62007TJ0113_EN
Parties
Grounds
Operative part
Parties
In Case T‑113/07,
Toshiba Corp.,
established in Tokyo (Japan), represented initially by J. MacLennan, Solicitor, A. Schulz and J. Borum, lawyers, and subsequently by J. MacLennan and A. Schulz,
applicant,
v
European Commission,
represented initially by F. Arbault and J. Samnadda, then by X. Lewis, and subsequently by J. Bourke and F. Ronkes Agerbeek, and finally by F. Ronkes Agerbeek and N. Khan, acting as Agents,
defendant,
APPLICATION, primarily, for the annulment of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) to the extent to which it concerns the applicant and, in the alternative, for the amendment of Articles 1 and 2 of that decision so as to cancel or reduce the fine imposed on the applicant,
THE GENERAL COURT (Second Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and S. Soldevila Fragoso, Judges,
Registrar: C. Kantza, Administrator
having regard to the written procedure and further to the hearing on 11 December 2009,
gives the following
Judgment
Grounds
Background to the dispute
1. Applicant
1. The applicant, Toshiba Corp., is a Japanese company active in various sectors, in particular the sector for gas-insulated switchgear (‘GIS’). Between October 2002 and April 2005, its GIS business was carried on within a joint venture, TM T & D Corp., jointly owned in equal shares with Mitsubishi Electric Corp. (‘Melco’) and dissolved in 2005.
2. Goods
2. GIS is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for power sub-stations. GIS is sold across the world either as part of turnkey power substations or as separate equipment which has to be integrated into a turnkey power substation.
3. Administrative procedure
3. On 3 March 2004, ABB Ltd informed the Commission of the European Communities (now ‘the European Commission’) of anti‑competitive practices in the GIS sector in connection with an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’).
4. ABB’s request for immunity was supplemented by oral observations and documentary evidence. It gave rise, on 24 April 2004, to a Commission decision granting conditional immunity to ABB.
5. On the basis of ABB’s statements, the Commission initiated an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of various companies active in the GIS sector.
6. On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies including the applicant. The Commission held hearings on 18 and 19 July 2006 for the companies to which the statement of objections had been sent.
4. Contested decision
7. On 24 January 2007, the Commission adopted Decision C(2006) 6762 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas-insulated switchgear) (‘the contested decision’).
8. In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS projects had been carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘common understanding’), under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.
9. The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries, other than the ‘home countries’, were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.
10. According to the Commission, the sharing of GIS projects between the European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E-Group Operation Agreement for GQ Agreement’) (‘the EQ Agreement’). It indicated that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.
11. On the basis of the findings of fact and legal assessments made in the contested decision, the Commission found that the undertakings implicated had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) and imposed on them fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the guidelines’), and in the Leniency Notice.
12. In Article 1 of the contested decision, the Commission found that the applicant had participated in the infringement from 15 April 1988 to 11 May 2004.
13. For the infringement found in Article 1 of the contested decision, the applicant was fined, in Article 2 of the contested decision, EUR 90 900 000, of which EUR 4 650 000, corresponding to the infringement committed by TM T & D, to be paid jointly and severally with Melco.
Procedure and forms of order sought by the parties
14. By application lodged at the Court Registry on 18 April 2007, the applicant brought the present action. The defence and reply were lodged on 27 August and 22 October 2007.
15. By document lodged at the Court Registry on 29 November 2007, the applicant requested that judgment by default be delivered in its favour, pursuant to Article 122 of the Rules of Procedure of the General Court. That application was rejected by decision of the Second Chamber of the Court of 11 December 2007.
16. The written procedure closed with the lodging of the rejoinder on 17 December 2007.
17. Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided, on 22 September 2009, to open the oral procedure. By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, it invited the Commission to submit certain documents and requested the parties to express their views on the relevance of those documents in relation to the plea alleging infringement of the right of access to the file. The Court also put a question to the Commission in writing, inviting it to give its reply at the hearing.
18. In response to the Court’s request, the Commission forwarded the documents concerned on 26 October 2009. The applicant submitted its observations on those documents on 19 November 2009. The Commission replied to the applicant’s observations on 2 December 2009.
19. The parties presented oral argument and submitted their replies to the Court’s written and oral questions at the hearing on 11 December 2009.
20. By order of 11 June 2010, the Court decided to reopen the oral procedure, ordered the Commission to produce certain documents by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure and determined the arrangements by which the applicant could consult them.
21. The Commission complied with those measures of organisation within the deadline set.
22. The oral procedure was closed on 28 July 2010.
23. In its application, the applicant claims that the Court should:
– annul the contested decision;
– in the alternative, annul the contested decision in so far as it relates to the applicant;
– in the further alternative, amend Articles 1 and 2 of the contested decision so as to annul or substantially reduce the fine imposed on the applicant;
– order the Commission to pay the costs, including the costs incurred in connection with the bank guarantee.
24. At the hearing, the applicant withdrew its first head of claim, seeking annulment of the contested decision in its entirety.
25. The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
26. In support of its action, the applicant puts forward four pleas in law. The first plea alleges that, in the contested decision, the Commission did not establish to the requisite standard the existence of a common understanding. The second plea alleges that the Commission did not establish a single and continuous infringement. The third plea alleges that its rights of defence were infringed. The fourth plea alleges that the Commission wrongly imposed a fine on it.
27. The Commission considers the applicant’s pleas to be unfounded.
28. It should be noted, at the outset, that the applicant has not specified which of its pleas support the various claims which it has made. In that regard, it should be considered, first of all, that the first, second and third pleas have been raised by the applicant in support of its claim seeking annulment of the contested decision in so far as it concerns it. If one of those pleas is upheld, it will be necessary, in principle, to annul the contested decision in its entirety in so far as it concerns the applicant. Secondly, the fourth plea concerns the calculation of the fine imposed on the applicant and is, consequently, raised by the applicant in support of its application for the annulment or a substantial reduction of the fine imposed on it.
1. The application seeking annulment of Articles 1 and 2 of the contested decision in so far as they concern the applicant
29. In so far as the annulment of the contested decision for infringement of the applicant’s rights of defence would render the examination of the substance of that decision devoid of purpose, it is appropriate to analyse the third plea first of all. The first and second pleas will then be examined.
The third plea, alleging that the Commission infringed the applicant’s rights of defence
30. The applicant considers that its rights of defence were infringed. In the context of the first part of the third plea, it claims that there was a fundamental procedural error in relation to the identificat ion of the infringement in the operative part of the contested decision. In the context of the second part of the third plea, it alleges an infringement of the right of access to the file. In the context of the third part of the third plea, it submits that the Commission distorted evidence in the file.
31. The Commission considers the applicant’s arguments to be unfounded.
The first part of the third plea, alleging that the infringement was insufficiently identified in the operative part of the contested decision
– Arguments of the parties
32. According to the applicant, in Article 1 of the operative part of the contested decision, the Commission merely referred to the applicant’s participation in a complex of agreements and concerted practices, without identifying the infringement of Article 81 EC and Article 53 of the EEA Agreement, which constitutes a fundamental procedural error.
33. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
34. It is apparent from Article 1 of the contested decision that the Commission found that the companies concerned had participated in a complex of agreements and concerted practices in the GIS sector contrary to Article 81 EC and Article 53 of the EEA Agreement and stated the periods concerned. Thus, the operative part of the contested decision does not specify the nature of the alleged agreements and practices.
35. However, it must be remembered that the operative part of a decision is to be understood in the light of the grounds supporting it (Joined Cases T‑305/94, T‑306/94, T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others
v Commission (‘PVC II’)
[1999] ECR II‑931, paragraph 761). In the present case, a summary of the elements of the infringement is provided, in particular, in recital 2 of the contested decision and those elements are detailed in other recitals of the contested decision. Accordingly, it must be found that, in the light of the grounds supporting it, the Commission identified, in the operative part of the contested decision, the infringement concerned in a sufficiently precise manner. Consequently, this part of the plea must be rejected.
The second part of the third plea, alleging an infringement of the right of access to the file
– Arguments of the parties
36. The applicant considers that the Commission did not grant it access to all the incriminating and exculpatory evidence.
37. As regards the incriminating evidence, the applicant submits that it had only partial access to Hitachi’s reply to the statement of objections and did not have access to Fuji’s statements allegedly corroborating ABB’s statements, referred to in recital 125 of the contested decision. Consequently, it considers that it was not able to express its view and be heard in relation to that evidence, which, in its view, could thus not be relied on in the contested decision.
38. In respect of the exculpatory evidence, the applicant states that, in so far as it was not granted access to the complete file, it was not in a position to determine whether further relevant evidence had been produced by other parties. It considers, in any event, that it should have gained access to the supplementary reply of Hitachi Ltd to the statement of objections, which contradicts the conclusions drawn in the contested decision from Hitachi’s statements concerning project loading. It also refers to the statements of employees of Melco and Hitachi which deny the existence of a common understanding. Finally, it refers to the statements of Mr S, submitted by Areva, which apparently contradict the theory concerning the duration of the GQ agreement.
39. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
40. Respect for the rights of the defence requires that the person concerned must have been afforded the opportunity, during the administrative procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission [2004] ECR I‑123, paragraph 66).
41. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. 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 40 above, paragraph 68).
42. In this respect, it should be recalled that it is not until the beginning of the inter partes
administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies of the other undertakings which participated in the cartel to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult (Case T‑161/05 Hoechst
v Commission
[2009] ECR II‑3555, paragraph 163).
43. However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement (see Hoechst
v Commission, paragraph 42 above, paragraph 164, and the case‑law cited). That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.
44. By analogy, if a passage in a reply to a statement of objections or in a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon.
45. However, the mere fact that other undertakings put forward the same arguments as the undertaking concerned and that they may have used more resources for their defence is not sufficient for those arguments to be regarded as exculpatory evidence (see, to that effect, Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraphs 353 and 355).
46. As regards the consequences of granting access to the file contrary to those rules, the failure to communicate a document on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different if the document which was not communicated had to be disallowed as incriminating evidence ( Aalborg Portland and Others v Commission, paragraph 40 above, paragraphs 71 and 73).
47. 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 decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory document for its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine ( Aalborg Portland and Others
v Commission, paragraph 40 above, paragraphs 74 and 75).
48. The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded ( Aalborg Portland and Others
v Commission, paragraph 40 above, paragraph 76).
49. In the present case, it is necessary to dismiss from the outset the applicant’s arguments relating to its lack of full access to the Commission’s file. It is apparent from the case‑law cited in paragraph 41 above that the protection of the rights of defence of persons involved in an administrative procedure does not imply that full access to the file must be granted.
50. As regards the incriminating evidence, it must be noted that the applicant does not state which evidence held against it in the contested decision was contained in the part of Hitachi’s reply to the statement of objections to which it did not have access. The applicant also does not state the reasons why the fact of having only partial access to that document did not enable it to give its view on Hitachi’s statements relating to project loading, which constitute the main item of incriminating evidence. Accordingly, the applicant’s argument relating to its partial access to Hitachi’s reply to the statement of objections must be rejected.
