JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2018 (*)
(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Insurmountable barriers to entry — Inapplicability of Article 101 — Duration of involvement — Equal treatment — Calculation of the fine — Value of sales — Gravity of the infringement — Mitigating circumstances — Unlimited jurisdiction)
In Case T‑446/14,
Taihan Electric Wire Co. Ltd, established in Anyang-Si (South Korea), represented by R. Antonini and E. Monard, lawyers,
applicant,
v
European Commission, represented by A. Biolan, C. Giolito and H. van Vliet, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 8 June 2017,
gives the following
Judgment
I.      Background to the dispute
A.      The applicant and sector concerned
1        The applicant, Taihan Electric Wire Co. Ltd, is a South Korean company that is active in the underground power cable production and supply sector. It has been active in this sector since 1984 at the latest.
2        Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.
B.      Administrative procedure
3        By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’).
4        From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and of the French companies Nexans SA and Nexans France SAS.
5        On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.
6        During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) and point 12 of the Leniency Notice.
7        On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp., SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd and the applicant.
8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596) and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, not published, EU:T:2012:597), the General Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the actions as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those two judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.
10      On 2 April 2014, the Commission adopted its Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the [EEA] Agreement in (Case AT.39610 — Power cables) (‘the contested decision’).
C.      Contested decision
1.      The infringement at issue
11      Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
12      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel consisted of two aspects, namely:
–        the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as ‘R members, the Japanese undertakings, referred to as ‘A members’, and lastly the South Korean undertakings (including the applicant), referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home territory’ under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% were reserved for the Asian producers;
–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and in particular recitals 73 and 74 of that decision).
13      The Commission found that the participants in the cartel had established obligations to exchange information, so as to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).
14      The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having participated successively in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia, and, the Japanese undertakings Furukawa Electric, Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, nkt cables and the applicant were merely fringe players in the cartel (recitals 576 to 594 of that decision).
2.      The applicant’s liability
15      The applicant was found liable on the basis of its direct participation in the cartel from 15 November 2002 until 26 August 2005, in so far as extra high voltage underground power cables were concerned (recitals 907 and 1008 of the contested decision).
3.      The fine imposed on the applicant
16      Under Article 2(u) of the contested decision a fine of EUR 6 223 000 was imposed on the applicant.
17      In calculating the amount of the fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to [that provision] (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on setting fines’).
18      In the first place, as regards the basic amounts of the fine, after establishing the appropriate value of sales in accordance with point 18 of the 2006 Guidelines on setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement in accordance with points 22 and 23 of those guidelines. In that regard, it considered that the infringement, by its very nature, was among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the European Economic Area (EEA). The Commission also found, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated power cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 that contested decision).
19      In so far as concerns the multiplier to reflect the duration of the infringement, the Commission used, for the applicant, a multiplier of 2.75 which reflected the period from 15 November 2002 to 26 August 2005. For the applicant, the Commission also included in the basic amount of the fine, an additional amount, namely the ‘entry fee’, of 17% of the value of sales. That amount thus calculated came to EUR 6 993 000 (recitals 1011 to 1016 of the contested decision).
20      In the second place, the Commission found no aggravating circumstances that could affect the basic amounts of the fine fixed for the cartel participants, with the exception of ABB. On the other hand, in so far as mitigating circumstances are concerned, it decided to reflect in the fines the degree of involvement in the implementation of the cartel of each of the various undertakings. Accordingly, it reduced the basic amounts of the fine to be imposed in respect of the fringe cartel participants by 10%, and the basic amount of the fines to be imposed in respect of the undertakings whose involvement had been moderate by 5%. It also granted Mitsubishi Cable Industries and SWCC Showa Holdings, in respect of the period preceding the creation of Exsym, as well as LS Cable & System and the applicant an additional reduction of 1% on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. By contrast, no reduction in the basic amounts of the fines was granted to the undertakings belonging to the core group of the cartel (recitals 1017 to 1020 and 1033 of the contested decision). Applying the 2006 Guidelines on setting fines, the Commission also granted Mitsubishi Cable Industries an additional reduction of 3% on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).
II.    Procedure and forms of order sought
21      By application lodged at the Registry of the General Court on 16 June 2014, the applicant brought the present action. The Commission lodged its defence on 21 November 2014.
22      By order of 16 September 2016, the General Court (Eighth Chamber, former composition) adopted a measure of enquiry to order the Commission to produce certain extracts and confidential oral declarations made by J-Power Systems in the context of the joint application for immunity submitted with Sumitomo Electric Industries and Hitachi Cable. The Commission complied with this request within the prescribed period.
23      Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Eighth Chamber (new composition), to which the present case was consequently allocated.
24      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 8 June 2017.
25      In response to a question from the Court, concerning the conclusions to be drawn from the judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the applicant declared, during the hearing, that it was withdrawing the second plea of the action, relating to the use of evidence illegally obtained by the Commission, a note of which was made in the minutes of the hearing.
26      The applicant claims that the Court should:
–        primarily, annul the contested decision in so far as it relates to it;
–        in the alternative, reduce the amount of the fine imposed on the applicant;
–        order the Commission to pay the costs.
27      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
28      In the context of its application, the applicant seeks the partial annulment of the contested decision as well as the reduction of the amount of the fine imposed on it.
A.      The claim for annulment
29      In support of its claims for annulment, the applicant essentially raises four pleas: first, the Commission’s lack of jurisdiction and the inapplicability of Article 101 TFEU; second, the Commission’s error as to the duration of the applicant’s participation in the infringement; third, a breach of the principles of equal treatment and proportionality; and, fourth, a breach of the principles of equal treatment, proportionality and protection of legitimate expectation, and of the 2006 Guidelines on setting fines.
1.      The first plea in law, alleging that the Commission lacked jurisdiction to apply Article 101 TFEU
30      The applicant alleges, essentially, that the Commission was not able to assert jurisdiction to apply Article 101 TFEU since the object of its anticompetitive behaviour did not concern the EEA market and its involvement in the anticompetitive behaviour could not have any effect on trade in that market given the inability of the applicant to compete on that market.
31      That plea is divided into two parts, alleging that the applicant was unable to compete on the EEA market and that this inability to compete resulted in the Commission’s lack of jurisdiction and the inapplicability of Article 101 TFEU.
(a)    The first part of the first plea in law: the applicant was not able to compete on the EEA market
32      The applicant maintains that its conduct did not relate to, and could have no effect on trade in the EEA market given its inability to compete on that market. According to the applicant, that inability to compete was evident, given, first, its inability to produce pre-moulded joints for power cable systems, its inability to meet the qualification requirements of European power utility companies and the lack of customer goodwill and track record needed to attract customers. Second, the applicant takes issue with the reasoning followed by the Commission in the contested decision in order to demonstrate that the barriers to entry on the EEA market were not insurmountable. It thus submits that the Commission adduced no convincing evidence relating to it regarding this matter. It also argues that, contrary to the Commission’s finding in the contested decision, the occasional sales which it made in the EEA, in particular in Ireland, the Netherlands and Germany, do not show that it was able to operate on the EEA market. On the contrary, they confirm its inability to compete on that market. Lastly, it maintains that there is not the slightest reference to European customers inviting it to submit a tender.
33      The Commission disputes those arguments.
34      According to the case-law, an agreement that aims to protect European producers from any actual or potential competition from other foreign producers on their territory is liable to restrict competition, unless there are insurmountable barriers to entry on the European market that exclude all potential competition from those latter producers (see judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraphs 33 to 36, and of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 230).
35      In the present case, it must be noted, first, that, in the context of the present part of the plea, the applicant argues that its inability to enter the EEA market and to thus affect competition, due to its lack of involvement, results in the Commission’s lack of jurisdiction to apply Article 101 TFEU. It follows that the General Court’s analysis must be limited to examining if the Commission rightly concluded that there were no insurmountable barriers for the applicant to enter the European market.
