 September 1998 did not have as its object the monitoring of the applicants’ sales.
265    On examination, it is therefore apparent that the contemporaneous documents by which the Commission, in the contested decision, links the applicants with the monitoring system do not constitute indicia of their participation in that system.
266    It follows from the foregoing that it has not been established to the requisite legal standard that the applicants participated in the system for monitoring the market‑sharing and customer‑allocation arrangements.
267    As regards the applicants’ participation in the compensation mechanism, the contested decision makes no mention at any point of the applicants in the various parts of the statements of the three leniency applicants analysed at recitals 190 to 197 to the contested decision, which deal with that mechanism.
268    Similarly, none of the contemporaneous documents cited by the Commission for the purposes of establishing the existence of the compensation mechanism contains any reference to the applicants.
269    Moreover, it should be noted that the Commission states, at recital 543 to the contested decision, which appears under Chapter ‘F. Remedies’, as follows:
‘… even if the conduct of Nynäs and Petrogal may have been less active than that of other participants (because, for example, they did not participate in the compensation mechanism or in all the phases of the discussions leading to the annual market‑sharing agreement) … throughout the entire duration of the infringement, they negotiated or at least agreed with Repsol and/or PROAS the limitation of their sales volumes and the allocation of customers in their areas of influence and coordinated with them price variations and the time of their implementation …’.
270    It is apparent from that extract that the Commission itself recognises, in the contested decision, that the applicants did not participate directly in the compensation mechanism.
271    Moreover, in that extract, the applicants’ lack of participation in the compensation mechanism is placed on the same footing as the finding that they did not participate in all the phases of the discussions leading to the annual market‑sharing agreement. The applicants’ lack of participation in certain phases of the discussions is clearly apparent from the wording of recital 130(a) to (d) to the contested decision in which reference is made only to the bitumen producers.
272    It is apparent from the foregoing that, in the contested decision, the Commission failed to establish the applicants’ participation in the monitoring system and in the compensation mechanism.
273    None the less, it held the applicants liable in respect of those two aspects of the infringement.
274    In Article 1 of the operative part of the contested decision, the Commission finds that the applicants, in the same way as the other addressees of the contested decision, infringed Article 81 EC by participating in a complex of agreements and concerted practices in the bitumen business covering the territory of Spain (excluding the Canary Islands) and consisting in market‑sharing arrangements and price coordination.
275    The Commission states, at recital 3 to the contested decision, as follows:
‘... the addressees of this Decision [and, consequently, the applicants] participated in a single and continuous infringement of Article 81[(1)EC] by which, to different extents, they:
–        …
–        monitored the implementation of the market‑sharing arrangements and, to that effect, exchanged sensitive market information;
–        established a compensation mechanism to correct deviations from the market‑sharing arrangements;
–        …’.
276    In that regard, the Court would point out the fact that Commission may have reduced the fine to take account of the applicants’ lesser degree of participation as regards the monitoring system and the compensation mechanism does not permit the conclusion that it did not hold them liable.
277    In the context of a single and continuous infringement, the case‑law draws a distinction between the concepts of liability and participation in the infringement; an undertaking can be held liable for the infringement as a whole, including for unlawful conduct in which that undertaking did not participate, where it was aware of that conduct or where it could not have been unaware of its existence (Case C‑441/11 P Commission v Verhuizingen Coppens [2012] ECR II‑0000, paragraph 45).
278    The Commission moreover relied, in determining the amount of the fine imposed on each undertaking, on a starting amount common to all the undertakings concerned (recital 510 to the contested decision), which confirms that the Commission considered that each of them had to be held liable, even though they participated to varying degrees, in respect of all aspects of the infringement.
279    Thus, in the contested decision, the Commission held the applicants liable for all aspects of the infringement, including the monitoring system and the compensation mechanism.
280    None the less, as has been stated above, the applicants’ participation in respect of those two aspects of the infringement is not established in the contested decision.
281    The ground based on the applicants’ participation in the monitoring system and in the compensation mechanism does not appear to be a ground included for the sake of completeness the illegality of which would not lead to annulment of the contested decision (see, to that effect, Case C‑122/01 P T. Port v Commission [2003] ECR I‑4261, paragraph 17, and Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 146).
282    Indeed, it is not apparent from the contested decision that the Commission relied on a ground other than that based on the applicants’ participation in those two aspects of the infringement in order to hold them liable in that regard.
283    In particular, the Commission, in responding, in the contested decision, to the objection relating to the applicants’ involvement in the monitoring system and the compensation mechanism raised by the applicants following notification of the statement of objections, stated, inter alia, as follows at recital 348 to the contested decision:
‘... In any case, the fact that Nynäs and/or Petrogal may not have participated in monitoring or compensation discussions does not preclude the fact that, as indicated above, Nynäs and Petrogal contributed at their own level to the pursuit of the common objective of distorting competition on the Spanish bitumen market. Furthermore, it is sufficient for the Commission to establish that Nynäs and Petrogal participated in meetings during which agreements of an anti‑competitive nature were concluded, such as the discussion and/or acceptance of market quotas and customer allocation in their area of influence, in order to prove that they participated in the cartel.’
284    In that extract, the Commission merely stated that, on the assumption that the applicants did not participate in the monitoring system and the compensation mechanism, they none less participated in the pursuit of a common objective and in market-sharing discussions, which would be sufficient to establish their participation in the cartel as a whole.
285    It should be noted that that explanation does not specifically concern the applicants’ liability in respect of the monitoring system and the compensation mechanism and cannot therefore be regarded as revealing an alternative ground to the applicants’ participation, used by the Commission in the contested decision in order to hold the applicants liable regarding those two aspects of the infringement.
286    Moreover, in its pleadings, the Commission does not claim that it relied, in the contested decision, on a ground other than that based on the applicants’ participation in those two aspects of the infringement in order to hold them liable in that regard.
287    Even on the assumption that the Commission may be regarded as having held the applicants liable with respect to the monitoring system and the compensation mechanism on the basis of a ground alternative to their participation in those two aspects, a ground which might conceivably be set out in the extract from recital 348 to the contested decision, that ground would not be sufficient to justify that decision in law (see, to that effect, Case C‑86/89 Italy v Commission [1990] ECR I‑3891, paragraph 20).
288    As was stated at paragraph 277 above, according to the case‑law, an undertaking can be held liable in respect of unlawful conduct in which it did not participate only if that undertaking was aware of that conduct or if it could not have been unaware of the existence thereof.
289    However, at recital 348 to the contested decision, the Commission does not rely either on awareness that the applicants might have had of the monitoring system and the compensation mechanism or on the fact that they could not have been unaware of those aspects. Furthermore, the Commission does not rely on this in another part of the contested decision.
290    Moreover, it must be stated that such awareness or the fact that it was not possible to be unaware of the existence of the two aspects in question of the infringement is not established in the light of the elements on which the Commission relied in order to adopt the contested decision.
291    In that regard, it should be pointed out that any awareness that the applicants may have had of those two aspects of the infringement cannot be presumed, in view of their role in the cartel. It is established that the applicants, whose share of the relevant market was 4.54% in 2001, participated in the cartel only from 31 January 1995 after being offered a market share allocation by Repsol and PROAS (recital 125 to the contested decision). The applicants also occupied a peripheral geographical position, their area of influence having been confined to close to the Spanish‑Portuguese border. Lastly, whilst Repsol and PROAS were permanent members of the asphalt table, the applicants participated at the table less frequently (recital 126 to the contested decision) and participated only in the discussions concerning their area of influence, on a bilateral basis, with Repsol or PROAS, in the absence of other members of the cartel (recital 129 to the contested decision). Thus, the applicants did not participate in all the phases of the discussions leading to the annual market‑sharing agreements (recital 543 to the contested decision), but were only informed during the last of those phases, of the sales volumes and customers corresponding to them in their area of influence, which were then negotiated with Repsol or PROAS (recital 130(f) to the contested decision).
292    Consequently, the applicants’ liability in respect of the monitoring system and the compensation mechanism is not established in the light of the elements on which the Commission relied in order to adopt the contested decision.
293    None the less, the Commission relies in its pleadings on the statement of 6 December 2007 of Mr V.C., who was responsible for the bitumen sales of Petrogal Española (now Galp Energía España), in Annex A.12 to the application which was submitted by the applicants in the file relating to the proceedings before the Court.
294    By asserting expressly in that statement that he ‘realised that there was some sort of compensation system between the members of the asphalt table’, Mr V.C., who was responsible for the bitumen sales of Petrogal Española (now Galp Energía España), reveals a posteriori that the applicants were indeed aware of the compensation mechanism in which other members of the cartel participated and that they could thus have reasonably foreseen the existence of its corollary, the monitoring mechanism, and that they were prepared to take the risk.
295    However, in so far as the ground alleging that the applicants were aware of the monitoring system and the compensation mechanism was not used in the contested decision, it is not for the Court, when reviewing legality, to substitute an entirely new statement of reasons for the erroneous statement used by the Commission (Case C‑164/98 P DIR International Film and Others v Commission [2000] ECR I‑447, paragraph 38, and Case T‑560/08 P Commission v Meierhofer [2010] ECR II‑0000, paragraph 59).
296    In any event, Mr V.C.’s statement of 6 December 2007, which is not mentioned in the contested decision, does not make it possible to cure that decision of the defect of legality consisting in the fact that the evidence adduced in that decision is incapable of establishing the applicants’ liability in respect of the monitoring system and the compensation mechanism.
297    In proceedings for annulment brought under Article 230 EC, all that is required of the European Union judicature is to verify the legality of the contested measure.
298    Moreover, according to settled case‑law, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement of Article 81(1) EC (Baustahlgewebe v Commission, paragraph 58). The Commission is required to set out in its decision finding the existence of such an infringement sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited, judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 55; and Imperial Chemical Industries v Commission, paragraph 53). It is therefore for the Commission, where it finds the existence of an infringement, to establish, in the actual grounds of the decision finding that infringement, the facts on the basis of which it adopts that decision.
299    Thus, the role of a Court hearing an application for annulment brought against a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees consists in assessing whether the evidence relied on by the Commission in the decision itself is sufficient to establish the existence of the alleged infringement.
300    It follows that the Commission cannot produce new inculpatory evidence not contained in the contested decision in support of the lawfulness of that decision, in the same way as the Court cannot rely on such evidence in order to find that that decision is lawful (see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraphs 174 to 176).
301    Thus, in the context of the claims for annulment, the Court cannot take account of the aforementioned statement by Mr V.C., which, although revealing the existence of a fact prior to the adoption of the contested decision, constitutes a new item of inculpatory evidence which was not used in that decision.
302    Consequently, the present plea must be upheld.
Fourth plea, alleging illegality affecting the finding that the applicants participated in customer allocation
Arguments of the parties
303    The applicants take issue with the Commission for having infringed Article 81(1) EC and Article 23(2) of Regulation No 1/2003 and having made a number of manifest errors of assessment and an error of law in concluding, at recitals 3, 335 and 373 to the contested decision, that they were involved in customer allocation in the context of the market‑sharing arrangements in issue.
304    The applicants maintain that the Commission’s finding, at recitals 122 to 189 to the contested decision, that they were involved in customer allocation appears to be based solely on two statements made by Repsol and PROAS. The Commission also makes a general reference to, and accepts as evidence, a number of internal documents found at the premises of Repsol and PROAS or submitted by those undertakings, some of which refer to the applicants and contain a column headed ‘Customers’.
–       Non-contemporaneous evidence: the statements of Repsol and PROAS are not sufficiently probative
305    The applicants submit that Repsol’s statement, cited in footnote 95 to the contested decision, concerning a meeting held in April 2002 during which Repsol informed the applicants about and discussed with them ‘the market in their [geographic] area, tonnes, customers and [market] distribution’ is untrue.
306    PROAS, for its part, stated in very general terms that Repsol, PROAS or BP ‘communicated with [the applicants], by telephone, or by providing [them] with a partial copy of the document embodying the market‑sharing agreement or “PTT”, the volumes and projects that corresponded to [the applicants] for the year in question (whenever [the applicants] did not attend the meetings and in respect of their areas of influence)’.
307    The Commission acknowledges at recital 346 to the contested decision that BP and PROAS provided it with a thorough and consistent description of the customer allocation between Repsol, PROAS and BP. In contrast, the PROAS statement concerning the applicants’ alleged participation in customer allocation in footnote 95 to the contested decision is too vague to be used as evidence.
308    In the light of the foregoing, the vague, false and unspecific statements submitted by Repsol and PROAS cannot be used to substantiate the applicants’ participation in customer allocation.
–       Absence of contemporaneous evidence: the internal charts of Repsol and PROAS lack probative force
309    At recitals 225, 244 to 255 and 269 to 289 to the contested decision the Commission refers to a number of internal documents and charts found at Repsol’s and PROAS’s premises or submitted by those undertakings. Repsol and PROAS contend that those documents sometimes refer to the applicants by using certain reference numbers. References to ‘customers’ are also to be found in some of those documents, which include:
–        an internal chart dated 28 March 1994, prepared by PROAS and found during the inspections (recital 218 to the contested decision);
–        an internal document entitled ‘study sheet’ – ‘Forecast 1995 Nynäs’, which contains two columns indicating province and customer and four other columns headed 1, 2, 5 and 6 and listing volumes. According to Repsol, ‘6’ refers to the applicants. Repsol admitted that the volumes indicated on the sheet were negotiated in a joint meeting by Repsol, PROAS and Nynäs (recital 225 to the contested decision);
–        a document entitled ‘PTT year 2000 under construction’, which contains columns headed ‘customer’, ‘project’ and ‘consumption’. Alongside the volumes required per project are handwritten annotations indicating the supplier to which the volumes are allocated. The suppliers are designated by number and Repsol explained that ‘7’ referred to the applicants. Repsol explained in response to a request for information that those handwritten annotations were made by its staff, probably during a meeting between it and PROAS, and were negotiated by it and PROAS (recital 254 to the contested decision).
310    Contrary to what the Commission may have wished to imply at recital 335 to the contested decision, where it makes a vague reference to those documents, those documents cannot serve as incriminating evidence. Neither the Commission’s file nor, consequently, the contested decision contains evidence that the applicants were involved in preparing those documents. There is no contemporaneous or non-contemporaneous evidence that the applicants supplied any information to PROAS or Repsol in order to enable them to draft their internal documents.
311    Furthermore, the applicants state that they understand from the contested decision that Repsol, PROAS and BP were the only undertakings to negotiate the final sales volumes and customer-sharing. The applicants did not participate in those negotiations and in reality there is no direct or indirect evidence of their having done so.