51. Moreover, the Commission admits that it was not able to rely on Fuji’s observations, which were not communicated to the applicant, in support of the grounds of complaint raised against the applicant in the contested decision, but disputes actually having used them as incriminating evidence.
52. It must be noted, none the less, that, in recitals 125 and 255 of the contested decision, the Commission referred to Fuji’s supplementary observations, in particular those of 21 November 2006, to corroborate the existence of a common understanding.
53. Accordingly, the outcome of the applicant’s argument depends on the result of the examination of the first plea, relating to the proof of the existence of a common understanding. If it is found that the existence of such an understanding has been established to the requisite legal standard even after disallowing Fuji’s observations as incriminating evidence, it will be necessary to reject the applicant’s claims. By contrast, if it is found that those observations constitute necessary evidence in support of the findings made in the contested decision in relation to the existence of a common understanding, it will be necessary to uphold the applicant’s argument and, consequently, to annul the contested decision in so far as it concerns it.
54. In so far as concerns the exculpatory evidence, the Court requested the Commission to produce all the documents which the applicant identified with a modicum of precision. Since the request made to the Commission was based on indications provided by the applicant itself, its request set out in its observations of 19 November 2009 to the effect that the Commission provide it with all the documents produced in response to the similar requests made by the Court in Case T‑112/07 Hitachi and Others
v Commission and Case T‑133/07 Mitsubishi Electric
v Commission, cannot be upheld.
55. As regards the various documents produced by the Commission in the present case, it should be noted, first, that, contrary to the applicant’s claim, Hitachi’s supplementary reply to the statement of objections does not call into question the factual content of the latter’s statements concerning the notification and project loading mechanism. In that supplementary reply, Hitachi merely disputed the Commission’s interpretation of those statements, in particular in relation to their relevance as evidence of the common understanding and of the existence of a single infringement involving both the common understanding and the GQ Agreement. Hitachi had already raised those same arguments in the extract from its first reply to the statement of objections, which the Commission sent to the applicant. Consequently, Hitachi’s supplementary reply to the statement of objections cannot be regarded as exculpatory evidence whose communication could have influenced the course of the proceedings and the content of the contested decision.
56. It should also be pointed out that, in its observations of 19 November 2009, the applicant wrongly complains that, following the invitation which the Court made to the Commission, it had only partial access to Hitachi’s supplementary reply to the statement of objections. The partial nature of the access to that document results from the fact that, in its pleadings, the applicant identified it as constituting potential exculpatory evidence only in so far as it concerns the notification and project loading mechanism.
57. Second, it should be noted that, in their written statements of November 2006, Melco’s and Hitachi’s employees dispute the existence of a common understanding and of discussions relating thereto and refer to the existence of ‘high’ barriers to entry on the European market. In addition, one of Melco’s witnesses notes that Fuji did not participate in the negotiations prior to the signing of the GQ Agreement, whereas the other notes that, in his view, the exclusion of certain European countries from the scope of the GQ Agreement was due to the risk of application of competition law. Hitachi’s witnesses give details of a proposal made by Alstom in July 2002 relating to an understanding between European and Japanese producers and of Hitachi’s rejection of that proposal.
58. In that regard, it should be noted that the written witness statements of the employees of a company, drawn up under the supervision of that company and submitted by it in its defence in the administrative procedure carried out by the Commission, cannot, in principle, be classed as evidence which is different from, and independent of, the statements made by that same company. Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based, primarily, on the knowledge and opinions of its employees and management.
59. In addition, during the administrative procedure, the applicant itself disputed the existence of a common understanding and of discussions relating thereto and referred to the existence of ‘high’ barriers to entry on the European market. Consequently, the fact that other undertakings raised those arguments cannot be regarded as exculpatory evidence.
60. Similarly, the details of Alstom’s proposal of July 2002 were disclosed in the statement of objections, whereas Fuji’s absence from the negotiations related to the GQ Agreement was referred to in Mr M’s witness statement, to which the applicant does not dispute having had access. Consequently, that evidence does not constitute exculpatory evidence.
61. By contrast, it does not appear that the argument relating to the reason why certain European countries were excluded from the scope of the GQ Agreement was raised by the applicant, nor that the applicant had access to a document reproducing it. Thus, the passage concerned of the witness statement of one of Melco’s employees could be regarded as exculpatory evidence. However, it is a statement made by an employee of one of the undertakings involved, in which that employee merely disputes the existence of unlawful conduct and which is not substantiated. Accordingly, the communication of that evidence cannot be regarded as capable of influencing the course of the proceedings and the content of the contested decision.
62. Third, it should be noted that the applicant itself admits, in its observations of 19 November 2009, that Mr S’s statements, submitted by Areva, confirm its own arguments in relation to the alleged suspension of the implementation of the GQ Agreement between 1999 and 2002. Also, contrary to what the applicant maintains, the claim that it was necessary to approach TM T & D in 2002 with a view to resuming cartel activity was set out in Areva’s explanatory note concerning the operation of the cartel, to which the applicant had access.
63. The only potential item of exculpatory evidence contained in Mr S’s statements is the claim that the GQ Agreement could not work without a major producer such as Siemens. However, that claim, made by an employee of an undertaking which is accused of having participated in an infringement, is not substantiated and is contradicted by both the statements of the other undertakings involved and the documentary evidence gathered by the Commission and set out in recitals 191 to 198 of the contested decision. Consequently, the communication of that evidence was not capable of influencing the course of the proceedings and the content of the contested decision.
64. In the light of all of the foregoing, the applicant’s arguments relating to access to the exculpatory evidence must be rejected. However, as is apparent from paragraph 53 above, the outcome of this part of the third plea depends on the result of the examination of the arguments raised by the applicant in the context of its first plea.
The third part of the third plea, alleging a distortion of the evidence in the file
– Arguments of the parties
65. The applicant maintains that the Commission distorted the evidence in the file, thereby infringing both its rights of defence and the obligation to deal with the file fairly and accurately.
66. In the applicant’s view, first, contrary to what is stated in recital 255 of the contested decision, the undertaking belonging to the group including VA TECH Transmission & Distribution GmbH & Co. KEG (‘VA TECH’) did not remain silent as to the existence of a common understanding, but disputed it explicitly at the hearing.
67. Second, the applicant denies that, at the hearing, it was not able to answer the questions concerning the projects loaded in the quota provided for by the GQ Agreement and ABB’s list of projects allegedly notified. It states, referring to an extract of the transcription of the hearing, that its reply was that it was not aware of the project loading.
68. Third, the applicant claims that, in the contested decision, the Commission wrongly stated that it had confirmed that the GQ Agreement had continued after 24 April 1999, although it had always maintained that the worldwide cartel had ceased after Siemens and Hitachi discontinued their participation.
69. Fourth, contrary to the Commission’s assertion in recital 306 of the contested decision, the applicant claims it did not corroborate Hitachi’s statements concerning the existence of notification and denied both notification and project loading.
70. Fifth, the applicant maintains that, in so far as it had no access to the statements of the other parties on which the Commission based its findings, it cannot rule out the possibility that their content was also distorted in the contested decision, which is very probable in view of the complaints set out above.
71. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
72. The Court notes, first, that the principle of respect for the rights of the defence, as set out in paragraph 40 above, can be infringed as a result of a distortion of the facts only if it affected the interested party’s ability to understand the extent of the complaints held against it by the Commission or to assess the evidence relied on in support of those complaints.
73. In the present case, the applicant does not state the extent to which the alleged distortions of the facts committed by the Commission made its defence more difficult.
74. Consequently, the complaint alleging an infringement of the principle of the respect for the rights of the defence must be rejected.
75. Second, the duty to deal with the file fairly and diligently, which falls under the principle of good administration, is infringed each time a fact is distorted. However, such an infringement permits a finding that the contested decision was unlawful only in so far as the Commission would not have been able to arrive at the same conclusions if it had correctly interpreted the facts at issue.
76. Accordingly, the interpretation of the various facts which were allegedly distorted and the consequences of any possible distortions will be examined in the context of the applicant’s pleas calling those facts into question.
77. In the light of all the above, the third part of the third plea must be rejected.
The first plea, alleging that the Commission did not establish the existence of the common understanding to the requisite legal standard
78. According to the case‑law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission
[2006] ECR II‑3567, paragraph 59, and the case‑law cited).
79. In that regard, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine ( Dresdner Bank and Others
v Commission, paragraph 78 above, paragraph 60).
80. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of Community law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Dresdner Bank and Others
v Commission, paragraph 78 above, paragraph 61, and the case-law cited).
81. Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others
v Commission, paragraph 78 above, paragraphs 62 and 63, and the case‑law cited).
82. In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see Dresdner Bank and Others
v Commission, paragraph 78 above, paragraphs 64 and 65, and the case‑law cited).
83. The applicant submits, in that regard, that there is no longer any justification for applying a more lenient evidential standard because of the difficulties faced by the Commission when trying to prove an infringement. In its view, first, Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1) has strengthened the Commission’s powers in this area. Second, in the present case the Commission received a large number of evidential submissions as a result of its leniency programme. Third, because of the use of modern technology, documents incriminating members of a cartel exist in multiple copies, created on various computers. In the applicant’s view, the relevant documents can thus be searched for more easily and identified and they can even be reconstituted after being deleted.
84. However, those arguments of the applicant cannot be upheld. First, although, according to recital 25 in the preamble to Regulation No 1/2003, the strengthening of the Commission’s powers aims to enable it to detect, in particular, infringements of Article 81 EC, that strengthening does not guarantee in itself that probative evidence will actually be able to be gathered more easily by the Commission in a given case. The same finding is applicable, second, to the leniency programme. In order for the Commission to be able to validly rely on it as evidence of an infringement, the evidence received from interested undertakings must, in any event, satisfy the applicable criteria in the case‑law. Thus, the existence of leniency applications per se does not simplify the Commission’s role. Third, the impact of the proliferation of forms of modern technology is counterbalanced by the technical measures adopted in that regard by the members of the cartel. In the present case, it is apparent from recitals 173 to 175 of the contested decision that the parties encrypted the relevant documents by means of a computer programme and that anonymous mailboxes were used for all communications related to the unlawful conduct. It has not been established that the applicant systematically refused to adhere to those measures, since the evidence in the file does not show that there was long-term opposition. Moreover, it is apparent from that same evidence that, when the applicant did not encrypt its messages and use anonymous mailboxes, communication with it took place by telephone or by fax, and not by email or another digital medium.
85. Moreover, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed (see, to that effect, Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraph 186, and the case‑law cited).
86. As the applicant submits, that rule also applies where the evidence which the Commission relies on is insufficient. In that case, the evidence does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats
v Commission, not published in the ECR, paragraph 74).
