62006TJ0191_EN
Parties
Grounds
Operative part
Parties
In Case T‑191/06,
FMC Foret, SA,
established in Barcelona (Spain), represented by M. Seimetz, lawyer, and C. Stanbrook QC,
applicant,
v
European Commission,
represented initially by F. Arbault, and subsequently by V. Di Bucci and V. Bottka, acting as Agents, and by M. Gray, Barrister,
defendant,
APPLICATION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) and, in the alternative, a reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber, Extended Composition),
composed of V. Vadapalas (Rapporteur), acting for the President, A. Dittrich and L. Truchot, Judges,
Registrar: K. Andová, Administrator,
having regard to the written procedure and further to the hearing on 4 March 2010,
gives the following
Judgment
Grounds
Background to the dispute
1. The applicant, FMC Foret, SA, is an undertaking incorporated under Spanish law which at the material time marketed inter alia hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).
2. It is wholly owned by FMC Chemicals Netherlands BV and forms part of the group controlled by the American undertaking FMC Corp.
3. In November 2002 Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
4. Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of three undertakings.
5. Following those investigations, several undertakings, including EKA Chemicals AB, Atofina SA (now Arkema SA) and Solvay SA, requested the application of the Leniency Notice and sent to the Commission evidence relating to the cartel.
6. On 26 January 2005 the Commission sent a statement of objections to the applicant and to the other undertakings concerned.
7. After the hearing of the undertakings concerned, which took place on 28 and 29 June 2005, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals, Degussa, Edison, FMC, the applicant, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union
of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.
The contested decision
8. The Commission stated in the contested decision that the addressees thereof participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision).
9. The infringement, which covered the period between 31 January 1994 and 31 December 2000, consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.
10. The applicant was held liable for the infringement ‘jointly and severally’ with FMC (recitals 389 to 395 of the contested decision).
11. To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).
12. The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital 452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).
13. As part of a differentiating approach, the applicant was placed in the third of four categories, in respect of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision).
14. Since, according to the Commission the applicant participated in the infringement from 29 May 1997 to 13 December 1999, namely a period of two years and seven months, the starting amount of its fine was increased by 25% (recital 467 of the contested decision).
15. No aggravating or attenuating circumstance was found to apply in the applicant’s case.
16. Article 1(g) of the contested decision states that the applicant infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement concerned from 29 May 1997 until 13 December 1999.
17. In Article 2(d) of the contested decision, the Commission imposed on the applicant, ‘jointly and severally’ with FMC, a fine of EUR 25 million.
Procedure and forms of order sought
18. By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.
19. The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was assigned to the Sixth Chamber, and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).
20. By way of measures of organisation of procedure of 6 January 2010, the Court put to the parties written questions, to which the parties replied by written pleadings of 29 January 2010.
21. Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 4 March 2010.
22. In accordance with Article 32 of the Rules of Procedure of the General Court, since two members of the chamber were prevented from attending the deliberations, the deliberations of the General Court were conducted by the three Judges who signed this judgment.
23. The applicant claims that the Court should:
– annul the contested decision, in so far as the Commission imposed on it a fine;
– in the alternative, reduce the amount of the fine;
– order the Commission to pay the costs.
24. The Commission contends that the Court should:
– dismiss the application;
– order the applicant to pay the costs.
25. In the reply, and at the hearing, the applicant stated that the first head of claim of the application should be understood as meaning that it seeks the annulment of the contested decision, in so far as that decision relates to it, which includes the finding of its participation in the infringement in question.
Law
26. In support of the action for annulment of the contested decision or, in the alternative, for a reduction in the fine, the applicant raises three pleas in law alleging, first, an incorrect appraisal of the evidence of its participation in the infringement, second, infringement of the rights of the defence in connection with access to the file and, thirdly, the excessive level of the fine.
The first plea: alleged incorrect appraisal of the evidence of the applicant’s participation in the infringement
Arguments of the parties
27. The applicant maintains that the Commission failed to adduce sufficiently precise and consistent evidence of its participation in the cartel.
28. First, the Commission’s decision was based largely on vague and uncorroborated allegations in leniency applications, which were hastily prepared, not properly reasoned and, therefore, of limited probative value. Second, it did not take account of the contrary evidence adduced by the applicant, in particular the testimony of its employees allegedly involved in the infringements.
29. The Commission did not rebut the evidence adduced by the applicant in its reply to the statement of objections and at the administrative hearing, in particular, the testimony of its employees. Also, it failed to take account of the information provided by the applicant regarding its competitive activities in the marketplace.
30. At the administrative hearing, the Hearing Officer acknowledged that there was insufficient evidence to support a charge against the applicant. He suggested a meeting between the parties and a cross-examination of the new contrary evidence adduced by the applicant. The Commission did not respond to those suggestions.
31. In the statement of objections, the Commission charged the applicant with having participated in the infringement from January 1994 to June 2001, but subsequently reduced the scope of that charge considerably. In the contested decision, it merely referred to the period between 29 May 1997, the date of the bi‑annual assembly of the European Chemical Industry Council (CEFIC) held by the applicant in Seville, and 13 December 1999, the date of the Freiburg meeting, which was attended by an employee of the applicant.
32. In order to establish the facts of the infringement, the Commission relied on uncorroborated evidence from a single source, Degussa, Solvay or Atofina, respectively, contrary to the case-law according to which a statement made by a single undertaking does not constitute adequate proof of an infringement (Case T‑337/94 Enso-Gutzeit
v Commission
[1998] ECR II‑1571, paragraph 91).
33. As regards the information supplied by Degussa, the Commission wrongly stated that it was corroborated by evidence obtained from other parties to the cartel. It is apparent from recital 86 of the contested decision that, in practice, the Commission considered that, since some undertakings had admitted the allegations made against them by Degussa, the allegations it made against the applicant required no corroboration. Therefore, the Commission made no attempt to corroborate information supplied by Degussa implicating the applicant.
34. With regard to other evidence from a single undertaking, the Commission stated that it was obtained from direct witnesses of unlawful contacts, was supplied to it ‘after mature reflection’ and was credible in the light of the existence of a body of consistent evidence (recital 86 of the contested decision).
35. However, those contentions are not all true. The information from Solvay is imprecise and states, for example, that an unidentified source at Solvay claimed that an unidentified Solvay employee had contacted the applicant’s employees on four unspecified occasions. The same is true of Solvay’s allegation that the applicant compensated Atofina for closure of its production plant. Moreover, the Commission failed to challenge that information with the contrary testimony of the applicant’s employees.
36. As regards information from an Atofina employee, namely notes taken during cartel meetings, the Commission failed to take account of the fact that the same notes had been produced as evidence of multiple meetings. Also, with respect to the applicant, those notes often contain question marks.
37. The Commission therefore wrongly relied on evidence against the applicant from a single undertaking, evidence which was uncorroborated and refuted by the testimony of the applicant’s employees.
38. The applicant then criticises the Commission’s findings regarding specific meetings.
– Telephone calls received by the applicant
39. The applicant claims that the Commission wrongly based its finding that the applicant was informed by telephone of the outcome of certain cartel meetings on information provided by Solvay and Atofina.
40. Solvay’s information concerned four ‘high‑level’ meetings, between Degussa, Solvay and Kemira (recitals 171 to 174, 211, 215 to 217 and 239 to 242 of the contested decision). In respect of those meetings, the Commission relied on Solvay’s statement that ‘other players in the market were informed of the outcome of the meetings’, ‘Solvay for example [having] informed Foret (in Spain) and Ausimont (in Italy) about the concrete outcome of the discussions’. According to the Commission, that statement was corroborated by Atofina (recital 172 of the contested decision).
41. That statement by Solvay does not justify the finding that Solvay alleged that it kept the applicant ‘completely informed ... generally by phone’ (recital 172 of the contested decision). It does not say ‘who called whom’ or what was said. It does not specify which meetings it is referring to other than the one that occurred in August 1997. The Commission itself supplied that detail. Solvay’s statement could not have been corroborated by Atofina, which was not at the meetings. Atofina is referring to calls from Solvay in connection with different meetings, namely those of ‘Group B’ which were held from the end of 1995 to the beginning of 1997. The evidence provided by Solvay and that provided by Atofina therefore do not corroborate each other.
42. Also, Solvay itself denied having participated in one of the four meetings in question, namely the one held in Frankfurt am Main in April 1998 (recital 217 of the contested decision). As regards the meeting in Brussels in September 1998, Solvay made no mention of having contacted the applicant.
43. At the administrative hearing, the Commission tried to obtain more specific information from Solvay, but to no avail. Without more specific details, Solvay’s statement regarding the telephone calls has no probative value. In any event, it is refuted by the testimony of the applicant’s employees, who deny having received phone calls from Solvay.
44. As regards Atofina’s evidence, the Commission wrongly relies on the statement of an Atofina employee that, on four occasions, the applicant participated in meetings by telephone (recitals 180 to 192 and 247 to 253 of the contested decision). That statement was not corroborated by any other participant of the meetings in question.
45. Other documents in the case call in question the credibility of the evidence given by the Atofina employee concerned. In particular, in the statement of objections, the Commission relied on that employee’s statement that a representative of the applicant attended a meeting in Paris on 12 February 1996 (points 137 and 138 of the statement of objections). That statement was shown by the applicant to be untrue, since the passport of the person alleged to have attended the meeting confirmed that he was in the United States during that week. The Commission makes no mention of this error in the contested decision. Also, the Atofina witness frequently submitted the same page of his notes as evidence of several meetings. The notes in question often have question marks as regards information about the applicant and its attendance at meetings. The Commission ignored these facts when analysing the credibility of Atofina’s evidence.
46. For the first meeting in question, in Paris in September 1997, Atofina’s original information does not make it possible to identify the applicant’s employee allegedly participating by telephone. The applicant’s employee, identified in a chart prepared subsequently by Atofina, swore an affidavit in which he denied receiving the call. The denial was not considered by the Commission.
47. The Commission considered that the fact that the applicant had been contacted was plausible, because it had been contacted before and took part in two subsequent meetings by telephone (recital 186 of the contested decision). However, with regard to the alleged previous contacts, the contested decision refers only to a single phone call received one month earlier (recital 172 of the contested decision), based on uncorroborated information given by Solvay. The applicant’s alleged participation, by phone, in two subsequent meetings is based on the same uncorroborated evidence from Atofina.
48. For the second meeting in question, in Frankfurt am Main on 17 November 1997 (recitals 188 to 192 of the contested decision), the Atofina employee identified – in the process contradicting himself – first one employee, then two employees of the applicant who had allegedly been contacted. The Commission makes no mention of that contradiction and itself makes a mistake with regard to the name of the person identified (footnote 204 of the contested decision). The information in question is uncorroborated and is disputed by the applicant’s employees who were identified.
49. Contrary to what the Commission states, the information supplied by Atofina is not corroborated by documentary evidence. The evidence in question was submitted by the same Atofina employee and cannot substantiate his own statements. Also, it consists of a table prepared during the meeting concerned showing the prices per client and per producer (recital 192 of the contested decision), and containing, with reference to the applicant, four question marks. Furthermore, that evidence was not necessarily provided by the applicant, but could have been obtained from other sources, inter alia from the applicant’s clients.
50. Nor was the call allegedly received by an employee of the applicant confirmed by Degussa in its reply to the statement of objections. In actual fact, Degussa simply summarised the content of the statement of objections, which included Atofina’s claim that a number of other companies, including the applicant, had been informed of the meeting, and then confirmed its participation in the meeting. Degussa’s confession is merely proof against itself, and does not implicate the applicant in any way.
51. For the third meeting in question, in Paris on 21 November 1997 (recitals 193 to 197 of the contested decision), none of the other cartel members, with the exception of Atofina, mentions participation by the applicant. The Commission wrongly took as its basis Atofina’s statement, which was uncorroborated and contradicted by the testimony of the applicant’s employee concerned.
52. The Commission also wrongly based its argument on the fact that the prices charged by the applicant were stated in the notes made during the meeting in question (recital 197 of the contested decision). Most of the chart contained simply asterisks. The few prices included are target prices estimated by Atofina’s employee, and did not stem from information provided by the applicant. Moreover, the chart contains information about two other producers which are not alleged by the Commission to have participated in that meeting. The Commission itself understood that target prices could be inserted for a producer without the producer’s knowledge. The chart in question therefore does not corroborate Atofina’s information.
53. For the fourth meeting in question, in Düsseldorf on 12 October 1998, the notes made by the Atofina employee do not reflect attendees and the subsequent explanation by that employee states ‘FMC absent’. Only a chart prepared for the leniency application lodged by Atofina states that the applicant was ‘not present but contacted by phone and represented by Solvay’. No other attendee, including Solvay, confirmed that the applicant had attended the meeting. On the contrary, Degussa, when questioned on the matter, stated that a ‘fourth enterprise did not participate to the extent of [its] ... knowledge’. In that regard, the Commission simply stated, wrongly, that ‘three other companies have confirmed that this meeting has taken place’ (recital 253 of the contested decision), disregarding the fact that none of those companies had confirmed Atofina’s information implicating the applicant. Also, when it states that Atofina’s statements were ‘credible in the framework of the evidence in the Commission’s possession’ (recital 253 of the contested decision), the Commission merely referred back to the other uncorroborated allegations made by Atofina. Its rationale is therefore circular.