312    The contested decision contains no contemporaneous evidence that the applicants received one of the abovementioned documents or ‘PTT’, or a partial document, from either Repsol or PROAS, as PROAS falsely suggests. The Commission discovered no document of that type during the inspections.
313    Indeed, the description of the customer‑allocation mechanism by Repsol, PROAS and BP set out at recitals 157 to 162 to the contested decision contains no reference to the applicants. Nor did the Commission adduce any contemporaneous evidence at recitals 198 to 289 to show that the applicants participated in ‘mechanisms … put in place by the participants in order to ensure that each supplier would obtain the customer or project allocated to it during the negotiations at the “asphalt table”‘.
314    Last, the Commission ignores the exculpatory evidence in BP’s immunity application. BP does not regard the applicants as one of the undertakings involved in customer allocation, since it stated as follows:
‘The co-operation took the form of partitioning markets. Each of the three oil companies (Repsol, CEPSA and BP) was allocated customers on the basis of geographic locations and annual volume needs of client. At annual meetings a quota was decided for each company according to [its] production capacity.’
315    The Commission contends that the present plea should be rejected.
Findings of the Court
316    It must be stated as a preliminary point that it is apparent from recital 151 to the contested decision that the market-sharing agreed by the cartel participants consisted in two aspects: (i) volume allocation and (ii) ‘customer (or works/project)’ allocation. That assimilation between customer allocation and works or project allocation, which is used elsewhere in the contested decision, is not called in question by the applicants.
317    Next, it is necessary, first of all, to examine whether the leniency applicants’ statements attesting to the applicants’ participation in customer allocation are, as the applicants maintain, devoid of probative value.
318    According to footnote 95 to the contested decision, Repsol reported, in its leniency application and in its response of 5 April 2006 to a request for information, that, ‘around April 2002, Repsol and PROAS together met with Nynäs (Mr T.S.B) and Petrogal (Mr V.C.) to inform and discuss separately with each of them the “market in their [geographic] area, tonnes, customers and [market] distribution”‘.
319    The applicants criticised those statements for being too vague. On the contrary, those statements refer to quite a specific period (April 2002), to undertakings which participated in the meeting with Petrogal (Repsol and PROAS) and to the name of Petrogal’s representative (Mr V.C.).
320    In order to establish the false nature of Repsol’s statements mentioned in footnote 95, the applicants also relied on the statement of 6 December 2007 of Mr V.C., who was responsible for the bitumen sales of Petrogal Española (now Galp Energía España) at the material time, a statement in Annex A.12 to the application.
321    However, in his statement, Mr V.C. stated that he did not ‘have any recollection’ of the meetings at which the applicants, Repsol and PROAS participated at the same time having taken place after March 1998 (with the exception of September 1998).
322    In the light of its uncertain nature, that testimony, moreover by a former member of the applicants’ staff, is not alone capable of discrediting entirely Repsol’s statements mentioned in footnote 95 to the contested decision.
323    Those statements are confirmed by another statement by Repsol implicating the applicants in customer allocation.
324    Thus, in its response of 9 May 2006 to a request for information, Repsol confirmed that the meetings held between it and PROAS from November 2001 to March 2002 in order to agree on the size of the market and on an initial customer allocation were followed in April 2002 by meetings with BP, then Nynäs and, lastly, the applicants, in order to negotiate customer allocation in each of their respective areas of influence (recital 136 to the contested decision and footnote 102 to the contested decision).
325    Also in its response of 9 May 2006 to a request for information, Repsol went on to state, in a more general manner this time, that Petrogal was an active participant at the asphalt table, and that Repsol and PROAS negotiated with it the volumes and customers allocated to it in its area of influence (recital 139 and footnote 106 to the contested decision).
326    Moreover, the applicants’ participation in customer allocation is corroborated by statements from other leniency applicants.
327    Thus, also according to footnote 95 mentioned above, PROAS stated in its leniency application that, ‘[following the volume and customer-allocation agreement], the permanent participants at the “asphalt table” (Repsol, PROAS and BP) subsequently communicated to Nynäs and [the applicants], by telephone or by providing them with a partial copy of the document embodying the market‑sharing agreement, the volumes and projects that corresponded to them for the year in question (whenever they did not attend the meetings and in respect of their areas of influence)’.
328    The applicants merely claimed that that item of evidence is too vague, without substantiating that claim with any evidence whatsoever.
329    In addition, PROAS stated, in its response of 9 May 2006 to a request for information, that Nynäs and the applicants participated actively in the negotiations concerning volumes and customers, which were held on the basis of a proposal previously agreed upon by Repsol and PROAS where these were able to reach an agreement (which, according to PROAS, was not always the case), and that, after the negotiations, adjustments to the proposal were made to take account of Nynäs’s and the applicants’ requests (recital 140 and footnote 107 to the contested decision).
330    Lastly, it is also apparent from footnote 95 mentioned above that, during the interview of 5 November 2003, BP confirmed that Repsol and PROAS held separate discussions with the applicants. Even though it is not expressly stated in that extract from the contested decision that those discussions related to customer allocation, account must be taken of the fact that BP moreover stated, in its response of 24 March 2004 to a request for information, that, in the context of the market‑sharing arrangement, the volumes allocated to each supplier participating in the cartel were then matched to forecasted customer requirements per project (recital 157 and footnote 131 to the contested decision). The customer allocation therefore appears, in that response of BP, to be inseparable from the allocation of volumes. Thus, those various statements of BP, considered as a whole, help to corroborate the statements of Repsol and PROAS regarding the applicants’ participation in customer allocation.
331    It is apparent from the foregoing that the various concurring and self-incriminating statements mentioned above coincide in demonstrating that the applicants did indeed participate in the customer allocation between the members.
332    Those statements are themselves corroborated by a number of contemporaneous documents. Recitals 225, 249, 254 and 270 to the contested decision present the content of charts which were drawn up in 1995, 2000 and 2002 by Repsol or PROAS containing a forecast of the tonnes allocated by customers or projects to the members of the cartel, amongst which the applicants’ name or a number identifying them always appears.
333    In particular, it is apparent from the response of PROAS of 7 April 2006 to a request for information that, with respect to the chart entitled ‘Mercasfa 2000’ mentioned at recital 249 to the contested decision (to which reference is made at paragraph 332 above), the choice of supplier was determined by agreement of the asphalt table, attended by the usual participants (footnote 245 to the contested decision).
334    In that regard, it must be stated that the reference to the ‘usual participants’ of the asphalt table includes the applicants, since PROAS but also Repsol consider them in their concurring responses of 9 May 2006 to a request for information to be active participants at the asphalt table, on account of the active negotiation of the volumes and customers corresponding to them in their area of influence that they engaged in with Repsol and PROAS, on the basis of a proposal previously agreed upon by Repsol and PROAS and subsequently adjusted to take account of the applicants’ requests (recitals 139 and 140 to the contested decision). That concept of ‘usual participants’ should moreover be distinguished from the concept of ‘permanent members’ as set out at recital 126 to the contested decision, since the latter concept refers only to Repsol, PROAS and BP, which participated more systematically in the various aspects of the infringement.
335    It follows from the foregoing that the applicants’ argument that there is no contemporaneous evidence that they participated in the customer‑allocation negotiations cannot be upheld.
336    In that regard, the fact that the contemporaneous documents mentioned above were drawn up by Repsol or PROAS, and not by the applicants themselves, does not deprive those documents of all probative value, particularly as some of those documents were collected during the inspections carried out at the premises of Repsol and PROAS on 1 and 2 October 2002.
337    Consequently, it follows from the leniency applicants’ self-incriminating and concurring statements, which are corroborated by a number of contemporaneous documents, that the Commission correctly found in the contested decision that the applicants had participated in customer allocation.
338    The foregoing conclusion is not called in question by the absence of any mention of the applicants in relation to customer allocation in BP’s leniency application of 20 June 2002. It is not contested that BP and the applicants operated in separate and distinct geographical areas, and did not therefore normally compete for the same customers. Moreover, the applicants only participated in the asphalt table discussions concerning their area of influence and did so on a bilateral basis with Repsol or PROAS, or with one of them only, and, consequently, in the absence of BP, as the latter confirmed during the interview of 5 November 2003 (footnote 95 to the contested decision).
339    It follows that the present plea must be rejected.
Fifth plea, alleging illegality affecting the finding that the applicants participated in the price‑coordination activities
Arguments of the parties
340    The applicants take issue with the Commission, in the first place, for having infringed Article 81(1) EC and Article 23(2) of Regulation No 1/2003 and made manifest errors of assessment and an error of law in that it found, at recitals 3, 335 and 373 to the contested decision, that they had participated in the coordination of bitumen price variations and of the dates on which those variations would be implemented.
341    There is no contemporaneous or non-contemporaneous evidence capable of supporting the aligned statements and accusations of Repsol and PROAS against the applicants. Mr V.C. unambiguously confirmed in his statement of 6 December 2007 that the applicants were not involved in any price-coordination activity with other suppliers on the relevant market.
–       Manifest inaccuracy of the statements of Repsol and PROAS
342    The applicants maintain that the description of the facts relating to the price agreements set out at recitals 290 to 318 to the contested decision is essentially based on the statements made by Repsol and PROAS in their leniency applications and in their subsequent responses to requests for information.
343    The Commission relies on:
–        a statement by PROAS that all operators on the relevant market, including the applicants, took the initiative on different occasions to request price increases (recital 301 to the contested decision);
–        a statement by Repsol that, after the meetings between Repsol and PROAS at which prices were discussed, suppliers with a smaller market share, including the applicants, contacted Repsol and PROAS in order to ask for a decision to increase prices following increases in oil prices (recital 306 to the contested decision);
–        a statement by Repsol and PROAS that other operators on the relevant market, such as the applicants, more or less followed the agreed price variation (recital 307 to the contested decision).
344    The applicants maintain that the statements of Repsol and PROAS cannot be used as evidence against them on the ground that they are aligned, too vague and too inconsistent. The aligned and false accusations of Repsol and PROAS do not refer to any specific facts, dates, meetings, telephone calls or price increases that would substantiate the applicants’ involvement in the price‑coordination activities. Repsol makes no reference whatsoever to the applicants when it gives the precise dates in respect of possible price coordination (recital 303 to the contested decision).
345    In their leniency applications, Repsol and PROAS stated that the price arrangements had been concluded solely within their bilateral meetings, while the other market operators were, according to Repsol, merely informed by Repsol and PROAS of the price variation arrangements, either in bilateral meetings or by telephone, but not in writing. PROAS stated that it had agreed with Repsol on prices, while the other operators aligned themselves to the agreements reached. PROAS left open the question whether the other operators were informed by Repsol or PROAS or whether they obtained the information on price variations from the market.
346    PROAS made no reference in its statement under the leniency application of 5 April 2004 to the applicants’ alleged involvement in the price discussions. It is clear from that statement that, while price variations were communicated to BP, the applicants and Nynäs followed those changes. PROAS merely described the applicants as ‘price followers’.
347    At a much later stage in the administrative procedure Repsol and PROAS attempted, in their responses to the requests for information, to convince the Commission that the applicants, Nynäs and BP were involved to the same extent as Repsol and PROAS were in the price‑coordination activities. Repsol went so far as to claim, in its response of 5 April 2006 to a request for information, that whenever an important increase of oil prices occurred, the commercial managers of other, smaller suppliers, BP, Nynäs and the applicants, usually contacted Repsol and PROAS to ask for an agreement to increase prices.
348    In its response of 7 April 2006 to a request for information, PROAS still repeated Repsol’s earlier statement that Repsol or PROAS informed the applicants. In its response of 9 May 2006 to a request for information, however, PROAS aligned itself to Repsol’s statements and claimed that the applicants and other companies asked Repsol and PROAS about price variations.
349    At recital 291 to the contested decision, the Commission also refers to information provided by BP in its application for immunity. None the less, as the Commission indirectly reports at recital 572 to the contested decision, BP made no reference at all to price arrangements in the application for immunity. Only much later did BP make a general statement, during an interview on 5 November 2003 between the Commission’s staff and Mr A.T., BP España’s bitumen manager (recital 293 to the contested decision), and in three internal e-mails (recitals 311 and 313 to the contested decision), which did not relate to the applicants.
350    During that interview, to which the Commission refers at recital 356 to the contested decision, Mr A.T. merely stated that he had sometimes been informed by Repsol and PROAS of the price variations agreed by those two market leaders. His statements are imprecise and do not relate to a specific period. Furthermore, he does not describe the applicants as cartel participants involved in the price discussions, but refers only to contacts between Repsol or PROAS, on the one hand, and BP, on the other (recital 293 to the contested decision).
351    Mr V.C. unambiguously confirmed in his statement of 6 December 2007 that the applicants were not involved in any price arrangements with other bitumen suppliers on the Spanish market.
–       Confirmation by e-mails internal to the applicants of 18 and 19 October 2000 that the applicants were not involved in the price arrangements.
352    The applicants observe that the Commission relies on only two pieces of contemporaneous evidence, namely two e-mails internal to the applicants of 18 and 19 October 2000, setting out, first, the question that Mr V.C., bitumen sales manager of Petrogal Española (now Galp Energía España) sent to the applicants’ Portuguese headquarters asking whether to follow the price increases announced by competitors and, second, Mr L.F.’s answer to that e-mail (recital 314 to the contested decision).
353    The e-mail of 18 October 2000 clearly shows that the applicants themselves gathered the information about price variations applied by Repsol and PROAS. However, the Commission regarded the e-mail of 18 October 2000 as evidence of their involvement in the price discussions with Repsol and PROAS, on the basis of a manifestly incorrect translation into English of the original Spanish, which is worded as follows:
‘Se han iniciado los movimientos de tarifas, en distintas zonas. PROAS està comunicando con aplicación, a partir de la próxima semana, aumentos de 3 000 a 3 300 Pts/Tm. según cliente, en la zona de Extremadura y Andalucía.’
354    That passage was translated into English as follows (recital 314 to the contested decision):
‘Movements of price increases have begun in various areas. PROAS is communicating, with application as from next week, an increase of 3,000 to 3,300 Pts/Mt depending on the client in the area of Extremadura and Andalucia’ (emphasis added).
355    However, the correct translation, consistent with the explanations provided by the applicants in their reply to the statement of objections, is as follows:
‘Movements of price increases have begun in various areas. PROAS is communicating, with application as from next week, an increase of 3,000 to 3,300 Pts/Mt according to a customer in the area of Extremadura and Andalucia.’
356    In translating ‘según cliente’ by ‘depending on the client’ instead of by ‘according to a customer’, those at the Commission responsible for the Spanish file, influenced by the inaccurate and aligned statements of Repsol and PROAS, interpreted the e-mail in a way that was unfavourable to the applicants. The Commission thus ignored a more logical interpretation, which exonerated the applicants.