87. By contrast, contrary to what the applicant claims, that rule does not apply to all cases in which the infringement is established by deduction from other facts, by indirect or non‑documentary evidence. As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence (Case T‑50/00 Dalmine
v Commission
[2004] ECR II‑2395, paragraph 72). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
88. Consequently, even if the circumstances referred to by the applicant, supposing that they were proven, may be relevant in the global assessment of the set of indicia relied on by the Commission, they do not, in themselves, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative explanation of the facts.
89. In addition, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions ( JFE Engineering and Others
v Commission, paragraph 85 above, paragraph 192). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
90. However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue ( JFE Engineering and Others v Commission, paragraph 85 above, paragraphs 219 and 220).
91. As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability ( Dalmine
v Commission, paragraph 87 above, paragraph 72).
92. According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T‑25/95, T‑26/95, T‑30/95, T‑31/95, T‑32/95, T‑34/95, T‑35/95, T‑36/95, T‑37/95, T‑38/95, T‑39/95, T‑42/95, T‑43/95, T‑44/95, T‑45/95, T‑46/95, T‑48/95, T‑50/95, T‑51/95, T‑52/95, T‑53/95, T‑54/95, T‑55/95, T‑56/95, T‑57/95, T‑58/95, T‑59/95, T‑60/95, T‑61/95, T‑62/95, T‑63/95, T‑64/95, T‑65/95, T‑68/95, T‑69/95, T‑70/95, T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others
v Commission
[2000] ECR II‑491, paragraphs 1053 and 1838).
93. As regards statements, particularly high probative value may be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to that effect, JFE Engineering and Others
v Commission, paragraph 85 above, paragraphs 205 to 210).
94. In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, considering the possibility, referred to by the applicant, that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit from the Leniency Notice, and thereby jeopardise its chances of benefiting fully under it (see, to that effect, Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 70).
95. It must also be noted, in that regard, that the potential consequences of the submission of distorted evidence are even more serious since, as is apparent from paragraph 90 above, a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings involved of detecting the inaccurate nature of those statements is increased.
96. As regards the application of those rules to the present case, it should be noted, at the outset, that, according to the findings made in the contested decision, the common understanding was an unwritten understanding which encompassed, first, the commitment of the Japanese undertakings not to enter the market for GIS projects in the European Economic Area (EEA), second, the commitment of the European undertakings not to enter the Japanese market for GIS projects and, third, the commitment of the European undertakings to notify the Japanese undertakings of the GIS projects in the European countries other than the ‘home countries’ and to load those projects in the joint ‘European’ quota laid down in the GQ Agreement. According to the Commission, the purpose of the notification and project loading mechanism was to offer compensation to the Japanese undertakings, viewed by the European undertakings as potential competitors on the EEA market.
97. Among the various components of the common understanding listed in paragraph 96 above, it is the alleged commitment of the Japanese undertakings not to enter the EEA market which constitutes the basis of the Commission’s complaint against the applicant. Consequently, it is the existence of that commitment which needs to be established to the requisite legal standard. However, the other components of the common understanding, if proven, may also serve as indirect evidence from which the existence of the corresponding commitment on the part of the Japanese undertakings may be inferred.
98. The applicant disputes the existence of a common understanding and its participation therein. It criticises the probative value of the various items of evidence relied on by the Commission in the contested decision and refers to other evidence which, in its view, suggests that there was no common understanding. Consequently, the applicant considers that the Commission was required to accept the alternative explanation for the absence of Japanese producers on the GIS market in the EEA, related to the existence of legal, technical and commercial barriers to entry on that market. Accordingly, in the applicant’s view, in adopting the contested decision the Commission reversed the burden of proof, infringed the principle of the presumption of innocence and went beyond the limits of its powers.
99. The Commission submits that the existence of a common understanding, and in particular the commitment of the Japanese undertakings not to enter the EEA market, is established to the requisite legal standard by a body of evidence comprising documentary evidence, statements from undertakings, witness statements and evidence relating to the actual operation of the cartel.
100. It is therefore necessary to assess the reliability and the content of the various items of evidence concerned in order to assess whether, taken as a whole, the evidence relied on by the Commission establishes a firm conviction that a common understanding existed which is not able to be called into question by the evidence adduced by the applicant.
101. The applicant’s complaints alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers are based on the premiss that the Commission did not prove that a common understanding existed and that the applicant participated therein. Consequently, if the applicant’s arguments relating to the evidence of the existence of the infringement and of the applicant’s participation therein must be rejected, that necessarily implies that the complaints alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers will also have to be rejected. By contrast, if it is concluded that the applicant’s participation in the alleged infringement has not been shown in the contested decision, that finding would justify, in itself, the annulment of that decision in so far as it concerns the applicant.
The evidence furnished by ABB
– Arguments of the parties
102. The applicant disputes that the various items of evidence furnished by ABB prove the existence of a common understanding.
103. The applicant submits, at the outset, that in general the evidence furnished by ABB is of weak probative value since ABB benefited from conditional immunity. In its view, ABB’s statements were no longer self-incriminating. On the other hand, ABB could have been pressurised to answer the Commission’s questions in a manner that confirmed the existence of the cartel, given that it still ran the risk of losing its immunity if it did not show itself to be sufficiently cooperative. Consequently, it is appropriate to adopt a critical approach to evidence from ABB.
104. In addition, the applicant questions the probative value of each of the individual items of evidence furnished by ABB. First, the applicant maintains that ABB’s statement of 11 March 2004, confirming the existence of the common understanding is ambiguous, since ABB also admitted that no explicit agreement existed and that the common understanding was based on the factual background, that is to say on the fact that the Japanese undertakings were accepted by European customers only to a limited extent and that they faced certain technical and legal difficulties if they wished to enter the European market. Similarly, according to ABB, the Japanese producers participated in the cartel only to the extent to which it related to territories outside the EEA.
105. Second, the applicant raises questions about the witness statement provided by Mr M, a former ABB employee, at the interview of 23 September 2005. It submits, in that regard, that ABB’s willingness to support the Commission’s theory manifested itself by the efforts of its external counsel to guide Mr M’s statements to show that the Japanese producers’ entry into the European market could become profitable after some time.
106. The applicant adds that Mr M was no longer an ABB employee at the time of the interview, which means that he was not under an obligation to act in the company’s interests. Similarly, the fact that Mr M revised his statements illustrates the pressure brought to bear on him, rather than his wish to provide accurate information.
107. The applicant also submits that Mr M’s statements as to the existence of the common understanding are hearsay evidence carrying little conviction. In its view, Mr M stated that he was not present when the common understanding was entered into and that the understanding was not referred to at the meetings in which he took part. Therefore, those statements were based on Mr M’s personal view as to the existence of a cartel. The applicant observes in that connection that, even supposing the common understanding existed, it might be expected, given its alleged importance, that contemporaneous evidence of the alleged events would be produced by the undertakings which made leniency applications.
108. As regards the content of Mr M’s statements, the applicant submits that, although Mr M stated that the conclusion of an agreement covering foreign markets presupposed the existence of an agreement covering the home countries of the various participants, he also stated that, whilst it might have been possible for Japanese producers to enter the European market, such an endeavour would nevertheless not have been profitable. Subsequently, on 4 October 2005, ABB’s external counsel made a new statement purporting to clarify Mr M’s earlier statements and formally recording the existence of the common understanding. According to the applicant, those two elements are contradictory and cannot therefore be relied on.
109. Third, the applicant maintains that the statements of Mr W and Mr P, ABB employees, are vague unsubstantiated speculation based on personal opinions. Thus, when Mr W was asked about the reasons why Japanese producers were not allowed to take part in European GIS tenders, he did not refer to the common understanding. In earlier statements, he explained, on the other hand, that the existence of ‘high’ barriers made entry on to the European market difficult.
110. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
111. First of all, it is apparent from paragraphs 94 and 95 above that it is not necessary to treat evidence automatically with caution when provided by an undertaking which has sought to benefit from immunity from fines. As regards the particular case of witness statements, it is indeed possible that the employees of such an undertaking, who are required to act in the interests of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the requirement for corroboration.
112. As regards Mr M, the applicant rightly points out that a former employee is no longer required, in principle, to act in the interests of his former employer when it comes to voluntary cooperation in administrative proceedings. However, that also implies that, in principle, he has no interest in providing inaccurate evidence in that respect. It should be noted, in that regard, that when he submitted his witness statement Mr M was already retired. Accordingly, it is not apparent that a failure on his part to cooperate in the administrative procedure would have had unfavourable consequences for him.
113. In addition, it cannot be considered that the evidence furnished by ABB was not capable of damaging ABB. In so far as that evidence was furnished before the statement of objections was sent, neither ABB, nor its employees nor its former employee could be certain of the extent and exact content of the objections which were going to be raised against ABB.
114. As regards the various items of evidence furnished by the applicant, first, in its observations of 11 March 2004, namely before being granted conditional immunity, ABB explicitly referred to the existence of a common understanding, pursuant to which the Japanese companies would not bid for European projects and the European companies would not bid for Japanese projects.
115. It is true that ABB stated that the common understanding was based on the fact that Japanese producers were not well accepted by European customers and had to face certain obstacles on the European market. However, it is absolutely clear from its observations of 11 March 2004 that, in its view, the Japanese undertakings involved not only noted the existence of those obstacles, but made a commitment to their European partners not to enter the EEA market. Thus, the barriers to entry on that market constitute a factor which led to the conclusion of that understanding. It should be pointed out, in addition, that such a finding is not paradoxical since it is natural for a producer, when markets are being divided such as in the way alleged by the Commission in the present case, to leave to its competitors the markets in which its own position is weak.
116. In addition, it is true that ABB stated that no explicit agreement with Japanese producers existed in relation to the manipulation of tenders, price fixing and the distribution of EEA projects. However, read in its context, that statement refers to the distribution of national markets between European producers or the distribution of GIS projects in the EEA. It thus does not contradict the existence of the general commitment of the Japanese undertakings not to enter the EEA market, to which ABB made explicit reference. Furthermore, ABB’s statements are not incoherent. In so far as, in ABB’s view, the Japanese undertakings committed not to enter the EEA market, it would not have been necessary for them to conclude detailed agreements with the European producers in relation to the distribution of GIS projects on that same market.
117. In the light of all the above, it must be concluded that ABB’s statements of 11 March 2004 are not ambiguous and that they constitute indicia of the existence of the common understanding.
118. Second, it is true that ABB’s outside counsel intervened at a particular moment during Mr M’s interview in order to suggest to him that it could be beneficial for the Japanese producers to enter the European market, of which Mr M did not appear to be convinced. Consequently, it should be held that Mr M expressed doubts as to the commercial interest of such a step and account needs to be taken of that fact when assessing the content of his witness statement. However, the applicant does not explain how the intervention of ABB’s outside counsel affects the reliability of Mr M’s witness statement in other respects.