54. To conclude, the Atofina employee’s allegation that he contacted the applicant’s employees by telephone is uncorroborated. On the other hand, the testimony of the applicant’s employees that they did not receive the calls is corroborated both by the silence of other cartel members on the subject and by the question marks in the notes of the meeting submitted by Atofina. The information in those notes concerning the applicant’s prices could have come from other sources. The weight of the evidence is therefore that the applicant did not participate in the meetings in question.
– Contacts surrounding CEFIC assemblies
55. The applicant maintains that the Commission wrongly contended that it participated in six cartel meetings surrounding CEFIC assemblies between May 1997 and November 1999. The applicant states that its employees attended the CEFIC assemblies in question. However, each of those employees submitted a declaration stating that he did not participate in cartel activities surrounding those assemblies. The Commission, without explanation, rejected the testimony of the applicant’s employees.
56. Mere presence at a cartel meeting is not proof of participation in the cartel. An undertaking can inter alia establish that it did not participate in cartel activities by proving that it indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.
57. In that regard, concerning the meetings in Seville in May 1997, the applicant’s employee who had attended that meeting indicated to the Commission that he had expressly stated that, first, his company was ‘growing in Germany’ and was ‘not interested’ in any limitations on prices and that, second, it had refused to discuss them. That testimony was confirmed by the fact that, following that statement, Degussa’s representative left the room at one of those meetings slamming the door behind him (recital 162 of the contested decision). Consequently, the applicant’s representative was not invited to the dinner the next day at the restaurant (recital 163 of the contested decision).
58. According to the testimony of the same employee of the applicant, the May 1998 CEFIC assembly in Évian-les-Bains reached the same conclusion. Small producers, among them the applicant, refused to reach anti-competitive agreements because they wanted to continue to compete.
59. The applicant’s employees likewise did not participate in cartel discussions during the four meetings surrounding the CEFIC assemblies (recitals 198 to 207, 254 to 258, 264 and 265 and 273 to 275 of the contested decision). Those meetings took place in restaurants, bars or hotel lobbies. It is difficult to imagine multilateral cartel discussions in such public venues; the conversations must have been held in a bilateral manner, or after the applicant’s employees had left the restaurant.
60. The Commission does not address the fact that the applicant denied having taken part in those discussions. It states that the applicant has not established that its employees distanced themselves from the anti-competitive talks (recital 207 of the contested decision), although it acknowledges, with regard to one of the meetings, that ‘it is not unreasonable to assume that various discussions were held more on a bilateral basis’ (recital 167 of the contested decision). The applicant submits that, since the conversations were bilateral, its employees were unaware of them and could not distance themselves from them.
61. With regard to the dinner on the fringes of the CEFIC assembly in Brussels, on 26 November 1997, it is stated in recital 199 of the contested decision that ‘Degussa, EKA, Solvay and Atofina stated that [the applicant and Kemira] were present, were absolutely aware of the illicit nature of the discussions and took indeed part in the discussions’. However, EKA Chemicals made no mention of the applicant at all. Solvay drew up a list of the participants, which did not include the applicant’s employees, and then added that ‘probably all other participants’ in the assembly were represented.
62. The information from Atofina and Degussa simply lists the persons who attended the dinner, including the applicant’s representatives, without making any allegations about whether they took part in anti-competitive discussions.
63. As regards the November 1999 meeting on the fringe of the CEFIC assembly (recitals 273 to 275 of the contested decision), the Commission omitted to mention that that meeting occurred in a public place, a hotel lobby, on the occasion of an official dinner. The discussions must have been bilateral in nature, and there is no sufficiently precise and consistent evidence of the applicant’s participation in those discussions.
– The meeting of 13 July 1998 in Königswinter
64. The applicant maintains that the Commission wrongly concluded that its Managing Director participated in a meeting with Solvay and Degussa in Königswinter in July 1998 concerning the closure of an Atochem production plant (recital 233 of the contested decision). The employee concerned denied attending the meeting and produced a taxi receipt, on which his name appeared, proving that he was in Barcelona that day.
65. The Commission failed to rebut this evidence, and merely suggested that the applicant’s employee could have attended the meeting in Königswinter and taken a taxi ride in Barcelona later the same day. For other meetings, Degussa produced restaurant receipts showing the list of participants. However, for the meeting in question, the Commission failed to obtain further evidence from Degussa or Solvay. Solvay did not confirm the applicant’s presence at that meeting.
66. The fact that the applicant did not take part in discussions concerning the closure of an Atochem plant is corroborated by its absence from subsequent meetings on the matter. The Commission wrongly found that Solvay confirmed the applicant’s participation in the agreement with Atochem (recital 244 of the contested decision). Solvay does not specify the details of that alleged participation, and Degussa made no mention of it. It is possible that Solvay mistakenly referred to a lawful supply agreement concluded between the applicant and Atochem at the time.
67. At recital 234 of the contested decision, the Commission does not state that the applicant agreed to compensate Atochem. The lack of substance of Solvay’s statement to that effect is underscored by subsequent events, in particular by the applicant’s absence at the subsequent meeting of October 1998 between Solvay, Degussa and Atofina. It is apparent from recital 245 of the contested decision that, at this meeting, Degussa and Solvay persuaded Atochem to close its plant in exchange for compensation from Degussa and Solvay.
– The meeting with Degussa on 28 September 1998 in Brussels
68. The applicant claims that the Commission incorrectly appraised Degussa’s information concerning the bilateral meeting of September 1998. According to recital 241 of the contested decision, the purpose of that meeting was to inform the applicant of the outcome of the meeting of the same morning. In fact, Degussa stated only that ‘the subject-matter of the meeting was a discussion, which was kept general, about the development of the European market for hydrogen peroxide, in particular in regard to the realised relatively high price level and the likelihood of its perpetuation’. Degussa made no mention of any price fixing or market share agreement, and noted that the conversation was ‘kept general’.
– The meetings concerning PBS
69. The applicant states that its employee recalls attending two of the four PBS meetings referred to in the contested decision (recitals 237 and 238, 259 to 263, 267 to 270 and 276 to 279 of the contested decision), namely those held in early 1999 in Milan and December 1999 in Freiburg.
70. The purpose of those two meetings was to discuss ways in which the industry could allay concerns with regard to the health effects of one of the ingredients of PBS. In view of those concerns, the applicant had already begun plans to develop an ‘alternative product’, sodium percarbonate (‘PCS’). Unfortunately, during the course of the meetings in question, other producers engaged in illicit talks. The applicant was not interested in them because it had already decided to move away from PBS to PCS. Its representative therefore did not take part in unlawful discussions. That explanation is corroborated by Degussa, which confirms that the meetings in question took place ‘by chance’ on the occasion of legitimate discussions.
71. With regard to two other meetings concerning PBS, in Lyon in September 1998 and the summer of 1999 in Basel, the alleged participation of the applicant is based only on the uncorroborated information of Solvay. The Commission ignored the testimony of the applicant’s employee in question, who does not recall having participated in those meetings.
– Arguments put forward in the reply
72. In the reply, the applicant maintains that the Commission disregarded the principle of the presumption of innocence, since it did not have precise and consistent evidence of the applicant’s participation in cartel activities.
73. In the first place, the Commission omitted to take into account the evidence supporting the applicant’s position and it distorted other evidence to support its conclusion. The applicant maintains that the Commission ignored the fact that the best evidence was the live testimony of its employees, applied unwarranted assumptions to its detriment, distorted evidence favourable to it, equated its attendance at CEFIC assemblies – which are legitimate – with cartel activity and ‘embellished’ evidence to its detriment.
74. The Commission did not take into consideration the evidence objectively and as a whole. It failed to take account of evidence demonstrating that the applicant aggressively pursued market share, that competitors that lost share to the applicant complained about it, and that two attempted cartel meetings terminated when the applicant refused to participate. It did not obtain further evidence of uncorroborated allegations against the applicant.
75. In the second place, the applicant criticises the fact that the Commission did not conduct a cross-examination to test the veracity of the testimony of its employees. The applicant was the only company to present witnesses at the oral hearing before the Commission. None of the three companies which had testified against the applicant presented witnesses at the hearing. Much of the evidence submitted by Degussa and Solvay was essentially from anonymous sources. The Commission avoided the affidavits of the applicant’s employees, on the ground that they had not been sworn.
76. In the third place, the applicant maintains that the Commission inaccurately presented the evidence obtained after the hearing.
77. At the administrative hearing, the Hearing Officer made it clear that certain items of evidence relied upon by the Commission, particularly the allegations from anonymous sources submitted by Solvay about phone calls to the applicant, were not credible. However, after the hearing, the Commission did not obtain further evidence.
78. In particular, in the context of the May 1997 meetings in Seville, the Commission incorrectly contends, in the defence, that it received confirmation of certain factual aspects from other undertakings subsequent to the administrative hearing and gave the applicant the opportunity to respond. There were no further submissions relating to those meetings, after the administrative hearing.
79. Contrary to what the Commission maintains, the further evidence forwarded to the applicant had nothing to do with the alleged Solvay phone calls. In their post-hearing submissions, Solvay and Degussa simply described the content of the statement of objections on given points (as regards Degussa, the November 1997 Frankfurt am Main meeting and, as regards Solvay, the July 1998 Königswinter meeting) and confirmed that their employees had participated. Neither company mentioned the applicant’s participation in these meetings initially. The Commission itself acknowledged that Solvay’s response was ‘indirect’ and that Degussa had not implicated the applicant ‘explicit[ly]’.
80. In the fourth place, the Commission made contradictory statements. With regard to Kemira, it considered that it was not unreasonable to assume that various discussions on the fringe of the CEFIC assemblies were held more on a bilateral basis (recital 167 of the contested decision). However, with regard to the applicant, the Commission wrongly states that it is not possible that the applicant’s representatives attended those meetings without being aware of the collusion.
81. In the fifth place, the Commission distorted certain exculpatory evidence. This was evidence, first, that the applicant was one of the ‘bad guys’ because it wanted to increase overall capacity in Europe to the detriment of prices. The Commission wrongly rejected that evidence, merely stating, in the defence, that it was evidence of the applicant’s attempt to exploit the cartel for its own benefit.
82. Second, as regards the meetings in Seville surrounding the CEFIC assemblies, the applicant’s employee stated that he refused to participate in any cartel discussions and that, as a result, the representatives of Solvay and Degussa left the meeting room. The Commission refused to allow that testimony and relied on its own, unfounded, interpretation of the reasons why Solvay and Degussa had left the meeting room – because the small producers, including the applicant, were discontented with the proposal made, most likely given the share of the market that would be given them. There is no evidence to support the Commission’s argument. On the contrary, the applicant maintains that the abrupt conclusion of the Seville meetings, coupled with competitors complaining about the applicant’s decreasing prices and increasing market share, proves that the applicant indicated to its competitors that it was participating in a spirit that was different from theirs.
83. In the sixth place, the Commission distorted documentary evidence.
84. First, with respect to the stamp on the passport of the applicant’s employee, showing entry into the United States on 10 February 1996, the Commission wrongly stated that this evidence does not necessarily prove that the employee in question could not be in Paris two days later. The applicant argues that there is no possibility that the employee in question flew to the United States on 10 February, spent 24 hours there, made a return transatlantic flight the following night, went directly to a cartel meeting on 12 February and then returned to the United States. If he had done this, his passport would have had another entry stamp. Atofina’s employee was therefore wrong when he claimed that the applicant’s representative was in Paris on 12 February 1996. If one adds the fact that on a number of occasions Atofina was the only party which maintained that the applicant attended cartel meetings, and that some of its information contained question marks, the credibility of Atofina’s information is called in question.
85. Second, as regards the taxi receipt issued in Barcelona on 13 July 1998 bearing the name of the applicant’s employee alleged to have attended the meeting in Königswinter on the same day, the Commission, with absolutely no foundation, questions that evidence, stating that the receipt might have been issued at another moment in the day (recital 236 of the contested decision). The presumption of innocence should prevail over such speculation.
86. Third, the notes of meetings submitted by Atofina, containing the question marks in the column for the applicant’s prices, reflect the fact that Atofina had no information on the applicant’s prices because the applicant was not at the meeting. The Commission wrongly suggests, in the defence, that the question marks reflect ‘prudence’ on the part of Atofina’s employee. The Commission did not consider the applicant’s alternative explanation that the information at issue ‘could have come from anywhere’. Therefore, with regard to that meeting, the Commission distorted the clear testimony of the applicant’s employees, which was based on documentary evidence.
87. Fourth, the Commission stated that a note made by Atofina’s employee relating to the meeting in Düsseldorf in October 1998 mentioned the applicant several times. According to the applicant, the note in question is unclear, but it is apparent from Atofina’s after-the-fact explanation that it refers to a subsequent meeting which was to be held on 9 November, at which a definitive model was to be adopted, and that it mentions a ‘comment on how to make [the applicant] accept its market share, by putting pressure through Solvay’. In October 1998, the applicant was still refusing to participate in cartel activities. However, the Commission, without analysing the content of the note, wrongly relied only on the fact that the applicant’s name is mentioned.
88. In the seventh place, the Commission ‘embellished’ the evidence, adding detail that does not exist or exaggerating the established facts.