357    ‘[S]egún cliente’ could also be plural, since the lack of an article gives the impression that the word ‘client’ means any client and not a specific identified client. In addition, the fact that the expression ‘según cliente’ is not found elsewhere in the e-mail does not mean that the other price information did not come from customers.
358    The Commission has no valid ground on which to claim that the new arguments put forward in the application should be rejected. There is no rule or principle that would prevent the applicants from proposing to the Court a plausible alternative translation of documents which the Commission has incorrectly used as evidence.
359    The two internal e-mails are clearly incapable of constituting sufficiently precise and consistent evidence of the applicants’ participation in any price‑coordination arrangements whatsoever with PROAS, Repsol or BP.
360    In their e-mails, Mr V.C. and Mr L.F. merely referred to the price movements of their competitors on the market. The general market information in the e-mail of 18 October 2000, such as ‘Movements of price increases have begun in various areas’, ‘PROAS is communicating … an increase of [PTE/MT] 3 000 to 3 300 … [según cliente]’, ‘Repsol has communicated an increase of tariffs’, ‘BP is communicating, for the Central area, an increase of [PTE/MT] 2 500 …’ was relatively easy to obtain from customers, as the relevant market is characterised by a small number of purchasers.
361    That e-mail does not refer to any price increases being communicated to the applicants by PROAS, Repsol or BP. It demonstrates, on the contrary, that the applicants themselves gathered information about prices on the market, without coordination or collaboration with those three undertakings, as may be inferred from the following passage:
‘We have not seen written communication to the rest, although we suppose that it will soon follow PROAS’ step.’
362    In the e-mail of 19 October 2000 Mr L.F. authorises Mr V.C. to increase prices and the Commission made a manifest error of interpretation in suggesting at recital 315 to the contested decision that the mere disclosure by that e-mail that the applicants aligned with the prices of Repsol and PROAS demonstrates the existence of price‑coordination activities between the applicants and the two market leaders.
363    In reality, according to the statements which they themselves made in their leniency applications and their subsequent observations, Repsol and PROAS decided to increase bitumen prices or, less frequently, to reduce them and the other suppliers, or at least the applicants, were in most cases informed of those price changes by market rumours or information received from their customers.
364    At the hearing on 12 December 2006 the applicants submitted a fax from one of their customers referring to a variation implemented by Repsol and PROAS. If the Commission had regarded one fax as insufficient evidence, which the applicants could not know, it ought to have invited them to produce more examples after that hearing. It is not for the applicants to prove that they learned about their competitors’ price variations from the market; it is for the Commission to adduce sufficiently precise and consistent evidence that the applicants were informed about price changes by their competitors.
365    The applicants frequently decided, like any normal independent economic operator, to follow the price variations as they were announced by the market leaders. In the present case, the applicants were informed by the market that PROAS would increase its prices the following week. That information proved to be incorrect, since PROAS had already increased its prices on 20 October 2000, as may be seen from recital 315 to the contested decision, and the applicants followed suit shortly afterwards.
366    In fact, the Commission broadly accepted the possibility that the applicants were informed of the price increases of the main economic actors, Repsol and PROAS, by sources other than those two competitors, and that was indeed the case. Not only did the Commission withdraw, at recital 315 to the contested decision, the finding made in the statement of objections that the e‑mails constituted evidence of the existence of price discussions between the applicants, on the one hand, and Repsol or PROAS, on the other, but it also acknowledged at that recital that the applicants were informed about price changes on the market ‘announced by [their] competitors’.
367    It is thus apparent that the Commission now takes issue with the applicants merely for having implemented a price change at the same time as their competitors, and for a similar amount. However, that price variation was not implemented simultaneously; the amount was not the same; and, last, the fact that small operators like the applicants follow the price variations of larger market operators, in the absence of any exchange of information, clearly does not constitute an infringement of Article 81(1) EC.
368    In his statement, Mr V.C. stated, in that regard:
‘Concerning the nearly identical amounts and the similar term when they were introduced (in [recital] 315 [to] the decision of the … Commission), they do not require a previous agreement between the competitors, in any case not with Galp, because as was explained above, the market and the administration, would only consider as a maximum the increase implemented by Repsol and in the same dates and the remaining companies would follow.’
369    The Commission contends that the present plea should be rejected.
Findings of the Court
370    In the context of the examination of the present plea, it is necessary to determine whether the consistency, on the one hand, of the leniency applicants’ statements which result from their leniency applications, their responses to the requests for information and the statements of their employees with, on the other, the documents contemporaneous with the material events makes it possible to find that the applicants participated in the price-coordination activities.
371    With respect to the leniency applicants’ statements, first, as is apparent from recitals 294 and 295 to the contested decision, both Repsol and PROAS acknowledged in their leniency applications the existence of price‑coordination activities on the Spanish bitumen market and admitted to having agreed uninterruptedly from 1991 to 2002 with each other and, to a lesser extent, with BP, bitumen price variations and the time of their implementation.
372    Second, as is apparent from recitals 296 and 305 to 307 to the contested decision, Repsol and PROAS stated that the agreements on price variation and the time of their implementation were communicated to the other undertakings and that those undertakings more or less followed the price variations thus agreed.
373    As footnote 339 to the contested decision states, the description of the price‑coordination activities set out in that decision is based, inter alia, on Repsol’s leniency application, on its response of 5 April 2006 to a request for information and on the leniency application of PROAS and its responses of 7 April and 9 May 2006 to requests for information. Those documents, to which the contested decision refers on numerous occasions (inter alia, at recitals 296 and 305 to 307 which were mentioned at paragraph 372 above), concur in establishing the applicants’ participation in the price coordination.
374    It is apparent from Repsol’s leniency application that the price variations were usually decided upon during bilateral meetings between the heads of the commercial management of Repsol and PROAS, and were subsequently brought to the attention of the other market actors, during bilateral meetings or by telephone, but not in writing.
375    In addition, in its response of 5 April 2006 to a request for information, Repsol replied as follows to the question how the other market actors were informed of the price variation:
‘The information was communicated during bilateral meetings or by telephone, but not in writing.
…
Once adopted, the decision to vary prices was communicated to the other operators by PROAS’s and Repsol’s sales managers. Over the years, that communication was made by different means according to the operators active at the time and the staff of each undertaking, but in general it was made during meetings or by telephone, but not in writing.’
376    In the same response, Repsol went on to state that the price variations were communicated to the operators active at the time from 1991 to 2002 and cited Mr V.C. and Mr C.B.F., employees of the applicants, as being amongst the sales managers to whom those communications were addressed.
377    Thus, where Repsol refers, in its leniency application or in its response of 5 April 2006 to a request for information, to the other market actors or operators, it is referring, inter alia, to the applicants.
378    With respect to PROAS, in its response of 7 April 2006 to a request for information, it states that the other market actors were informed of the price variations from the inception of the cartel until 2002 and that they followed the price variation agreed.
379    PROAS also stated, in the aforementioned response, that the bilateral agreements between Repsol and PROAS or between Repsol and BP represented a rapid and flexible method for assisting the operation of the asphalt table, given that the other members were informed of those agreements and aligned themselves with the agreements reached between Repsol and PROAS once the agreements had been communicated to those members by telephone.
380    Also in that response, PROAS, just like Repsol in its own statements, cited Mr V.C., an employee of the applicants, as one of the employees of the other market actors to whom the price variations were communicated.
381    Thus, when PROAS refers, in its response of 7 April 2006, to the other market actors or the other members of the asphalt table, it is referring, inter alia, to the applicants.
382    Third, Repsol explained in its response of 5 April 2006 to a request for information that the commercial managers of the other bitumen suppliers with a smaller market share, including the applicants, usually contacted Repsol and PROAS whenever an important increase of oil prices occurred to ask for an agreement to increase prices, given that their inferior logistical position made their margins more sensitive to cost variations.
383    Similarly, in its responses of 7 April 2006 and of 9 May 2006 to requests for information, PROAS confirmed that all the market operators, including the applicants, took the initiative on different occasions to request price increases.
384    In its response of 9 May 2006 mentioned above, PROAS added that, in the context of the discussions relating to price increases, the applicants assumed exactly the same role as Repsol and PROAS as regards the initiatives taken with a view to price variation, even though Repsol had the final say.
385    The fact that, in their leniency applications, Repsol and PROAS did not immediately mention those initiatives taken by the applicants is not capable of calling in question the probative value of their concurring statements.
386    The various self-incriminating statements mentioned above are sufficiently precise and consistent to establish that the applicants participated, sometimes actively, in the price‑coordination arrangements until 2002.
387    With respect to the documents contemporaneous with the material events, the existence of price coordination is demonstrated, inter alia, by contemporaneous documents produced by BP (recitals 310 and 313 to the contested decision).
388    Above all, the applicants’ participation in the price-coordination activities of the cartel members is established by an exchange of e-mails, internal to the applicants, between Messrs V.C. and L.F., dated 18 and 19 October 2000, which, it is not disputed, are worded as follows:
‘Se han iniciado los movimientos de incrementos de tarifas, en distintas zonas. PROAS está comunicando, con aplicación a partir de la próxima semana, aumentos de 3.000 a 3.300 Pts/Tm. según cliente, en la zona de Extremadura y Andalucía.
Repsol ha comunicado aumentos de tarifas para exportación a Francia y en la zona de Cataluña de 2.500 Pts/Tm. No tenemos constancia de comunicación escrita al resto, aunque suponemos no tardará en seguir los pasos de PROAS.
BP está comunicando por la zona centro, subidas de 2.500 Pts/Tm.
En función de nuestras disponibilidades en cada zona y del posible interés de captación de nuevos pedidos en la zona sur, quedamos pendientes de conocer los criterios a seguir en los incrementos a comunicar a los clientes para la próxima semana.’
‘[V. C.], para subir los precios de todos los clientes de 3 000 a 3 500 Pts dependiendo del transporte, a partir del 23/10. […]’.
389    At recital 314 to the contested decision, that exchange is reproduced in English as follows:
‘Movements of price increases have begun in various areas. PROAS is communicating, with application as from next week, an increase of 3,000 to 3,300 Pts/Mt depending on the client in the area of Extremadura and Andalucia.
Repsol has communicated an increase of tariffs for export to France and in the area of Cataluna of 2,500 Pts/Mt. We have not seen written communications to the rest, although we suppose that it will soon follow PROAS’ steps.
BP is communicating, for the Central area, an increase of 2,500 Pts/Mt.
In the light of our availability in each area and of a possible interest in obtaining new orders in the Southern area, we await criteria to follow in the [price] increases to communicate to customers next week.’
‘[V. C.], increase prices for all customers from 3,000 to 3,500 Pts depending on transport, as from 23/10. …’.
390    In the first place, that exchange of e‑mails internal to the applicants reveals that Repsol, PROAS and BP indicated that they intended to apply price rises. Not only are those price rises concomitant, but they also concern an increase of the same order of magnitude.
391    The fact that the price increases were applied in parallel, as the Commission submits, is a strong indication of at least a concerted practice, especially when the same operators also engage in other collusive activities at the same time. The existence of market-sharing between those three undertakings was not contested by the applicants and the existence between them of customer allocation (including the applicants) was established in the examination of the previous plea. Thus, the view must be taken that there was price coordination between Repsol, PROAS and BP, which is not moreover contested by the applicants.
392    Accordingly, the simple fact that the applicants had such precise, exhaustive and immediate knowledge of the price arrangements agreed upon in the context of the cartel is a strong indication that they were informed directly of those arrangements by the members of the cartel and not, as they submit, by customers, especially as, although the applicants’ customers might have had an interest in informing them of a price reduction decided upon by the other undertakings on the market in the hope that the applicants might lower their prices, they would not by contrast have had any interest in informing the applicants of a price increase by their competitors.
393    The applicants however submit, in order to demonstrate that the information in question in the first e-mail originates from customers and not from the other members of the cartel, that the expression ‘según cliente’, which appears at the beginning of the original of the first e‑mail, was translated incorrectly in the contested decision as ‘depending on the client’ whereas it ought to have been translated as ‘according to a customer’, so that the extract from that e-mail should be translated thus:
‘PROAS is communicating, with application as from next week, an increase of 3,000 to 3,300 Pts/Mt according to a customer, in the area of Extremadura and Andalucia.’
394    None the less, that argument cannot be accepted.
395    First of all, the expression ‘según cliente’ is used only in respect of PROAS and not as regards the two other members of the cartel, in respect of which it is merely stated that they communicate or communicated a price. Accordingly, the applicants’ argument can apply, at best, only to PROAS’ price increase, and not to the two other increases communicated by Repsol and BP.
396    Moreover, nor can that argument apply to the increase in PROAS’s prices. It is only in respect of PROAS that a price bracket is given (‘from 3 000 to 3 300 Pts/Mt’). A fixed amount appears for Repsol and BP (‘2 500 Pts/Mt’). At the same time, it is only in the case of PROAS that the expression ‘según cliente’ is used. If that expression is translated as ‘depending on the client’, its use makes it possible to explain the recourse to a price bracket as opposed to a fixed amount: a price bracket is used only when the price varies depending on the client.
397    That interpretation is confirmed by the wording of the e-mail in reply, the only other part of that exchange where a price bracket also appears. It is apparent from that reply that the price has to be adjusted depending on the customer in order to pass on the costs of transport, which vary according to the customer’s place of establishment. The use of a price bracket is explained therefore only where reference is made to a price variation depending on the customer.
398    The applicants are therefore wrong to claim that the translation, in the contested decision, of the expression ‘según cliente’ as ‘depending on the client’ is incorrect.
399    Thus, the applicants’ argument that they were made aware of the price increases of PROAS, Repsol and BP by their customers cannot be accepted.
400    That conclusion cannot be called in question by the applicants’ reference to a fax, submitted at the hearing of 12 December 2006, which emanated from one of their customers and advised of a price decrease by Repsol.
401    That fax does not have any substantial connection with the abovementioned exchange of e-mails since it refers to a price decrease as opposed to a price increase. In addition, the applicants have not established any temporal link with that exchange of e-mails. The fax in question is not therefore capable of establishing that the applicants might have become aware through their customers of the price increases mentioned in the e-mails of 18 and 19 October 2000.
402    Moreover, that single fax is not capable of demonstrating that it was normal practice for the applicants to be informed in detail and without delay by their customers of the price variations that were going to be applied by their competitors.
403    In the second place, it is apparent from the wording of the second e-mail that the applicants planned to increase their prices as of Monday 23 October 2000, the date indicated by Mr L.F., following the price increase communicated by Repsol, BP and PROAS, and by an amount that was virtually identical to that of the latter increase.