119. In addition, the applicant rightly submits that Mr M’s witness statement does not appear to result from studied reflection and that it was also not revised after reflection and additional verifications. The witness statement was made orally and there are no indications that written questions were put beforehand to Mr M by the Commission nor that the statements relating to the common understanding and the barriers to entry on the EEA market were subsequently verified and revised by Mr M.
120. None the less, the applicant does not submit any evidence indicating that any revision of Mr M’s statements might be motivated by any form of pressure exerted on him.
121. The applicant’s claim that Mr M’s witness statement is merely hearsay evidence must be rejected. Mr M was one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators. Mr M was thus a direct and privileged witness of the facts which he disclosed.
122. In that regard, it must be conceded that, in his witness statement, Mr M confirmed that he was not present when the common understanding was concluded. Similarly, when asked whether the issue of the common understanding had been raised at meetings which he had attended, Mr M responded that it was not necessary to refer to it since the common understanding went without saying. However, this does not call into question the probative value of Mr M’s witness statement. First, a witness is perfectly able to furnish evidence of a long-standing phenomenon even if he was not present at its inception. Second, although Mr M stated that the issue of the common understanding had not been referred to explicitly at the meetings which he had attended, it is apparent from his witness statement that, in his view, this was so because the content of the common understanding was understood, accepted and implemented by the participants to the cartel without the need for an explicit discussion.
123. In that regard, it should be noted that the commitment of a group of producers not to enter a market reserved to the other group, such as the commitment alleged by the Commission against the Japanese producers, is based on a simple concept which may be implemented easily. Also, its implementation does not require, in principle, interaction between the undertakings concerned. Consequently, such a commitment is perfectly capable of existing as an unwritten understanding, which also reduces the likelihood of its discovery. In that regard, the Commission stated in recitals 170 to 176 of the contested decision that, in the present case, the participants to the cartel put a series of organisational and technical precautions in place to prevent its discovery.
124. As regards the content of his witness statement, Mr M stated that an understanding relating to the mutual protection of domestic markets, predating the GQ Agreement, existed between the Japanese and European producers, that that understanding was a prerequisite for the conclusion of agreements relating to other regions and that compliance with its rules implied that the Japanese producers were not to enter the domestic market of the European producers, even though they would have been able to do so at a technical level. Mr M also explained, in that context, the notification and project loading mechanism and the fact that the GIS projects in the home countries were not discussed between the two groups of producers and were not charged to the quotas set under the GQ Agreement.
125. As noted in paragraph 118 above, Mr M was not convinced of the commercial interest for the Japanese undertakings in entering the European GIS market. None the less, the position of Mr M, which was shared by Mr P, does not affect the fact that, according to both ABB’s four witnesses and ABB itself, the Japanese undertakings were committed to not entering the EEA market even though they were capable of doing so at a technical level.
126. It should also be noted in that regard that the possible lack of commercial interest for the Japanese producers in entering the EEA market at a given point in time does not render the existence of an understanding, such as the common understanding, devoid of purpose. Such an understanding may serve, first of all, to eliminate the residual risk of a future entry on to the markets concerned in the event that competition changes and thereby to ensure long-term security for the two groups of producers by stabilising their respective privileged positions. Second, such an understanding may form the basis of mutual trust between the two groups. According to the statements made by Mr M, such confidence was necessary to be able to implement the cartel worldwide.
127. In the light of all the above, it must be concluded that Mr M’s witness statement constitutes evidence of the existence of the common understanding.
128. Third, contrary to what the applicant claims, Mr Wi stated that the absence of the Japanese undertakings on the European market was the result of a system in place to protect the Japanese and European markets, motivated by the fact that neither of the two groups of producers wanted the other group to enter its domestic market. Similarly, Mr P referred spontaneously to a common understanding with the Japanese undertakings pursuant to which the latter undertook not to participate in the European market and the European undertakings undertook not to participate in the Japanese market. Thus, Mr Wi’s and Mr P’s witness statements cannot be regarded as unsubstantiated speculation; on the contrary, they constitute evidence confirming the existence of the common understanding.
129. The same finding also applies to the last witness statement submitted at ABB’s initiative and given by Mr V.-A. When asked about the existence of a common understanding between European and Japanese producers, Mr V.-A referred to an understanding between Japanese and European producers pursuant to which the European undertakings agreed not to ‘attack’ the Japanese undertakings on the Japanese market and vice versa. Moreover, Mr V.-A stated that he had participated in a discussion between the European undertakings and the representative of a Japanese undertaking specifically regarding compliance with that understanding which was brought about by attempts on the part of the Japanese undertakings to enter the European market.
130. It must be concluded that the statements and witness statements produced by ABB are capable of proving the common understanding since they refer to its existence, describe the essential content of the understanding and provide information as to its duration and those involved.
131. Similarly, the evidence furnished by ABB is coherent in relation to the existence and fundamental content of the common understanding. Although a difference exists so far as concerns the commercial interest of the Japanese undertakings in entering the European market, that is irrelevant in this case in the light of the statements concerning the existence of a common understanding, as stated in paragraph 125 above.
132. In addition, ABB’s statements were provided on behalf of an undertaking and it is apparent from their content that they are founded on internal research and on discussions with ABB’s employees. Consequently, a certain degree of probative value must be attributed to them.
133. The statements made by the four witnesses concerned are credible since they were made by direct witnesses of the events to which they refer and it is not apparent from the circumstances of the case that those witnesses were encouraged to make inaccurate statements. Thus, they must be regarded as being of high probative value.
134. However, in accordance with the case‑law set out in paragraph 90 above, the content of the statements and witness statements provided by ABB must, in any event, be corroborated by further evidence.
The corroboration of ABB’s evidence
– Arguments of the parties
135. The applicant maintains that, in the contested decision, the Commission does not sufficiently corroborate the evidence furnished by ABB and, in particular, does not refer to any evidence which is contemporaneous with the material events.
136. First, Fuji’s claim that it was aware of the common understanding, made in its response to the statement of objections, is not supported or explained and thus reflects only Fuji’s unilateral view. In addition, that view does not specify whether Fuji alone was a party to the alleged understanding, whether it was an understanding of European producers or indeed whether the Japanese producers were also involved. Furthermore, in its leniency application of 11 July 2006, Fuji did not mention the existence of the common understanding. That understanding was also not mentioned in the five witness statements of Fuji’s employees submitted by that undertaking.
137. In the applicant’s view, the subsequent statements by Fuji allegedly confirming the existence of the common understanding, and in particular its statement of 21 November 2006, were not communicated to it and can thus not be taken into account.
138. In addition, the low probative value of the information provided by Fuji is confirmed by the fact that the latter was granted no leniency by the Commission in exchange for its disclosure.
139. Second, as regards the finding that Alstom and Areva did not contest the existence of the common understanding and that VA TECH did not deny it openly, the applicant submits that equating silence to acceptance constitutes a clear infringement of the right against self-incrimination and of fundamental evidential principles. In addition, from a practical point of view, the existence of the common understanding was, to a large extent, irrelevant to the European producers and their silence was to be expected. From a procedural point of view, the applicant observes that, since it had no access to the documents concerned, it was unable to verify the Commission’s allegation. Furthermore, the applicant considers that VA TECH in fact contested the existence of the common understanding.
140. Third, the applicant submits that its mere participation in the meetings with European producers in the context of the GQ Agreement is irrelevant in so far as concerns the existence of the common understanding.
141. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
142. As regards, first, the evidence furnished by Fuji, it is apparent from paragraphs 51 to 53 above that the observations which were not communicated to the applicant, and in particular Fuji’s observations of 21 November 2006, cannot be relied on as incriminating evidence. Consequently, those observations cannot corroborate the content of the evidence furnished by ABB.
143. By contrast, in its reply to the statement of objections, the relevant passage of which was communicated to the applicant, Fuji stated that it was aware of the common understanding, pursuant to which the Japanese producers would not attempt to enter the European market, while stating that the main reason for Fuji’s absence from the EEA market was that it was not a credible significant GIS supplier in Europe.
144. It must be admitted that that statement is relatively vague since Fuji merely refers to the commitment of the Japanese producers not to enter the European market. However, in doing so, Fuji corroborated the key element resulting from the evidence submitted by ABB and imputed to the Japanese producers by the Commission. Thus, that statement is not irrelevant in this case. That is even more so since the limited extent of Fuji’s knowledge can be explained by its secondary role within the cartel and, in particular, by the fact that, as is apparent from recital 150 of the contested decision, Fuji was the only Japanese undertaking which was not a member of the committee of the group of Japanese producers responsible, in particular, for the coordination of the two groups of producers within the context of the GQ Agreement.
145. In so far as concerns Fuji’s employees, the Court points out that those employees did not dispute that the common understanding existed, but simply remained silent in that regard. Thus, the content of the statements of Fuji’s employees does not call into question the probative value of Fuji’s statement in its reply to the statement of objections.
146. In so far as concerns the content of the application for leniency, it is apparent from point 21 of the Leniency Notice that, for the Commission to be able to reduce a fine, the evidence concerned must be of significant probative value with respect to the evidence already in the Commission’s possession. Consequently, in a leniency application made after the reply to the statement of objections has been sent, it is legitimate for the undertaking wishing to obtain a reduction of its fine to focus on the evidence which, in its view, has thus far not been established to the requisite legal standard, in order to add significant value to it. This can explain why the undertaking concerned may choose to omit the evidence which it regards as established beyond doubt by the evidence previously submitted.
147. Similarly, in the light of the wording of point 21 of the Leniency Notice, it cannot be ruled out that the submission of evidence of a certain probative value, but which contains facts established by other evidence, will not result in any reduction.
148. Second, it is apparent from the extract of the transcription of VA TECH’s hearing that the latter explicitly contested the existence of the common understanding at that hearing. Consequently, the Commission’s claim that that is not the case is unfounded.
149. In so far as concerns Alstom’s and Areva’s allegedly neutral position, the Commission submits that it did not rely on that factor in concluding that the common understanding existed, but merely noted it. Although that interpretation is confirmed by the wording of recital 125 of the contested decision, in which no corroborative value is accorded to the position of Alstom, Areva and VA TECH, unlike Fuji’s statements confirming the existence of the common understanding, it is called into question in recital 255 of that decision, in which the Commission refers to the implicit acknowledgement of the existence of the common understanding by certain European producers. In any event, the neutral position of Alstom and Areva cannot be interpreted as evidence of the existence of the common understanding. Given that the burden of proof is on the Commission in proceedings under Article 81 EC and Article 53 of the EEA Agreement, an undertaking’s failure to challenge a fact does not mean that the fact in question is established.
150. Third, as submitted by the applicant, the mere fact that it participated in GQ Agreement meetings does not constitute evidence of the existence of the common understanding. The relevant question is whether, as the Commission claims, that understanding was implemented by the various participants at the same time as the GQ Agreement and in conjunction with it.