36      In that regard, first, it must be held that the Commission did not err in finding that no barriers prevented the applicant from re-entering the EEA market, given that, as is apparent from recital 661 of the contested decision and as the applicant recognised in its pleadings, it made sales of power cable systems in Europe in 2001 and in 2005, in particular in Ireland, the Netherlands and Germany. Contrary to what the applicant maintains, the projects in which it participated in the EEA market confirm that it was capable of competing on that market and that there were no insurmountable barriers to entry preventing its participation.
37      Second, the applicant’s argument that it was prevented from intervening in the EEA because of its inability to produce pre-moulded joints for power cable systems, its inability to meet the qualification requirements of European power utility companies and the alleged lack of customers and a track record in Europe, must be rejected for the same reasons. In that regard, it must be held that these alleged impediments did not prevent the applicant from participating in three projects that it developed in the EEA market. Similarly, while the applicant argues that the deterioration of its reputation after the first project in Ireland in 2001 demonstrates its inability to enter the European market, such an argument is contradicted by the fact that it subsequently participated in two other projects in 2005.
38      Third, contrary to what the applicant maintains, the information in the file highlights that it was invited to submit bids by European customers, which demonstrates that it presented itself as at least a potential competitor of European producers on the EEA market.
39      In particular, first, it should be borne in mind that, according to recital 194 of the contested decision, based on one of the oral statements by J-Power Systems, the European and Japanese producers complained that the South Korean producers, including the applicant, had submitted bids that were too low for projects in Europe. Specifically, as regards the applicant, those producers accused it of submitting a low-priced bid for an Italian project concerning public utilities, forcing Prysmian to lower its price.
40      Next, it emerges from recital 243 of the contested decision that, on 24 February 2003, Nexans France asked both the applicant and the other South Korean company involved in the cartel, through the intermediary of J-Power Systems, to refrain from competing for a project in Spain. Subsequently, the representative of J-Power Systems, Mr O., stated that he had received a reply from the two South Korean companies, in which the applicant acknowledged that it had made a high-priced bid. It should be added that, at the request of J-Power Systems, the applicant also submitted the price offered and the revised price requested by the customer. As the Commission emphasises, the other cartel participants would not have asked the applicant to disclose its price if they did not fear that the applicant could have won the relevant project.
41      Lastly, recital 263 of the contested decision describes how Pirelli complained that the South Korean producers, including the applicant, sought to attract customers in the EEA. In addition, the minutes of J-Power Systems relating to the meeting in Seoul on 17 October 2003 of the ‘R’, ‘K’ and ‘A members’ of the cartel, mentioned in recitals 268 to 273 of the contested decision also refer to the fact that the South Korean companies were ‘attacking’ the markets of Italy, Germany and Spain when the principle was not to attack the ‘home territory’ of the other producers of power cables.
42      It is apparent from the foregoing elements that the European producers perceived the applicant as a competitor, which indicates the existence of at least potential competition between the European producers and the applicant.
43      Fourth, it should be noted that the very existence of the cartel found by the Commission, of which the principal elements are not disputed by the applicant in the context of its action, provides a strong indication that a competitive relationship existed between the European and South Korean producers, including the applicant. In other words, it was solely because of the fact that the Japanese and South Korean producers were able to penetrate the European market that the European manufacturers were encouraged to stay outside the Japanese and South Korean markets. As the applicant acknowledged in its pleadings, it should be noted that, in July 2004, the applicant indicated its disagreement and dissatisfaction to the other European cartel participants that Pirelli had entered the South Korean market. Moreover, it is unlikely that the cartel participants would have entered into a market-sharing agreement if they had not considered themselves to be at least potential competitors. The willingness to participate in the cartel thus constitutes an argument which seriously calls into question the plausibility of the applicant’s argument that the barriers to entry to the European market were insurmountable (see, to that effect, judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 231).
44      It follows that the Commission did not err in concluding that there were no insurmountable barriers to entry into the EEA market for the applicant and that, in those circumstances, the applicant was at least a potential competitor of the European operators, within the meaning of the case-law cited at paragraph 34 above.
45      The first part of the present plea in law must therefore be rejected.
(b)    The second part of the first plea in law: the applicant’s inability to compete on the EEA market means that the Commission has no jurisdiction and that Article 101 TFEU does not apply
46      The applicant argues that its inability to enter the EEA market and thus affect, by its own conduct, competition on that market means that the Commission has no jurisdiction, and Article 101 TFEU does not apply.
47      In particular, the applicant considers that the Commission erred in concluding that it participated in the ‘A/R cartel configuration’, since it was incapable of ‘acting’ on the EEA market and, consequently, it could not ‘fail to act’ on that market, as the Commission found it had. The applicant also adds that, in any event, re-entering that market was not part of any economically viable strategy and that it was incapable of contributing, by its conduct, to the common objectives pursued by all the participants.
48      In addition, the applicant alleges that, in reality, it participated solely in an agreement among competitors in South-East Asia and the Middle East aimed at protecting the South Korean power cables market. That agreement was in no way complementary to the arrangements relating to the EEA. Lastly, the applicant submits that the Commission could not associate the practices in question with a single and continuous infringement, otherwise it would be acquiring unlimited extra-territorial jurisdiction.
49      The Commission disputes the applicant’s arguments.
50      First, it must be noted that, in so far as, in the context of the current part of the plea, the applicant again maintains that the Commission did not have jurisdiction to apply Article 101 TFEU because of, first, its inability to compete in the EEA market, and second, the fact that that alleged inability could not have any effect on trade between Member States, that argument must be rejected taking into account the findings made in the context of the first part of the current plea. Next, in so far as the applicant does not specifically call into question the evidence on which the Commission relied to establish its participation in the ‘A/R cartel configuration’, it must be held that the applicant, by its own conduct, contributed to the common objectives of that configuration of the single and continuous infringement found in the contested decision. Lastly, it must be held that on the same basis, contrary to what the applicant maintains, the object of its anticompetitive behaviour concerned the EEA market.
51      Regarding the argument that the applicant participated in agreements concerning territories in third countries only in order to protect its position on the market for South Korean power cables, it should be noted that, aside from the fact that this argument is contradicted by the finding made at paragraph 50 above, the agreements in which the applicant acknowledged having participated, concerning ‘export territories’, were also constituent elements of the single and continuous infringement which the Commission was therefore able to attribute to the applicant under Article 101 TFEU.
52      It should be noted that, as is apparent, in particular, from recitals 524 to 526 of the contested decision, the agreement relating to the ‘export territories’ was considered to be an element of the overall plan which formed the basis for the single and continuous infringement found by the Commission, the objective of which was to restrict competition for projects of underground and submarine power cables in specific territories by dividing the markets and the customers and distorting the normal competitive process in the internal market.
53      The Court of Justice has held that, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. By contrast, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 50 and the case-law cited).
54      In the present case, it must be held that the applicant does not dispute in detail either the findings made by the Commission in recitals 524 to 526 of the contested decision as to the definition of the single and continuous infringement, nor the evidence in the contested decision establishing, inter alia, that the agreement on the ‘export territories’ and the rest of the elements of the infringement at issue formed part of an overall plan capable of affecting the internal market. In any event, there is evidence in the contested decision concerning situations where projects in the ‘export territories’ were offered or requested in a context where observance of the protection of the ‘home territory’ of the various cartel participants, including the territory belonging to the European producers, had been the subject matter of a reminder and could be regarded as ensured by each of those participants. Thus, it is apparent, for example, from the notes relating to the meeting in Seoul on 17 October 2003 of the ‘A’, ‘R’, and ‘K’ members of the cartel, referred to in recitals 268 to 273 of the contested decision and annexed to the Commission’s pleading, that after the reminder by one of the participants at the meeting of the necessity to observe the ‘home territories’ of each of the cartel members and after, in particular, those participants having been reassured on that matter, the participants in that meeting, including the applicant, had in that context expressed their interest for a certain number of projects in the ‘export territories’ and had addressed the issue of their allocation. The applicant cannot therefore validly maintain that the agreement on the ‘export territories’ did not bear any relation to the other elements of the single and continuous infringement found by the Commission in the contested decision and that its involvement in that agreement did not form part of an overall plan to distort competition in the internal market.