404    Lastly, and in the third place, according to recital 315 to the contested decision, which is not challenged in that regard by the applicants, the latter did indeed increase their prices on the same date or within a few days of the four other undertakings that the Commission found to have participated in the cartel, and that increase was of the same order of magnitude.
405    In view of the foregoing, it is apparent that Mr V.C.’s statement, according to which Petrogal was never involved in price arrangements, on the assumption that it is admissible notwithstanding the fact that it was drawn up on 6 December 2007, that is after the contested decision, is not in any event capable of contradicting the non‑contemporaneous and contemporaneous evidence analysed above, evidence which was put forward by the Commission in support of the applicants’ participation in the price-coordination activities.
406    Consequently, it follows from the leniency applicants’ self-incriminating and concurring statements, which are corroborated by the exchange of e‑mails internal to the applicants of 18 and 19 October 2000, that the applicants participated, sometimes actively, in the price‑coordination arrangements until 2002.
407    The Commission cannot therefore be regarded as having found unlawfully, in the contested decision, that the applicants participated in the price coordination between the members of the cartel, and until 2002.
408    In those circumstances, the plea must be rejected.
Sixth plea, alleging illegality affecting the finding in relation to the duration of the applicants’ participation in the infringement
Arguments of the parties
409    The applicants claim that, in incorrectly determining, at recital 483 to the contested decision, that their participation in the cartel ceased on 1 October 2002, the Commission infringed Article 81(1) EC, Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003.
410    Not only is the non-contemporaneous evidence incorrect, vague and unspecific with respect to the duration of the applicants’ involvement in the infringement, but there is not the slightest contemporaneous evidence to show that they had contacts with PROAS, Repsol or BP from March 1998 onwards in relation to a quota or the aspects of the infringements alleged at recitals 3, 335 and 373 to the contested decision.
–       Manifest lack of precision and consistency in the non-contemporaneous evidence
411    The applicants observe that, as may be seen from recital 478 to the contested decision, Repsol confirmed in its leniency application that the cartel functioned without interruption, with the applicants’ participation, ‘from 1994-95 to October 2002’. However, that statement is both incorrect and general and it is not confirmed by the contemporaneous evidence set out below.
412    Furthermore, the Commission uncritically copied, at recitals 232 and 478 to the contested decision, the even more general and imprecise statement made at the hearing of 12 December 2006 by Mr J.L.F., an employee of PROAS, who confirmed that he had regularly taken part in meetings at the applicants’ premises with Mr V.C., an employee of the applicants, and Mr A.G, an employee of Repsol. Since it does not relate specifically to the period or the object of the meetings, Mr J.L.F.’s statement has no probative value.
413    In his statement of 6 December 2007, Mr V.C. stated:
‘I read at recital 232 to the … Commission’s decision how apparently Mr J.L.F from the company PROAS states that he met … Mr A.G. from the company Repsol in our offices. Contrary to what is said, those meetings were generally held in the offices of CEPSA-PROAS (Calle Cartagena) and [on] very rare occasions in our former office in Calle Santa Engracia.’
–       Absence of contemporaneous evidence of the applicants’ participation in the infringement from March 1998 onwards
414    The applicants maintain that none of the documents, notes, minutes, e‑mails and charts relating to the period 1998 to 2002 reveals the applicants’ involvement in cooperation with Repsol, PROAS or BP for the purposes of a quota or other aspects of the infringement referred to at recitals 3, 335 and 373 to the contested decision.
415    The applicants observe, in the first place, that the Commission refers at recital 232 to the contested decision to a diary entry of PROAS, in Annex B.2 to the defence, which is supposed to refer to a meeting held on 11 December 1997 between PROAS and the applicants:
‘213
11 December 1997
Meal with “PERS”, we already have the signed contract, when they pay, on 15, call on 11 to confirm quantity.
On 10 in the afternoon PTT Galp-Nynäs
“PERS” glanced at the emulsion inventory’
416    The Commission appears to suggest that the applicants agreed with PROAS during that meeting on a sales volume for the following year. However, the reference to the PTT (on 10 in the afternoon PTT Galp-Nynäs) is too ambiguous to constitute evidence of a collusive meeting.
417    The applicants maintain, in the second place, that the minutes drawn up by PROAS of the meeting held on 17 September 1998 between Repsol, PROAS and the applicants, referred to at recitals 236 and 242 to the contested decision, and attached as Annex B.3 to the defence, do not show that the applicants participated in anti-competitive contacts with PROAS and Repsol in 1998 but that the applicants acted in complete independence from March 1998, as the following statement by Mr C.B.F., an employee of the applicants, recorded in the minutes shows:
‘C.B.F.: [a]fter one year, they await response from the rest of the companies about the revision of all business lines for the Iberian market.
On their part, they say they do not want to complicate market conditions, but that for as long as they do not have an answer to the proposal for a general agreement, they will continue to take the positions which they consider most convenient.’
418    The reasons on which the Commission relies at recitals 238 and 239 to the contested decision in order to characterise that document as evidence of the applicants’ involvement in the discussions on market-sharing in 1998 are irrelevant and unfounded. First, there is no indication in the minutes that the alleged proposal related to any of the aspects of the infringement. Second, it may be inferred from that document that from 1998 the applicants adopted an autonomous and unilateral concept of their sales on the relevant market by effectively selling much more bitumen than the 48 000 MT allocated by PROAS, Repsol and BP.
419    The applicants clearly informed the members of the cartel in March 1998, and then at the meeting of 17 September 1998, that they would terminate their contacts with Repsol and PROAS in connection with the allocation of sales volumes. Mr V.C. asserted in that regard in his statement of 6 December 2007:
‘Since the beginning of 1998, we found new and important customers, supply contracts were entered into with Probisa; with importers and distributors like Alibesa, Dictepesa and Bitumat, and therefore it lacked sense to continue to abide to the volume quota. In the first months of 1998, we communicated our decision to end our relation with Repsol and PROAS, and as a consequence, during the meeting held on 17 September 1998, it was left very clear both to Repsol and to PROAS that we would no longer act in accordance with the volume quota that the two companies wanted to impose on us and therefore we handed over the real figures of our sales, much higher than the fixed quota, to justify that our participation no longer had any interest.’
420    At recital 238 to the contested decision the Commission also refers to the fact that, according to the minutes of the meeting of 17 September 1998, Petrogal handed over a ‘sales summary’ to PROAS. In the absence of any specific detail relating to the contents of the sales concerned, the minutes do not constitute evidence to substantiate the Commission’s finding that they refer, within the meaning of recital 130(f) to the contested decision, to the phase ‘[of the] information to and negotiation with Nynäs and the applicants concerning sales volumes’.
421    The applicants observe, in the third place, that recital 247 to the contested decision refers to notes, reproduced in Annex B.4 to the defence, in the following terms in the diary of one of PROAS’s sales staff:
‘14 January 1999
Meeting with RPA [Repsol] at 10 h at PS [PROAS] and at 12 h with Galp.
Thursday with Nynäs’
422    The applicants dispute the very general statement made by PROAS in its replies of 18 November 2005 and 7 April 2006 to the Commission’s requests for information, where it states that the purpose of those two meetings was to examine market-related questions and, in particular, the projects of Nynäs and the applicants in their respective areas of influence. The applicants have kept no record of that meeting and deny that it took place. In its reply of 7 April 2006 to a request for information, PROAS assumes [in Spanish: ‘Suponemos’] that that meeting may have taken place and that the agenda may have been the analysis of the applicants’ projects.
423    There is no evidence that a meeting was held at which PROAS or Repsol, on the one hand, and the applicants, on the other, participated in 2000 and 2001 and the Commission does not maintain that such evidence exists.
424    The applicants observe, in the fourth place, that according to footnote 95 to the contested decision Repsol reports in its leniency application and in its reply of 5 April 2006 to a request for information that around April 2002 Repsol and PROAS together met Mr T.S.B. of Nynäs and Mr V.C., an employee of the applicants, in order to inform and discuss separately with each of them ‘the market in their [geographic] area, tonnes, customers and [market] distribution’.
425    That meeting seems to be the same as one of the meetings referred to in a note in the diary of a member of PROAS’ sales staff dated 17 April 2002 (recital 273 to the contested decision and Annex B.5 to the defence). That note mentions as follows the dates of several meetings and the applicants’ name:
‘– Meetings
– 09-04-02 RPA/Galp (Meliá Castilla)
– 11-04-02 RPA/CEPSA /Galp (H. Orense)
– …’
426    In response to a request for information, PROAS stated that those meetings were meetings of the participants in the ‘asphalt table’, including ‘the usual participants’. That statement is of a general nature and does not specify either the participants or the subject-matter of the meetings.
427    As regards the meetings between Repsol and PROAS held at the Hotel Orense in February, March, April and May 2002, Repsol stated in very general terms that those two companies had also held separate meetings with BP, Nynäs and the applicants during the same period.
428    The statement made by Mr J.B., of Repsol, at the hearing of 12 December 2006 and cited by the Commission at recital 275 to the contested decision, that representatives of Repsol, PROAS and the applicants met on 11 April 2002 in order ‘to discuss the tonnes to be allocated to [the applicants]’ cannot be used as evidence against the applicants. That statement is implausible, since, as Repsol itself reported, the applicants were always allocated a ‘quota of 48 000 MT’ (recital 154 to the contested decision).
429    In his statement of 6 December 2007, Mr V.C. clearly confirmed that no discussion of sales‑volume allocation took place after March 1998, whether with PROAS or with Repsol:
‘These meetings from March 1998 onwards, (with the exception of September 1998), I don’t have any recollection of them ever taking place again with the three companies.
It is true that we kept having meetings with Repsol’s personnel (Mr J.B., [Mr] A.G. and [Mr] J.F.M) essentially due to the presence of members of Galp’s board coming from Lisbon to the offices of Repsol, to deal with the details concerning the preparation and follow-up of product exchange agreements in Portugal and Spain. In what concerns me, I had occasional bilateral meetings with Mr J.B., as well as with Mr A.G. from Repsol, where after preparing the administrative documents and analysing the swap volumes, we mostly discussed the market limitations imposed on us by Repsol when they supplied us product from their refineries in Puertollano and Coruna.’
430    The applicants take issue with the Commission, in the fifth place, for having, at recitals 278 and 490 to the contested decision, regarded as evidence of their participation in the market-sharing agreements the e‑mail of 29 August 2002 sent by Mr J.T.M., of Petrogal Española (now Galp Energía España), to Mr C.B.F., of Petróleos de Portugal, and reproduced at recital 278 to the contested decision.
431    At recital 278 to the contested decision the Commission incorrectly regarded that document as evidence that one of the goals of the applicants’ business strategy regarding penetration bitumen in Spain was to avoid a war with a competitor and that they had taken steps to put that strategy into practice.
432    First, the Commission ignored in the contested decision the fact that Mr J.T.M. was never responsible for the applicants’ bitumen business, as confirmed in the statements of Mr C.B.F., an employee of Petróleos de Portugal; his superior; Bitumat, one of the applicants’ most important customers; Mr J.T.M. himself; and Mr V.C., set out in Annexes A.9, A.10, A.11 and A.12 to the application. The assertion at recital 133 to the contested decision that Mr J.T.M. was one of the applicants’ representatives at the alleged discussions of market-sharing is unfounded. It is possible that the Commission has confused Mr J.T.M. with his father, who, at least at the material time, was responsible for bitumen with CEPSA/PROAS. Mr C.B.F. was not responsible for the applicants’ bitumen business, but was in fact director of their ‘Clients Directorate’ (Wholesale).
433    Second, the wording of the e-mail itself also clearly reveals that it does not relate to penetration bitumen. At recital 278 to the contested decision the Commission omitted to set out the following passage from the paragraph cited:
‘We need to clear up things with Bitumat for them to stop entering our market, because in the end they made us lower our price [a lot] in order to re-operate the canned tomatoes client [Carcesa].’
434    Carcase is a producer of tomatoes and is therefore certainly not a purchaser of penetration bitumen. Furthermore, the e-mail was sent to a representative of CEPSA, which was not active in the penetration bitumen business. The fact that the e-mail suggests that the meeting was held with a representative of CEPSA, and not of PROAS, CEPSA’s subsidiary responsible for bitumen, is another indication that the e-mail does not relate to penetration bitumen.
435    By using, at paragraph 23 of its defence, the words ‘and/or’ where it takes issue with the applicants for having failed to ‘provide a plausible alternative explanation of the e-mail which itself provides very “incriminating” evidence of anti‑competitive practices in penetration bitumen and/or other markets’, the Commission itself acknowledges that there is doubt as to whether the e-mail relates to bitumen.
436    Third, the applicants maintain that they have given a plausible explanation by asserting that the e-mail appears to relate to a swap agreement between the applicants and CEPSA concerning certain other products, perhaps fuel. The e-mail relates to swap agreements between CEPSA and the applicants and concerns products other than penetration bitumen and not the exchange of sales figures for penetration bitumen, as the Commission suggests.
437    As is very clear from the wording of the Commission’s request for information of 6 February 2004, set out in Annex C.1 to the reply, Chapter II. ‘Product’ relates only to bitumen (see, for example, point 2.1, ‘please define bitumen’). Chapter III. ‘Market’, which includes the question put in point 3.2 on swap agreements, is preceded by a question on the evolution of the bitumen market (the question put in point 3.1) and followed by a question on the characteristics of the bitumen market.
438    As that request for information clearly related only to bitumen, the applicants explained in their answer to the question put in point 3.2, set out in Annex B.8 to the defence and at recital 278 to the contested decision, that, so far as bitumen was concerned, they concluded swap agreements only for penetration bitumen, without however claiming that they did not conclude swap agreements for products other than penetration bitumen outside the bitumen sector. The Commission was not entitled, on the basis of the applicants’ reply to that request, to preclude the possibility that the e-mail in question related to products other than penetration bitumen.
439    It is illogical for the Commission to state at recital 278 to the contested decision that, since the applicants had reported that they had concluded exchange agreements only in respect of certain types of bitumen, the e‑mail must refer to penetration bitumen. Indeed, the Commission failed to consider the possibility that the applicants could have concluded exchange agreements outside the relevant market, which would be a normal and sound practice in the sector.
440    The applicants maintain, in the sixth place, that the charts prepared by Repsol and PROAS, apparently individually, between 1992 and 2002 and referred to at recitals 243, 246, 249 to 256, 259 to 262, 265, 267, 270, 271, 277 and 281 to 289 to the contested decision do not constitute evidence of any coordination by the applicants with the members of the asphalt table. Indeed, the mere fact that PROAS and Repsol, apparently at an internal and individual level, prepared charts referring to the applicants and other importers and also sales volumes for those undertakings does not demonstrate that the applicants, other importers and distributors which are not addressees of the contested decision actively cooperated with the participants in the asphalt table.