151. Fourth, it is apparent from recital 127 of the contested decision that, at the meeting of 10 July 2002 during which there was discussion of the development of the modes of operation of the cartel after Siemens and Hitachi had withdrawn from it, Alstom proposed that the European producers should stay in Europe and the Japanese producers should stay in Japan and not attempt to enter the European market. In addition, it is stated in that recital that, at the following meeting on 15 July 2002, the representative of Hitachi had stated that Hitachi rejected that proposal, that the European producers had reacted by stating that Europe, including Central and Eastern Europe, was their market and that they wanted to maintain the prices they were currently charging in Western Europe and had also said that the issue was to be raised again, even though that was not the case.
152. At first sight, that summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by Hitachi, suggests that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently, which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese producers on the EEA market.
153. However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that specific aspect, but not to the situation in Western Europe.
154. It should also be noted that Alstom’s presentation of the proposal at issue calls into question the applicant’s arguments in relation to competition on the EEA market. If, as claimed by the applicant, the Japanese producers were not perceived as credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it is apparent from the summary provided by Hitachi that Alstom’s proposal concerned the EEA market as well as the Central and Eastern European market.
155. Accordingly, it is necessary to uphold the interpretation that, at the meeting of 10 July 2002, Alstom proposed extending the common understanding, as alleged by the Commission, to include Central and Eastern European countries.
156. Fifth, as noted in recital 131 of the contested decision, the content of the EQ Agreement is relevant, to a certain extent, in so far as concerns the existence of the common understanding.
157. In accordance with point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, the European producers ‘decide about notification of [E]uropean projects to [the group of Japanese producers]’. It is apparent from the context of Annex 2 that the information was to be communicated prior to the allocation of the GIS projects concerned.
158. This makes it possible to dismiss, to a certain extent, the applicant’s arguments, since it suggests that the European producers considered that the Japanese producers might have been interested, at the very least, in the allocation process of certain GIS projects in the EEA, and that they were therefore potential competitors for such projects.
159. However, nothing in the EQ Agreement or in the other evidence adduced by the Commission proves that the mechanism concerned was implemented by the European producers or that the Japanese producers were aware of its existence. Accordingly, the EQ Agreement constitutes merely an indication of how the European undertakings perceived their Japanese counterparts.
160. In the light of all of the foregoing, it must be concluded, first, that the statement made by Fuji in its reply to the statement of objections tends to corroborate the evidence furnished by ABB in relation to the existence of a common understanding; its probative value is however limited. Similarly, the proposal made by Alstom at the meeting of 10 July 2002 constitutes evidence that the common understanding existed at the time of that meeting. Furthermore, the content of the EQ Agreement constitutes an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, as claimed by the Commission.
161. Second, neither VA TECH’s position as regards the existence of the common understanding, nor that of Alstom or Areva, nor the applicant’s mere participation in GQ Agreement meetings constitutes evidence which corroborates that furnished by ABB in relation to the existence of the common understanding.
The notification and project loading mechanism
– Arguments of the parties
162. First, the applicant maintains that the Commission’s argument relating to the notification and project management mechanism is based on the claim that Japanese producers were perceived as potential competitors on the GIS market in the EEA. That claim is called into question by VA TECH’s express statement that it was almost impossible for European producers to offer their products in Japan, and vice versa, and the witness statement of Mr M, from which it is apparent that entry on to the European market was not profitable for Japanese undertakings. Consequently, the claims relating to the notification and project loading mechanism are based on a manifestly factually inaccurate premiss. Moreover, in that context, the Commission’s argument that the existence of project loading shows the lack of barriers to entry to the European market and, consequently, the existence of the common understanding, is circular.
163. Second, the applicant submits that the Commission’s claims relating to the notification and project loading mechanism have not been established to the requisite legal standard. It its view, the Commission bases its claims on the fact that Japanese producers were systematically informed of GIS projects in European countries other than the home countries, in order to facilitate loading into the joint ‘European’ quota. However, the evidence other than ABB’s statements relied on by the Commission does not establish either the systematic nature of the notification or the existence of any distinction between home countries and other European countries.
164. In that regard the applicant submits first that it was not a party to the EQ Agreement and that, consequently, the latter can be regarded only as a unilateral decision by the European producers. Furthermore, in its view, Annex 2 to that agreement does not provide for systematic notification to Japanese producers but, on the contrary, excludes it, since it leaves the European producers free to decide whether to report European projects. Similarly, that annex does not provide for loading of the European projects into the joint ‘European’ quota.
165. Next, the list of GIS projects, supplied by ABB, is a document compiled by ABB, which was not disclosed to the other cartel participants. Consequently, in the applicant’s view, that list does not constitute evidence of systematic notification of European GIS projects to the Japanese undertakings.
166. Finally, the extract from Hitachi’s leniency application, to the effect that Siemens regularly circulated a table summarising the GIS projects allocated to European and Japanese undertakings, does not make it clear whether the exchanges in question concerned European GIS projects, and the context of that statement suggests that that was not the case. As regards the statement contained in Hitachi’s reply to the statement of objections to that effect that notification was carried out in order to facilitate loading, that statement is not supported by any other Japanese producer and is even specifically contradicted both by the applicant and by Fuji, the latter having indicated that information concerning the allocation of European GIS projects was not systematically provided to the Japanese producers.
167. Third, the applicant maintains that the notification and project loading mechanism described by the Commission is complicated and is not self-implementing. Accordingly, it is unlikely that there was no mention of the mechanism in the GQ Agreement or in any other contemporaneous document.
168. Fourth, even supposing that certain European projects were loaded into the joint ‘European’ quota provided for in the GQ Agreement, that fact is not indicative of an infringement committed by the applicant. In the applicant’s view, loading could only have taken effect outside EEA territory, since it gave the right to more projects outside that area to Japanese producers. That does not amount to an infringement of Article 81 EC and Article 53 of the EEA Agreement.
169. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
170. The Court notes, at the outset, that the Commission’s claims relating to the notification and project loading mechanism are not based exclusively on the assumption that the Japanese producers were perceived as credible competitors on the EEA market. The Commission considers that it gathered positive evidence of the existence of that mechanism. Accordingly, the probative value of the evidence put forward by the Commission must be examined in order to assess whether it establishes, to the requisite legal standard, the existence of the notification and project loading mechanism, notwithstanding the claims made by some of the undertakings concerned.
171. It should be noted that, in his witness statement, Mr M explicitly affirmed the existence of the notification and project loading mechanism. He also stated that that mechanism did not concern GIS projects in the home countries, that is to say in Japan and in certain European countries. On the other hand, he did not state that the reality or the relevance of that mechanism was called into question by the fact that, in his view, the Japanese undertakings had no commercial interest in entering the EEA market.
172. The existence of a mechanism whereby the value of GIS projects in the EEA was charged to the worldwide quota laid down in the GQ Agreement was also confirmed in ABB’s statements.
173. As regards the EQ Agreement, it has been noted in paragraph 157 above that Point 4 of Part ‘E (E (Members)’ of Annex 2 thereto related to the possible communication of information prior to the allocation of the GIS projects concerned. By contrast, that provision did not relate to the monitoring of projects which had already been allocated. Consequently, although its content suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, the measures which it provided for are not part of the notification and project loading mechanism as claimed by the Commission. Therefore, Annex 2 to the EQ Agreement is of no use for proving that mechanism.
174. Similarly, as the applicant submits, it is not apparent from the list of projects provided by ABB that GIS projects in the EEA were regularly notified to the Japanese producers. Therefore, it also does not constitute evidence of the notification and project loading mechanism.
175. In so far as concerns the evidence furnished by Hitachi, it should be noted that, read in the context of the sentences which immediately precede it, the statement that Siemens would regularly circulate tables summarising a share of the GIS projects allocated to the various members of the cartel, refers to GIS projects outside of the EEA. Consequently, that statement is not relevant as evidence of the notification and project loading mechanism, alleged by the Commission, concerning GIS projects in the EEA.
176. By contrast, in its reply to the statement of objections, Hitachi stated that, before it discontinued its participation in the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside of the EEA allocated to the two groups of producers under the GQ Agreement.
177. That statement expressly confirms the existence of the notification and project loading mecha nism referred to by the Commission until 1999. In addition, it is of a high probative value for two reasons. First, that statement goes against Hitachi’s interests, since it implies the existence of a link between the collusive activities within the EEA and the Japanese producers and constitutes, as a result, incriminating evidence. Second, it is apparent from reading the relevant passage of the reply to the statement of objections that Hitachi was not aware of the inferences which could be made from that statement.
178. In addition, as noted in paragraph 55 above, Hitachi did not alter the factual content of its statements relating to the notification and project loading mechanism in its supplementary reply to the statement of objections.
179. Fuji, for its part, stated in its reply to the statement of objections that the information concerning the allocation of GIS projects in the European countries excluded from the scope of the GQ Agreement was not systematically provided to the Japanese producers and that, consequently, Fuji did not know about the operation of the EQ Agreement. The existence of the notification and project loading mechanism was also disputed by the applicant, as is apparent in particular from the extract from the transcript of its hearing.
180. It should be noted none the less that the positions of Fuji and the applicant are not contrary to their own interests since they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. They are thus of a lower probative value than the relevant evidence furnished by ABB and Hitachi.
181. Moreover, Fuji’s secondary role within the cartel, noted in paragraph 144 above, may explain the fact that Fuji was not privy to all the information exchanged by the group of European producers. That also calls into question the reliability of Fuji’s statements in that regard compared with that of the evidence furnished by ABB and Hitachi, which were members of the committees of their respective groups and were, for that reason, more closely associated with the detailed operation of the cartel alleged.
182. Furthermore, although the notification and project loading mechanism required certain measures for its implementation, those measures were not particularly complicated, since they essentially consisted in the disclosure of certain information by the European group to the Japanese group, a disclosure which, in addition, took place in parallel with the information disclosed under the GQ Agreement concerning GIS projects outside of the EEA. Consequently, it is not apparent that such measures necessarily required written rules, also given the desire of parties to an anti‑competitive agreement to reduce the risk of that agreement being discovered.
183.
In the light of all of the foregoing, it must be concluded that the existence of the notification and project loading mechanism has been established to the requisite legal standard by the evidence furnished by ABB, as corroborated by Hitachi’s statements in its reply to the statement of objections.
184. Contrary to what the applicant claims, it is not apparent from the evidence referred to in the preceding paragraph that the notification and project loading mechanism was implemented occasionally and in a discretionary manner. Although ABB’s and Hitachi’s statements and Mr M’s witness statement do not address that subject explicitly, it is clear from the wording used in the documents at issue that notification was carried out regularly and applied to all of the participants and projects concerned. As explained in paragraph 181 above, Fuji’s statements are less reliable in that respect than the evidence provided by ABB and Hitachi. In addition, it has been noted in paragraph 173 above that Annex 2 to the EQ Agreement does not concern notification and project loading, as claimed by the Commission, and is thus not relevant in that regard.