55      Therefore, the applicant does not succeed in calling into question the Commission’s jurisdiction to penalise the single and continuous infringement as defined in the contested decision, including the actions concerning the ‘export territories’.
56      Having regard to the foregoing, it must be concluded that contrary to what the applicant argues, the Commission had jurisdiction to apply Article 101 TFEU to the applicant.
57      The second part of the first plea must therefore be rejected, as must the first plea in its entirety.
2.      The second plea in law, alleging an error on the Commission’s part in connection with the duration of the applicant’s participation in the infringement
58      The applicant maintains that the Commission erred in its determination of the duration of the applicant’s alleged infringement and in so doing breached, in particular, the principle in dubio pro reo and the principle of non-discrimination. The applicant adds that such an error affected the level of the fine.
59      As a preliminary point, it should be noted that according to settled case-law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 78 and the case-law cited).
60      The Commission must prove not only the participation of an undertaking in an infringement, but also its duration. With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should at least adduce evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 235 and the case-law cited).
61      Moreover, since it is common that anticompetitive activities take place clandestinely, meetings are held in secret, and the associated documentation is reduced to a minimum, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a certain 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 judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 23 and the case-law cited).
62      Furthermore, as anticompetitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the economic operators concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted (see judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 82 and the case-law cited).
63      Lastly, according to the case-law, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 48 of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. Accordingly, it is necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 50 and the case-law cited).
64      Essentially, the second plea is divided into two parts: the Commission should not have taken the period before 17 January 2003 into account regarding the starting date of the applicant’s participation in the infringement, or the period after 1 July 2004 regarding the end date of its participation in the infringement.
(a)    The first part of the second plea: concerning the starting date of the applicant’s participation in the infringement
65      As regards the starting date of its participation, the applicant acknowledges that it attended a meeting in Tokyo on 15 November 2002 of the ‘A/R/K’ members of the cartel, but maintains that that meeting did not mark the starting point of its participation in the cartel. It states that, at the time when that meeting was held, it was frequently faced with refusals from Japanese and European manufacturers to supply it with accessories, and that that is why it attended the meeting. In addition, the various sets of minutes of this meeting contradict one another and do not constitute sufficient evidence of its participation in the cartel. Other evidence on the case file also confirms that, after that meeting, the applicant had not in fact behaved as if it were part of the cartel.
66      The Commission disputes the applicant’s arguments.
67      The Commission established, in Article 1(12) of the contested decision, that the applicant’s participation in the cartel had started on 15 November 2002.
68      Moreover, in recital 926 of the contested decision, the Commission explained, as follows:
‘LS and [the applicant] participated in the cartel arrangements as of 15 November 2002 when the companies attended the A/K/R meeting in Tokyo. As indicated in Recital (485), the fact that LS and [the applicant] may not have fully abided by the outcome of the anticompetitive meeting they attended, does not relieve them of their full responsibility. Neither of them has attributed any evidence which shows that they were opposed to the outcome of the meeting. Moreover, prior to attending the meeting on 15 November 2002, both companies were already involved in the allocation of projects in the export territories (see recitals 157, 159, 169 and 223) and attended anticompetitive meetings on 7 September 2001 [the applicant] and 29 January 2002 (see recitals 184 and 204).’
69      Due to the contradictory and insufficient nature of the evidence put forward by the Commission in the contested decision, the applicant argues that it wrongly held that the meeting of 15 November 2002 was the starting date of its participation in the cartel.
70      However, those arguments cannot be accepted.
71      It should be noted that, in accordance with settled case-law, to prove to the requisite standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anticompetitive nature were concluded, without manifestly opposing them. 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 anticompetitive 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 judgment of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraph 119 and the case-law cited).
72      In the present case, it is apparent from the combined reading of recitals 227 to 229 and 926 of the contested decision that the Commission based the starting date of the applicant’s participation in the cartel on the notes of the meeting of 15 November 2002 in Tokyo, which were found during the inspection carried out at the premises of the Nexans group, as well as on the notes provided by J-Power Systems and Exsym, written by their employees.
73      First, as the Commission states in the aforementioned recitals of the contested decision, those notes, the contemporaneous nature of which cannot be called into question by the applicant, show the applicant’s presence, through its representative Mr L., at a meeting where the South Korean producers of power cables were questioned about whether they were able to cooperate in the cartel, a question to which the producers, including the applicant, responded that they were ready to do so. Although the notes reveal that it was a matter of willingness to cooperate on a ‘project by project basis’, as the applicant underlined, the South Korean producers also confirmed that they ‘would participate in the Scheme in the long term’. Contrary to what the applicant submits, those two statements are not contradictory, but highlight the applicant’s willingness to participate in the anticompetitive agreement in the long term. In addition, two of those three notes leave no doubt as to the perception which the undertakings that were present at that meeting had of the willingness of the two South Korean undertakings, including the applicant, to participate in the cartel.
74      Second, the abovementioned notes also show that, during the meeting in Tokyo, the ‘home territory’ principle, which was the basis for the ‘A/R cartel configuration’, was revealed to the applicant’s representative. In that regard, the ‘home territories’ of the different groups of producers were defined as comprising three territories, namely those of Europe (in the wide sense) and Argentina for the Europeans, Japan and Taiwan for the Japanese, and South Korea for the South Koreans. Moreover, the applicant’s representative became aware of the fact that, as well as the undertakings present at the meeting, other producers in the sector, such as ABB, Brugg Kabel, Sagem and nkt cables, were also involved in the cartel. The applicant was also made aware of the roles of Mr J., an employee of Nexans France and of Mr O., an employee of J-Power Systems, as points of contact and coordinators for the respective sides, the European side on the one hand, and the Japanese and South Korean side on the other. Finally, it should be borne in mind that the allocation of individual projects outside of the ‘home territories’ was the subject of discussions.
75      Third, although the applicant claims that it never expressly agreed to participate in the cartel during the meeting in Tokyo, it must be stated, as the Commission has done, that the document describing ‘project by project’ cooperation also contains a note where it is clearly underlined that the applicant, referred to as ‘TEC’, had no objection to cooperating in the cartel and where it is indicated specifically that Mr K. would be the point of contact in South Korea. Moreover, the minutes highlight that the applicant requested the allocation of a project in Singapore, which was allocated on the condition of long term cooperation.
76      Fourth, contrary to what the applicant claims, the distinction made in the list of joint participants in those notes between, first, ‘all members’ and, second, the applicant and the other South Korean company involved in the cartel, does not show that those two companies were not seen as taking part in the cartel during the meeting on 15 November 2002. On the contrary, such a distinction highlights, as the Commission notes, that it was during that meeting that both the applicant and the other South Korean company were introduced to the anticompetitive agreement. In addition, it must be held that, contrary to what the applicant claims, the request to try and convince the South Korean companies to behave, made in an email on 2 December 2002 by the representative of Nexans France, Mr J., and addressed to the representative of J-Power Systems, Mr O., shows that the applicant was considered to be taking part in the cartel and that its conduct had consequently to be controlled by the other members of the agreement.
77      It follows that, contrary to what the applicant claims, the Commission did not err in finding that the applicant had decided to join the cartel in question during the meeting in Tokyo and that the date of that meeting, namely 15 November 2002, determined the starting date of its participation in the infringement.