441    The fact that the PROAS chart entitled ‘Mercasfa 2000’ referred to at recital 252 to the contested decision contains the statement ‘BP is not interested [, i]t says Galp’ is not evidence of any involvement on the applicants’ part. BP’s lack of interest in the project shows that PROAS and BP were negotiating between themselves about the market. The comment ‘[i]t says Galp’ may explain why BP was not interested in that project: the applicants had apparently already received the order for the project in question.
442    Moreover, the chart contains a large number of references to other importers and operators, such as ‘of no interest to BP [‚o]f interest to Afixa’.
443    The reference to the applicants cannot therefore be used as evidence to demonstrate that the participants in the asphalt table were informing the applicants about a quota or negotiating with them in that respect.
444    If PROAS and Repsol were in a position to draft the charts without the cooperation or involvement of other operators not belonging to the cartel, the Commission cannot describe those charts as evidence of the applicants’ involvement in the infringement.
445    Last, and in the seventh place, the applicants claim that a number of documents in the Commission’s file confirm that the applicants adopted a wholly autonomous and unilateral strategy on the market. PROAS observed in 1998 that ‘[the applicants] have supplied outside what corresponds to them in the PTT’. Furthermore, the applicants have shown that they sold on the Spanish market, after 1998, much more bitumen than the 48 000 MT allocated to them.
446    According to an internal note from Nynäs in 1999:
‘[The applicants are] changing [their] internal organisation into a more segmented structure and considering Spanish and Portuguese markets [to be] a single Iberian market. Their behaviour in the market is much more aggressive and they want to gain market share in the bitumen area in both countries.’
447    In answer to a question from the Commission concerning the references to the applicants and also to Nynäs in a chart for 2002, PROAS explicitly stated: ‘No, in that year neither Nynäs nor [the applicants] participated in the [asphalt] table.’ In the absence of any other specific information given by PROAS about the applicants’ involvement, the Commission cannot simply state at recital 489 to the contested decision that that statement is erroneous. It follows that the applicants did not have contacts with the asphalt table in 2002.
448    The Commission contends that the present plea should be rejected.
Findings of the Court
449    In the context of the present plea, the applicants contest that they participated in the cartel from March 1998 onwards. It is therefore necessary to examine in turn for each aspect of the cartel whether the applicants’ participation therein is established. That examination will first relate to price coordination and, subsequently, to market-sharing and customer allocation. As regards that latter category of unlawful conduct, it is already apparent from the examination of the third plea that is not established in the contested decision that the applicants were involved in the system for monitoring the application of the market‑sharing and customer-allocation arrangements and in the compensation mechanism relating to those arrangements.
450    With respect to price coordination, as is apparent from the answer to the previous plea, the Commission did not unlawfully find that the applicants participated in the price-coordination activities.
451    On the contrary, it follows from this that the applicants participated, sometimes actively, in the price‑coordination arrangements until 2002.
452    In particular, the applicants were informed by Repsol and PROAS, jointly or separately, during bilateral meetings or by telephone, of the price variation decisions agreed upon earlier between those two undertakings.
453    Even though the last price variation to which the contested decision refers is a variation of April 2002 which was implemented with effect from 1 June 2002, it is apparent from recital 482 to the contested decision that Repsol and PROAS concurred in asserting in their respective leniency applications that the price discussions ceased in October 2002, further to the inspections carried out by the Commission.
454    In the absence of any evidence or suggestion revealing, after June 2002, a desire on the applicants’ part to distance themselves from the price coordination or of conduct by the applicants determined independently of their participation in that coordination, the Court finds that the Commission was entitled to conclude that their participation continued until October 2002, when, according to the Commission, the first inspections were carried out and the infringement ended (see, to that effect, Case T‑59/99 Ventouris v Commission [2003] ECR II‑5257, paragraph 193).
455    In that regard, it should be borne in mind that the fact that evidence of the existence of an infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia (see, to that effect, Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 169).
456    It must therefore be concluded that the applicants’ participation in the price arrangements has been established until October 2002.
457    With respect to market-sharing and customer allocation, it should be recalled, as a preliminary point, that, as was found in the examination of the fourth plea, the applicants’ participation in customer allocation is established.
458    A number of elements leading to that conclusion concerned participation by the applicants after February 1998, such as Repsol’s statements reported at paragraphs 318 and 324 above or the contemporaneous documents mentioned at paragraphs 332 and 333 above. That therefore makes it possible to establish that the applicants participated in customer allocation after March 1998.
459    More broadly, the finding that the applicants participated, after February 1998, in the annual market‑sharing arrangements, whether in the allocation of volumes or customer allocation, is based on concurring statements by Repsol and PROAS which are set out, inter alia, at Sections 4.1, 4.2 and 4.3 of the contested decision.
460    Thus, Repsol stated in its leniency application that the functioning of the cartel, including the applicants’ participation therein, lasted from ‘1994-95 to October 2002’ (recital 478 to the contested decision).
461    Moreover, Repsol and PROAS concurred in asserting in their respective leniency applications that the market‑sharing arrangements ceased in October 2002, further to the inspections carried out by the Commission (recital 482 to the contested decision).
462    Lastly, with respect to a chart referred to as ‘Nynäs market year 2001’ submitted by Repsol on 20 April 2004 in the context of its leniency application, Mr J.B., Repsol’s Bitumen Sales Manager, stated at the hearing of 12 December 2006 – a statement which the applicants have not established as, or even claimed to be, lacking credibility in that regard – that, when he joined Repsol’s bitumen unit in February 2001, the market study had already been prepared and the time had come to negotiate with Nynäs and Petrogal (recitals 265 and 266 to the contested decision).
463    The applicants’ participation in the annual market-sharing arrangements from March 1998 to 1 October 2002 is moreover corroborated by contemporaneous evidence.
464    In the first place, it follows from the entry, in the diary of one of PROAS’s sales staff, dated 17 September 1998, of a meeting including the applicants, and from PROAS’s response of 18 November 2005 to a request for information, that Mr V.C., who was responsible for the bitumen sales of Galp Energía España, and Mr C.B.F., an employee of Petróleos de Portugal, met with representatives of Repsol and members of PROAS’s sales staff at the applicants’ premises (recital 236 to the contested decision).
465    It should be recalled in that regard that, according to Repsol’s response of 5 April 2006 to a request for information, Mr V.C. and Mr C.B.F. were, respectively, the representatives of Petrogal Española (now Galp Energía España) and of Petróleos de Portugal to whom the price change agreements reached between Repsol, PROAS, and subsequently BP, were communicated at different points in time by Repsol and PROAS, either jointly or separately (recital 305 to the contested decision). The participation of those persons, who were involved in other respects in the cartel, at a meeting with the representatives of Repsol and PROAS, that is to say with the undertakings classified as ‘leaders’ of the cartel in the contested decision – a classification which the applicants do not contest – is an indication that the object of that meeting concerned the cartel.
466    In addition, it is apparent from the minutes of the meeting of 17 September 1998, which were drawn up by PROAS and reproduced at recital 236 to the contested decision, that the applicants were awaiting a response from the two other undertakings to a proposal for a general agreement and the revision of all business lines for the Iberian market and that, as long as they did not have an answer, they would continue to take the positions which they considered most opportune. Moreover, during that meeting, the applicants provided their competitors with information on their bitumen sales figures which enabled their competitors to establish that the applicants had sold beyond what corresponded to them under the PTT (recital 242 to the contested decision).
467    The reference in the minutes of the meeting of 17 September 1998 to a proposal for a general agreement made to the applicants’ two main competitors in respect of which they were awaiting a response, and the communication, during that meeting, of information on the applicants’ sales figures of bitumen indicate that the discussions between the three undertakings during that meeting related to a negotiation concerning the sharing of the bitumen market.
468    Lastly, it is apparent from the minutes of the meeting of 17 September 1998 that the applicants ‘[said] they [did] not want to complicate market conditions’. Such a statement leads to the conclusion that they did not intend to put an end to their participation in the cartel, but to negotiate a new distribution of the market which was more advantageous for them.
469    Thus, in the absence of any evidence to the contrary, the Court finds that the applicants were still participating in the market‑sharing arrangements after the meeting of 17 September 1998.
470    In that regard, contrary to the applicants’ submission, the fact that they far exceeded their annual quota of 48 000 MT from 1998, just like Nynäs’s statement of 1999 relating to the applicants’ much more ‘aggressive’ conduct, is not capable of calling in question that participation.
471    At recital 336 to the contested decision it is stated that the ‘overall scheme’ involving all aspects of the infringement ‘qualifies as an agreement between undertakings within the meaning of Article 81 [EC] in the sense that, during the bilateral and multilateral meetings of the cartel members, the undertakings concerned expressed their joint intention to conduct themselves on the market in a specific way’. The Commission added at the same recital that ‘[t]his behaviour consisted essentially in following a jointly preconceived volume and customer allocation system, price coordination and refraining from competition with regard to customers allocated to the other participating competitors’.
472    Accordingly and even though, elsewhere, the Commission found that certain conduct, like the regular exchange of sales‑volume information between the undertakings and the direct or indirect contacts to coordinate prices, fell rather within the category of ‘concerted practices’ within the meaning of Article 81 EC (recital 339 to the contested decision), none the less it considered that the cartel could be characterised as an ‘agreement’, within the meaning of Article 81 EC, inasmuch as it had involved, inter alia, bilateral meetings on volume allocation.
473    The characterisation as an ‘agreement’ of the bilateral meetings sharing the market and, therefore, fixing the annual bitumen sales quota is not contested as such by the applicants.
474    It should be borne in mind that, as regards agreements, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence 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 (see Aalborg Portland and Others v Commission, paragraph 81 and the case-law cited).
475    In the present case, the applicants have not demonstrated that that was the case. The applicants’ non-compliance with their bitumen sales quota or their more ‘aggressive’ sales conduct do not constitute relevant arguments in that regard, since they do not make it possible to establish that the applicants indicated to their competitors that they were participating in the market‑sharing meetings in a different spirit and that they were opposed to the resulting agreements.
476    Even on the assumption that the bilateral meetings concerning volume allocation should be characterised as concerted practices rather than agreements, the applicants’ argument does not establish that their conduct on the market might have been adopted independently of the contacts that they had with their competitors, contacts whose anti-competitive object has been established.
477    In the second place, recitals 246, 249, 254 and 270 mention internal preparatory charts drawn up by PROAS or Repsol, found during the inspections of 1 and 2 October 2002 or produced as part of a leniency application; those charts contain an estimate by province, customer or project of the bitumen volumes required for 1999, 2000 and 2002, as well as the names of the suppliers of those volumes, including the applicants.
478    Thus, an internal chart found at PROAS’s premises during the inspections of 1 and 2 October 2002 shows for 1999 the allocation, inter alia to the applicants, of sales volumes by province (recital 246 to the contested decision).
479    In addition, in its response of 7 April 2006 to a request for information, PROAS confirmed, with respect to a chart relating to 2000, that the indication, in the boxes of the column entitled ‘Allocated’, of the name of one or other of the five bitumen suppliers which were members of the cartel, namely Repsol, PROAS, BP, Nynäs and the applicants, was determined by agreement of the asphalt table, attended by the usual participants (recital 249 to the contested decision).
480    In that regard, it should be recalled that the reference to the ‘usual participants’ of the asphalt table includes the applicants, since PROAS but also Repsol consider them in their concurring responses of 9 May 2006 to a request for information to be active participants at the asphalt table, on account of the active negotiation of the volumes and customers corresponding to them in their area of influence that they engaged in with Repsol and PROAS, on the basis of a proposal previously agreed upon by Repsol and PROAS and subsequently adjusted to take account of the applicants’ requests (recitals 139 and 140 to the contested decision). That concept of ‘usual participants’ should moreover be distinguished from the concept of ‘permanent members’ as set out at recital 126 to the contested decision, since the latter concept refers only to Repsol, PROAS and BP, which participated more systematically in the various aspects of the infringement.
481    Moreover, the document entitled ‘PTT year 2000 under construction’, submitted by Repsol on 20 April 2004 in the context of its leniency application, contains charts consisting of three columns headed ‘customer’, ‘project’ and ‘consumption’ and showing the members of the cartel to which the projects are allocated by numbers, including the number 7, which refers to the applicants (recital 254 to the contested decision).
482    Lastly, several preparatory charts relating to 2002, found during the inspections at PROAS’s premises, cite the applicants as one of the suppliers likely to deliver the estimated volumes required, by province, customer or project basis. PROAS stated, in the response of 18 November 2005 to a request for information, that the information in question was then checked with Repsol in the context of the asphalt table (recital 270 to the contested decision).
483    The Court is of the view that, assessed in the light of all the evidence adduced by the Commission, those various charts concur in showing that the applicants participated in the successive annual arrangements for sharing the relevant market and allocating customers during the period after February 1998.
484    In addition, as has already been stated previously concerning the plea relating to customer allocation, the fact that the charts mentioned above were drawn up by Repsol or PROAS does not deprive them of all probative value, particularly as some of those charts were collected during the inspections carried out on 1 and 2 October 2002.
485    In the third place, a body of consistent indicia permits the conclusion that, during April 2002, the applicants participated in at least one meeting relating to market‑sharing and customer allocation.
486    Indeed, it follows from footnote 95 to the contested decision that, in its leniency application and in its response of 5 April 2006 to a request for information, Repsol confirmed that it had met, in the company of PROAS, ‘around April 2002’, Nynäs, in the person of Mr T.S.B., and the applicants, represented by Mr V.C., in order to inform and discuss separately with each of them ‘the market in their [geographic] area, tonnes, customers and [market] distribution’.
487    The applicants’ argument relating to that statement’s lack of probative value was already rejected in the context of the examination of the plea relating to customer allocation.
488    In addition, in its response of 9 May 2006 to a request for information, Repsol confirmed that the meetings held between it and PROAS from November 2001 to March 2002 in order to agree on the size of the market and on an initial customer allocation were followed in April 2002 by meetings with BP, then Nynäs and, lastly, the applicants, in order to negotiate customer allocation in each of their respective areas of influence (recital 136 to the contested decision and footnote 102 to the contested decision).
489    Lastly, Repsol’s statements are confirmed by the note dated 17 April 2002 in the diary of a member of PROAS’s sales staff of a meeting on 9 April 2002 between the applicants and Repsol and of a meeting on 11 April 2002 between the applicants, on the one hand, and Repsol and CEPSA, on the other (recital 273 to the contested decision).