185. As regards the implementation period of the notification and project loading mechanism, ABB’s statements do not refer to a specific period and may therefore, a priori, be interpreted as referring to the entire duration of the infringement. As for Mr M’s statements, they refer to the period during which he was involved in the cartel, that is to say from 1988 to June 2002. However, in so far as it has been noted in paragraph 90 above that the evidence provided by ABB had to be corroborated by other evidence, it must be pointed out that Hitachi’s statements concern the period preceding the date when it discontinued its participation in the cartel in 1999. Therefore, it must be considered that the existence of the notification and project loading mechanism was established for that latter period.
186. As regards the relevance of the notification and project loading mechanism in proving the existence of the common understanding, it must be found that the mechanism constitutes a serious indicator that the Japanese producers were perceived by the European producers as potential credible competitors on the EEA market. If the European market were actually impenetrable for the Japanese producers because of the barriers to entry, the European producers would have no reason to notify the results of the allocation of certain GIS projects in the EEA and, a fortiori, to load those projects into the joint ‘European’ quota provided for in the GQ Agreement, since such loading would deprive them of a share of the GIS projects in the regions covered by the GQ Agreement. Consequently, the existence of such a notification and project loading mechanism implies that the Japanese undertakings could have entered the European market. If they did not do so it is because they committed themselves not to, in exchange for a larger share of the GIS projects outside of the EEA. Thus, the mechanism at issue constitutes a link between the collusive activities within the EEA and the Japanese producers and, as a result, indirect evidence of the existence of the common understanding.
187. The question whether the notification and project loading mechanism affected the EEA market is irrelevant in this case. As noted in paragraph 97 above, the basis of the Commission’s complaint against the applicant in the contested decision is the commitment of the Japanese undertakings not to enter the EEA market, which is indirectly proven by the existence of the notification and project loading mechanism. By contrast, it is not apparent from the contested decision that, in the Commission’s view, that mechanism constitutes a separate infringement of Article 81 EC and Article 53 of the EEA Agreement.
188. Similarly, in the light of the reasoning set out in paragraph 186 above, it is not necessary to establish that the notification and project loading mechanism did not concern GIS projects in the European home countries to be able to regard that mechanism as a relevant indication of the existence of the common understanding. Consequently, the fact that Mr M’s witness statement may not be corroborated in that regard is of no significance.
189. In the light of all of the above, it must be held that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, has been established, in so far as concerns the period from 1988 to Hitachi’s withdrawal from the cartel in 1999, by ABB’s statements, those of Hitachi and Mr M’s witness statement. In addition, the mechanism at issue constitutes indirect evidence of the existence of the common understanding alleged by the Commission.
The evidence allegedly contradicting the existence of the common understanding
– Arguments of the parties
190. The applicant submits, first, that it is apparent from the file that, at the meeting of 15 July 2002, Hitachi rejected the proposal made by Alstom to conclude the common understanding.
191. Second, the applicant maintains that it is not alone in denying the existence of the common understanding; Hitachi, Melco, VA TECH and Siemens also deny its existence. In particular, Siemens submitted a statement from one of its employees, Mr T, who participated in the activities of the cartel, according to which there was no understanding relating to the mutual reservation of Japanese and European markets. In the contested decision, the Commission did not address that evidence and based its findings on the other contradictory evidence furnished by ABB.
192. The applicant also notes that, in its view, the existence of the common understanding was irrelevant to a large extent for the European producers which had admitted the existence of a European cartel. Accordingly, silence on their part was to be expected, since they had an interest in contesting as few facts as possible in order not to jeopardise their leniency applications.
193. Third, the applicant criticises the Commission for ignoring the agreement entitled ‘General Rules for GE Agreement’ (‘the GE Agreement’), concluded by the European producers on 17 March 1987 in order to share European GIS projects among the parties.
194. According to the applicant, the existence of an agreement concerning European GIS projects, predating the GQ Agreement, contradicts, first, the Commission’s allegation that the common understanding afforded comfort to European producers to organise the collusion for those projects. Next, the existence of the GE Agreement also undermines the Commission’s finding in the contested decision that the allocation of GIS projects at worldwide level started with the allocation of the Japanese market to the Japanese producers and of the European market to the European producers. The collusion commenced when the European producers shared the European market among themselves. Finally, in so far as the European producers had implemented a cartel concerning GIS projects in Europe, they had no interest in sharing those projects with the Japanese undertakings, which were not considered as credible competitors on the EEA market, or in reaching a common understanding with them.
195. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
196. First, as has been noted in paragraph 155 above, the Court considers that, at the meeting of 10 July 2002, Alstom proposed to extend the common understanding, as claimed by the Commission, to the countries of Central and Eastern Europe. This corroborates the existence of the common understanding.
197. Second, the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of Hitachi relating to notification and project loading had to be regarded as being of a higher probative value than the claims made by Hitachi, Melco, VA TECH and Siemens that there was no common understanding.
198. Unlike the first group of evidence, the claims at issue are not contrary to the interests of the undertakings concerned, since they seek to call into question the existence of any infringement of Article 81 EC and Article 53 of the EEA Agreement. That finding also applies to Mr T’s witness statement in which he merely set out the background of the GQ Agreement, challenged the existence of the common understanding and referred to barriers to entry both on the EEA market and on the Japanese market. As regards the common understanding in particular, Mr T’s witness statement does not contain any additional evidence to that furnished by the addressees of the statement of objections.
199. In addition, it cannot be considered that the European undertakings, including Siemens, had no interest in contesting the existence of the common understanding, since that understanding was interpreted by the Commission in the statement of objections as a collusive agreement between the European producers and the Japanese producers in relation to the EEA market and thus constituted an infringement of Article 81 EC and Article 53 of the EEA Agreement. Indeed, such a finding was detrimental to the interests of the European producers, at least potentially, if the Commission had not been able to establish the other objections against them to the requisite legal standard.
200. Third, the applicant’s argument relating to the GE Agreement is based on the premiss that that agreement was signed and implemented independently of the GQ Agreement or the common understanding. In that regard, it is not disputed that the GE Agreement was signed prior to the GQ and EQ Agreements. However, that does not imply that the GE Agreement was not linked to the other evidence of the worldwide cartel as claimed by the Commission.
201. Under Article 15 of the GE Agreement, that agreement was initially intended as a temporary solution valid until the entry into force of the GQ Agreement and, failing that, had to be renegotiated after 31 December 1988. Thus, it is apparent that, when concluding the GE Agreement, the signatories already anticipated the establishment of the worldwide cartel and its various components, including, according to the Commission’s claims, the common understanding. That interpretation is corroborated by Mr M’s witness statement, according to which the worldwide cartel came about as a result of years of complex negotiations prior to the signing of the GQ Agreement.
202. In addition, according to Mr M, the mutual commitment of the two groups of producers not to enter the domestic markets of the other group, which constitutes the main part of the common understanding alleged by the Commission, predated the conclusion of the GQ Agreement. Consequently, that commitment could be taken into consideration by the European producers when signing the GE Agreement.
203. Accordingly, it cannot be considered that the GE Agreement calls into question the existence of the common understanding alleged by the Commission.
Global assessment
204. It is apparent from the examination carried out in paragraphs 111 to 189 above, first, that ABB’s statements and the witness statements of its employees and of its former employee show that an understanding existed whereby the European and Japanese producers undertook mutually not to enter the domestic markets of the other group. Those items of evidence also make it possible to identify the parties to the understanding and to conclude that, although it was probably concluded prior to the GQ Agreement, it was concluded, at the latest, at the time the GQ Agreement was concluded.
205. Second, the existence of the mutual understanding referred to above is corroborated by the proposal made by Alstom at the meeting of 10 July 2002. The existence of the commitment of the Japanese undertakings not to enter the European market is also corroborated by Fuji’s statements.
206. Third, it is apparent from ABB’s statements and its witness statement, corroborated by Hitachi’s statements, that the Japanese producers accepted, at least in so far as concerns the period from 1988 to 1999, the regular notification of the results of the allocation of certain GIS projects in the EEA and their loading into the joint ‘European’ quota provided for in the GQ Agreement. Similarly, under Point 4 of Part ‘E (E (Members)’ of Annex 2 to the EQ Agreement, the European producers foresaw the possibility of providing the Japanese producers with the details of certain GIS projects in the EEA prior to their allocation. Those two factors suggest that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, but that they had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions. They thus constitute indirect evidence of the existence of the mutual understanding between the European producers and the Japanese producers.
207. Thus, the evidence produced by the Commission supports its assertions regarding the existence of the common understanding, as summarised in paragraph 96 above. By contrast, the evidence relied on by the applicant and assessed in paragraphs 196 to 203 above is not capable of calling those statements into question. It must therefore be found that the existence of the common understanding has been established to the requisite legal standard.
208. That conclusion means that the Court must reject the applicant’s complaints alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers, as explained in paragraph 101 above.
209. In addition, since the Commission did not base its findings solely on the conduct of the undertakings at issue on the market in concluding that the alleged infringement had been committed, it is not sufficient for the applicant to substitute its own alternative plausible version of the facts for the version given by the Commission. Consequently, the alternative explanation proposed by the applicant is irrelevant in so far as concerns the existence of that infringement.
210. Accordingly, the first plea must be rejected.
211. Furthermore, it is apparent from the foregoing that the Commission was able to conclude that the common understanding existed without taking account of Fuji’s observations of 21 November 2006 as incriminating evidence. Consequently, in accordance with what has been stated in paragraph 53 above, ultimately it is necessary to dismiss the second part of the third plea, alleging an infringement of the right of access to the file and, consequently, the third plea in its entirety.
The second plea, alleging that the Commission has not established a single and continuous infringement
212. In the context of the first part of the second plea, the applicant maintains that the Commission has not proved the existence of a single infringement encompassing the GQ Agreement, the common understanding and the anti‑competitive conduct of the European producers within the EEA. In the context of the second part of the second plea, the applicant claims that the Commission has not shown that the cartel existed between September 1999 and 25 March 2002 nor that the applicant participated in the cartel during that period.
213. The Commission considers the applicant’s arguments to be unfounded.
The first part of the second plea, relating to proof of a single infringement
– Arguments of the parties
214. The applicant maintains that, even supposing that the Commission had adequately demonstrated the existence of the common understanding, it did not establish that the applicant intended to contribute to the sharing of projects, bid rigging, price fixing and other anti‑competitive behaviour engaged in by the European producers within the EEA. It states that, in the contested decision, the Commission considered that the European producers endeavoured not to let the Japanese producers know of the activities of the European cartel governed by the EQ Agreement, even drawing up a detailed mutual non-disclosure agreement.