89. First, with regard to the bilateral meeting with Degussa in Brussels in September 1998, which the applicant disputes, the Commission stated that it was a ‘debriefing’ of the morning meeting (recital 241 of the contested decision). However, Degussa’s information says nothing about any ‘debriefing’ and does not mention any discussion of PBS or freezing of market shares for HP. As to HP, Degussa expressly stated that the discussions were kept ‘general’ . The Commission’s conclusions are unfounded.
90. Second, with regard to the Seville meetings, contrary to the Commission’s claim, the applicant did distance itself from the anti‑competitive discussions by refusing to engage in cartel activities, which led to the ‘abrupt departure’ of the representatives of Degussa and Solvay and, accordingly, to the end of that series of meetings. Atofina stated that those meetings concluded with the departure of the representatives of Degussa and Solvay. The Commission distorted in this respect the evidence in the case.
91. Third, as regards the Commission’s argument that Atofina corroborated Solvay’s allegations regarding the telephone calls, the information of Solvay and that of Atofina clearly relate to different meetings. There was therefore no possible overlap either between the participants or the time period of those meetings.
92. In the eighth place, the applicant claims that Solvay and Atofina, having made their leniency applications simultaneously, were ‘competing to be the first’ to provide significant added value to the evidence already in the Commission’s possession, which calls in question the credibility of their statements.
93. The undertakings which made an application for leniency were unable to test their employees’ recollection or to provide clear and precise evidence. For example, the Commission cites recital 236 of the contested decision according to which Solvay gave a ‘voluntary confirmation’ of the July 1998 Königswinter meeting in its reply to the statement of objections, whereas, in the defence, it added parenthetically, ‘we’ll have to check whether this was really voluntary or at the request of the Commission’. Similarly, with respect to the October 1998 Düsseldorf meeting, Degussa ‘further interrogated’ its employees at the request of the Commission regarding attendees.
94. Lastly, the applicant states that it has never been found guilty of engaging in anti‑competitive activity. Its employees testified at the oral hearing and submitted affidavits contesting the allegations in the statement of objections. On the other side are recidivist undertakings seeking to garner leniency and, in the ‘rush’ to do this, they have submitted vague, uncorroborated and often anonymous allegations in letters from their lawyers or cryptic handwritten notes ‘riddled with question marks’. The Commission offered no explanation for favouring this evidence over the clear and uncontroverted evidence presented by the applicant.
95. The Commission contests the applicant’s arguments.
Findings of the Court
96. Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.
97. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals v Commission
[1991] ECR II‑1711, paragraph 256, and Case T-9/99 HFB Holding and Others
v Commission [2002] ECR II‑1487, paragraph 199).
98. An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, HFB Holding and Others
v Commission, paragraph 97 above, paragraphs 151 to 157 and 206).
99. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 115, and Case C-199/92 P Hüls
v Commission [1999] ECR I‑4287, paragraph 158).
100. In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission
v Anic Partecipazioni, paragraph 99 above, paragraphs 116 and 117).
101. The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T‑148/89 Tréfilunion
v Commission
[1995] ECR II‑1063, paragraph 82, and Case T‑53/03 BPB
v Commission
[2008] ECR II‑1333, paragraph 178).
102. According to settled case‑law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves ( Commission
v Anic Partecipazioni, paragraph 99 above, paragraphs 131 and 132, and HFB Holding and Others
v Commission, paragraph 97 above, paragraph 190).
103. In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission
v Anic Partecipazioni, paragraph 99 above, paragraphs 111 to 114, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others
v Commission
[1999] ECR II‑931, paragraph 696).
104. The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type ( Hercules Chemicals
v Commission, paragraph 97 above, paragraph 264, and HFB Holdings and Others
v Commission, paragraph 97 above, paragraph 187).
105. In relation to adducing evidence of the infringement, it should be pointed out that it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 81(1) EC (Case C‑185/95 P Baustahlgewebe v Commission
[1998] ECR I‑8417, paragraph 58).
106. The Commission must produce precise and consistent evidence in this respect (see Case T‑62/98 Volkswagen v Commission
[2000] ECR II‑2707, paragraph 43 and the case-law cited).
107. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission
[2004] ECR II‑2501, paragraph 180 and the case‑law cited).
108. The items of evidence on which the Commission relies in the Decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see BPB
v Commission, paragraph 101 above, paragraph 185 and the case‑law cited).
109. It is also necessary to take account of the fact that anti‑competitive activities take place clandestinely, and accordingly, in most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission
[2004] ECR I‑123, paragraphs 55 to 57).
110. As regards the scope of review by the Court, according to settled case‑law, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met (see Case T‑41/96 Bayer v Commission
[2000] ECR II‑3383, paragraph 62 and the case-law cited).
111. Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of European Union law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments ( Hüls
v Commission, paragraph 99 above, paragraphs 149 and 150).
112. The question whether, in the present case, the Commission has established to the requisite legal standard that the applicant took part in the infringement in question must be examined in the light of those considerations.
– Preliminary observations
113. The applicant expresses a number of general criticisms relating to the adducing of evidence in the present case, alleging (i) the limited probative value of the evidence adduced by the undertakings which made an application for leniency, (ii) the use of uncorroborated evidence from a single source, (iii) the absence of any rebuttal of the contrary testimony of the applicant’s employees and (iv) the failure to respond to the proposals made by the Hearing Officer at the administrative hearing.
114. Although those criticisms overlap, to a large extent, with the complaints directed against the material evidence relied on by the Commission in the contested decision, they none the less warrant certain preliminary observations.
115. First, as regards the applicant’s arguments concerning the value of the evidence submitted in context of the applications for leniency, the Court would point out that the mere fact that the information was submitted by an undertaking which made an application for leniency does not call in question its probative value.
116. According to settled case‑law, no provision or any general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings (see Limburgse Vinyl Maatschappij and Others v Commission, paragraph 103 above, paragraph 512). Statements made for the purposes of the Leniency Notice cannot be considered to be devoid of probative value for that reason alone (see Case T‑54/03 Lafarge
v Commission [2008], not published in the ECR, paragraphs 57 and 58).
117. Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. None the less, in view of the logic inherent in the procedure provided for in the Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 70, and Lafarge
v Commission, paragraph 116 above, paragraph 58).
118. In particular, it must be concluded that where a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see JFE Engineering and Others
v Commission, paragraph 107 above, paragraphs 211 and 212; Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02 and T‑126/02, T‑128/02 and T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others
v Commission
[2007] ECR II‑947, paragraph 166, and Lafarge
v Commission, paragraph 116 above, paragraph 59).
119. Statements made by undertakings in the context of their applications for leniency must, none the less, be assessed with caution and, in general, cannot be accepted without corroboration.
120. According to settled case-law, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings which have been similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence ( JFE Engineering and Others
v Commission, paragraph 107 above, paragraph 219; Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 285; Bolloré and Others
v Commission, paragraph 118 above, paragraph 167; and Lafarge
v Commission, paragraph 116 above, paragraph 293; see also, to that effect, Enso-Gutzeit
v Commission, paragraph 32 above, paragraph 91).
121. In order to examine the probative value of statements of undertakings which have made an application for leniency, the General Court takes into account inter alia (i) the weight of consistent indicia supporting those statements and (ii) the absence of indicia that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings (see, to that effect, Peróxidos Orgánicos
v Commission, paragraph 117 above, paragraph 70, and Lafarge
v Commission, paragraph 116 above, paragraphs 62 and 295).
122. Second, as regards the applicant’s criticism that, with respect to certain factual elements, the Commission relied on a single item of evidence, the Court would point out that there is no principle of European Union law which precludes the Commission from relying on a single item of documentary evidence in order to conclude that there has been an infringement, provided that its probative value is undoubted and that the item in question itself definitely attests to the existence of the infringement in question (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others
v Commission
[2000] ECR II‑491, paragraph 1838).
123. It is true that, in view of the case‑law cited in paragraph 120 above, that assumption does not apply, as a general rule, to mere statements by an accused undertaking, which, in so far as they are contested by other undertakings concerned, must be corroborated by additional and independent evidence.
124. However, that rule can be qualified in a case where the statement from the undertaking which cooperates is particularly reliable, since, in those circumstances, a lesser degree of corroboration is required, both in terms of precision and depth.
125. If a body of consistent evidence makes it possible to corroborate the existence and certain specific aspects of the collusion referred to in the statement made in the context of cooperation, that statement may in itself be sufficient to evidence other aspects of the contested decision (see, to that effect, JFE Engineering and Others
v Commission, paragraph 107 above, paragraphs 220 and 334). In those circumstances, the Commission may rely exclusively on that statement, provided that the veracity of what has been claimed is not susceptible of doubts and the information in it is not vague.
126. Moreover, even if the statement of an undertaking is not corroborated in terms of the specific facts to which it attests, it may have a certain probative value in corroborating the existence of the infringement, as part of a body of consistent evidence used by the Commission. In so far as a document contains specific information corresponding to that contained in other documents, it must be considered that those items of evidence reinforce each other (see, to that effect, JFE Engineering and Others
v Commission, paragraph 107 above, paragraph 275).
127. Furthermore, the Commission must be able to apply conclusions drawn from periods where the evidence is fairly solid to other periods where the gap between the various pieces of evidence is perhaps larger. There will therefore need to be a particularly good explanation in order to convince a court of law that in a particular phase of a series of meetings things occurred which were completely different from what had transpired at earlier and subsequent meetings when those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose (Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89 Rhône-Poulenc v Commission
[1991] ECR II‑867, II‑885, joint Opinion in the ‘Polypropylene’ judgments, ECR II‑954).
128. Third, the applicant claims that, in the appraisal of the evidence, the Commission failed to hear its employees and take into account their testimony.
129. The applicant claims, inter alia, that the finding of the infringement is based, to a large extent, on Solvay’s statements and those of an Atofina employee, testifying that some of its employees, although absent from a number of meetings, were contacted or informed by telephone. The applicant states that those of its employees who are identified in those statements submitted to the Commission statements to the contrary, which, it alleges, were not taken into account.
130. The Court observes, in this respect, that it is common ground that the Commission had at its disposal the written statements of the applicant’s employees concerned and that those employees were present at the administrative hearing.
131. In those circumstances, the question whether those statements were properly taken into account in the contested decision overlaps with the assessment of the applicant’s complaints regarding the specific factual elements at issue.
132. None the less, the Court would point out at this stage that the applicant is wrong to submit that, in so far as the statements in question were made under oath, they have high probative value and that, therefore, the Commission was required to show that its witnesses ‘perjured’ themselves.
133. Although evidence given under oath in a court or, possibly, in connection with an investigation before a public prosecutor may have high probative value in view of the adverse consequences which might arise under criminal law for a person who perjured himself in an investigation, which renders such a deposition more reliable than a mere statement (see, to that effect, JFE Engineering and Others
v Commission, paragraph 107 above, paragraph 312), those considerations are not applicable to the circumstances of this case, since this case concerns written statements by the applicant’s employees submitted to the Commission during the administrative procedure and their testimony given during the hearing before the Commission.
134. Furthermore, the applicant is wrong to submit that the Commission was required to challenge the testimony incriminating it, submitted by Atofina and Solvay, with the contrary testimony of the applicant’s own employees, in a cross-examination at the administrative hearing.
135. In this respect, the Court would point out that, in the administrative procedure the Commission does not have the power to compel persons to give evidence under oath.
136. According to Article 19(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1), the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation. Moreover, according to recital 3 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), before taking oral statements from natural or legal persons who consent to be interviewed, the Commission should inform those persons of the legal basis of the interview and its voluntary nature.
137. In addition, the Commission is required to hear natural or legal persons who have a sufficient interest only in so far as such persons actually apply to be heard. The Commission therefore has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the investigation. The guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient (see, to that effect, HFB and Others
v Commission, paragraph 97 above, paragraphs 382 and 383 and the case-law cited).
138. It is true that Article 6(3)(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, provides that ‘[e]veryone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. In addition, even though the Commission is not a tribunal within the meaning of that article, and even though the fines imposed by the Commission are not of a criminal law nature, the Commission must nevertheless observe the general principles of European Union law during the administrative procedure.
139. However, according to settled case‑law, the fact that the provisions of European Union competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles. Although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement ( HFB and Others
v Commission, paragraph 97 above, paragraphs 389 to 392, and Bolloré and Others
v Commission, paragraph 118 above, paragraphs 86 and 87). As the procedure before the Commission is purely an administrative procedure, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness and to analyse his statements at the investigation stage ( Aalborg Portland and Others
v Commission, paragraph 109 above, paragraph 200). It is sufficient that the statements used by the Commission were provided in the file sent to the applicant, who is able to challenge them before the judicature of the European Union ( Lafarge
v Commission, paragraph 116 above, paragraphs 147 to 149).
140. In the light of those considerations, the applicant cannot rely on a breach of its right to examine or have examined witnesses testifying against it.
141. In any event, nothing prevented the applicant from seeking to obtain the attendance and examination of witnesses on its behalf before the Court, by making an application for witnesses to be heard. However, the Court notes that the applicant did not make such an application. Moreover, the Court would consider the attendance of the witnesses in question necessary only if it were to transpire, following the examination below, that the evidence in the file and the explanations given during the oral procedure are insufficient to rule on the case.
142. Fourth and lastly, the applicant submits that at the administrative hearing, the Hearing Officer acknowledged that there was insufficient evidence to support a charge against the applicant. He suggested a cross‑examination of the new contrary evidence adduced by the applicant, namely the statements of its employees, a proposal to which the Commission did not respond.