490    In its response of 18 November 2005 to a request for information, PROAS described the Repsol-Galp meeting of 9 April 2002 and the Repsol-CEPSA-Galp meeting of 11 April 2002 as asphalt table meetings attended by the ‘usual participants’, an expression which must be understood as including the applicants, as was noted previously.
491    Mr J.B., Repsol’s Bitumen Sales Manager from 2000, confirmed, by a statement made during the hearing of 12 December 2006, that a meeting had taken place on 11 April 2002 between Repsol, PROAS and the applicants to discuss the tonnes to be allocated to the applicants with a view to the market‑sharing arrangements for 2002 (recital 275 to the contested decision).
492    In order to contest that statement, the applicants rely on the statement by Mr V.C., who was responsible for the bitumen sales of Petrogal Española (now Galp Energía España) at the material time, a statement in Annex A.12 to the application.
493    However, in his statement, Mr V.C. stated that he ‘[did not] have any recollection’ of the meetings at which the applicants, Repsol and PROAS participated at the same time having taken place after March 1998 (with the exception of September 1998).
494    That testimony, emanating moreover from a former member of the applicants’ staff, is not alone capable of discrediting entirely Mr J.B.’s statement.
495    Furthermore, the applicants submit that Mr J.B.’s statement reporting that a meeting was held on 11 April 2002 which allegedly lasted all day long is not plausible, since the applicants’ quota remained stable over time.
496    However, it cannot be ruled out that the maintenance of the applicants’ quota at a level which they considered to be too low, as can be seen from the minutes of the meeting of 17 September 1998 which were analysed above in the context of the present plea, might have given rise to prolonged discussions with Repsol and PROAS.
497    The applicants have not therefore established that Mr J.B.’s statement lacks credibility.
498    The Court considers that the self-incriminating statements of Repsol and PROAS, the reference to meetings including the applicants dated 9 and 11 April 2002 in the diary of a member of PROAS’s sales staff and the self‑incriminating statement of Mr J.B. of 12 December 2006 constitute a body of sufficiently precise and consistent evidence showing, in the absence of a credible explanation by the applicants, that, during April 2002, the applicants participated in at least one meeting relating to market-sharing and to customer allocation.
499    That conclusion is not called in question by the statement by PROAS, as referred to at recital 489 to the contested decision, that the applicants did not participate in the asphalt table in 2002.
500    The concept of ‘participation in the asphalt table’ is liable to have several meanings when it is used by the members of the cartel.
501    As has been stated above, it is necessary to distinguish the concept of ‘usual participants’, which includes, inter alia, the applicants, from that of ‘permanent members’ as set out at recital 126 to the contested decision, the latter concept referring only to Repsol, PROAS and BP.
502    Accordingly, in the absence of any clarification by the applicants on the context in which PROAS’s statement was made and thus on its real meaning, its probative value is very limited for the purposes of establishing that the applicants did not in any way participate in the cartel during 2002, whereas all the elements which have just been referred to above converge in demonstrating that the applicants discussed, including in 2002, with Repsol and PROAS the annual arrangements for sharing the relevant market.
503    Since the market‑sharing arrangements between the members of the cartel were conducted on an annual basis, the applicants can therefore be regarded as having participated in the annual market‑sharing arrangement in 2002 during the entire period of its implementation in that year, that is until the end of the infringement, which the Commission fixed as 1 October 2002.
504    It is apparent from the foregoing that the convergent statements made by Repsol and PROAS, which are corroborated by all the documents contemporaneous with the material events analysed above, constitute a body of sufficiently precise and consistent evidence demonstrating that the applicants participated in the market-sharing and customer-allocation arrangements until 1 October 2002.
505    As has been stated above, the fact that evidence of the existence of an infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending, as in the present case, 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 (Technische Unie v Commission, paragraph 169). That is so in the present case.
506    Consequently, the Commission did not infringe Article 81(1) EC by finding that the applicants had participated, until 1 October 2002, in both the annual market-sharing and customer‑allocation arrangements (apart from the monitoring system and the compensation mechanism) and in price coordination.
507    For the sake of completeness, it is necessary to mention the fact that, at recital 278 to the contested decision, the Commission relies, in order to establish the applicants’ participation in the infringement, on an extract from an e‑mail of 29 August 2002 sent to Mr C.B.F., an employee of Petróleos de Portugal, by Mr J.T.M., an employee of Petrogal Española (which became Galp Energía España).
508    The extract from that e-mail is worded as follows:
‘Next 20 September I have a meeting with CEPSA to clarify the market situation and not to enter into a war. I would like to know what we can negotiate, if they are or not obliged to give us tonnes and how many these should be. It would be convenient to have a meeting with Repsol, but I do not know what their situation is in Portugal nor of how much the exchange is.’
509    That e-mail mentions the two main undertakings participating in the cartel, with which moreover it is established that Petrogal had repeated contacts in the context of that cartel. In addition, reference is made in that e-mail (i) to avoiding a ‘war’ with at least one of those two undertakings and (ii) to negotiating with that undertaking, negotiations which would be carried out by ‘giv[ing]’ tonnes of a product that is not identified expressly in the e-mail.
510    In a context where, as has been stated above, the applicants may be regarded as having participated in the annual market-sharing arrangements until October 2002, such an e-mail may, on the face of it, be considered to be an item of probative evidence confirming that participation.
511    However, the applicants claim in essence (i) that that e-mail concerns swap agreements concluded with CEPSA-PROAS outside the bitumen sector and (ii) that the employees concerned by that e-mail, in particular Mr J.T.M., were not involved in the bitumen sector.
512    Those two claims must be examined in turn.
513    First, the applicants’ explanation on what, in their view, the ‘real’ object of that e‑mail is, is too vague, unspecific and hypothetical to constitute a plausible alternative explanation of the e-mail in question. Thus, they state that that e-mail ‘seems to relate to an exchange agreement between Petrogal and CEPSA with regard to some other products, perhaps fuel’. If, at that time, the applicants were negotiating with CEPSA the adoption or the implementation of exchange agreements outside the bitumen sector, they should be in a position to provide more information and to substantiate that information with probative documents. However, that is not the case.
514    Second, the applicants are not justified in claiming that their two employees do not have any responsibilities in the bitumen sector.
515    Even on the assumption that, as the applicants submit, Mr J.T.M. was never involved in bitumen‑related matters or trade in bitumen products, as regards Mr C.B.F., Repsol states, in its response of 5 April 2006 to a request for information, that he was one of the applicants’ representatives to whom the bitumen price variations agreed between Repsol and PROAS were communicated. It is moreover common ground that Mr C.B.F. represented the applicants with Mr V.C. at the meeting to discuss market-sharing held on 17 September 1998 with Repsol and PROAS referred to at recital 236 to the contested decision.
516    It is apparent from the foregoing that the Commission was entitled to take the view at recital 278 to the contested decision that it was clear from the e-mail in question that the applicants considered a meeting with Repsol opportune, and that a meeting was in fact scheduled with CEPSA‑PROAS for a specific date and with a clear purpose in the context of the exchange agreements: to clarify the market situation and not ‘to enter into a war’ with PROAS.
517    The Commission therefore correctly inferred from this that that e-mail proved that one of the goals of the applicants’ business strategy regarding penetration bitumen in Spain was to avoid a war with a competitor and that they had taken steps to put that strategy into practice.
518    In those circumstances, the Commission was entitled to consider the e‑mail of 29 August 2002 to be further evidence of the applicants’ participation in the market‑sharing arrangements in 2002.
519    It follows from all the foregoing that the plea alleging illegality affecting the finding in relation to the duration of the applicants’ participation in the infringement must be rejected.
The consequences to be drawn from the third plea’s being well founded
520    The third plea has been upheld in view of the absence of any evidence in the contested decision of the applicants’ participation in the monitoring system and the compensation mechanism and, more broadly, of the absence of any elements in the contested decision which would make it possible to find the applicants liable in respect of those two aspects of the infringement.
521    It is necessary to determine the consequences, as far as concerns annulment, of the illegality thus committed by the Commission.
522    It should be borne in mind, first, that the General Court may not, merely because it considers a plea relied on by the applicant in support of its action for annulment to be well founded, automatically annul the challenged act in its entirety. Annulment of the act in its entirety is not acceptable where it is obvious that that plea, directed only at a specific part of the challenged act, is such as to provide a basis only for partial annulment (Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraph 104).
523    Second, in accordance with settled case‑law, partial annulment of a Community act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act. That requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (see Commission v Département du Loiret, paragraphs 105 and 106 and the case-law cited).
524    Thus, as far as concerns infringements envisaged in Article 81 EC, in the event that the Commission adopted a decision finding that an undertaking is liable on account of a single and continuous infringement including several forms of conduct, the finding that that undertaking participated in one of those forms of conduct is severable from the rest of the decision to the extent that the other forms of conduct found in the decision constitute, in themselves, an infringement of Article 81 EC.
525    Accordingly, where an undertaking can be held responsible for some of the forms of anti-competitive conduct comprising a single and continuous infringement, but where that is not the case in respect of other forms of anti-competitive conduct, because the Commission has failed to prove to the requisite legal standard that that undertaking was aware of that other anti-competitive conduct adopted by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and was prepared to take the risk, the Courts of the European Union must confine themselves to partial annulment of the contested decision (Commission v Verhuizingen Coppens, paragraph 50).
526    However, in order for annulment, even partial, to be possible, it is also necessary that the conduct in respect of which the undertaking’s liability is not established be sufficiently severable from each of the other forms of unlawful conduct found in the Commission’s decision in order to be the subject of an autonomous finding, without, however, its being necessary that that conduct constitutes, in itself, an infringement of Article 81 EC.
527    In addition, the various aspects of the single and continuous infringement found by the Commission, in particular those in respect of which the liability of the undertaking has not been established, must be identified sufficiently clearly in the contested decision in order to permit the division of that decision (Commission v Verhuizingen Coppens, paragraph 46).
528    In the present case, as was stated in the context of the plea alleging that the contested decision is insufficiently reasoned, it is clearly apparent from that decision that the single and continuous infringement found by the Commission comprises several aspects.
529    Those various forms or aspects of unlawful conduct are, as can be seen from recitals 3 and 373 to the contested decision, as follows:
–        the establishment of sales quotas;
–        the allocation of volumes of the product and customers between each participant in the cartel, on the basis of those quotas;
–        the monitoring of the implementation of the market-sharing and customer‑sharing arrangements, through the exchange of information on sales volumes;
–        the establishment of a compensation mechanism to correct deviations from the market-sharing and customer-sharing arrangements;
–        the agreement on the variation of bitumen prices and the time at which the new prices would apply;
–        participation in regular meetings and other contacts in order to agree on the above restrictions of competition and to implement or modify them as required.
530    Thus, in the contested decision, the monitoring system and the compensation mechanism are each identifiable as aspects which are separate from the other aspects of the infringement.
531    In addition, Section 2.1.1.3.1 of the contested decision, entitled ‘Monitoring of the market-sharing arrangements’, focuses specifically on the monitoring system, and another section of the contested decision, Section 2.1.1.3.2, entitled ‘Compensation mechanism’, focuses specifically on the compensation mechanism.
532    Accordingly, the contested decision makes it possible to distinguish and, if necessary, isolate those two aspects from the other forms of unlawful conduct.
533    Moreover, the monitoring system and the compensation mechanism are sufficiently severable from the other forms of unlawful conduct found in the contested decision and could therefore properly be the subject of an autonomous finding by the Commission.
534    Lastly, it follows from the examination of the various pleas for annulment that, although the Commission was wrong to hold the applicants liable with respect to the monitoring system and the compensation mechanism, it is not established that the Commission was wrong to hold the applicants liable in respect of the other aspects of the infringement.
535    The other aspects of the infringement constitute in themselves an infringement of Article 81 EC, which means that the finding of the applicants’ participation in the monitoring system and the compensation mechanism can be severed from the remainder of the Decision.
536    It follows from the foregoing that Article 1 of the contested decision must be annulled in so far as it finds that the applicants were involved in a complex of agreements and concerted practices in the Spanish market for bitumen, to the extent that that complex includes (i) the system for monitoring the implementation of the market‑sharing and customer‑allocation arrangements and (ii) the compensation mechanism to correct deviations from the market-sharing and customer‑allocation arrangements.
537    It is necessary to annul to the same extent Article 3 of the contested decision in so far as it requires the applicants to bring to an end the infringement as found in Article 1 and to refrain from repeating any act or conduct described in that article or having the same or similar object or effect.
538    However, the remainder of the claims for annulment of Article 1 and Article 3 of the contested decision must be rejected.
539    Moreover, it should be borne in mind that the Court of Justice has also held, with respect to partial annulment of a Commission decision categorising a global cartel as a single and continuous infringement, first, that the undertaking in question must have been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point and, second, that the decision must have been sufficiently clear in that regard (Commission v Verhuizingen Coppens, paragraph 46).
540    Accordingly, in the first place, it is necessary, even though the applicants have not alleged any breach of the rights of the defence, for this Court to ensure of its own motion that the first additional condition laid down by the Court of Justice in order to make it possible to divide a Commission decision categorising a global cartel as a single and continuous infringement has been fulfilled, and it is not necessary that the parties have expressed any view in that regard (see, to that effect, Commission v Verhuizingen Coppens, paragraphs 46 and 49, and Case T‑210/08 Verhuizingen Coppens v Commission [2011] ECR II‑3713).
541    It must be stated that the applicants were put in a position, during the administrative procedure, to be aware of each of the various aspects of the infringement that they were alleged to have engaged in and to defend themselves on that point, as is apparent from Sections 2.2.1.3 and 2.2.1.4 of the contested decision and, in particular, from recitals 344, 346, 348 and 352 to that decision which are set out in those sections.
542    In the second place, as has been stated above, it is sufficiently clear from the contested decision that the monitoring system and the compensation mechanism are autonomous aspects. The contested decision therefore makes it possible to understand that each of those two aspects, as such, is alleged against the participants in the cartel and, inter alia, against the applicants.
543    The additional conditions laid down by the Court of Justice under which it is possible to envisage partial annulment of a Commission decision categorising a global cartel as a single and continuous infringement are therefore fulfilled in the present case.
2. The claims put forward, principally, for annulment of Article 2 of the contested decision and, in the alternative, for variation of the amount of the fine
544    The applicants develop three pleas, in which they take issue with the Commission for having respectively found that they did not play an exclusively passive role in the infringement; rejected their argument that they had not implemented the cartel; and, lastly, refused to grant them a larger reduction of the fine than the 10% granted by the contested decision, in order to take account of their limited involvement in the infringement.