215. The applicant thus considers that the conditions laid down in the case‑law for an undertaking to be able to be held responsible for all aspects of an infringement and, in particular, in this case the conduct of the European producers, are not fulfilled. According to the applicant, it never attended meetings concerning the cartel’s activities within the EEA. In addition, the Commission did not prove that the applicant intended to contribute by its own conduct to the common objectives pursued by all the participants. In that regard, the mere possibility that the applicant could deduce the existence of collusive conduct within the EEA is not sufficient.
216. The applicant also contends that the Commission has no power to take action against and penalise agreements which do not have the object or effect of restricting competition in the EEA, such as the GQ Agreement.
217. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
218. The agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collusion on the part of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect (Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125, paragraphs 79 to 80). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA Agreement.
219. Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement or concerted practice having an anti‑competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission
v Anic Partecipazioni, paragraph 218 above, paragraph 83). The case‑law cited above is applicable, by analogy, to Article 53(1) of the EEA Agreement.
220. In the present case, first, it is apparent from the examination of the first plea that the Japanese undertakings, including the applicant, participated along with the European undertakings in the common understanding, which was an agreement between undertakings within the meaning of Article 81 EC and Article 53 of the EEA Agreement concerning the European market for GIS projects. Consequently, the Commission was competent to bring an action against the applicant and to fine it for its participation in that agreement. In addition, the existence of the common understanding implies that the Japanese undertakings were aware of the fact that the GIS projects in the EEA were reserved for European producers.
221. In that regard, the fact that the applicant did not participate in the specific collusive measures in the EEA is irrelevant. Given the nature of its commitment under the common understanding, its participation would not have been necessary. The Japanese producers had no interest in intervening in the actual allocation of GIS projects in the EEA which they had committed themselves not to take. Their sole interest would have been to learn the value of the projects concerned and the identity of the undertakings to which they were awarded, in order to be able to monitor the loading into the joint ‘European’ quota provided for in the GQ Agreement. At least in so far as concerns the period from 1988 to 1999, that information was communicated to the Japanese producers via the notification mechanism.
222. Accordingly, it must be found that the passive role of the Japanese producers in respect of the allocation of GIS projects on the EEA market was not due to their choosing but to the form of their participation in the agreement relating to the EEA market. On the other hand, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA between European producers could be carried out pursuant to the principle of the protection of home countries or pursuant to the GE Agreement.
223. Second, ABB’s statements and Mr M’s witness statement suggest that, although the common understanding was not referred to explicitly in the GQ Agreement, it was behind its operation since it made it possible to ensure the confidence required for the worldwide cartel to be able to function. The existence of the link between the common understanding and the GQ Agreement is confirmed by Mr V.-A’s witness statement which states that, at a meeting on the GQ Agreement, the need to comply with the common understanding was discussed between the European undertakings and a representative of the Japanese undertakings.
224. Third, the notification and project loading mechanism constitutes a link between the collusive activities of the European undertakings within the EEA and the worldwide cartel governed by the GQ Agreement. Through that mechanism, the results of the allocation of certain GIS projects in the EEA were taken into account when allocating GIS projects in other regions pursuant to the GQ Agreement. The existence of the mechanism concerned is established by the statements and witness statements of ABB and by Hitachi’s statements.
225. In that respect, it is not apparent from the evidence produced by the applicant that the non-disclosure agreement between the European producers was actually concluded nor, a fortiori, that the exchange of information between the two groups of producers was affected as a result.
226. Fourth, it must be held that, as a result of the regular notification of the results of calls for tenders for certain GIS projects in the EEA, carried out at least from 1988 to 1999, the Japanese undertakings could reasonably have envisaged that the allocation of GIS projects in the EEA among European producers was the result of collusive activity. The fact that a group of producers has communicated to it regularly, over several years, the results of calls for tenders in which the members of another group of producers in the same industrial sector participated, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct. Notification should therefore have given rise to doubts regarding the conditions under which the GIS projects concerned were allocated. That is all the more the case since the results of a call for tenders are not necessarily public information, in particular in so far as concerns calls for tenders launched by private undertakings and in respect of the details of the winning tender.
227. In that regard, the Commission rightly stated, in recital 277 of the contested decision, that knowledge of the collusive nature of the allocation of GIS projects in the EEA, acquired by the Japanese undertakings as a result of the notification mechanism between 1988 and 1999, was not likely to be affected by any subsequent interruption of notification. The same applies to TM T & D. That undertaking took over the GIS business of its shareholders, which were both parties to the cartel. Accordingly, it can be considered that it had the same knowledge as those shareholders in relation to the allocation of GIS projects in the EEA.
228. Fifth, the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA were implemented at the same time, concerned the same products and involved the same European producers and, in so far as concerns the common understanding and the GQ Agreement, the same Japanese producers. Similarly, the various measures had the same objective, namely the establishment of a system for sharing the worldwide market for GIS projects and allocating those projects among the various participants.
229. In the light of all the foregoing, it must be held that the Commission did not err in finding that the common understanding, the worldwide cartel governed by the GQ Agreement and the collusive activities of the European producers within the EEA formed a single infringement and pursued a common objective. Consequently, the first part of the second plea must be rejected.
The second part of the second plea, relating to proof of a continuous infringement and the continuous participation of the applicant therein
– Arguments of the parties
230. The applicant maintains that the Commission has not demonstrated that it participated in the GQ agreement during the period in which other undertakings had not taken part, that is to say between September 1999 and 25 March 2002.
231. First, it claims that, during that period, because of the absence of Siemens in particular, the cartel ‘broke down’ and the GQ meetings turned into a more or less loose discussion forum without any anti‑competitive object or effect.
232. Next, the applicant affirms that it did not participate in the GQ Agreement during the period at issue. This is evidenced by Areva’s statement, according to which it was necessary in 2002 to approach TM T & D for discussions concerning the GIS market, which implies that TM T & D was not involved in the ongoing discussions. Moreover, ABB’s statement that the cartel continued between September 1999 and March 2002 is contradictory, since ABB claims both that the applicant continued the operations of the cartel and that TM T & D re-joined the cartel later at the same time as, in particular, Siemens. Moreover, ABB’s statement is not corroborated and was made by an undertaking which had sought immunity from fines.
233. Finally, the applicant observes that the Commission’s references to the cartel in respect of the relevant period are concerned with the GQ Agreement and, possibly, arrangements existing between the European undertakings, but not with the common understanding.
234. The Commission considers the applicant’s arguments to be unfounded.
– Findings of the Court
235. According to the case‑law, when there is a dispute concerning the existence of an infringement, the requirement of legal certainty, on which economic operators are entitled to rely, means that the Commission, which bears the burden of proving infringements which it finds, must adduce evidence which will sufficiently establish the existence of the facts constituting the infringement. With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Case T‑43/92 Dunlop Slazenger
v Commission
[1994] ECR II‑441, paragraph 79; Case T‑62/98 Volkswagen
v Commission
[2000] ECR II‑2707, paragraph 188; and Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraphs 114 and 153).
236. In addition, the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement (Case C‑113/04 P Technische Unie
v Commission
[2006] ECR I‑8831, paragraph 169).
237. As regards the continuation of the cartel between September 1999 and March 2002, it should be noted, at the outset, that, in so far as the commitment of the Japanese undertakings under the common understanding did not consist in a positive action, but in a failure to act, it is inherently difficult to prove that that understanding was respected continuously.
238. Nonetheless, first, it is apparent from Mr M’s witness statement that, until the end of his involvement in the cartel in June 2002, both the GQ Agreement and the common understanding continued to be implemented together with the Japanese undertakings other than Hitachi, in spite of the fact that the latter’s absence and that of Siemens made its operation less effective. ABB made the same claim in its statements.
239. Second, in its reply to the statement of objections, Fuji confirms that the Japanese undertakings participated in the infringement, including in the common understanding, until September 2000, the point at which it claims to have left the cartel.
240. Third, it has been concluded in paragraph 155 above that, at the meeting of 10 July 2002, Alstom proposed to extend the common understanding to the countries of Central and Eastern Europe. That implies that the understanding existed both at the time of the meeting and for a certain amount of time prior to the meeting.
241. Fourth, the continuous absence of the Japanese producers from the European GIS market during the period concerned also suggests that the common understanding continued to be implemented.
242. Fifth, in so far as it has been found, in the context of the first part of this plea, that the Commission did not err in concluding that there was a single infringement encompassing inter alia the common understanding and the GQ Agreement, it must be found, contrary to what the applicant claims, that evidence of the continuous functioning of the GQ Agreement, between September 1999 and March 2002, constitutes a relevant indication that the common understanding was also implemented during that period. Given that the infringement was of a single nature, it is plausible that the disappearance of the common understanding would have compromised the functioning of the GQ Agreement.
243. The applicant does not dispute the findings in recitals 191 to 196 of the contested decision that ABB, Alstom and Melco exchanged a series of faxes related to the allocation of projects under the GQ Agreement in December 2000 and January 2001.
244. The applicant also confirmed that, among the meetings on the GQ Agreement listed in recital 197 of the contested decision, it participated in those on 18 May, 13 July and 14 September 2000, while disputing that the other listed meetings took place.
245. Finally, the applicant does not dispute that the GIS projects listed in recital 198 of the contested decision were allocated pursuant to the GQ Agreement and it does not furnish any evidence suggesting that it distanced itself from the results of those allocations or that it did not respect them. Those allocations imply that the cartel was active or, at the very least, produced effects between 27 August 1998, the date of conclusion of the agreement on the project referred to in recital 198(h) of the contested decision, and 12 October 2001, the date on which the agreement on the project referred to in recital 198(a) of the contested decision stopped producing its effects. In that regard, it should be noted that Article 81 EC is applicable where the effects of a cartel lasted, even though it has not been formally brought to an end (Case T‑13/89 ICI
v Commission
[1992] ECR II‑1021, paragraph 254, and Case T‑48/98 Acerinox v Commission
[2001] ECR II‑3859, paragraph 63). The case‑law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement.
246. In the light of the foregoing, the applicant’s argument that, during the period concerned, the meetings on the GQ Agreement became a discussion forum without any anti‑competitive object or effect, cannot be upheld, irrespective of whether that argument was made during the administrative procedure or not. That is all the more true given that that argument is not corroborated by any evidence other than Melco’s unsubstantiated statements.
247. Therefore, it must be found that the evidence relied on by the Commission in respect of the implementation of the common understanding and the GQ Agreement between September 1999 and March 2002 relates to facts sufficiently proximate in time, which means that evidence of a continuous infringement was adduced in relation to the period concerned.
248. It should be added that the evidence referred to in paragraphs 238 to 245 above concern both the implementation of the common understanding and of the GQ Agreement in general and the applicant’s personal participation in the agreements at issue. Moreover, in the context of certain projects listed in recital 198 of the contested decision, the content of which it has not disputed, the applicant is identified as a secretary of the group of Japanese producers. That implies that the applicant actively participated in the GQ Agreement at the time the projects concerned were allocated.