143. The Court observes, in this respect, that the Hearing Officer’s report constitutes a purely internal Commission document, which is not intended to supplement or correct the undertakings’ arguments and which therefore does not constitute a decisive factor which the European Union judicature must take into account when exercising its power of review (see Case T‑161/05 Hoechst
v Commission [2009] ECR II‑3555, paragraph 176 and the case-law cited).
144. Those considerations apply a fortiori
to the comments made by the Hearing Officer at the administrative hearing, such as those relied on by the applicant in the present case. In any event, in his final report of 20 April 2006, annexed to the defence, the Hearing Officer stated that the rules on the right to a fair hearing and on the rights of the defence had been complied with in the administrative procedure in question.
145. In the light of all those observations, the applicant’s criticisms with regard to the adducing of evidence by the Commission and to the conduct of the administrative hearing are, in part, unfounded and, in part, overlap with the complaints directed against the evidence of the infringement examined below.
– The evidence of the applicant’s participation in the infringement
146. As regards the essential features of the infringement, the Commission found that, as of 31 January 1994, competitors had exchanged and discussed confidential information about production volumes and a possible reduction in them by seeking to prevent new capacity being brought onto the market. According to the Commission, they also discussed the allocation of clients and market shares, and selling prices, and instituted a monitoring scheme, by which they regularly exchanged confidential market- and company‑relevant information and information on sales volumes and sale prices. In addition, it is alleged that the competitors engaged in reducing capacity and regularly reviewed market share developments at the multilateral meetings (recitals 100, 351 to 354 of the contested decision).
147. A large number of the multilateral meetings are alleged to have occurred on the fringes of the bi-annual assemblies of CEFIC, which is a legitimate association of the chemical industry.
148. In August 1997 in Brussels, as well as at three later meetings, in February, April and September 1998, it is alleged that the participants in those exchanges agreed on a coordinated HP price increase (recitals 171 and 172 of the contested decision). As regards PBS, during initial talks on this subject, it is alleged that market‑sensitive data was exchanged with the aim of achieving an anti‑competitive agreement, and that the ‘ground was prepared’ for an outright agreement at least as of 15 May 1998 (recitals 100, 214 and 229 of the contested decision). It is alleged that the last multilateral meeting in the context of that collusion took place on 18 May 2000, but that the agreement on maintaining HP price levels was maintained until the end of 2000 (recitals 281 and 282, 355 to 360 of the contested decision).
149. With respect to the applicant’s participation in the infringement, the Commission found that the applicant belonged to the ‘core’ of the cartel participants (recital 99 of the contested decision). The Commission noted that there was evidence of collusive contacts implicating the applicant from as early as 1991 (recital 106 of the contested decision). In particular, according to information from Atofina, the notes of meetings of July, October and November 1995, submitted by Atofina, contain data of the applicant’s and refer to the presentation of the applicant’s position (recitals 120, 127, 128, 129, 133 and 136 of the contested decision). Moreover, according to information from Degussa, at a bilateral meeting in the second half of 1996 or the first half of 1997, the applicant ‘agreed with the fundamental idea of a coordinated price level increase’ (recital 151 of the contested decision).
150. As is apparent from the documents before the Court, that information on the initial period of the cartel was contested by the applicant and, in the absence of corroboration, was not used against the applicant.
151. Consequently, in the contested decision, the Commission substantially reduced the duration of the applicant’s participation in the infringement, a s compared with the duration indicated in the statement of objections. As regards the beginning of the applicant’s participation in the infringement, the Commission considered that it had evidence of the applicant’s participation in the cartel meeting of 29 May 1997 and that that date should be used for determining the duration of the infringement in the applicant’s case (recital 352 of the contested decision). With respect to the end of the applicant’s participation in the infringement, the Commission stated that it was its firm conviction that the applicant took part in the infringement until 13 December 1999, the date of the last cartel meeting for which the Commission had evidence of the participation of the applicant’s employees (recital 365 of the contested decision).
152. The illicit contacts relied on against the applicant in the contested decision are as follows:
– three multilateral meetings held on 28 or 29 May 1997 in Seville, surrounding a CEFIC meeting (recitals 156 to 167 of the contested decision); the applicant admits that it participated in two of those meetings, but submits that it was opposed to the illegal discussions;
– four multilateral meetings which took place in August 1997 in Brussels, on 18 September 1997 in Paris, on 17 November 1997 in Frankfurt am Main and on 21 November 1997 in Paris, in which the applicant did not physically participate, but in respect of which it was allegedly informed by telephone by Atochem (recitals 171 to 197 of the contested decision), something which the applicant contests;
– multilateral meetings held on 26 and 27 November 1997 in Brussels, surrounding the CEFIC assembly (recitals 198 to 209 of the contested decision); the applicant admits that it attended that assembly, but submits that it was not aware of improper discussions;
– bilateral meetings between Degussa, Kemira and Solvay, between the end of 1997 and the beginning of 1998, the outcome of which the applicant was allegedly informed by telephone by Solvay (recital 210 of the contested decision), something which the applicant contests;
– multilateral meetings of 14 May 1998 in Évian-les-Bains, surrounding the CEFIC assembly (recitals 221 to 232 of the contested decision); the applicant admitted that it attended the CEFIC assembly, but submits that it was not aware of improper discussions;
– a meeting between Degussa, Solvay and the applicant, on 13 July 1998 in Königswinter, concerning the shutdown of an Atochem PBS factory (recitals 233 to 236 of the contested decision), which the applicant contests having attended;
– a ‘high-level’ meeting between Degussa and Solvay regarding HP and PBS, on 28 September 1998 in Brussels, after which it is alleged that Degussa met the applicant to inform it of the outcome (recitals 239 to 242 of the contested decision); the applicant does not deny having met Degussa, but submits that the subject of that contact was lawful;
– a multilateral meeting regarding HP, on 12 October 1998 in Düsseldorf, which, it is alleged, the applicant did not attend; however, according to Atofina, the applicant was connected by telephone to that meeting (recitals 247 to 253 of the contested decision), something which the applicant contests;
– multilateral meetings and bilateral contacts, surrounding the CEFIC assemblies, on 25 and 26 November 1998 in Brussels (recitals 254 to 258 of the contested decision), on 30 April 1999 in Estoril (Portugal) (recitals 264 to 265 of the contested decision) and on 16 November 1999 in Brussels (recitals 273 to 275 of the contested decision); the applicant admits that it attended those CEFIC assemblies, but submits that it was not aware of improper discussions;
– four multilateral meetings concerning exclusively PBS, which took place on 16 September 1998 in Lyon (recitals 237 and 238 of the contested decision), the beginning of 1999 in Milan (recitals 259 to 263 of the contested decision), summer 1999 in Basel (recitals 267 to 270 of the contested decision) and on 13 December 1999 in Freiburg (recitals 276 to 279 of the contested decision); the applicant contests its participation in the Lyon and Basel meetings and, whilst admitting its presence at the two other meetings, states that their object was perfectly legal, namely the choice of the conduct to adopt vis-à-vis the ‘anti-boron’ movement and that, although the discussions had also ‘veered’ onto ‘improper’ topics, it had paid ‘little attention’ to those discussions in view of its decision to convert from PBS to PCS for environmental reasons.
153. It follows from those findings that, apart from the two meetings relating to PBS, at the beginning of 1999 in Milan and on 13 December 1999 in Freiburg, the applicant contests its participation in the collusive contacts with respect to the remainder of the evidence used in the contested decision.
– The multilateral meetings of 28 or 29 May 1997 in Seville
154. As regards the three meetings which took place in Seville, it is common ground between the parties that the applicant was represented in the first two, regarding HP (the participants in the first meeting having been Atochem, Degussa, Solvay, Kemira and the applicant) and PBS (the participants in the second meeting having been Caffaro and the same participants as those in the first meeting) respectively. On the other hand, the applicant did not attend the dinner the following day in the restaurant (recitals 156, 162 and 163 of the contested decision).
155. For the two meetings at which it was present, the applicant does not contest the content of the discussions which gave rise to an exchange of information on market developments and related to proposals for an overall rise in prices and an agreement on the division of the HP market (recitals 157 to 161 of the contested decision), and to parallel attempts in relation to PBS (recital 162 of the contested decision).
156. The Commission found, without being contradicted by the applicant, that, ‘[d]ue to the lack of confidence and to the opposition of some small European producers no final agreement was reached on this occasion’ (recital 164 of the contested decision). In particular, attempts at discussions on PBS ended, according to Atofina’s statement, ‘in a terrible fit of anger on the part of the person in charge at Degussa … who, in the face of resistance by small producers that were refusing to accept the views of Solvay and Degussa, left the conference room and slammed the door’ (recital 162 of the contested decision).
157. As regards that evidence, the applicant argues however that, as a small producer, it had in fact been opposed to the unlawful conduct, which was demonstrated by its absence from the dinner at the restaurant on the following day.
158. The applicant relies inter alia on the statement of its Deputy General Manager at the time, annexed to the application, from which it is apparent, according to the applicant, that, with respect to the meeting on HP, its representative indicated to Degussa and Solvay that it was ‘growing in Germany’ and that it was ‘not interested’ in any limitations on prices. It therefore refused to discuss them, which caused the abrupt departure of the person in charge at Degussa.
159. In this respect, the Court would point out that, according to settled case-law, where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed to have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended to take part in that meeting in a spirit that was different from theirs (see Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 3199 and the case-law cited).
160. Since the applicant admitted that it was present at the unlawful discussions in question, it was therefore incumbent on it to show that its participation was without any anti-competitive intention.
161. However, the Court finds that the applicant’s opposition to the specific proposals made by Degussa, even if it were established, does not suffice, in the circumstances of the case, to show that the applicant had indicated to its competitors that it was participating in the meetings in question in a spirit that was different from theirs.
162. As regards specifically the applicant’s arguments relating to the meetings described in recitals 156 to 162 of the contested decision, the Commission observed that ‘Solvay and Degussa left the meeting room not because the small producers refused to agree on a price increase as such, but rather because the smaller producers were apparently discontent with the proposal made, most likely given the share of the market that would be attributed to them’, that ‘there [was] no indication that [the applicant] actually rejected the idea itself of an agreement with the competitors or that it distanced itself from the proposed agreement as such’ and that, moreover, confidential data was exchanged during the meeting in question (recital 166 of the contested decision).
163. First, the Court observes that that view of the Commission is consistent with the manner in which the cartel was conducted, from which it is apparent that, from the Seville meetings onwards, the parties to the cartel ‘decided to pay less attention to market share, which was the subject mainly discussed so far, in favour of an overall rise in the price’ (recital 157 of the contested decision), and that a coordinated price rise was decided on at a subsequent meeting in Brussels, in August 1997 (recitals 171 and 172 of the contested decision).
164. Second, the applicant’s arguments based on its alleged opposition to the unlawful nature of the discussions are not borne out whatsoever by the information from the other undertakings, which state merely that there was a lack of confidence between the parties to the cartel and a divergence of views between the large and small producers (recital 164 of the contested decision).
165. In this respect, the Court would point out that the evidence of the applicant’s participation in the cartel is not limited to the Seville meetings, which are part of a series of collusive contacts which will be examined below.
166. Moreover, the position adopted by the applicant at the meetings in question is ambiguous. Although it claimed that it was opposed to the anti‑competitive discussions at the HP meeting, which related to a detailed model on allocating the market and to prices, it is undisputed that its representative did not leave the venue of the meeting and that he took part in the following meeting on PBS. Nor does his absence from the dinner at the restaurant on the following day constitute evidence of his opposition to the collusive discussions, given that certain other parties concerned, inter alia Solvay and Ausimont, did not attend that dinner either.
167. In the light of those considerations, the applicant’s evidence does not suffice to establish that its participation in the meetings in question, during which unlawful concerted action occurred, was without any anti‑competitive intention.
– Telephone calls received by the applicant
168. With respect to the multilateral meetings following those in Seville, the Commission found that the applicant had not physically participated in those meetings, but that it had been contacted or informed of their outcome by telephone. The meetings in question are (i) the four ‘high‑level’ meetings, in respect of which the Commission relied on Solvay’s information and (ii) a series of meetings described by Atofina.
169. In the first place, as regards the ‘high‑level’ meetings, between Degussa, Solvay and Kemira (meetings of August 1997 and February 1998 in Brussels, meetings of April 1998 in Frankfurt am Main and of September 1998 in Brussels; recitals 172, 211, 215 and 239 of the contested decision), the Commission stated that, ‘[a]lthough only three companies participated in [those meetings], the discussions were supported by the entire sector’ and that ‘[the applicant] and Ausimont were always completely informed (generally by phone) about the outcome of the discussions’ (recital 172 of the contested decision).
170. It is apparent from the contested decision that that finding is based (i) on Solvay’s statement, according to which ‘other players in the market were informed of the outcome of the meetings between Degussa, Solvay and Kemira’, the Commission specifying that ‘Solvay, for example, [had] informed [the applicant] and Ausimont … about the concrete outcome of the discussions’, and (ii) on Atofina’s statement, according to which ‘for reasons of Company Policy (US company), FMC did not physically attend all the meetings but was kept informed via Solvay and was clearly involved in all the agreements and negotiations’ (recital 172 and footnotes 175 and 176 of the contested decision).