545    Those pleas are expressly put forward in support of the claims for annulment of Article 2 of the contested decision, which relates to the fine or, in the alternative, in support of the claims for variation of the amount of the fine.
546    It should be recalled that the Courts of the European Union are empowered to exercise their unlimited jurisdiction where the question of the amount of the fine is before them (Groupe Danone v Commission, paragraph 62).
547    Accordingly, the applicants, which specifically challenge, by the pleas in question, the fine imposed on them and do not challenge the contested decision in its entirety or only the articles of the operative part of that decision which do not relate to the fine, must be regarded as putting forward claims for variation, despite the use in their pleadings of the term ‘annulment’.
548    In that regard, it should be pointed out that, in the judgment of 6 December 2012 in Commission v Verhuizingen Coppens, even though the applicant in that case claimed principally that Articles 1 and 2 of the decision that it was contesting should be annulled, articles relating to the finding of the infringement and to the fine respectively, and, only in the alternative, that that fine should be reduced (paragraph 10 of the judgment), the Court of Justice partially annulled Article 1 and, without annulling Article 2, reduced the amount of the fine in the exercise of its unlimited jurisdiction.
Seventh plea, alleging illegality affecting the finding that the applicants did not play an exclusively passive role in the infringement
Arguments of the parties
549    The applicants observe that, at recital 539 to the contested decision, the Commission wrongly presumes, without providing the slightest evidence, that the applicants participated in the asphalt table, when they demonstrated the contrary at paragraphs 3.54 to 3.56 of the application. The applicants clearly did not participate in the preparation of any of the agreements which the Commission claims to find in the contested decision, nor has the Commission established in that decision that they did so.
550    Contrary to the Commission’s assertion at recital 539, the applicants’ involvement in the annual negotiations or at the very least in any annual discussions is not established. Recitals 232, 247, 265 and 273, to which the Commission refers at paragraph 90 of its defence, refer only to diary entries and to an internal chart of PROAS and Repsol, which clearly do not constitute evidence of negotiations of volumes involving the applicants. There was no negotiation, since it is clear from the contested decision that Repsol and PROAS always allocated 48 000 MT per year to the applicants.
551    The Commission adduces no evidence that the applicants had any involvement whatsoever in the organisation, administration or funding of the meetings in question. It omits to establish when such meetings with Repsol or PROAS at the applicants’ own offices are supposed to have taken place. The applicants also deny that those meetings took place. The vague accusations made by Mr J.L.F. were rebutted by the applicants at paragraphs 3.35 to 3.40 of the application.
552    The two explicit examples to which the Commission refers cannot be used as evidence of the applicants’ active involvement in the infringement. First, the minutes of the meeting of 17 September 1998 prepared by PROAS prove that the applicants had ceased to participate in the market-sharing arrangements between Repsol, PROAS and BP. Second, the e-mail internal to the applicants of 29 August 2002, which does not relate to bitumen, was designed to avoid a war between the applicants and CEPSA and does not relate to any form of market-sharing or price-coordination arrangement.
553    On the contrary, the applicants’ involvement in the present infringement is limited to a few informal contacts with the two dominant players, Repsol and PROAS, in which the latter told the applicants that the members of the asphalt table had allocated an annual volume quota of 48 000 MT to the applicants. The applicants’ involvement in the cartel was limited to being informed of that quota, which they more or less observed between 1995 and March 1998, because it was in their commercial interests to do so.
554    However, they ceased to do so from March 1998 and expressly informed Repsol and PROAS that they were doing so, in particular in March 1998 and at the meeting held on 17 September 1998. Even if the Commission’s view that the applicants cannot be regarded as having distanced themselves from the members of the asphalt table should be accepted, it is clear from the contested decision that at least from March 1998, the applicants’ role could not reasonably be regarded as active.
555    The Commission erred in its assessment of the applicants’ alleged participation in the price-coordination activities. By its very general statement at paragraph 90 of the defence, the Commission implicitly acknowledges that it is unable to substantiate the argument at recital 539 to the contested decision that the applicants requested or were informed of price variations and agreed to apply them jointly with their competitors. As the applicants stated at paragraph 3.6 of the reply, BP never claimed in its leniency application that the applicants were involved in price-coordination, and none of the documents submitted by BP revealed such involvement.
556    The Commission itself considered that the applicants did not participate in ‘all aspects of an anti-competitive system’. At recital 543 to the contested decision, the Commission questions whether the applicants did in fact participate in the compensation mechanism or in all the phases of the discussions leading to the annual market-sharing arrangements. At the same recital, the Commission, failing to apply the burden of proof, states that it ‘found no evidence that [the applicants] attempted to clearly distance themselves from the illegal behaviour or not to use it to their advantage’. It is clear from the case-law that that is not a decisive factor in deciding whether a company played a passive role.
557    As the applicants did not take part in any of the asphalt table meetings or in drawing up the presumed agreements, the Commission ought to have found that they played only a passive role. Consequently, the Commission’s refusal at recital 545 to the contested decision to grant any reduction of the fine to reflect their exclusively passive role, at least from March 1998 until October 2002, is manifestly unjustified.
558    The Commission contends that the present plea should be rejected.
Findings of the Court
559    In support of the present plea, the applicants rely, at paragraph 3.144 of the application, on the provisions of the first indent of Section 3 of the 1998 Guidelines.
560    Those provisions provide for a reduction of the amount of the fine by way of attenuating circumstances in the event of ‘an exclusively passive or “follow-my-leader” role in the infringement’, which implies that the undertaking will adopt a ‘low profile’, that is to say not actively participate in the creation of any anti‑competitive agreements (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167).
561    In that regard, it is clear from the case-law that the factors which may indicate that an undertaking has played a passive role in a cartel include where its participation in cartel meetings is significantly more sporadic than that of the other members of the cartel, where it enters the market affected by the infringement at a late stage, regardless of the length of its involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect (see Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 252 and the case-law cited).
562    However, as the first indent of Section 3 of the Guidelines confers entitlement to a reduction of the amount of the fine by way of an attenuating circumstance only in the event of an ‘exclusively’ passive or ‘follow-my leader’ role by the undertaking in the infringement, it is not sufficient that that undertaking adopted a ‘low profile’ only during certain periods of the cartel or in relation to certain cartel agreements (Jungbunzlauer v Commission, paragraph 254).
563    On the contrary, in the light of the wording of the first indent of Section 3 of the Guidelines, recognition of a passive role implies that the undertaking in question has confined itself, throughout its participation in the infringement, to adopting a ‘low profile’.
564    Thus, the fact that other undertakings may have been more active does not automatically mean that an undertaking had an exclusively passive or follow-my-leader role, since only total passivity on its part could be taken into account as a factor (Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 611).
565    In the present case, first, it is apparent from the examination of the fourth and sixth pleas for annulment that the applicants participated in the market-sharing and customer-allocation arrangements.
566    In that regard, it can be seen from the concurring responses of Repsol and PROAS of 9 May 2006 to a request for information that the applicants negotiated actively with them the volumes and customers corresponding to the applicants in their area of influence on the basis of a proposal previously agreed upon by Repsol and PROAS and subsequently adjusted to take account of the applicants’ requests (recitals 139 and 140 to the contested decision).
567    Second, it is apparent from the examination of the fifth plea that the applicants participated, sometimes actively, in the price coordination with other members of the cartel.
568    Third, as was found during the examination of the sixth plea, it is apparent from the minutes of the meeting of 17 September 1998 that the applicants intended, by providing their competitors during that meeting with information on their bitumen sales figures which enabled their competitors to establish that the applicants had sold beyond what corresponded to them under the PTT, to negotiate a new distribution of the market which was more advantageous for them. That constitutes conduct which cannot be categorised as ‘passive’.
569    In the light of the matters just referred to, the applicants cannot be regarded as having had an ‘exclusively’ passive or ‘follow‑my‑leader’ role in the infringement in issue.
570    Accordingly, the applicants are not justified in complaining that the Commission found that they had not played an exclusively passive role in the infringement or, consequently, that the Commission did not grant them any reduction of the fine under the first indent of Section 3 of the 1998 Guidelines.
571    In the light of the foregoing, since the Commission did not commit any error, the present plea must be rejected as unfounded.
Eighth plea, alleging illegality of the Commission’s refusal to acknowledge the applicants’ non-implementation in practice of the cartel
Arguments of the parties
572    The applicants observe that, at recitals 546 to 553 to the contested decision, the Commission refused to grant them the benefit of the attenuating circumstance consisting in not implementing the cartel in practice.
573    The Commission made two manifest errors of assessment in asserting, at recital 551 to the contested decision, that the applicants had not succeeded in demonstrating that during the period of their participation in the cartel they had avoided implementing the unlawful agreements by adopting competitive conduct on the market or, at least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.
574    In the first place, the Commission incorrectly placed on the applicants the burden of proving that they had not implemented the cartel. An undertaking which, like the applicants, has played such an insignificant role on the relevant market cannot be asked to supply evidence of that nature. It can therefore be precluded that any actions of the applicants could disrupt the organisation of the market.
575    In the second place, the applicants made clear in their response to the statement of objections and at paragraph 3.130 of the application that they did not implement the market-sharing arrangements. At least between March 1998 and October 2002 the applicants supplied a much higher quantity of bitumen than the quantity which, according to the Commission, Repsol and PROAS had allocated to them.
576    As stated at paragraph 3.139 of the application, other members of the cartel acknowledged that the applicants had adopted a wholly autonomous and unilateral strategy on the relevant market during that period. To that extent, the applicants ‘avoided the quota by adopting competitive conduct on the market’.
577    By maintaining, in that regard, that the sales quota allocated to the applicants was ‘flexible’, the Commission acknowledges de facto that it is unable to prove that they implemented that quota from 1998.
578    The Commission was therefore not entitled to conclude at recital 553 to the contested decision that the applicants had failed to prove that they had not implemented the cartel arrangements. The Commission thereby infringed Article 23(3) of Regulation No 1/2003 and Section 3 of the 1998 Guidelines.
Findings of the Court
579    As a preliminary point, it must be stated that, in support of the present plea, the applicants rely, at paragraph 3.144 of the application, on the provisions of the second indent of Section 3 of the 1998 Guidelines.
580    In the context of those provisions, the ‘non-implementation in practice of the offending agreements or practices’ appears as one of the attenuating circumstances for which perpetrators of anti‑competitive practices may be eligible.
581    However, the Commission is not required to recognise the existence of an attenuating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby encourage other undertakings to implement the cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 277, and Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 491).
582    In the present case, the documents in the case‑file do not show that the applicants’ conduct could be regarded as non‑implementation in practice of the cartel within the meaning of the case‑law cited in the previous paragraph.
583    Indeed, the applicants themselves recognise that they observed from 31 January 1995 to March 1998 the quota of 48 000 MT corresponding to them following the negotiation of each annual market‑sharing arrangement.
584    In addition, it is apparent from the examination of the fourth and sixth pleas for annulment that, until 1 October 2002, the applicants participated in the market‑sharing and customer-allocation arrangements.
585    In that regard, as was found during the examination of the sixth plea, it is apparent from the minutes of the meeting of 17 September 1998 that the applicants intended, by providing their competitors during that meeting with information on their bitumen sales figures which enabled their competitors to establish that the applicants had sold beyond what corresponded to them under the PTT, to negotiate a new distribution of the market which was more advantageous for them.
586    In that context, neither the fact that the applicants far exceeded their quota of 48 000 MT from 1998 nor the acknowledgment by other members of the cartel of the applicants’ much more ‘aggressive’ conduct is capable of showing that the applicants clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that they did not give the appearance of adhering to the arrangements and thereby encourage other undertakings to implement the cartel in question.
587    It is even less possible to regard the applicants’ conduct as opposition to the implementation of the cartel given that, as is apparent from the examination of the fifth plea, until 1 October 2002, the applicants moreover continued to participate, sometimes actively, in another aspect of the cartel, namely price coordination.
588    Accordingly, the applicants are not justified in complaining that the Commission refused to recognise non‑implementation in practice of the cartel by the applicants as an attenuating circumstance, or, consequently, that it did not grant them any reduction of the fine under the second indent of Section 3 of the 1998 Guidelines.
589    In the light of the foregoing, since the Commission did not commit any error, the plea must be rejected as unfounded.
Ninth plea, alleging failure to reduce the fine in spite of the applicants’ very limited involvement in the infringement
Arguments of the parties
590    The applicants maintain that the 10% reduction of the amount of the fine which they were granted in the contested decision is too low in the light of the negligible nature of their involvement in the cartel.
591    The applicants were not parties to the customer allocation, the monitoring system or the compensation mechanism. For a limited period they accepted a volume of 48 000 MT per year. Such an amount, in Repsol’s view, was not even a ‘very rigid’ amount and, according to the Commission itself, was even a ‘flexible’ amount.
592    Even if it must be accepted that the applicants did not clearly distance themselves from the asphalt table in March 1998, it is clear from their sales figures for 1998 to 2002 that there was no relationship between the alleged sales quota and their actual turnover.
593    Even if the plea alleging illegality of the finding that the applicants had participated in the price‑coordination activities should be rejected, it would not be established that their alleged involvement in those arrangements had the slightest influence on Repsol’s and PROAS’s pricing strategy.
594    Since the applicants played only an ancillary role in the cartel, and since they also failed to comply with the cartel arrangements, they ought to have been rewarded in the form of a significantly higher reduction than the 10% reduction granted in the contested decision. The Commission thus infringed Article 23(3) of Regulation No 1/2003 and Section 3 of the Guidelines. It follows that Article 2 of the contested decision should be annulled, at least in so far as it relates to the applicants or, in the alternative, that the fine should be reduced.
Findings of the Court
595    First of all, the Court would point out that, by stating that the 10% reduction applied to them is too low in the light of the very limited nature of their involvement in the cartel and by thus criticising, implicitly but necessarily, the proportionality of the fine, the applicants specified sufficiently – contrary to the Commission’s contention – the legal basis of their application for a reduction.
596    Next, in the first place, contrary to the applicants’ submission, it is apparent from the reply to the fourth plea that the applicants participated in the annual customer‑allocation arrangements.
597    In the second place, as was found in the context of the examination of the eighth plea, the fact that the applicants far exceeded their sales quota is not capable, given that they did not strongly oppose the implementation of the cartel, of enabling the applicants to benefit from a reduction of the fine on the ground of non-implementation in practice of the arrangements.
598    In the third place, the Commission relied on the fact that horizontal market-sharing arrangements and price‑coordination activities are, by their very nature, infringements which can be classified as ‘very serious’ (recital 500 to the contested decision) in order to conclude, irrespective of whether the cartel had had a measurable impact on the relevant market, that the infringement was very serious (recital 509 to the contested decision).