78      For the remainder, it suffices to note that the applicant has not adduced any evidence capable of supporting its claim that its participation in the meetings organised in the context of the cartel was motivated by its dependence on the other producers for the procurement of the accessories necessary for its activity in producing power cables. In any event, it should be borne in mind that, according to settled case-law, undertakings cannot justify infringement of the rules on competition by claiming that they were forced into it by the conduct of other traders (see, to that effect, judgment of 15 March 2000, Cimenteries CBRand Others v Commission, T‑25/95, T‑26/95, T‑30/95 à T‑32/95, T‑34/95 à T‑39/95, T‑42/95 à T‑46/95, T‑48/95, T‑50/95 à T‑65/95, T‑68/95 à T‑71/95, T‑87/95, T‑88/95, T‑103/95 et T‑104/95, EU:T:2000:77, paragraph 2557 and the case-law cited). In the present case, as the Commission stated at recital 589 of the contested decision, even if pressure were exerted on the applicant to force its participation due to that state of dependence, the applicant could have reported this to the competent authorities, rather than attend a meeting where, as was noted at paragraph 73 above, it indicated its willingness to cooperate in a cartel, and where it did not indicate in any way to the other participants that it was attending because of its state of dependence mentioned above. The applicant cannot therefore invoke the conduct of its competitors to exculpate itself in the present case.
79      The first part of the second plea must therefore be rejected.
(b)    The second part of the second plea: concerning the end date of the applicant’s participation in the infringement
80      As regards the end date of the applicant’s participation in the infringement, first, it argues that there is no evidence that proves the applicant’s participation after 1 July 2004. Next, the evidence on which the Commission relied in order to prove that the applicant was nevertheless regarded by the other participants as a cartel member up to 26 August 2005 is ambiguous and is contradicted by other statements recorded on the case file. Moreover, the applicant criticises the Commission for considering that the fact that there was no evidence obtained from the applicant for the period between 1 July 2004 and 26 August 2005 can be explained by the specific characteristics of the cartel and the applicant’s particular role in that cartel. The applicant submits, essentially, that that conclusion is not supported by any evidence and that the lack of evidence relating to an excessively long period, 13 months, is contrary to the requirements identified in the case-law. Lastly, the applicant states that it decided to bring its participation to an end on 1 July 2004 due to the lack of any satisfactory result from the cartel, as is demonstrated by the email which it sent on that date in which it complained about the behaviour of a European cartel member in the South Korean market.
81      The Commission disputes those arguments.
82      In Article 1(12) of the contested decision, the Commission decided that the end date of the applicant’s participation in the cartel was 26 August 2005.
83      In recitals 929 and 930 of the contested decision, the Commission also stated as follows:
‘Regarding [the applicant], the end date of participation in the infringement has been set at 26 August 2005. The last piece of evidence which stems directly from [the applicant] is dated 1 July 2004. However, there is evidence that [the applicant] was still regarded as a member to the arrangements on 26 August 2005 (Recital 357 and 358), as on that date [Mr J. (Nexans France)] explicitly confirmed that [the applicant] was still regarded as part of the A side of the cartel. [Mr J.] had made a similar remark on 24 June 2005 (see recital 353).
The fact that there is no evidence stemming from [the applicant] for the period between 1 July 2004 and 26 August 2005 can be explained by the specific characteristics of the cartel and [the applicant]’s participation therein. As [the applicant] itself acknowledges, its role in the cartel was limited to a few meetings and contacts. From the start of [the applicant]’s participation, it was clear that the cartel operated through coordinators or contact points on each side. In practice, [the applicant] also communicated through the Japanese contact points (see, recitals 229, 240, 243, 263, 302 and 358). Furthermore, the nature of the home territory agreement did not require regular contacts between the applicant and the other participants, since it imposed a negative obligation on the applicant to stay out of the EEA market. In practice, as seen from the evidence in Section 3, [the applicant] was only involved in communications when there were alleged infringements of the home territory principle or when it concerned the occasional allocation of projects in the export territories. [The applicant]’s lack of contact between 1 July 2004 and 24 August 2005 therefore did not have to indicate to the other participants that [the applicant] had withdrawn from the cartel. In addition, [the applicant] has not adduced any proof or evidence that indicates that it distanced itself from the agreements.’
84      The applicant disputes that the evidence on which the Commission relied in the contested decision is sufficient to establish its participation in the cartel during the period from 1 July 2004 to 26 August 2005. It also alleges that the Commission breached the requirements established by the case-law concerning proof of the duration of a company’s participation in a cartel.
85      As a preliminary point, it should be noted that, as the Commission acknowledged in the contested decision, the last piece of evidence provided directly by the applicant demonstrating its participation in the cartel is the email that it sent on 1 July 2004 complaining about Pirelli entering the South Korean market and expressing its dissatisfaction with the non-observance of the ‘home territory’ agreement. The Commission held, however, that that evidence did not establish the end of the applicant’s participation in the anticompetitive agreement, because other evidence highlighted that it was still perceived as a member of that agreement at least until 26 August 2005.
86      That finding cannot be called into question by the arguments submitted by the applicant.
87      First, contrary to the applicant’s claim, the fact that the applicant expressed its dissatisfaction with the cartel due to a lack of sufficient benefits and a breach of the ‘home territory’ principle by one of the European undertakings participating in the agreement, cannot in itself demonstrate that it brought an end to its participation in the anticompetitive practice from 1 July 2004. As the Commission essentially notes, the wording of the email of 1 July 2004 highlights an invitation to the other cartel members to observe the established agreements, or even a strategy by the applicant to request greater advantages from the other participants as consideration for its unlawful cooperation.
88      It should also be observed that subsequent to the email of 1 July 2004, the European companies stated that they were in favour of leaving a project to the applicant and the other South Korean company involved in the cartel subject to ‘proper behaviour’. In that regard, the following is apparent from the email of 23 August 2005, sent by the representative of Nexans France, Mr J., to the representative of Exsym, Mr I.:
‘What I wrote is not a proposal, it is the application of the rotation rule by voltage type as proposed by you with strong insistence. Our opinion is that the presence of TEC [the applicant] and LG is an internal A problem. We suggest if necessary to leave [No] 60 to TEC/LG against proper behaviour elsewhere.’
89      Next, in its response of 24 August 2005, the representative of Exsym favoured conceding in favour of the applicant:
‘From a beneficial point of views of all, we may agree to leave [No] 60 to [the applicant]/LG subject to your acceptance, however the remaining two OF [oil filled cables] cases should be rotated as agreed. Please be understood that LS/[the applicant] have a free hand to do whatever they prefer in any cases, even within our A territory and therefore we cannot acknowledge that they are our A members.’
90      Lastly, in its email of 26 August 2005, the representative of Nexans France stated again that the South Korean companies, including the applicant, had to be considered to be part of the A cartel members.
‘if you say K is out of A then the [40%] is no longer valid and should be reduced to may be 20 hence the balance over the last years km is definitely in negative for R. So either K is “out” of A and next 2 OFC must be R to rebalance the situation as you agreed already or [they] [are] “in” [“A”] and the rotation agreement must apply. We understand you have difficulty to control K like we have difficulty to control AB and BC and SG or NK but this does mean to have them “out” [of the cartel]. It is simply a fact to adapt to.’
91      It follows that, according to the evidence referred to above, the applicant was clearly perceived, as taking part in the cartel at least until 26 August 2005.
92      Second, regarding the applicant’s lack of public distancing from the cartel, as the Commission found in the contested decision, it should be borne in mind, that according to the case-law of the Court of Justice, such distancing is only required in the case of an undertaking’s participation in an anticompetitive meeting in order to rebut the presumption of illegality of such a meeting. With regard to participation in an infringement that took place over several years rather than in individual anticompetitive meetings, it can be concluded from the case-law of the Court of Justice that the absence of public distancing forms only one factor amongst others to be taken into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 20 to 23).
93      It must be emphasised that, in order to assess whether an undertaking has actually distanced itself, it is the understanding which the other participants in a cartel have of that undertaking’s intention which is of critical importance when assessing whether it sought to distance itself from the unlawful agreement (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 62).
94      It follows that, in the present case, the mere fact that the applicant did not distance itself publicly from the cartel is not in itself sufficient to find that it participated in the cartel up to 26 August 2005. Nevertheless, in so far as that fact is in addition to the evidence noted at paragraphs 88 to 90 above, it supports the Commission’s finding that the applicant did not fully terminate the anticompetitive agreement following the email on 1 July 2004.