171. Solvay’s statement is also used by the Commission with respect to the bilateral meetings between Degussa and Kemira, between the end of 1997 and the beginning of 1998, in which Solvay ‘sometimes participated’. According to the Commission, Degussa and Solvay stated that the applicant had not taken part in those meetings, because of a company compliance programme, but that Solvay informed it of the outcome of those meetings by telephone (recital 210 of the contested decision, which refers to the aforementioned statement of Solvay).
172. The applicant disputes that it was contacted by Solvay. It draws attention to the vagueness of Solvay’s statement, submitting that Atofina’s comments do not concern the ‘high‑level’ meetings and cannot corroborate Solvay’s statement. The applicant further submits that the Commission distorted Solvay’s comments, in so far as the Commission found that certain undertakings had been informed ‘completely’ and ‘generally by phone’ (recital 172 of the contested decision).
173. As regards the probative value of Solvay’s statement, the Court observes that it is information given by an undertaking in the context of its leniency application. The statement in question is couched in general terms as regards all the ‘high-level’ meetings, and does not make it possible to identify the natural persons involved in contacts, which prevents its verification by testimony. The passage concerned of Solvay’s statement, as quoted in footnote 175 of the contested decision, does not mention that the information was given ‘by phone’ and ‘completely’. Moreover, in the circumstances of this case, as regards the information given by the largest operator on the market that several undertakings in the sector were kept informed of the unlawful discussions, it cannot be ruled out that that operator tended to play down its role in the development of the cartel.
174. As for the corroboration of Solvay’s statement, the Court would point out that that statement, relating to the information given to the applicant, is not confirmed by other evidence concerning the meetings mentioned. It is apparent from the file that Atofina’s statement, relied on by the Commission in footnote 176 of the contested decision, does not refer, in actual fact, to the ‘high-level’ meetings, but only to the ‘Group B’ meetings, which took place between the end of 1995 and the beginning of 1997; those meetings took place, to a large extent at least, prior to the period of the infringement in which the applicant was found to have participated. It is moreover undisputed that Atofina did not participate in the meetings concerned by Solvay’s statement.
175. In the light of those considerations, the Court considers that Solvay’s statement has very limited intrinsic probative value for the purposes of demonstrating that the applicant was informed of the results of the ‘high-level’ meetings, and that it is not directly corroborated by other evidence. Consequently, that statement cannot alone establish the applicant’s participation in the collusive contacts between September 1997 and September 1998 but may, at most, constitute an ancillary item of evidence in the body of evidence used for that purpose.
176. In the second place, regarding the five meetings described by Atofina (meetings of 18 September 1997 in Paris, of 17 November 1997 in Frankfurt am Main, of 21 November 1997 in Paris and of October 1998 in Düsseldorf; recitals 180, 188, 193 and 247 of the contested decision), the applicant calls in question the credibility of Atofina’s statement that the applicant was informed by telephone, and submits that that statement is not corroborated by other evidence. It submits statements of its employees identified in Atofina’s statement who deny having been contacted.
177. As regards the probative value of Atofina’s statement, the Court observes that the fact that that statement was made in the context of a leniency application does not in itself call into question its credibility. There is no reason to believe that Atofina attempted to play down its participation in the cartel in stating that it had contacted the applicant in the context of a series of meetings. In addition, the information relating to the contacts with the applicant are not couched in vague terms at all but, on the contrary, are detailed and make it possible to identify the applicant’s employees who were contacted. The information is from a direct witness, namely the Atofina employee who participated in the meetings at issue. It is worth noting that Atofina made its statement on 26 May 2003, namely several weeks after the submission of the first evidence, on 3 April 2003 (recital 513 of the contested decision). It is apparent, both from the conditions of Atofina’s cooperation and from the precise content of its statement, that the statement was made deliberately and after mature reflection.
178. All those circumstances therefore attest to the significant probative value of the statement of Atofina in question.
179. With respect to the meeting of 18 September 1997 in Paris, Atofina’s statement is corroborated not only by the statement of an Atofina employee according to which the applicant was ‘connected via telephone to get information about the discussions’, but also by a meeting note drawn up by the same employee referring to ‘E’, identifying the applicant, and indicates that the latter was ‘absent but connected by telephone’ (recitals 180 and 181 of the contested decision, and the material in the administrative file cited in footnote 188 of the contested decision).
180. With respect to the meeting of 17 November 1997 in Frankfurt am Main, according to Atofina’s statement, one or two employees of the applicant were contacted by telephone during the meeting and were given a report by an Atofina representative (recital 188 of the contested decision). That statement is also corroborated by a meeting note submitted by Atofina, stating as follows: ‘FMC = absent but connected by telephone by me (Mr …), other local representative (Mr …), very active’ (footnote 200 of the contested decision). The applicant is moreover mentioned as the first undertaking due to announce the price increase and information pertaining to it appears in a table compiled in relation to that meeting containing minimum prices per client and per producer (recital 192 of the contested decision). In addition, Degussa stated, in its reply to the statement of objections, that an Atofina representative had called a representative of the applicant at that meeting (recital 192 and footnote 206 of the contested decision).
181. As regards the meeting of 21 November 1997 in Paris, according to the same statement by Atofina, the applicant was contacted by telephone to obtain its agreement on the coordinated price increase (recital 193 of the contested decision) and the notes taken at that meeting indicate the applicant’s prices (recital 197 of the contested decision, and the material in the administrative file cited in footnote 216).
182. As for the meeting of October 1998 in Düsseldorf, in addition to the statement that a representative of the applicant’s ‘was connected by telephone during the meeting’, the minutes of that meeting mention the applicant’s current and proposed market share (recitals 247 to 249 of the contested decision, and the material in the administrative file cited in footnote 282 of the contested decision).
183. It is apparent from that evidence that Atofina’s statement not only has significant probative value, but is also confirmed, for each meeting concerned, by documentary evidence, provided by Atofina, contemporaneous with the facts relied on, and, in respect of one of the meetings, is corroborated by Degussa’s statement in its reply to the statement of objections.
184. Furthermore, in view of the high probative value of Atofina’s statement, and of the level of detail of the documentary evidence submitted, their credibility cannot be called in question by the fact that the documentary evidence originates from the author of the statement in question.
185. The applicant does not contest either the authenticity of the documentary evidence submitted by Atofina or the explanations that Atofina gives on their content. It calls in question solely the credibility of those documents as evidence of its participation in the cartel.
186. However, given that the documents were drawn up by a direct witness at the time of the facts, and in view of their precise and detailed content, they must be recognised as having clear probative value.
187. The credibility of those documents is not called in question by the applicant’s arguments regarding their content and degree of precision.
188. First, the fact that certain information is accompanied by asterisks and question marks, sometimes with the comment ‘to be verified’, does not call into question the credibility of all the information in the documents concerned.
189. Second, the applicant’s argument that the information relating to its prices could have originated from another source, for example, from its clients, is not credible, since the tables contain other particulars implicating directly the applicant, namely the notes mentioning that it was contacted, that it was due to be the first undertaking to announce the price increase, and the market share that it was to be allocated (recitals 188, 192 and 282 of the contested decision).
190. Third, the Court observes that, by its argument based on an alleged duplication of the evidence taken from Atofina’s statement, the applicant merely refers, with respect to the multiple meetings, to material in the file which was not used against it in the contested decision.
191. Indeed, it is apparent from its arguments that the relevant meetings are either meetings prior to the period of the infringement found against it (namely the meetings of 23 November 1995, 12 February 1996, 22 and 23 May 1996, 27 November 1996 and ‘other general meetings’ in 1996), meetings in respect of which it admitted its participation and the content of the discussions (meetings of 28 and 29 May 1997), or meetings which, although referred to in the statement of objections, were ultimately not used against it in the contested decision (two meetings of 1999, in Roissy and Frankfurt am Main). As regards a note allegedly used regarding the meeting of 26 November 1997 in Brussels and another meeting held ‘between June and September 1997’, the applicant does not moreover indicate the relevant recitals of the contested decision.
192. In this respect, the applicant, when questioned on that point in the context of measures of organisation of procedure of 6 January 2010, was unable to indicate the recitals of the contested decision in which certain items of evidence were allegedly duplicated.
193. Thus, even though certain undated handwritten notes provided by Atofina could not be linked to precise meetings, such an argument is ineffective since it does not relate to evidence used in the contested decision against the applicant.
194. Furthermore, the Court would point out that, even if it were established, the alleged lack of precision of the evidence submitted by Atofina would be explained by the lapse in time between the events at issue and the time when the declarant was asked about them. Since those imprecisions concern evidence other than that which was used against the applicant, they are not capable of calling in question the credibility of the evidence relating to the contacts with the applicant and to the use of information pertaining to it, since those aspects are clearly and precisely demonstrated.
195. Fourth, the applicant states that in its reply to the statement of objections, it called in question an item of information provided by the Atofina employee concerned relating to the alleged participation of one of its representatives at a meeting in Paris on 12 February 1996. In disputing that information, the applicant states that it submitted a statement by its employee to the contrary, and a copy of that employee’s passport containing a stamp showing entry into the United States on 10 February 1996.
196. The Court observes that the statement submitted by the applicant casts doubt on a specific item of information from the Atofina employee. In the light of the evidence submitted by the applicant, it is indeed unlikely that its representative, who entered the United States on 10 February, could have been in Paris two days later. However, the Commission took that into consideration and, in the absence of corroboration of Atofina’s information, did not find that the applicant participated in the meeting in question.
197. However, the fact that the applicant cast doubts on one item submitted by Atofina which was not used against the applicant is not capable of undermining the credibility of the statement concerned as a whole.
198. Lastly, in so far as the applicant submits that the Commission failed to take into consideration the statements of its employees denying that they were contacted by the Atofina employee, the Court observes that, as is apparent inter alia from recitals 186, 191, 192 and 253 of the contested decision, the Commission correctly took into account that denial by the applicant’s employees and assessed it in the light of the other evidence at its disposal.
199. In the light of those findings, it must be concluded that a body of evidence derived (i) from Atofina’s information relating to the telephone contacts with the applicant in the meetings held between September 1997 and October 1998 and (ii) from references to the applicant’s name and to data pertaining to it in the documentary evidence relating to those meetings show, to the requisite legal standard, that the applicant participated in the illicit contacts during the period concerned.
200. The Court also observes that that evidence is corroborated, as regards one meeting, by Degussa and, incidentally, is consistent with Solvay’s statement relating to the information given to the applicant in other meetings during the same period.
201. The applicant’s arguments relating to the evidence concerned cannot therefore be upheld.
– Contacts surrounding the CEFIC assemblies
202. The Commission found that the applicant participated in collusive contacts surrounding five bi‑annual CEFIC assemblies following the Seville assembly (namely those of November 1997, May and November 1998, April and November 1999; recitals 198 to 207, 221 to 232, 254 to 258, 264 and 265, 273 to 275 of the contested decision).
203. The applicant acknowledged that it participated in the bi-annual CEFIC assemblies, but contests that it was involved in unlawful contacts, claiming that there is no sufficiently precise and consistent evidence in this respect. It states that the meetings in question were held in public places, namely restaurants, bars or hotel lobbies. In the applicant’s submission, the unlawful discussions must therefore only have consisted in bilateral contacts or have taken place after its representatives had left.
204. The Court would recall that, according to settled case-law cited in paragraph 159 above, where the Commission shows that the undertaking concerned participated in unlawful meetings, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention.
205. It is therefore necessary to examine, in the first place, whether the applicant’s participation in unlawful discussions was established with respect to the collusive contacts surrounding the five CEFIC assemblies in question and then, if so, whether the applicant adduced evidence capable of showing that its participation was none the less without any anti-competitive intention.
206. First, as regards the contacts at the dinner at the restaurant on the day before the CEFIC assembly of 26 and 27 November 1997 in Brussels, the Commission found that Degussa, EKA Chemicals, Solvay and Atofina had stated that the applicant and Kemira ‘were present, were absolutely aware of the illicit nature of the discussions and took indeed part in the discussions …’ (recital 199 of the contested decision).
207. The applicant submits that EKA Chemicals made no mention of the applicant, that Solvay only drew up a list of participants, in which the applicant’s employees do not appear, and then added that ‘probably all other participants’ in the assembly were also represented and that information from Atofina and Degussa had simply listed the persons who attended the dinner, including the applicant’s representatives. It states that one of its representatives submitted a statement denying its participation in unlawful discussions.
208. The Court would point out that, as is apparent from the evidence relied on in footnote 218 of the contested decision, submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010, the finding that an employee of the applicant attended the dinner during which the participants held unlawful discussions is clear from the statements of Atofina and Degussa which are precise in this respect.
209. Since the applicant’s participation in those illicit contacts is clear from a body of consistent evidence, it cannot be called in question by the statement of its employee concerned, who does not expressly deny that he was present at the dinner, but submits solely that he did not participate in collusive contacts.
210. The Court also observes that the applicant’s involvement in the unlawful discussions in question is also clear from other evidence in the contested decision, according to which (i) in the sharing out of regional competencies, it was decided that the applicant would be responsible for Spain and Portugal and (ii) the applicant took part in a meeting on PBS on the fringes of that assembly and in one of the local meetings that followed (recitals 201 and 208 of the contested decision).
211. Second, as regards the contacts established surrounding the following assembly, in May 1998 in Évian-les-Bains, namely at two meetings on HP and PBS, it is apparent from the evidence relied on in recitals 222 and 226 of the contested decision, submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010, that Degussa and Solvay confirmed the applicant’s participation. As regards the meeting on PBS, Atofina attached the table compiled for that meeting containing PBS sales data which include the applicant’s data (recital 228 of the contested decision).