599    It is apparent from the replies to the fourth, fifth and sixth pleas for annulment respectively that the applicants did in fact participate in market‑sharing arrangements (which include customer allocation) and in price‑coordination activities. In addition, the Commission’s classification of the infringement as ‘very serious’ was not contested by the applicants.
600    Next, it is not contested by the applicants, with respect to the geographic scope of the infringement, that the infringement relates to penetration bitumen sold in Spain (excluding the Canary Islands).
601    It is clear from case‑law that a geographical market of national dimension corresponds to a substantial part of the common market (Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 28; Joined Cases T‑49/02 to T‑51/02 Brasserie nationale v Commission [2005] ECR II‑3033, paragraph 176; and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150).
602    Lastly, as is apparent from recital 67 to the contested decision, it is common ground that the total value of the market for penetration bitumen in Spain amounted to EUR 286 400 000 in 2001, the last full year of the infringement. In addition, it also apparent from that recital that Petrogal’s sales of bitumen in Spain amounted to EUR 13 000 000 in 2001.
603    In the light of those amounts, the gravity of the infringement and the extent of the geographic market concerned, and in view also of the duration of the applicants’ participation in the infringement, namely more than seven years in the case of Galp Energía España (formerly Petrogal Española) and Petróleo de Portugal, and more than three years in the case of Galp Energia, SGPS, the amounts of the fines applied to the applicants, which were set at EUR 8 662 500 for Galp Energía España and Petróleos de Portugal, and at EUR 6 435 000 for Galp Energia, SGPS, do not appear to be disproportionate even though the Commission did not take account either of the fact that the applicants’ actual sales far exceeded the quota allocated to them under the market‑sharing arrangements or the actual impact of the cartel on the relevant market.
604    Thus, the Commission was entitled to adopt the fines mentioned in the previous paragraph without having to take account of the alleged absence of any influence on Repsol’s and PROAS’s pricing strategy of the applicants’ participation in the price-coordination activities, that is to say the absence of any actual impact on the market of the applicants’ participation in those activities.
605    The applicants state moreover that they were not parties to the cartel as regards the monitoring system and the compensation mechanism, something on which they rely in order to challenge the fine.
606    In that regard, as was found in the context of the examination of the third plea, in the contested decision, the Commission not only failed to establish the applicants’ participation in those two aspects of the infringement but also failed to adduce sufficient evidence to hold them liable in respect of those aspects.
607    However, it follows from Mr V.C.’s statement of 6 December 2007 mentioned at paragraph 294 above, according to which ‘at a moment in time [Mr V.C.] realised that there was some sort of compensation system between the members of the asphalt table’, that the applicants were aware of the compensation mechanism.
608    Moreover, as is apparent from recital 190 to the contested decision, which was not contested by the applicants, the compensation mechanism could not have existed without a monitoring system of which that system was the corollary.
609    In addition, the applicants themselves stated at paragraph 3.92 of the application that the compensation mechanism, which was designed to correct any deviations from the market‑sharing arrangements, was an integral part of the monitoring system.
610    Accordingly, it follows from Mr V.C.’s statement of 6 December 2007 that the applicants could have reasonably foreseen the existence of the monitoring system and were prepared to take the risk.
611    Consequently, if that statement were to be taken into account, it would make it possible to hold the applicants liable (i) in respect of the compensation mechanism, on account of the applicants’ awareness of that mechanism, and (ii) in respect of the monitoring system, on account of the fact that that system should have been for foreseeable for the applicants.
612    In that regard, it should be noted that the Commission relies on that statement in its pleadings.
613    However, it did not rely, in the contested decision, on the awareness that the applicants had of the monitoring system and the compensation mechanism or on the fact that they should have been foreseeable in order to hold them liable in respect of those two aspects.
614    As was stated in the context of the examination of the third plea, it is not for the Court to substitute an entirely new statement of reasons for the erroneous statement used by the Commission (DIR International Film and Others v Commission, paragraph 38, and Commission v Meierhofer, paragraph 59).
615    None the less, that impossibility of taking Mr V.C.’s statement of 6 December 2007 into consideration, as found in the context of the review of legality, does not apply in the context of the exercise of unlimited jurisdiction.
616    The unlimited jurisdiction conferred on the General Court authorises it to vary the contested measure, by taking into account all of the factual circumstances relied upon by the parties (see Limburgse Vinyl Maatschappij and Others v Commission, paragraph 692, and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86).
617    In taking into account, in the exercise of unlimited jurisdiction, the awareness that the applicants had of certain aspects of the infringement, the Court will confine itself to determining the appropriate amount of the fine which must be applied, by relying on all the material in the case‑file which has been the subject of an exchange of arguments between the parties to the dispute.
618    Accordingly, the fact that it is not possible for the Commission to obtain a substitution of grounds in the framework of the review of legality does not prevent the Court from taking account, in the context of the examination of the present complaint, of Mr V.C.’s statement of 6 December 2007; that statement makes it possible to establish the awareness that the applicants had of one of the aspects of the infringement.
619    In addition, the assessment of the appropriateness of the amounts of fines may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 296 TFEU, to be set out in the decision (Case C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 40).
620    That is true, in particular, of information relating to the attribution of liability to an undertaking for certain unlawful conduct in respect of a given period (Case T‑132/07 Fuji Electric Co. Ltd v Commission [2011] ECR II‑0000, paragraphs 209, 211 and 213 and the case-law cited).
621    Moreover, it cannot be ruled out that additional information might concern the finding of the infringement.
622    Unlimited jurisdiction, which enables the Court to take account of such information, may be exercised even if the complaint put forward relates to the finding of the infringement, since such a complaint is liable, if well founded, to change the amount of the fine.
623    Moreover, the exercise by the Court of its unlimited jurisdiction, including where the finding of the infringement is at issue, may enable the Court to reduce the amount of a fine even though annulment, even partial, of the contested decision would not be possible. That is the case, for example, where, although some of the material on which the Commission relied to find that an applicant participated in the infringement is not established, that finding is not of such a nature as to justify the annulment of the contested decision, but only the reduction of the amount of the fine, in order to take account of the less active or regular nature of an applicant’s participation.
624    It follows from the foregoing that it is for the Court, in the present case, to take account, in the exercise of its unlimited jurisdiction, of Mr V.C.’s statement of 6 December 2007.
625    In the light of that statement, it must be concluded that the applicants were aware of the participation of the other members of the cartel in the compensation mechanism and they could have also foreseen the participation of the other members of the cartel in the monitoring system.
626    They can therefore be held liable in respect of those two aspects of the infringement (Case C‑49/02 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 83).
627    It is in the light of all the foregoing that it is necessary to determine whether and to what extent the amounts of the fines imposed on the applicants should be varied.
628    It must be borne in mind in this respect that the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003 empowers them, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed where the question of their amount is before them (judgment of 8 February 2007 in Groupe Danone v Commission, paragraphs 61 and 62). In this context, it should be pointed out that the Courts of the European Union are free to determine the amount of the fine that they consider appropriate according to the method of their choice, provided that that does not result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) EC (see, to that effect, Prym and Prym Consumer v Commission, paragraph 112; Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 255; and judgment of 12 November 2009 in Case C‑554/08 P Carbone-Lorraine v Commission, not published in the ECR, paragraph 72).
629    In the present case, the Court considers that it is appropriate to apply the method followed by the Commission in the contested decision.
630    Given that the applicants can be held liable in respect of the monitoring system and the compensation mechanism, and in respect of all the other forms of unlawful conduct, there is no need to vary the starting amount of the fine (see paragraph 72 above).
631    Next, in the absence of any errors relating to the assessment of the applicants’ effective economic capacity to cause significant damage to competition, and to the duration of their participation in the infringement, the amounts of the fines calculated, before taking into account the reduction in respect of attenuating circumstances, will remain unchanged, that is (i) EUR 9 625 000 for Galp Energía España and Petróleos de Portugal and (ii) EUR 7 150 000 for Galp Energia, SGPS.
632    By contrast, it is necessary to the increase the reduction of the fine applied to the applicants by the Commission in respect of attenuating circumstances.
633    At recital 567 to the contested decision, the Commission relied, in particular, on the applicants’ less regular or active participation in the monitoring system and the compensation mechanism in order to grant them a 10% reduction of the fine.
634    However, although it is established that the applicants were aware of the existence of the compensation mechanism and that they could have foreseen the existence of the monitoring system (see paragraph 625 above), there are no elements in the contested decision (see paragraph 272 above) or the case‑file on the basis of which it can be established that the applicants participated in those two aspects of the infringement.
635    In those circumstances, the Court, in the exercise of its unlimited jurisdiction, considers that the illegality which the Commission committed by finding that the applicants participated in the monitoring system and the compensation mechanism results, notwithstanding the fact that the applicants were aware of the compensation mechanism and could have reasonably foreseen the existence of the monitoring system, in a further 4% reduction of the amount of the fine, that reduction thus being added to the reduction of 10% already granted in the contested decision.
636    The Court therefore upholds the ninth plea in part and decides that it is appropriate to grant a larger reduction of the fine, namely by a total of 14% of its amount.
637    Accordingly, the amount of the fine imposed on Galp Energía España (formerly Petrogal Española) and Petróleos de Portugal is set at EUR 8 277 500, whilst the amount of the fine imposed on Galp Energia, SGPS is set at EUR 6 149 000.
3. The application for measures of inquiry
Arguments of the parties
638    The applicants observe that whenever the Commission deems it appropriate it cites the statement of 6 December 2007 in Annex A.12 to the application, made by Mr V.C., but elsewhere it calls that statement into question. The applicants therefore request the Court to hear Mr V.C. under oath.
639    To the extent that the Court may have doubts as to whether Mr J.T.M. was responsible for bitumen with the applicants, the applicants request the Court to hear under oath Mr C.B.F., Mr J.M.D. and Mr J.T.M., the authors of the statements in Annexes A.9, A.10 and A.11 to the application, respectively.
640    The Commission contends that the application for measures of inquiry should be rejected.
Findings of the Court
641    Following examination of the various pleas, the Court has been able to rule on the application on the basis of the forms of order sought, the pleas in law and the arguments put forward during the written and the oral procedure and in the light of the documents lodged by the parties during the proceedings. The applicants’ application for measures of inquiry must therefore be rejected.
Costs
642    Under Article 87(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs. In the circumstances of the present case it is appropriate to order the parties to bear their own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls Article 1 of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 – Bitumen Spain) in so far as it finds that Galp Energía España, SA, Petróleos de Portugal (Petrogal), SA, and Galp Energia, SGPS, SA were involved in a complex of agreements and concerted practices in the Spanish market for bitumen, to the extent that that complex includes (i) the system for monitoring the implementation of the market‑sharing and customer‑allocation arrangements and (ii) the compensation mechanism to correct deviations from the market-sharing and customer­‑allocation arrangements;
2.      Annuls Article 3 of Decision C(2007) 4441 final in so far as it requires Galp Energía España, Petróleos de Portugal (Petrogal) and Galp Energia, SGPS to bring to an end the infringement as found in Article 1 of that decision and to refrain from repeating any act or conduct described in that article or having the same or similar object or effect, to the extent that that infringement includes (i) the system for monitoring the implementation of the market‑sharing and customer‑allocation arrangements and (ii) the compensation mechanism to correct deviations from the market-sharing and customer‑allocation arrangements;
3.      Sets the amount of the fine imposed on Galp Energía España and on Petróleos de Portugal (Petrogal) in Article 2 of Decision C(2007) 4441 final at EUR 8 277 500, and the amount of the fine imposed on Galp Energia, SGPS in Article 2 of Decision C(2007) 4441 at EUR 6 149 000;
4.      Dismisses the remaining heads of claim in the application;
5.      Orders each party to bear its own costs.
Truchot
Martins Ribeiro
Popescu
Delivered in open court in Luxembourg on 16 September 2013.
[Signatures]
Table of contents
Background to the dispute
1.  Relevant market
2. Undertakings in question
Repsol Group
CEPSA-PROAS
BP
Nynäs Group
Petrogal Group
3. Administrative procedure
4. Contested decision
Finding of the infringement
Calculation of the amount of the fines
Determination and adjustment of the ‘starting amount’ of the fine
Duration of the infringement
Attenuating circumstances
5. Operative part of the contested decision
Procedure and forms of order sought
Law
1. The claims for annulment of Article 1 and Article 3 of the contested decision
First plea for annulment, alleging breach of the principle of sound administration
Arguments of the parties
Findings of the Court
Second plea, alleging breach of essential procedural requirements and of the obligation to state reasons
Arguments of the parties
Findings of the Court
– The extent and duration of the applicants’ participation in the infringement
–  The different treatment applied to the members of the cartel according to the extent of their participation in it
–  The contradictory nature of the statement of reasons
Third plea, alleging illegality affecting the finding that the applicants were involved in the monitoring system and the compensation mechanism relating to the application of the market-sharing and customer-allocation arrangements
Arguments of the parties
–  Absence of non-contemporaneous evidence
–  Absence of contemporaneous evidence
Findings of the Court
Fourth plea, alleging illegality affecting the finding that the applicants participated in customer allocation
Arguments of the parties
–  Non-contemporaneous evidence: the statements of Repsol and PROAS are not sufficiently probative
–  Absence of contemporaneous evidence: the internal charts of Repsol and PROAS lack probative force
Findings of the Court
Fifth plea, alleging illegality affecting the finding that the applicants participated in the price‑coordination activities
Arguments of the parties
–  Manifest inaccuracy of the statements of Repsol and PROAS
–  Confirmation by e-mails internal to the applicants of 18 and 19 October 2000 that the applicants were not involved in the price arrangements.
Findings of the Court
Sixth plea, alleging illegality affecting the finding in relation to the duration of the applicants’ participation in the infringement
Arguments of the parties
–  Manifest lack of precision and consistency in the non-contemporaneous evidence
–  Absence of contemporaneous evidence of the applicants’ participation in the infringement from March 1998 onwards
Findings of the Court
The consequences to be drawn from the third plea’s being well founded
2. The claims put forward, principally, for annulment of Article 2 of the contested decision and, in the alternative, for variation of the amount of the fine
Seventh plea, alleging illegality affecting the finding that the applicants did not play an exclusively passive role in the infringement
Arguments of the parties
Findings of the Court
Eighth plea, alleging illegality of the Commission’s refusal to acknowledge the applicants’ non-implementation in practice of the cartel
Arguments of the parties
Findings of the Court
Ninth plea, alleging failure to reduce the fine in spite of the applicants’ very limited involvement in the infringement
Arguments of the parties
Findings of the Court
3. The application for measures of inquiry
Arguments of the parties
Findings of the Court
Costs
* Language of the case: English.