95      Third, regarding the applicant’s argument that the Commission has not adduced evidence of facts sufficiently proximate in time to demonstrate its participation in the cartel after 1 July 2004, it should be borne in mind that, according to the case-law cited at paragraph 60 above, if there is no evidence directly establishing the duration of an infringement, the Commission should at least adduce evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.
96      In the present case, the assessment of the absence of facts sufficiently proximate in time, in the way alleged by the applicant, must be carried out in light of the characteristics of the cartel itself and the role of the applicant in that cartel. First, as the Commission underlines, the applicant’s participation in the cartel was limited to a few meetings and contacts and occurred, as a general rule, through coordinators, so that the absence of proof demonstrating the applicant’s presence at the anticompetitive meetings after 1 July 2004 is not, in itself, capable of demonstrating that it had terminated the unlawful agreement. Furthermore, the home territory agreement did not by its nature require regular contacts between the applicant and the other participants, since it imposed a negative obligation on the applicant to refrain from any activity in the EEA territory, which also reduced the likelihood of its discovery (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 123). Lastly, the applicant was called upon to intervene directly only in the case of an alleged breach of the ‘home territory’ agreement or of an occasional allocation of projects in the ‘export territories’, as is apparent in particular from recitals 265 to 268, and 302 of the contested decision.
97      Consequently, the absence of direct contact between the applicant and its competitors between 1 July 2004 and 26 August 2005 is incapable of proving that the applicant had withdrawn from the cartel on the date it claims. Likewise, it must be held that the Commission has not breached its obligations to prove the duration by not adducing direct evidence relating to the period after 1 July 2004.
98      It follows, in light of the foregoing, that the Commission rightly established that the date on which the applicant’s participation in the cartel ended was 26 August 2005.
99      The second part of the second plea must therefore be rejected.
100    In view of the foregoing, the Commission did not err in finding, in Article 1(12) of the contested decision, that applicant participated in the cartel in the period from 15 November 2002 to 26 August 2005.
101    The second plea in law must therefore be rejected.
3.      The third plea in law, alleging a breach of the principles of non-discrimination and proportionality
102    The applicant complains, essentially, that the Commission took a different approach with regard to the involvement in the cartel by certain Saudi Arabian companies in relation to which evidence similar to that relied on regarding the applicant was available, but on which no fine was imposed. In particular, it alleges breach of the principle of equal treatment in that regard and a breach of the principle of proportionality.
103    The Commission disputes those arguments.
104    According to settled case-law, the Commission has discretion as to the scope of the proceedings which it initiates. It cannot be obliged to find and penalise all anticompetitive conduct, nor could the Courts of the European Union hold — if only for the purposes of reducing the amount of the fine — that the Commission, in the light of the evidence available to it, should have found that there was an infringement during a particular period by a particular undertaking (see, to that effect, judgment of 27 February 2014, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 137 and the case-law cited).
105    In the present case, the Commission considered that at the time the contested decision was adopted, it did not have sufficient evidence against the Saudi Arabian companies and thus chose not to proceed against them at the same time as it proceeded against the applicant and the other addressees of that decision, in respect of which it had, by contrast, a good deal of evidence of the existence of an infringement. That situation, which the applicant does not succeed in calling into question in detail by reference to the other elements of the single and continuous infringement found in the contested decision, constitutes an objective reason which can justify the Commission’s choice (see, to that effect, InnoLux v Commission, T‑91/11, EU:T:2014:92, paragraph 139).
106    In any event, regarding the alleged breach of the principle of equal treatment, it suffices to recall that, according to settled case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 27 June 2012, Bolloré v Commission, T‑372/10, EU:T:2012:325, paragraph 85 and the case-law cited).
107    Moreover, the Court of Justice recently recalled that, where an undertaking has acted in breach of Article 101 TFEU, it cannot escape being penalised altogether on the ground that another undertaking has not been fined. An undertaking on which a fine has been imposed for its participation in a cartel in breach of the competition rules cannot request the annulment or reduction of that fine, on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (see, to that effect, judgments of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraphs 58 and 59, and of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraphs 37 and 38 and the case-law cited).
108    The principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot induce the Court to find that it is discriminatory and, therefore, unlawful with regard to the applicant. Such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission, in the present case, to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised. In addition, as is clear from the case-law on the principle of equal treatment, where an undertaking has acted in breach of Article 101(1) TFEU, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where, as in this case, those undertakings’ circumstances are not the subject of proceedings before the Court (see, to that effect, judgment of 16 November 2006, Peróxidos Orgánicos v Commission, T‑120/04, EU:T:2006:350, paragraph 77 and the case-law cited).
109    In the present case, the infringement alleged against the applicant lies in its participation in an anticompetitive agreement contrary to Article 101 TFEU, the existence of which is not called into question by the applicant’s arguments in the context of the first and second pleas of its action. Consequently, even if the Commission had committed a potential illegality in the sense alleged by the applicant in not holding other economic operators liable, specifically those from Saudi Arabia, in the light of the case-law cited at paragraphs 107 and 108 above, the General Court finds that such a potential illegality, which is not before it in the present proceedings, cannot in any case lead to a finding of unequal treatment and, therefore, an illegality with regard to the applicant.
110    It follows that the applicant’s complaint alleging breach of the principle of equal treatment cannot be upheld.
111    Regarding the alleged breach of the principle of proportionality, it must be noted that although the applicant argues that such a breach results from the fact that the Commission fined it ‘for a serious infringement while choosing not to take action against similar conduct committed by other undertakings’, it does not provide, in the context of that complaint, any explanation that allows its argument to be understood. Therefore, that complaint must be rejected as inadmissible under the provisions of Article 76(d) of the Rules of Procedure.
112    The third plea must therefore be rejected.
4.      The fourth plea in law, alleging a breach of the principles of equal treatment, proportionality and legitimate expectation and of the 2006 Guidelines on setting fines
113    This plea is divided into 4 parts, by which the applicant essentially disputes the Commission’s assessment of the value of sales for calculating the basic amount of the fine; the gravity of the infringement and the additional amount; the multiplier to reflect the duration of the infringement; and mitigating circumstances.
(a)    The first part of the fourth plea: concerning the value of sales to calculate the basic amount of the fine
114    Regarding the assessment of the value of sales for the calculation of the basic amount of the fine, the applicant essentially raises two complaints: a breach of point 18 of the 2006 Guidelines on setting fines and a breach of the principles of proportionality and equal treatment.
(1)    The first complaint: breach of point 18 of the 2006 Guidelines on setting fines
115    The applicant complains that the Commission relied on the worldwide turnover of all the addressees of the contested decision in order to determine the value of sales for the calculation of the basic amount of the fine. According to the applicant, in its situation, that is contrary to the rationale and wording of point 18 of the 2006 Guidelines on setting fines, since it did not have the capacity to harm competition in the EEA market because it was unable to operate in that market. The applicant states that there were methods available to the Commission other than point 18 of the 2006 Guidelines on setting fines for determining the basic amount of a fine, including point 37 of the guidelines, which would have been the correct legal basis for taking proper account of the applicant’s specific situation.
116    The Commission disputes those arguments.
117    Point 18 of the 2006 Guidelines on setting fines provides as follows:
‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.
In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’
118    It should be noted that, according to the case-law of the Court of Justice, the Commission adopted the 2006 Guidelines on setting fines, in connection with the application of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, in order to ensure the transparency and impartiality of its decisions. That article is designed, in particular, to ensure that the fine has sufficient deterrent effect, which justifies the taking into consideration of the size and the economic power of the undertaking concerned. It is the intention to ensure that the fine has sufficient deterrent effect, reiterated in point 4 of the 2006 Guidelines on setting fines, which justifies the taking into account of the financial capacity of the undertaking concerned (see judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 83 and the case-law cited).
119    Accordingly, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended consequences for the undertaking in question, taking into account the turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (see judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 84).