212. In the statement submitted by the applicant in an annex to the application, its employee concerned admitted the existence of unlawful discussions on PBS on the fringe of that assembly, as follows:
‘I also attended the CEFIC assembly in Évian-les-Bains in May of 1998. At that meeting, too, as noted in the [statement of objections], the conversation at one point strayed into the area of market shares. The small producers, such as [the applicant], refused to agree to freeze market shares because we wanted to continue to compete.’
213. Third, as regards the contacts surrounding the assembly of 25 and 26 November 1998 in Brussels, namely the meeting on PBS, on 25 November in the restaurant and a meeting on PBS the following day, it is apparent from the evidence relied on in recitals 255 and 257 of the contested decision, submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010, that Degussa stated that a representative of the applicant had taken part in those two unlawful meetings. As regards the meeting on HP, that statement was corroborated by Kemira (recital 255 of the contested decision).
214. Fourth, as regards contacts surrounding the CEFIC assembly of April 1999 in Estoril, recital 265 of the contested decision states that, according to Degussa, contacts concerning HP occurred in the evening in the lounge bar of a hotel.
215. Fifth, it is apparent from recital 273 of the contested decision that, according to Degussa, the applicant participated in a meeting on HP the day before the CEFIC assembly of 16 November 1999 in Brussels. The existence of that unlawful meeting was acknowledged by Solvay, Atofina, Kemira and Ausimont.
216. The Court would point out that, although it emerges directly from Degussa’s statement alone, the finding that the applicant participated in the illicit contacts in the context of the latter meetings can none the less be considered established, as the Commission found in recital 275 of the contested decision, in the light of all the evidence relating to the applicant’s participation in the collusive action in the context of a series of meetings organised according to the same modalities. In particular, the meetings in question fall within the same period as the two meetings in respect of which the applicant admitted its presence at the unlawful discussions (see paragraphs 235 to 242 below).
217. The finding resulting from this consistent evidence cannot be called in question by the statement of the applicant’s employee, who, without denying expressly that he was present at the meetings surrounding the assemblies in question, disputes merely that he participated in collusive contacts.
218. In the light of all of the foregoing, the Court holds that the Commission relied on a body of evidence which clearly justifies its conclusion that the applicant participated in unlawful meetings surrounding the CEFIC assemblies in question.
219.
That conclusion cannot be called in question by the applicant’s argument that the illicit contacts in question might have been conducted bilaterally or in languages of which its employees had no command and would therefore have escaped their attention. That proposition is not credible, in view (i) of the complexity of the discussions, whose content is set out inter alia in recitals 200 to 205, 223 to 229, 256, 257 and 274 of the contested decision and (ii) of the reference to the applicant’s name and to its information in documents directly related to the collusive contacts which occurred during the same period (see paragraphs 179 to 182 above).
220. In the light of all that evidence demonstrating the applicant’s participation in the collusive contacts in question, it cannot reasonably rely on an incidental observation by the Commission, in respect of one of the meetings concerned, that ‘it is not unreasonable to assume that various discussions were held more on a bilateral basis’ (recital 167 of the contested decision).
221. Consequently, since the applicant has not put forward any other evidence to establish that its participation in the meetings in question was without any anti‑competitive intention, the Commission was right to find that it was involved in the collusive contacts surrounding the CEFIC assemblies concerned.
– The meeting of 13 July 1998 in Königswinter
222. In recitals 233 to 236 of the contested decision, the Commission found that a meeting between Degussa, Solvay and the applicant had taken place on 13 July 1998 in Königswinter, and was organised by Degussa to ‘check the readiness of the three companies to convince Atochem to shutdown its PBS production in order to reduce the capacity in PBS industry’.
223. It is apparent from recitals 234 and 235 of the contested decision that the applicant’s participation in that meeting is evident from a statement by Degussa, which is corroborated by Solvay’s reply to the statement of objections.
224. The applicant contests that it participated in the Königswinter meeting, relying on the statement of its employee concerned and on a taxi receipt bearing the name of that employee, issued in Barcelona on the day of the meeting. Moreover, it submits that Solvay did not in actual fact confirm its presence at that meeting. It contests Solvay’s statement that it ‘took part in the agreement with Atochem by providing in exchange some compensation in Spain’ (recital 244 of the contested decision).
225. The Court observes that the statements of Degussa and, contrary to the applicant’s submission, of Solvay are written clearly and confirm unequivocally that the applicant was present in Königswinter. Even though Solvay did not mention the meeting in question in its leniency application, but only in its reply to the statement of objections, it none the less reported, from the time of its leniency application, that Atochem was requesting compensation for the closure of its PBS production plant, and stated that Degussa had contacted the applicant and itself in this regard (material in the file partially cited in footnote 271 of the contested decision).
226. In the light of the foregoing, and of the fact that the taxi receipt issued in Barcelona on the day of the meeting did not constitute proof that the applicant’s representative had not been to Königswinter on the same day, the Commission was right to find that the applicant had participated in the meeting in question (recital 236 of the contested decision).
227. The Court also observes that, although the applicant did not participate in the subsequent meeting on the same subject, on 1 October 1998, the evidence relating to that meeting points to its involvement in the discussions relating to the closure of an Atochem PBS production plant.
228. As is apparent from recitals 243 and 244 of the contested decision, both Degussa and Solvay stated that the aim of the meeting of 1 October 1998 in Paris had been to present to Atochem the proposal agreed between Degussa, Solvay and the applicant at the meeting in Königswinter. Moreover, it is apparent from recital 277 of the contested decision that, following the closure of the Atochem and Caffaro production plants, the shares of those two companies on the PBS market were in principle to be assigned to Solvay, Degussa and the applicant.
229. In the light of all those considerations, the arguments advanced by the applicant in order to contest its participation in the contacts in Königswinter, regarding the closure of the Atochem plant, cannot be upheld.
– The meeting with Degussa on 28 September 1998 in Brussels
230. In recitals 239 to 242 of the contested decision, the Commission referred to a ‘high-level’ meeting, on 28 September 1998 in Brussels, between Degussa and Solvay. It found that, ‘[s]ubsequently (in the afternoon), a bilateral meeting between one senior representative of Degussa and one of [the applicant] [had taken] place still in Brussels. The subject of the meeting was a debriefing by Degussa of the morning meeting’. That finding is based on information from Degussa, and on an entry in the diary of a Degussa employee (recital 241 and footnote 267 of the contested decision).
231. The applicant does not contest that that meeting was held, but only its subject‑matter, and states that Degussa made no mention of that meeting in its leniency application and that, in its subsequent information, it commented only that ‘the subject-matter of the meeting was a discussion, which was kept general, about the development of the European market for hydrogen peroxide, in particular in regard to the realised relatively high price level and the likelihood of its perpetuation’.
232. The Court observes, in this respect, that the fact that the meeting in question is not mentioned in Degussa’s leniency application is irrelevant, since the applicant does not contest that it occurred. The Court observes that the collusive subject-matter of that meeting is demonstrated, as the Commission stated, by the fact that the meeting with the applicant occurred after the meeting with Solvay, the unlawful subject-matter of which is not contested, that it is mentioned in the diary of a Degussa employee as being the ‘next meeting’ (nächstes meeting) and that it was included in the list of collusive contacts provided by Degussa (footnote 267 of the contested decision).
233. In the light of the foregoing, the applicant’s arguments cannot call in question the Commission’s findings with respect to the meeting in question.
– The meetings concerning PBS
234. In the contested decision, the Commission found that the following series of meetings on PBS took place between Degussa, Solvay, Ausimont and the applicant:
– the meeting of 16 September 1998 in Lyon (recitals 237 and 238 of the contested decision);
– the meeting at the beginning of 1999 in Milan (recitals 259 to 263 of the contested decision);
– the meeting during the summer of 1999 in Basel (recitals 267 to 270 of the contested decision);
– the meeting of 13 December 1999 in Freiburg (recitals 276 to 279 of the contested decision).
235. The Court would point out that the applicant acknowledges its participation in the Milan and Freiburg meetings and that the discussions ‘veered’ onto ‘improper’ topics, but submits that its representative paid ‘little attention’ to those discussions.
236. Since the applicant’s presence and the unlawful content of the discussions have been established, it was for the applicant to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see the case-law cited in paragraph 159 above).
237. In this respect, the applicant claims, relying on the statement of its employee who took part in those two meetings, that the purpose of those meetings had been to discuss ways in which the industry could allay concerns created by the ‘anti‑boron’ movement and that, in view of those concerns, the applicant had already begun plans to develop an ‘alternative product’, PCS. Thus, whilst admitting that, during the course of the meetings in question, other producers allegedly engaged in illicit talks, the applicant submits that its representative was not interested in those talks, and therefore did not take part in the unlawful discussions. In the applicant’s submission, that explanation is corroborated by Degussa, which states that the meetings in question took place on the occasion of legitimate discussions.
238. The Court would point out that the meetings in question occurred at the time when the cartel was well developed and were preceded by a number of collusive contacts involving the applicant. The applicant itself admits the unlawful content of the discussions, and did not indicate that it was openly opposed to them or make it clear to its competitors that it was participating in those meetings in a spirit that was different from theirs.
239. It is in fact scarcely credible that the applicant had no interest in the unlawful discussion concerning PBS prices, since it continued to produce PBS in 1999 and in 2000 and was among the four largest PBS producers, which all participated in the same meetings, and since it started marketing PCS only in 2002 (recital 36 of the contested decision).
240. Furthermore, the evidence relating to the meetings in question includes tables containing details on the market shares of the participants (recital 261 of the contested decision) and refers to discussions on the allocation of market shares following the closure of the Atochem and Caffaro production plants; those market shares ‘were in principle to be assigned to Solvay, Degussa and [the applicant] according to their actual market share’ (recital 277 of the contested decision).
241. Moreover, contrary to the applicant’s claim, the information from Degussa, that the meetings in question were held ‘on the occasion’ of legitimate meetings, does not mean that the unlawful discussions took place ‘by chance’ or were of a fortuitous nature.
242. In the light of all those considerations, the applicant’s arguments do not suffice to establish that its participation in the discussions in question was without any anti‑competitive intention.
243. As regards the Lyon and Basel meetings, the Court observes that, although the applicant’s participation in those meetings is apparent from information originating from Degussa and Solvay respectively, information which was not corroborated by other evidence, the Commission was right, given that their participants and subject‑matter were identical, and in view of their proximity in time, to find that the applicant participated in that entire series of meetings.
244. Consequently, the applicant’s arguments relating to the PBS meetings between September 1998 and December 1999 cannot succeed.
– Conclusion
245. It should be recalled that the items of evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see the case-law cited in paragraph 108 above).
246. Following the examination set out in paragraphs 113 to 244 above, the Court finds that all the evidence analysed amounted to a body of evidence demonstrating to the requisite legal standard the applicant’s participation in the infringement.
247. For each of the circumstances constituting that infringement, the Commission adduced credible evidence and, in a large number of cases, this was directly corroborated by other evidence. The applicant’s participation in the cartel is apparent, first, from its participation in several meetings and collusive contacts and, second, from the reference to its name and its information in the various documents directly related to those contacts. The applicant’s arguments based on an alleged distortion or ‘embellishment’ of the evidence are not well founded in the light of the analysis above.
248. In so far as, for certain acts constituting the infringement, the Commission relied on isolated items of evidence, which could not be corroborated directly by other evidence, it should be recalled that, where there is a body of consistent evidence showing participation in the cartel, there needs to be a particularly good explanation in order to convince a court of law that in a particular phase of a series of meetings things occurred which were completely different from what had transpired at earlier and subsequent meetings (see paragraph 127 above).
249. However, in the light of the analysis above, it must be stated that the applicant has not put forward sound arguments to call in question the evidence used by the Commission against it, as regards in particular certain meetings surrounding the CEFIC assemblies, in respect of which the Commission relied on evidence from a single source of information (see paragraphs 216 and 243 above).
250. In the light of those considerations, it is necessary to reject the applicant’s criticism claiming that the benefit of the doubt should apply, pursuant to the principle of in dubio pro reo . Following an overall assessment, that criticism and the applicant’s specific complaints are not capable of calling in question the body of precise and consistent evidence used in the contested decision.
251. Lastly, the lawfulness of the finding of the applicant’s participation in the infringement in question cannot be undermined by the applicant’s arguments seeking to show that it behaved ‘aggressively’ on the market, on the basis of an historic description of developments on the market and, in particular, of the significant increase in its market share in the EEA between 1993 and 2001.
252. There is no need to consider the effects of an agreement or a concerted practice where its anti‑competitive object is established (Case C‑510/06 P Archer Daniels Midland
v Commission [2009] ECR I‑1843, paragraph 140, and Case C-8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, paragraphs 28 to 30).
253. Moreover, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their anti‑competitive object, even if it did not proceed to implement any of the measures agreed at those meetings (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others
v Commission [2002] ECR I‑8375, paragraphs 508 and 509).
254. In the light of all those considerations, the Court holds that the first plea is not well founded and must therefore be rejected.
The second plea: infringement of the rights of the defence in connection with access to the file
Arguments of the parties
255. The applicant maintains that the Commission relied on incriminating evidence taken from the replies of Solvay and Degussa to the statement of objections, without giving it any opportunity to comment on that evidence.