120    In the second place, it should be borne in mind that where it derogates from the delimitation of the geographic sector in point 13 of the 2006 Guidelines on setting fines, point 18 of those Guidelines pursues the objective of reflecting, in the most appropriate way possible, the weight and economic power of the undertaking at issue in the infringement, in order to ensure that the fine has sufficient deterrent effect (see judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 84 and the case-law cited).
121    It is apparent from recitals 989 to 994 of the contested decision that in applying point 18 of the 2006 Guidelines on setting fines, the Commission resorted to using the worldwide shares of sales of the parties to the cartel, excluding sales in the United States, to adequately reflect the relative weight of each undertaking in the infringement and to provide an appropriate evaluation of their capacity to affect free competition in the EEA. It is also apparent from those recitals of the contested decision that, in order to apply that method, the Commission did not rely on the sales in the last full year of participation in the cartel, but on the value of sales in the year 2004. However, the applicant does not dispute this.
122    First, in so far as the applicant argues that the incorrect application of point 18 of the 2006 Guidelines on setting fines is based on its alleged inability to compete on the EEA market, it must be noted, that in accordance with the conclusion in paragraph 44 above, the applicant has not demonstrated the existence of insurmountable barriers to entry preventing it from operating in that market. Therefore, this argument must be rejected.
123    Moreover, none of the applicant’s arguments are capable of calling into question the method used by the Commission to assess the value of sales for the calculation of the basic amount of the fine. In any event, the Commission was rightly able to rely on point 18 of the 2006 Guidelines on setting fines in order to calculate the value of sales of the undertakings involved in the cartel in question. In that regard, as the General Court has already held, point 18 of the 2006 Guidelines on setting fines precisely covers a case like the present, in which worldwide traders decide not to compete against each other in the EEA and in the European Union, in which the barriers to entry to the European market are not insurmountable and in which the value of sales in the EEA of an undertaking which has waived a right to gain market shares in the EEA does not adequately reflect the weight of its infringement (see judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 274).
124    In addition, it must be noted that, in light of the judgment of 20 January 2016, Toshiba Corporation v Commission (C‑373/14 P, EU:C:2016:26, paragraphs 87 and 88) an interpretation of the concept of ‘relevant geographic area’ which took into account only the territories in the EEA would run counter to the objective referred to in point 18 of the 2006 Guidelines on setting fines and indeed in Article 23(2)(a) of Regulation No 1/2003. As is explained at recital 969 of the contested decision, if only the sales in the EEA were to be taken into account, the applicant would have avoided any fine, since it had no sales in the EEA during the reference year used by the Commission in accordance with the agreements in which it participated. Furthermore, such an application would have overlooked the fact that the parties to the cartel in question are, contrary to what the applicant argues, producers of power cables active on a worldwide level. Therefore, limiting the relevant geographic area to the EEA would not have appropriately reflected the weight of the undertaking in the cartel and would not have ensured the deterrent effect of the fine. Lastly, it should also be noted that, as the Court of Justice has held, taking into account only the territory of the EEA would have had the effect, in essence, of rewarding the participants for having complied with the terms of the unlawful cartel, which provided specifically that the parties were to refrain from any sale in the territory of the other group of undertakings (judgment of 20 January 2016, Toshiba Corporation v Commission C‑373/14 P, EU:C:2016:26, paragraph 89).
125    In the light of those considerations, it must be concluded that the Commission did not err in using the method provided in point 18 of the 2006 Guidelines on setting fines.
126    Moreover, regarding the claim that the Commission should have applied point 37 of the 2006 Guidelines on setting fines instead of point 18 of the Guidelines, it should be borne in mind that, under point 37, the particularities of a given case or the need to achieve deterrence in a particular case may justify the Commission departing from the general methodology for setting fines. However, the applicant does not demonstrate what the particularities are which should have led the Commission to apply point 37 of the 2006 Guidelines on setting fines in the present case. In so far as it should have been held, according to the applicant, that those particularities relate to its inability to compete within the EEA, it should again be borne in mind, in accordance with the findings made in the context of the first plea in law, that no insurmountable barriers to entry prevented the applicant from operating in that market, and therefore that fact does not justify the application of point 37 of the 2006 Guidelines on setting fines.
127    The first ground of complaint must therefore be rejected.
(2)    The second complaint: alleging infringement of the principles of proportionality and of equal treatment
128    The applicant argues that the application of point 18 of the 2006 Guidelines on setting fines leads to an overestimation of its weight in the cartel, which breaches the principle of proportionality that the Commission, in accordance with settled case-law, is bound by. Moreover, the application of point 18 of the 2006 Guidelines on setting fines is contrary to the principle of equal treatment because the applicant was treated in the same way as other producers who were capable of operating in the EEA market.
129    The Commission disputes those arguments.
130    First, concerning the alleged breach of the principle of proportionality, it should be borne in mind that, according to settled case-law, that principle requires that the measure adopted by institutions must not exceed what is appropriate and necessary for attaining the objective pursued (see judgment of 14 May 2014, Donau Chemie v Commission, T‑406/09, EU:T:2014:254, paragraph 238 and the case-law cited).
131    In addition, as the General Court has already held in respect of market-sharing agreements between undertakings which compete at a worldwide level, as in the present case, the worldwide market shares give, in accordance with the method provided in point 18 of the 2006 Guidelines on setting fines, the best adapted representation of the capacity of those undertakings to cause significant damage to other operators in the European market and give an indication of their contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel had they not participated (see judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 283 and the case-law cited).
132    In the present case, it must be noted that, in so far as the applicant alleges that the disproportion in the assessment of its sales in the EEA results from the way in which the Commission calculated the value of worldwide sales for power cables, it suffices to bear in mind that, as examined in the context of the first part of the present plea, the Commission did not breach point 18 of 2006 Guidelines on setting fines in relying on those sales for the calculation of the basic amount of the fine.
133    In addition, for the same reasons as those given in the context of the first plea, it cannot be held that the alleged breach of the principle of proportionality could result, in the present case, from the alleged economic impossibility of making sales in the EEA, since this has not been proven.
134    It must therefore be held that the applicant has not succeeded in demonstrating that the application of point 18 of the 2006 Guidelines on setting fines breaches the principle of proportionality.
135    Second, concerning the breach of the principle of equal treatment, it must be borne in mind that, according to settled case-law, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the EU judicature. The principle of equal treatment requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 108 and the case-law cited).
136    In addition, the case-law has acknowledged that, in adopting such rules of conduct as the 2006 Guidelines on setting fines and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment (see, to that effect, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211).
137    In the present case, in so far as, first, point 18 of the 2006 Guidelines on setting fines was properly applied, in thus observing the objective of that paragraph to reflect the relevant weight of each of the cartel participants, and second, the Commission applied the same method of calculation to all the addressees of the contested decision, no breach of the principle of equal treatment can be found.
138    Moreover, it must be borne in mind that the applicant has not succeeded in demonstrating, in the context of the first plea in law, its inability to compete on the EEA market. Therefore, contrary to what the applicant argues, there is no situation that would justify a difference in treatment from the other cartel participants.
139    The second complaint must therefore be rejected.
140    In the light of the foregoing, it must be concluded that none of the applicant’s complaints concerning the Commission’s valuation of sales for the purposes of calculating the basic amount of the fine are well founded.
141    Accordingly, the first part of the fourth plea in law must be rejected.
(b)    The second part of the fourth plea in law: relating to the gravity percentage and the additional amount
142    As regards the gravity percentage and the additional amount, the applicant submits that the Commission made a formal and abstract calculation that took insufficient account of its specific situation and, in particular, of the fact that it does not have sales in the EEA and that it was not producing submarine power cables during the infringement period. The applicant also underlines that it did not take part in most of the activities listed by the Commission in the contested decision in order to justify its assessment of gravity. Moreover, the 15% gravity percentage is not, according to the applicant, proportionate to its weight, its involvement its and role in the cartel. The applicant also submits that it was discriminatory to apply to it the same percentage as that applied to the European participants in the cartel.