256. First, with regard to Solvay’s information relating to the telephone calls, Solvay did not specify the dates on which it contacted the applicant. The Commission concluded that they were the meetings described in recitals 171 to 174, 211, 215 to 217 and 239 to 242 of the contested decision (recital 172 of the contested decision). It appears, however, that, in its reply to the statement of objections, Solvay denied attending the meeting described in recitals 215 to 217 of the contested decision. This is particularly important since the Commission used the alleged Solvay calls to corroborate later alleged calls by Atofina. The applicant did not have access to Solvay’s reply to the statement of objections to see what Solvay had said about that meeting.
257. Second, the Commission relied on the Degussa and Solvay replies to the statement of objections concerning the meeting in Brussels in September 1998 (recitals 239 to 242 of the contested decision). However, the applicant was provided no opportunity to see what Solvay had to say in its reply to the statement of objections about a phone call that it allegedly received about that meeting.
258. Third, the Commission relied on the Solvay reply to the statement of objections to corroborate Degussa’s allegation that the applicant participated in the November 1999 meeting in Brussels (recitals 273 to 275 of the contested decision). Without knowing what Solvay had said, the applicant was unable to respond to that objection.
259. Moreover, the applicant did not have an opportunity to prepare its defence, since it did not have access to the replies in question, which might have also contained exculpatory evidence.
260. The Commission contests the applicant’s arguments.
Findings of the Court
261. According to Article 27(2) of Regulation No 1/2003, the rights of defence of the parties concerned are to be fully respected in the proceedings. They are to be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets.
262. According to settled case‑law, the right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence (see, to that effect, Case C‑199/99 P Corus UK
v Commission
[2003] ECR I‑11177, paragraphs 125 to 128, and Case T‑30/91 Solvay
v Commission
[1995] ECR II‑1775, paragraph 81).
263. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved ( Aalborg Portland and Others
v Commission, paragraph 109 above, paragraph 68).
264. As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence ( Aalborg Portland and Others
v Commission, paragraph 109 above, paragraphs 71 to 73).
265. By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 253 above, paragraph 318, and Hercules Chemicals
v Commission, paragraph 97 above, paragraph 81), by showing in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision ( Aalborg Portland and Others
v Commission, paragraph 109 above, paragraph 75).
266. As regards access to the replies given by the other undertakings concerned to the statement of objections, it should be recalled that such replies are not part of the investigation file proper ( Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 380).
267. Accordingly, since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other undertakings concerned only if it transpires that they contain new incriminating or exculpatory evidence.
268. In the present case, the applicant submits, in the application, that the Commission infringed its rights of defence by using in the contested decision incriminating evidence taken from the replies of Solvay and Degussa to the statement of objections, on which it had no opportunity to comment. Moreover, it submits that it did not have an opportunity to prepare its defence, since it did not have access to the replies in question, which might have also contained exculpatory evidence.
269. Furthermore, at the hearing, it put forward a new line of argument alleging lack of access to a Solvay document, which was submitted by the Commission in the context of measures of organisation of procedure ordered by the General Court on 6 January 2010 (see paragraph 300 below).
– The alleged incriminating evidence taken from the replies of Solvay and Degussa to the statement of objections
270. It is settled case‑law that, if the Commission wishes to rely on evidence from a reply to a statement of objections in order to prove the existence of an infringement, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such new evidence. In such circumstances, the evidence in question constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement ( Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 386, and Case T‑314/01 Avebe
v Commission [2006] ECR II‑3085, paragraph 50).
271. A document cannot be regarded as an incriminating document unless it is used by the Commission in support of its finding of an infringement by an undertaking. In order to establish a breach of its rights of the defence, it is not sufficient for the undertaking in question to show that it was not able to express its views during the administrative procedure on a document used in a given passage of the contested decision. It must demonstrate that the Commission used that document in the contested decision as further evidence of an infringement in which the undertaking participated (Joined Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v Commission
[2003] ECR II‑5761, paragraph 35).
272. In the present case, it is common ground that, on 24 February 2006, the Commission disclosed to the applicant the extracts of the replies of Solvay and Degussa to the statement of objections, which contained new evidence that the Commission intended to use against the applicant. The extracts concerned are points 249 to 254 of Solvay’s reply, concerning the meeting on 13 July 1998 in Königswinter relating to the closure of an Atochem PBS production plant, and points 26 to 28 of Degussa’s reply, concerning the telephone contact with the applicant in the context of the meetings in November 1997. The applicant submitted its comments on 15 March 2006.
273. The applicant claims however that the Commission used against it other evidence taken from the same replies, which was not disclosed to it.
274. First, the applicant submits that it appears in the contested decision that, in its reply to the statement of objections, Solvay denied attending the meeting of April 1998 in Frankfurt am Main described in recitals 215 to 217 of the contested decision. In the applicant’s submission, this is important, since the Commission relied on the fact that Solvay had informed the applicant by telephone, in particular, of the outcome of that meeting (recital 172 of the contested decision).
275. The Court observes that, by that line of argument, the applicant is in actual fact invoking failure to disclose an alleged item of exculpatory evidence.
276. In this respect, it is apparent from recital 217 of the contested decision that Solvay did not contest its participation in the meeting in question, but only the use of an item of evidence, namely the diary of one of its general managers of the chemical sector, as regards that meeting in 1998 since, according to Solvay, the diary in question belonged to the manager appointed in 2000.
277. Those details alone do not contradict Solvay’s statement relating to the information given to the applicant in the series of meetings concerned and, accordingly, are not capable of constituting an exculpatory item of evidence.
278. Second, the applicant submits that the Commission relied on the replies to the statement of objections given by Degussa and Solvay in order to establish the events relating to the meeting of 28 September 1998 in Brussels (recitals 239 to 242 of the contested decision).
279. It should be recalled that, in recitals 239 to 241 of the contested decision, the Commission described, on the basis of information from Degussa’s leniency application, a ‘high-level’ meeting between Degussa and Solvay which related to HP and PBS, and stated also that, on the same day, Degussa had met the applicant to debrief it on that meeting.
280. It is apparent moreover from recital 242 of the contested decision, and from the evidence submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010 that, in its reply to the statement of objections, Solvay, whilst confirming that that meeting took place, considered that it had not been possible to discuss the issue of PBS but that, in its reply to the statement of objections, Degussa had expressly confirmed that PBS had also been discussed, the discussion having related to the joint plan for the closure of Atochem’s PBS plant. Consequently, the Commission maintained its conclusion that the meeting had related to both those products.
281. The Court observes that the particulars which emerged from those replies to the statement of objections deal mainly with the content of the meeting between Degussa and Solvay, and not with the meeting between Degussa and the applicant. Those particulars relate solely to the question whether that meeting related to both products or only to HP. The Commission stated merely that, in its reply to the statement of objections, Degussa had expressly confirmed the information given previously.
282. In those circumstances, the details in question given by Solvay and Degussa in their respective replies to the statement of objections cannot be considered to contain new incriminating evidence against the applicant.
283. As regards the same meeting, the applicant submits that it was provided with no opportunity to see what Solvay had to say about a phone call that it received from Solvay.
284. The Court observes that, although Solvay’s statement concerning the information given to the applicant (recital 172 of the contested decision) also refers to the meeting in question, the evidence relied on in recitals 239 to 242 of the contested decision, submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010, makes no reference to the telephone contact between Solvay and the applicant. The applicant’s argument based on an alleged use of a new item of incriminating evidence from Solvay’s reply to the statement of objections with respect to the meeting in question is therefore not well founded.
285. Third, the applicant claims that the Commission relied on the Solvay reply to the statement of objections to corroborate Degussa’s information that the applicant had participated in the November 1999 meeting in Brussels (recitals 273 to 275 of the contested decision).
286. It is apparent from recital 275 of the contested decision, and from the evidence submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010 that, in its reply to the statement of objections, Solvay stated merely that it did not have any information on that meeting, but that it confirmed that it had participated in it. Solvay also stated, without disputing the unlawful content of the discussions, that the reality of the market at that time was that the producers were beginning to set prices independently to increase their market shares.
287. In this respect, the Court notes that, in the same recital, ‘in the light of the confirmation given by Solvay to the statement of Degussa, and the non‑contestation by Atofina, Kemira and Solexis of the content of this meeting as described in the Statement of Objections’ the Commission did not change its conclusion on the meeting in question, and considered credible that that meeting occurred ‘in the same framework and with the same modalities which characterised the taking place of other cartel meetings in the same period’ as well as the applicant’s involvement.
288. It is apparent from those considerations that the information given by Solvay in its reply to the statement of objections constituted at most an ancillary item of evidence in a body of evidence used by the Commission in relation to the meeting in question. In view in particular of its content, Solvay’s information that Solvay confirmed its participation in the meeting in question was not capable of constituting further evidence of the applicant’s participation in the infringement.
289. In the light of the foregoing, the Court holds that the applicant has failed to show that the Commission relied on new incriminating evidence taken from undisclosed parts of the replies to the statement of objections and cannot therefore invoke failure to disclose that evidence.
– The alleged exculpatory evidence taken from the replies of Solvay and Degussa to the statement of objections
290. It should be borne in mind that, according to settled case-law, the Commission is not required to make available, of its own initiative, documents which are not in its investigation file and which it does not intend to use against the parties concerned in the final decision ( Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 383, and Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others
v Commission [2003] ECR II‑3275, paragraph 340).
291. In the present case, it is apparent from the file that, during the administrative procedure, the applicant did not request access to the replies of Degussa and Solvay to the statement of objections, but that it made a request to that effect on 18 May 2006, after the contested decision was notified to it. That request was rejected by the Commission on 2 June 2006.
292. The Court would point out that, since the Commission is not, as a general rule, required to divulge such documents of its own initiative, the applicant cannot, in principle, reasonably invoke failure to communicate the alleged exculpatory evidence contained in the replies in question, since it did not request access to those replies during the administrative procedure (see, to that effect, Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 383).
293. That position is not affected by the fact that the Commission communicated to the applicant certain extracts from the replies in question (see paragraph 272 above).
294. If the Commission wishes to rely on a passage in a reply to a statement of objections, the passage in question constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement (see, to that effect, Cimenteries CBR and Others
v Commission, paragraph 122 above, paragraph 386, and Avebe
v Commission, paragraph 270 above, paragraph 50).
295. Thus, whilst the Commission is required to disclose to the undertakings concerned the passages of the reply to the statement of objections containing any relevant information with respect to that incriminating evidence, the Commission is not obliged to extend that disclosure to the other passages of the reply in question having no connection with the evidence relied on.
296. Moreover, on the assumption that the applicant’s arguments must be understood as seeking to establish that the Commission ought to have established the presence of the exculpatory evidence in the replies in question and, therefore, communicated them to the applicant of its own initiative, the Court would point out that, in putting forward such arguments, it is for the applicant to provide prima facie
evidence as to how the replies are relevant for its defence.
297. An applicant must in particular indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case (see, to that effect, Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraphs 351 to 359).
298. In the present case, with the exception of the arguments examined and rejected in paragraphs 276 and 277 above, the applicant does not put forward, in the application, any specific arguments concerning the possible presence of exculpatory evidence in the undisclosed parts of the replies to the statement of objections.
299. Consequently, the applicant’s complaint based on the alleged exculpatory evidence contained in the undisclosed parts of the replies of Solvay and Degussa to the statement of objections cannot be upheld.
– The Solvay document
300. At the hearing, the applicant put forward new arguments relating to a Solvay document submitted by the Commission in the context of measures of organisation of procedure of 6 January 2010. In the applicant’s submission, that document, which was not disclosed in the administrative procedure, was not only relied on as incriminating evidence, but also contains exculpatory evidence concerning the content of the meeting in question.
301. Since the document was revealed by the Commission after closure of the written procedure, the arguments in question must be considered admissible in the light of the requirements laid down in Article 48(2) of the Rules of the Procedure.
302. On the substance, with respect to the applicant’s claims based on alleged incriminating evidence, the Court observes that the document in question, although submitted by the Commission in connection with the material in the file relied on in support of the findings relating to the Brussels meeting of 26 November 1997 (recitals 198 and 199 of the contested decision), is not, in actual fact, one of the items in the file relied on in those recitals of the contested decision.
303. As the Commission stated at the hearing without being contradicted by the applicant, that document constitutes a transcript of Solvay’s statement, which was given orally and subsequently confirmed in writing. Only the written version, which was more succinct, was included in the file and relied on in the contested decision (recital 198 and footnote 217 of the contested decision).
304. The Commission states that, in the context of the access to the file granted to the applicant, the document in question was expressly cited as an internal document of the Commission and had not been used in the drawing up of the contested decision.
305. Thus, in the absence of any evidence that it was in actual fact used by the Commission, the document in question cannot be regarded as a new item of incriminating evidence which was not disclosed.
306. As regards the alleged exculpatory evidence, the Court notes that, in order to respect the rights of the defence, the file compiled by the Commission must include all the relevant documents obtained during the investigation. In particular, whilst it is, admittedly, permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking concerned ( Aalborg Portland and Others
v Commission, paragraph 109 above, paragraph 126).
307. In this respect, in the present case, the Commission failed to fulfil those requirements by excluding from the file the document in question, which contains a transcript of Solvay’s oral statement relating to one of the meetings relied on in the contested decision, whereas the written statement given by Solvay in respect of that meeting had been used as an item of evidence relevant to the investigation.