143    The Commission disputes those arguments.
144    As a preliminary point, it is apparent from recitals 997 to 1010 of the contested decision that to assess the gravity of the infringement, the Commission took particular account of the nature of that infringement, which consisted of market and customer allocation in the area of power cables. According to the Commission, such conduct justifies a gravity percentage of 15% in the light of point 23 of the 2006 Guidelines on setting fines. In addition, the Commission took account of the combined market share of the undertakings involved in the cartel and, in particular, of the fact that all the addressees of the contested decision represented almost all of the EEA market for high voltage underground and submarine power cables. The Commission also noted that the infringement had an almost worldwide geographic scope and that it included all of the EEA. The Commission also took account of the extent to which the infringement was implemented in holding that the applicant could only be held liable for the parts of the cartel in which it had participated or of which it could not have been unaware, which excluded the part of the cartel relating to submarine power cables, of which it was unaware. Based on all those considerations, the Commission concluded that the proportion of the value of sales to reflect the gravity of the infringement had to be at least 17% for all the cartel participants, including the applicant. The percentage for the additional amount was also set at 17%, as is explained in recital 1014 of the contested decision.
145    First, as regards the applicant’s complaint that the Commission should have applied a lower gravity percentage and a lower additional amount to it than to the other cartel participants because of the applicant’s inability to generate sales within the EEA, it is apparent from the examination carried out in the context of the first part of the first plea, and in particular the finding made at paragraph 44 above, that the Commission did not err in finding that no insurmountable barriers to entry prevented the applicant’s access to the EEA market. Therefore, it cannot be accepted that the applicant’s alleged inability to compete in the market constituted a ground justifying the application of a lower gravity percentage to it than that applied to the other addressees of the contested decision.
146    Second, regarding the argument that the Commission should have applied a lower gravity percentage to the applicant than to the other cartel participants in light of its lack of knowledge of the part of the cartel relating to submarine power cables, it should be noted that the Court of Justice has ruled that taking into account differences between the undertakings that have participated in a single cartel for the purpose of assessing the gravity of an infringement need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the amount of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines on setting fines (see to that effect, judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 106, and of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 71 and the case-law cited).
147    Moreover, as the Court of Justice has also held, differences between undertakings that have participated in the same cartel may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 18 of the 2006 Guidelines on setting fines, under which it is possible to take as a starting point for the calculation of the amount of fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, by analogy, judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 72 and the case-law cited).
148    In the present case, first, it must be held that the basic amount of the fine imposed on the applicant was determined by reference to the value of the sales made solely in the underground power cables sector. It is apparent from the abovementioned recitals and from tables 5 and 6 of the contested decision, that the value of sales calculated for the applicant was zero concerning the sector for submarine power cables. Moreover, the applicant was granted a 1% reduction of the basic amount of the fine, due to the mitigating circumstance that it was unaware of the part of the cartel relating to submarine power cables and its lack of participation in it.
149    Second, it must be noted, as at recital 1001 of the contested decision, that the fact that the applicant was not held liable for the part of the cartel relating to submarine power cables does not prevent the finding that the 15% gravity percentage and the additional amount were justified in the present case solely due to the nature of the infringement in which the applicant participated, namely the allocation of markets for underground power cables. Such an infringement is among the most harmful restrictions of competition for the purposes of point 23 of the 2006 Guidelines on setting fines and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines (see, to that effect, judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 65 and the case-law cited). In addition, regarding the additional amount of 2%, it must be held that, contrary to what the applicant argues, the Commission was entitled to add it to that 15% given that, as it explained, all the addressees of the contested decision represented almost all of the EEA market for high voltage power cables, that the infringement had an almost worldwide geographic scope, and that it covered all of the EEA territory.
150    Consequently, the Commission did not err in setting the gravity percentage of the infringement and the additional amount at 17%, even if, in the contested decision, the applicant’s liability concerning the submarine power cables sector was not established.
151    Third, regarding the argument alleging a breach of the principle of equal treatment, given that, first, the applicant’s situation was in line with that of the other undertakings as to the 15% gravity percentage, and second, the applicant had no right to any different treatment as to the 2% addition, it must be borne in mind that, in accordance with the findings made at paragraph 149 above, the two percentages were justified for the applicant in the present case.
152    Moreover, it must be noted that, in accordance with the case-law cited at paragraph 146 above, the less active participation in the infringement of different undertakings to whom the contested decision was addressed was taken into account at the stage of assessing the mitigating circumstances. The applicant was thus classed in the group of marginal participants, while the undertakings that had a leading role in the ‘European’ and ‘A/R’ cartel configurations were classed in the core of the cartel. As a consequence of that difference in classification, the Commission granted the applicant a 10% reduction in the amount of the fine while it did not grant such a reduction to the other intermediate participants or to the core participants.
153    It is apparent from the foregoing that no complaints made by the applicant against the Commission concerning the determination of the gravity of the infringement can be upheld.
154    The second part of the fourth plea must, accordingly, be rejected.
(c)    The third part of the fourth plea: concerning the multiplier reflecting the duration of the applicant’s participation in the infringement
155    The applicant complains that the Commission applied a multiplier of 2.75 for the duration of its participation in the infringement, which did not take into account that the Commission did not demonstrate that this participation had begun on 15 November 2002 and had ended on 26 August 2005.
156    The Commission disputes those arguments.
157    In that regard, it suffices to note that, as was found at paragraph 100 above, the Commission rightly specified the start and end dates of the applicant’s participation in the infringement.
158    The third part of the fourth plea must therefore be rejected.
(d)    The fourth part of the fourth plea in law: relating to mitigating circumstances
159    As regards the assessment of the mitigating circumstances, the applicant maintains that the 10% reduction granted by the Commission was insufficient, given its limited role in the cartel. It notes that, according to the contested decision, it only participated in 3.1% of the cartel meetings, that it was always absent from any strategic meetings, that it was not part of the core of the cartel and that it was perceived by the other cartel participants as having a passive role. Similarly, the applicant considers that the fact that it was unaware of the part of the cartel relating to submarine power cables justifies a larger reduction than the 1% that was granted to it. Moreover, the Commission should have granted the applicant a greater reduction on account of the fact that it avoided implementing the cartel, that it was incapable of competing in the EEA market and did not fulfil the obligations which the cartel arrangements imposed on it. The Commission should also have taken account of the applicant’s forced participation in the cartel and of its inability to denounce the cartel.
160    The Commission disputes those arguments.
161    At recital 1020 et seq. of the contested decision, in so far as mitigating circumstances are concerned, the Commission decided to reflect in the fines the degree of involvement in the implementation of the cartel of each of the various undertakings. Thus, it reduced the basic amount of the fine by 10% for the cartel’s fringe players, including the applicant, because of their substantially reduced participation in the infringement. The Commission also granted the applicant an additional reduction of 1% on account of the fact that it had been unaware of certain aspects of the single and continuous infringement and was not responsible for them.
162    The Court cannot uphold the arguments made by the applicant for the purpose of disputing the reduction granted by the Commission for mitigating circumstances.
163    In the first place, the applicant notes that the Commission should have applied a greater reduction because it only participated in a very limited number of cartel meetings, far fewer than LS Cable & System, which highlighted that the applicant’s participation in the infringement was very limited.
164    According to the case-law of the Court of Justice, the number, frequency, and form of meetings between competitors needed to concert their market conduct depend on both the subject matter of that concerted action and the particular market conditions (see judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 60).
165    In the present case, first it must be noted that the cooperation found by the contested decision between the applicant and the other producers of power cables, in the context of the ‘A/R cartel configuration’ consisted essentially of the reciprocal commitment not to penetrate the market reserved for each group of producers respectively, namely the European, Japanese and South Korean producers, in accordance with the ‘home territory’ agreement. That commitment is based on a simple concept which may be implemented easily, and in principle does not require, interaction between the undertakings concerned, which also reduces the likelihood of its discovery (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 123). In addition, it is apparent from recital 94 of the contested decision that in the present case the cartel participants adopted a series of organisational measures, including the designation of coordinators, that served the purpose of forwarding information between the members of that cartel, and acting as contact points, which clearly made it less necessary to hold meetings.
166    Therefore, the claim that the applicant only participated in a limited number of meetings in the context of the cartel cannot in itself justify a greater reduction in the amount of the fine due to mitigating circumstances. It should be noted that the slightly higher number of meetings and contacts involving LS Cable & System is incapable of establishing a distinction as to the mitigating circumstances between them, because the participation in meetings was not determinative to establish the level of involvement in the cartel.
167    In the second place, while the applicant argues that it did not participate in any strategic meetings and that it was not part of the core of the cartel, it must be held, first, that the applicant participated in all the ‘A’, ‘R’ and ‘K’ meetings organised within the cartel, namely the meetings on 15 November 2002, 4 March 2003 and 17 December 2003, during which, other than the fact that the cartel participants showed their willingness to cooperate within the ‘A/R’ cartel configuration, the undertakings discussed the principal terms of the cooperation concerning the applicant that related to the protection of domestic markets, including the South Korean market, and the allocation of ‘export territories’ to the South Korean companies. Second, it was because of the fact that the applicant was not part of the core of the cartel, being a fringe player of that cartel, that the Commission decided to apply a 10% reduction to the basic amount of its fine, due to the mitigating circumstance that its participation in the cartel was substantially more reduced than that of the undertakings belonging to that core.
168    In the third place, the applicant argues, essentially, that the short duration of its participation justifies a more significant reduction in the amount of its fine. However, in that regard, it suffices to note that the duration of the applicant’s participation in the infringement is taken into consideration, in accordance with the 2006 Guidelines on setting fines, in the determination of the basic amount of the fine by application of the multiplier reflecting the duration, which means that it should not be applied again in the context of the assessment of mitigating circumstances. Moreover, as the Commission notes, it is apparent from point 29 of the 2006 Guidelines on setting fines that the sole fact that an undertaking participated in an infringement for a shorter period than others is not considered to be a mitigating circumstance, since that circumstance is already reflected in the basic amount.
169    In the fourth place, the applicant considers that the fact that it had no knowledge of the part of the cartel relating to submarine power cables should have warranted a reduction greater than 1%, to take account of the additional harm caused by that part of the cartel.
170    However, it is apparent from the contested decision that the basic amount of the fine was calculated in a way that reflects the applicant’s liability for the part of the cartel relating to underground power cables and the harm caused by that part of the single infringement alone. The value of sales used for the undertakings that participated in the part of the cartel relating to submarine power cables reflects the additional harm caused by that part of the cartel.
171    In addition, it must be found that the Commission rightly made use of its discretion in considering that an additional reduction of 1% due to mitigating circumstances was justified to take account of the applicant’s lack of knowledge of the part of the infringement relating to submarine power cables. As the Commission argues, certain addressees of the contested decision that were not producing submarine power cables, but that had knowledge of the part of the infringement relating to submarine power cables, were held liable for that part. Therefore, the additional reduction of 1% granted to the applicant is appropriate to take account of that distinction.
172    In the fifth place, as for the argument that the applicant avoided implementing the cartel and that it adopted a passive role, it should be noted that according to recital 586 of the contested decision, the Commission took account of the efforts made by the applicant to try and compete for projects in the EEA. Moreover, it follows from the case-law that the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors is not necessarily something which has to be taken into account as a mitigating circumstance (see judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 266 and the case-law cited). Finally, concerning the alleged impossibility for the applicant to compete in the EEA market, it suffices to note that that argument was rejected in the context of the examination of the first plea.
173    In the sixth place, the applicant complains that the Commission did not take sufficient account of the fact that it was forced to join the cartel because it depended on the other parties to the cartel for the supply of accessories for its power cable systems. That fact should, according to the applicant, have been taken into account to establish a greater reduction in the amount of the fine due to the mitigating circumstances.
174    It must be held that, at recital 67 of the contested decision, the Commission states that the collective refusal of the cartel members to supply accessories or technical assistance to certain competitors was effectively a mechanism used for the purpose of strengthening the agreed allocations. However, as it was found at paragraph 78 above, the applicant does not put forward any evidence capable of establishing its dependence on the other producers of power cables to obtain accessories necessary to its activity in the production of power cables.
175    Moreover, even if the applicant was forced to participate in the cartel, it could have reported this to the competent authorities and lodged a complaint with the Commission. In that regard, it should be borne in mind that the Court of Justice has ruled that neither the alleged situation of the applicant’s dependence with regard to one part of the cartel nor the aggressive position purportedly adopted by that part of the cartel with regard to the applicant can denote a situation capable of being taken into account by the Commission as a mitigating circumstance (see judgment of 5 December 2013, Caffaro v Commission, C‑447/11 P, not published, EU:T:2013:797, paragraphs 30 and 31 and the case-law cited).
176    In any event, as the Commission notes, it follows from the evidence relating to the applicant’s adherence to the cartel that, although the applicant was dependent on the other parties to the cartel for the supply of accessories, its participation in the cartel also resulted in additional advantages for it. In particular, the applicant benefited from protection of its ‘home territory’ and was also able to participate in the agreement on the ‘60/40 quota’, while the other cartel members benefited from a commitment by the applicant not to compete in the EEA market. It is also apparent from the evidence that the applicant exerted pressure on the parties to the cartel so that they would supply it with accessories, by threatening to cease cooperating, and that the parties to the cartel nevertheless supplied the applicant.
177    It follows that the applicant has not succeeded in demonstrating that the Commission erred in its assessment of mitigating circumstances.
178    The fourth part of the fourth plea must, therefore, be rejected.
179    In the light of the foregoing, the applicant does not demonstrate that the Commission erred in determining the amount of the fine imposed on it.
180    The fourth plea must therefore be rejected.
181    In the light of all the foregoing, the applicant’s claims for annulment must be rejected.
B.      The claim for reduction of the fine imposed on the applicant
182    The applicant requests the General Court to reduce the amount of the fine imposed on it in order to take account of the alleged errors made by the Commission during the calculation of that amount.
183    However, in so far as, first, in accordance with the conclusion established at paragraph 181 above, the applicant’s claims for annulment must be rejected and, second, no element appears to justify a reduction in the amount of the fine, the claims for such a reduction must also be rejected, as must the action in its entirety.
Costs
184    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
185    Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Taihan Electric Wire Co. Ltd to pay the costs.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
A.M. Collins
Registrar
President
Table of contents
I. Background to the dispute
A. The applicant and sector concerned
B. Administrative procedure
C. Contested decision
1. The infringement at issue
2. The applicant’s liability
3. The fine imposed on the applicant
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The first plea in law, alleging that the Commission lacked jurisdiction to apply Article 101 TFEU
(a) The first part of the first plea in law: the applicant was not able to compete on the EEA market
(b) The second part of the first plea in law: the applicant’s inability to compete on the EEA market means that the Commission has no jurisdiction and that Article 101 TFEU does not apply
2. The second plea in law, alleging an error on the Commission’s part in connection with the duration of the applicant’s participation in the infringement
(a) The first part of the second plea: concerning the starting date of the applicant’s participation in the infringement
(b) The second part of the second plea: concerning the end date of the applicant’s participation in the infringement
3. The third plea in law, alleging a breach of the principles of non-discrimination and proportionality
4. The fourth plea in law, alleging a breach of the principles of equal treatment, proportionality and legitimate expectation and of the 2006 Guidelines on setting fines
(a) The first part of the fourth plea: concerning the value of sales to calculate the basic amount of the fine
(1) The first complaint: breach of point 18 of the 2006 Guidelines on setting fines
(2) The second complaint: alleging infringement of the principles of proportionality and of equal treatment
(b) The second part of the fourth plea in law: relating to the gravity percentage and the additional amount
(c) The third part of the fourth plea: concerning the multiplier reflecting the duration of the applicant’s participation in the infringement
(d) The fourth part of the fourth plea in law: relating to mitigating circumstances
B. The claim for reduction of the fine imposed on the applicant
Costs
*      Language of the case: English.