308. However, it should be borne in mind that such irregularity is capable of calling into question the legality of the contested decision only if it might have influenced the course of the proceedings and the content of the contested decision to the disadvantage of the applicant, which is required to show that it would have been able to use the exculpatory document for its defence, and in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the contested decision (see paragraph 265 above).
309. In this respect, the applicant states that the undisclosed version of Solvay’s statement contains details relating to the lack of confidence between the producers capable of affecting the finding of the unlawful content of the meeting of 26 November 1997.
310. The Court observes that the undisclosed version of the statement contains certain comments by Solvay’s representative, which are relied on by the applicant, describing the ‘climate of war’ between the participants in the discussions, who were regarded not as ‘competitors, but [as] enemies’, whilst ‘a pleasant venue was required to get people to begin to talk to one another again … to make people believe that prices were going to be increased and that others were not going to take advantage of the situation to poach customers’.
311. The Court observes that, although certain passages of Solvay’s oral statement, inter alia those cited above, are not reproduced in the written version of that statement, which is shorter and the only one included in the file, the fact remains that the content of those two versions does not diverge in any relevant manner.
312. The passages relied on by the applicant, which refer to a climate of mistrust between the producers at the material time, a climate which was indeed found by the Commission in the light of another meeting during the same period (recital 164 of the contested decision), cannot influence the assessment that the meeting in question was collusive; that assessment results from a body of evidence relied on in recitals 198 to 205 of the contested decision. In particular, in that statement, Solvay expressly stated that the discussions were unlawful, and specified that, ‘during the dinner [in question,] it was agreed to try to increase the price up to … already from 1 January 1998 onwards’ (recital 203 of the contested decision).
313. In the light of those considerations, the Court holds that, although irregular, the failure to include in the file the transcript of the oral statement in question was not able to influence the assessments made in the contested decision with respect to the meeting in question.
314. In the light of all the foregoing, the plea alleging breach of the rights of the defence must be rejected in its entirety.
The third plea, relating to the determination of the amount of the fine
Arguments of the parties
315. The applicant claims, first of all, that the amount of its fine exceeds 10% of its turnover in 2005, in breach of Article 23(2) of Regulation No 1/2003.
316. Also, that amount is disproportionate in the light of the fact that the applicant was minimally involved in cartel activities. The Commission could find, at most, that the applicant committed a ‘technical violation’ of Article 81 EC, in so far as its employees heard discussions which ‘veered off’ legitimate topics and on to ‘improper’ ones, during the meetings in early 1999 in Milan and December 1999 in Freiburg.
317. Thus, the duration of the applicant’s participation in the infringement should be reduced to one year, with a resulting reduction in the fine. Also, the fine should be reduced to take account of the applicant’s passive or ‘follow-my-leader’ role in the infringement, because it merely attended two of the meetings in question but did not actively participate in the discussions.
318. Moreover, every other undertaking (with the exception of Caffaro, whose fine was reduced owing to its passive role) affirmatively undertook to organise cartel meetings. However, the applicant neither organised nor hosted cartel meetings. It was a ‘bad guy’ who stole market share from Kemira, Degussa and Solvay and who told EKA it would continue to make sales in Scandinavia ‘because they had instructions from their management’. It provoked the break-up of the Seville cartel meetings when it refused to ‘go along with the plan’ and was not invited to the meeting the next day.
319. Finally, in the context of differential treatment, the applicant was placed in the same category as other undertakings with market shares of between 9% and 11% in 1999. In 1994, when the cartel allegedly began, the applicant had a market share of 5% and, because it was competing during the cartel, managed to double its market share. It is illogical that it should receive a fine equivalent to that imposed on the active participants in the cartel.
320. In its reply, the applicant reiterates that it played a passive role in the infringement, which is confirmed by the frequent complaints by the other cartel members about its competitive activities, which resulted in its doubling its market share, and by the ‘technical’ nature of its alleged participation in the infringement, in so far as it remained in two meetings at which ‘improper’ discussions occurred but did not actively participate in those discussions. Moreover, the Commission wrongly attempts to equate legitimate attendance at assemblies of CEFIC, which is a trade organisation, with participation in cartel activities.
321. The Commission contests the applicant’s arguments.
Findings of the Court
322. In this plea, submitted in support of its claim that the fine should be reduced, the applicant puts forward three complaints.
323. In the first place, in pleading infringement of the second subparagraph of Article 23(2) of Regulation No 1/2003 of Regulation No 1/2003, the applicant submits that the Commission was required to apply that provision taking account of its turnover, taken individually, and not the total turnover of its parent company and itself.
324. It should be borne in mind that the maximum amount of 10% of turnover laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the economic entity responsible for the infringement being punished (see HFB and Others
v Commission, paragraph 97 above, paragraph 528). By contrast, if that economic entity has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it (Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission [2005], not published in the ECR, paragraph 390).
325. In the light of those considerations, this complaint cannot succeed. The applicant does not contest the Commission’s finding that FMC and the applicant constituted the single economic entity liable for the infringement and were therefore held jointly and severally liable for the infringement in question. Moreover, the applicant does not submit that that entity was broken up before the adoption of the contested decision.
326. In the second place, the applicant argues that the duration of the applicant’s participation in the infringement should be reduced to one year, with a resulting reduction in the fine. In the applicant’s submission, the Commission could find, at most, that the applicant committed a ‘technical violation’ of Article 81 EC, in so far as its employees heard discussions which ‘veered off’ legitimate topics and on to ‘improper’ ones, during the meetings in 1999 in Milan and in Freiburg.
327. The Court considers that that complaint overlaps with the first plea in which the applicant contests its participation in the infringement and must therefore be rejected for the reasons set out in paragraphs 245 to 254 above.
328. In the third place, the applicant submits that the Commission ought to have granted it the benefit of an attenuating circumstance on the basis of its passive role in the infringement.
329. The Court observes, first of all, that, although the Commission states that the applicant did not expressly plead its passive role during the administrative procedure, that is not relevant to the admissibility of this complaint (see, to that effect, Case T‑73/04 Carbone‑Lorraine
v Commission [2008] ECR II‑2661, paragraph 194).
330. Undertakings to which a statement of objections has been addressed are not required to make a specific request to benefit from attenuating circumstances. Moreover, where an infringement has been committed by several undertakings, the Commission is required to examine the relative gravity of the participation of each of them in order to determine whether there are any aggravating or attenuating circumstances relating to them, in particular where, as in the present case, it is an attenuating circumstance expressly referred to in the non‑exhaustive list set out in Section 3 of the Guidelines.
331. Next, as to the substance, it should be recalled that, in accordance with the first indent of Section 3 of the Guidelines, an ‘exclusively passive or follow-my-leader’ role in the infringement may, where it is established, constitute an attenuating circumstance. A passive role implies that the undertaking adopts a ‘low profile’, that is to say, not actively participate in the creation of any anti‑competitive agreements (Case T‑220/00 Cheil Jedang v Commission
[2003] ECR II‑2473, paragraph 167).
332. The factors which may indicate that an undertaking has played a passive role in a cartel include where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel, where it enters the market affected by the infringement at a late stage, regardless of the length of its involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect (see Carbone‑Lorraine
v Commission, paragraph 329 above, paragraph 164 and the case‑law cited). In any event, it is necessary to take account of all the relevant circumstances in each particular case.
333. According to settled case-law, the Commission has a discretion as regards the application of attenuating circumstances (Case T‑44/00 Mannesmannröhren-Werke
v Commission [2004] ECR II‑2223, paragraph 307, and Bolloré and Others
v Commission, paragraph 118 above, paragraph 602).
334. In the present case, first, the applicant argues that its role in the infringement stems from mere attendance at two meetings concerning PBS, a meeting at the beginning of 1999 in Milan and a meeting in December 1999 in Freiburg, without any active participation in the discussions. The applicant submits that it provoked the break-up of the Seville meetings when it refused to ‘go along with the plan’. Moreover, the Commission wrongly attempted to equate its legitimate attendance at assemblies of CEFIC with participation in unlawful activities.
335. The Court observes that those arguments cannot succeed, since they are based entirely on the arguments rejected in the examination of the first plea, in particular in paragraphs 154 to 167, 202 to 221 and 245 to 254 above.
336. Second, the applicant claims that its role was different from that of all the other parties to the cartel, with the exception of Caffaro, whose passive role was recognised by the Commission. The applicant submits that it was one of the ‘bad guys’ which stole market share from Kemira, Degussa and Solvay and told EKA Chemicals that it would continue to make sales in Scandinavia. Its passive role in the infringement is allegedly confirmed by the complaints from the other cartel members about its competitive activities and by the significant increase in its market share during the period of the infringement.
337. As is apparent from the examination of the first plea above, the Commission established to the requisite legal standard that the applicant was represented or kept informed, as regards the majority of the collusive meetings referred to in the contested decision, during the period from 29 May 1997 until 13 December 1999. The applicant cannot reasonably claim, in this respect, that its participation was significantly more sporadic than that of the other parties to the cartel. The actual manner in which that participation manifested itself, namely that the applicant did not physically participate in certain meetings but was informed of them by telephone is consistent with the clandestine nature of the way in which they were conducted and does not demonstrate whatsoever that the applicant had an exclusively passive or follow‑my‑leader role.
338. The fact that the applicant belonged to a group nicknamed the ‘bad guys’ or ‘mauvais élèves’ by Degussa and Solvay is not capable of showing that its attitude differed significantly from that of the other cartel participants. That group brought together four of the eight cartel participants, namely the small producers of HP which wanted to increase overall production capacity to the detriment of prices (recital 130 of the contested decision). In view of the Commission’s findings which were not called in question by the applicant (see paragraphs 162 and 163 above), the fact that the interests of that group of producers did not coincide with the strategy proposed by the large players on the market, Degussa and Solvay (recitals 139 and 166 of the contested decision), does not imply that those producers adopted a purely passive or follow‑my‑leader form of conduct.
339. Moreover, although the applicant submits that the other producers complained about its competitive activities on the market, it does not put forward any express statement in support of this, capable of demonstrating its passive conduct in the cartel.
340. The applicant relies on the statements of its own employees relating to the aggressive competitive strategy adopted by the undertaking. Moreover, it refers to certain particulars concerning exclusively the period prior to the starting date of its participation in the infringement, on 29 May 1997, namely a note relating to the meeting of 31 January 1994 between EKA Chemicals and Kemira, stating that Kemira ‘had lost … in France to FMC and AL’, Atofina’s statement relating to a ‘reminder by Degussa of the evolution of the market shares between [1988-1989] and [1995] with a sharp decline of [of those of] Solvay and Degussa to the benefit of [several other undertakings, including the applicant]’, and an item of information from EKA Chemicals, according to which, ‘in the course of the year 1996, FMC and Ausimont increased their market shares by way of an aggressive action on the prices’ and, at the ‘end [of] 1996 their competitors … reacted fiercely to try to take back their positions’.
341. In the light of all the foregoing, the Court holds that the applicant has failed to put forward any arguments capable of showing that its role in the cartel was exclusively passive or follow‑my‑leader.
342. Lastly, without putting forward any specific arguments, the applicant criticises the Commission for failing to take into account that it succeeded in increasing substantially its share of the HP market between 1994 and 1999, namely during the period of the cartel.
343. The Court observes that, by that line of argument, the applicant does not call in question the findings relating to differential treatment, since it accepts that it was placed in the same category as other undertakings with similar market shares in 1999. The applicant submits, however, that the circumstance in question demonstrates the aggressive competitive role that it allegedly played on the market, despite its participation in the cartel, a circumstance which could be taken into account in the context of attenuating circumstances.
344. In this respect, the Court observes that, whilst the applicant refers to the increase in its share of the HP market between 1994 and 1999, that alleged increase is, according to the evidence put forward by the applicant itself, significantly more limited during the period of the infringement in which it was found to have participated, namely between 1997 and 1999.
345. According to the second indent of Section 3 of the Guidelines, ‘non‑implementation in practice of the offending agreements or practices’ may amount to an attenuating circumstance, in so far as the undertaking concerned shows that, during the period in which it was party to the agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (see Carbone‑Lorraine
v Commission, paragraph 329 above, paragraph 196 and the case-law cited).
346. Moreover, the mere fact th at 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 and followed a more or less independent policy in the market does not necessarily have to be taken into account as an attenuating circumstance. It cannot be ruled out that that undertaking was merely trying to exploit the cartel for its own benefit (see Lafarge
v Commission, paragraph 116 above, paragraphs 772 and 773 and the case-law cited).
347. In the present case, the mere fact that the applicant succeeded in increasing its share of the HP market is not sufficient to show that it actually avoided implementing the offending agreements, which involved price increases and the sharing of markets, by adopting competitive conduct on the market. That circumstance does not therefore justify the benefit of attenuating circumstances, since it cannot be ruled out that the applicant merely succeeded in exploiting the cartel for its own benefit (see, to that effect, Bolloré and Others
v Commission, paragraph 118 above, paragraph 629 and the case-law cited).
348. In the light of the all the foregoing, it is necessary to reject the complaints put forward in this plea.
349. The action must, therefore, be dismissed in its entirety.
Costs
350. Under Article 87(2) 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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (Sixth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. Orders FMC Foret SA to pay the costs.