249. In that regard, the references to the need to contact TM T & D at the time of the negotiations which took place in 2002 and to the fact that it rejoined the cartel in 2002 may be explained by the fact that, during that period, the joint venture of Toshiba and Melco was being cr eated in order to take over the GIS activities of its shareholders. In so far as TM T & D represented a new structure bringing together the relevant activities of the two members of the cartel, it is logical that the envisaged changes to the cartel system had to be discussed with it.
250. As regards the alleged interest of an undertaking which has sought immunity from fines, and of its employees and former employees, to overstate the anti‑competitive conduct of the other undertakings being investigated, reference should be made to paragraphs 94, 95, 111 and 112 above.
251. It follows from all of the foregoing that the applicant’s participation in the cartel between September 1999 and March 2002 has been established by evidence which is sufficiently proximate in time.
252. Consequently, the second part of the second plea must be dismissed, as must therefore the second plea in its entirety.
253. Since none of the pleas raised in support of the application seeking annulment of Articles 1 and 2 of the contested decision can succeed in so far as concerns the applicant, it must be dismissed.
2. The application seeking the annulment or a substantial reduction of the fine imposed on the applicant
254. In its fourth plea, the applicant submits that the fine imposed on it is discriminatory and excessive. That plea is divided into six parts. The first part alleges an error in the assessment of the relative gravity of its participation in the infringement. The second part alleges an error in the calculation of the duration of the infringement. The third part alleges a failure to respect the obligation to state reasons in relation to the calculation of the fine. The fourth part alleges an error in the calculation of the starting amount. The fifth part alleges that the fine is excessive in relation to the infringement committed by TM T & D. The sixth part alleges an error in the assessment of the attenuating circumstances.
255. The Commission considers the applicant’s arguments to be unfounded.
The first part, alleging an error in the assessment of the relative gravity of the applicant’s participation in the infringement
Arguments of the parties
256. The applicant observes that the proportion of the fines imposed on the European producers and Japanese producers corresponds to the proportion of the quotas laid down in the GQ Agreement. It infers from this that it received a fine for its conduct in the context of the GQ Agreement. However, such an approach is erroneous and discriminatory in its view. First, the Commission did not take account of the fact that the relative gravity of the applicant’s participation in the infringement is lesser, in so far as it took part only in the common understanding, whereas the European producers participated both in that understanding and in the collusive activities related to the GIS projects in the EEA. Second, the applicant submits that, by penalising it for conduct outside the EEA, the Commission exceeded its powers.
257. The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
258. According to settled case law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see Commission
v Anic Partecipazioni, paragraph 218 above, paragraph 150, and the case‑law cited). Thus, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined ( Commission
v Anic Partecipazioni, paragraph 218 above, paragraph 90).
259. It is pointed out, first of all, in that regard, that the contested decision does not penalise its addressees for having participated in the GQ Agreement, which did not concern the territory of the EEA. Article 1 of the contested decision states clearly that the infringement of Article 81 EC and Article 53 of the EEA Agreement concerned the GIS sector in the EEA. Accordingly, the argument alleging a lack of competence on the part of the Commission must be rejected.
260. Moreover, it is apparent from the examination of the first plea that the participation of the Japanese producers in the agreements and concerted practices concerning the EEA was not the same as that of the European producers. The Japanese undertakings committed themselves, under the common understanding, not to enter the EEA market and their participation thus consisted of a failure to act. The European undertakings, for their part, distributed the various GIS projects on that same market through active collusion.
261. However, there is no substantial difference in respect of the gravity of those two types of conduct. As noted in paragraph 221 above, given the nature of the applicant’s commitment under the common understanding, the fact that it did not participate in the distribution of GIS projects in the EEA is irrelevant, since it was not necessary for it to intervene. Thus, the fact referred to by the applicant was not the result of its choice, but a mere consequence of the nature of its participation in the agreement relating to the EEA market. On the other hand, that same participation was a prerequisite for ensuring that the allocation of GIS projects in the EEA could be carried out among the European producers in accordance with the rules agreed to that effect.
262. Consequently, it must be considered that the gravity of the conduct of the Japanese undertakings is comparable to that of the conduct of the European undertakings. The first part of the fourth plea must therefore be rejected.
The second part of the fourth plea, alleging an error in the assessment of the duration of the infringement
Arguments of the parties
263. Referring to the arguments concerning suspension of the activities of the cartel and the applicant’s participation therein between September 1999 and March 2002, set out in paragraphs 230 to 233 above, the applicant claims that its fine should be reduced.
264. The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
265. In this part of the plea the applicant merely repeats the arguments which have already been examined in the context of the second part of the second plea. It is apparent from paragraphs 235 to 252 above that those arguments do not enable the finding that the Commission committed an error in finding that the cartel continued between September 1999 and 25 March 2002 and in calculating the duration of the applicant’s participation in the cartel.
266. Accordingly, the second part of the fourth plea must be rejected.
The third part of the fourth plea, alleging a failure to state reasons in relation to the calculation of the fine
Arguments of the parties
267. The applicant maintains that the Commission did not adequately explain the calculation method used to determine the fine imposed on it. It invokes, in that regard, the difficulties faced by it in determining the amount it must pay to the Commission and alleges that its position is confirmed by the opinion of economists with relevant experience. Consequently, it considers that the Commission failed to fulfil its obligation to state reasons.
268. The Commission considers the applicant’s arguments to be unfounded.
Findings of the Court
269. The reasoning required by Article 253 EC must show clearly and unequivocally the reasoning of the institution which adopted the measure so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Community judicature to exercise its power of review (Case C‑338/00 P Volkswagen
v Commission [2003] ECR I‑9189, paragraph 124). Although Article 253 EC requires the Commission to state the factual and legal matters justifying the adoption of a decision, together with the legal considerations which have led to its adopting it, that provision does not require the Commission to discuss all the matters of fact and of law which may have been dealt with during the administrative proceedings (Joined Cases 43/82 and 63/82 VBVB and VBBB
v Commission
[1984] ECR 19, paragraph 22; Case 246/86 Belasco and Others
v Commission
[1989] ECR 2117, paragraph 55; and Volkswagen v Commission, paragraph 127). The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations (see Case C‑367/95 P Commission
v Sytraval and Brink’s France
[1998] ECR I‑1719, paragraph 63, and the case‑law cited). The case‑law cited above is applicable, by analogy, to the Commission’s decisions finding an infringement of Article 53(1) of the EEA Agreement.
270. In the present case, the evidence set out in recitals 471 to 552 of the contested decision makes it possible to understand the method chosen by the Commission to calculate the fine and to follow its various stages.
271. Moreover, in so far as the applicant merely claims that it experienced difficulties in calculating the fine which it must pay the Commission, without specifying the nature of those difficulties and the stage of the calculation at which they occurred, and has not reproduced the observations of the economists whom it claims to have consulted, its arguments relating to the reasons for the calculation of the fine cannot be examined in further detail.
272. Consequently, the third part of the fourth plea must be rejected.
The fourth part of the fourth plea, alleging an error in the calculation of the starting amount
Arguments of the parties
273. The applicant asserts that the starting amount of the fine is arbitrary and discriminatory.
274. It alleges, first, that the Commission calculated the fines imposed on the basis of turnover figures relating both to GIS as a stand-alone product and GIS based sub‑stations. That approach was unfavourable to the Japanese producers since GIS projects in the Middle East and in Asia, carried out in general by Japanese producers, often involve turnkey substations and consequently include products and services other than GIS. Consequently, the turnover of Japanese producers tends to be larger than that of the European producers.
275. Second, the Commission relied on the turnover for the year 2003, that is to say the last full year of the infringement, in order to determine the market shares of the European undertakings, whereas it used the higher turnover of 2001 for the Japanese producers, and did so without giving convincing reasons. According to the applicant, the Commission should have used the 2003 turnover for all the cartel members, dividing by two the turnover of the two joint ventures in which the GIS business of the four Japanese producers was concentrated at the time. Such an approach would have been consistent with the treatment of the European producers and with the Commission’s earlier decision-making practice.
276. Third, the applicant maintains that the Commission incorrectly placed it in the same group as Alstom and Areva. In its view, assuming that the 2003 turnover was used as the basis for calculating the starting amount of the applicant’s fine, the difference in market shares between the applicant and Alstom or Areva is greater than that between the applicant and the companies in the group below it, which implies that the applicant should have been classified in the latter group.
277. As regards the first complaint, the Commission contends that the simple fact that consideration of certain products gives a higher turnover does not constitute evidence of discrimination.
278. As regards the second complaint, the Commission states that it chose the year 2001 as the reference year because that was the year preceding the establishment of the joint venture between the applicant and Melco, namely TM T & D. It explains in that regard that the parent companies participated in the cartel on an individual basis for most of its duration, which means that it was more appropriate to determine the starting amounts on the basis of their respective turnover figures, in order to take account, in particular, of the differences between their individual market shares at the time of TM T & D’s creation.
279. Third, the Commission maintains that the complaint relating to the placement of the applicant in a certain group can be upheld only if the complaint relating to the choice of reference year is also upheld. That is not the case however.
Findings of the Court
280. The Court points out, at the outset, that the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules (see Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission
[2004] ECR II‑1181, paragraph 216, and the case‑law cited).
281. The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements ( Aalborg Portland and Others
v Commission, paragraph 40 above, paragraphs 89 to 91).
282. However, each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the Community Courts (Case T‑59/02 Archer Daniels Midland
v Commission
[2006] ECR II‑3627, paragraph 315). According to settled case‑law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case T‑311/94 BPB de Eendracht
v Commission
[1998] ECR II‑1129, paragraph 309, and the case‑law cited).
283. To the extent to which reliance is to be placed on the turnover of undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 122).
284. In the present case, it is apparent from recitals 480 to 490 of the contested decision that, when calculating the starting amounts, the Commission decided, in accordance with section 1 A of the Guidelines on the method of setting fines, to apply differential treatment to the cartel participants on the basis of their capacity to harm competition. To that end, it placed the various undertakings into five groups in accordance with the size of their worldwide turnovers obtained from GIS sales. In that regard, the Commission considered that the turnovers relating solely to the EEA market did not constitute a reliable criterion for assessment in so far the common understanding aimed to ensure that the Japanese producers did not enter that market.
285. As regards the products to be taken into consideration for the calculation of the turnover of the undertakings concerned, it should be noted that, in accordance with the case‑law cited in paragraph 281 above, the Commission must, inter alia, take account of the extent of the market affected. In the present case, as stated in recital 9 of the contested decision, the cartel concerned both GIS as a stand-alone product and GIS based sub‑stations. Consequently, the Commission did not err in calculating the starting amount of the fines of the undertakings concerned on the basis of their turnovers corresponding to those products. Therefore, the applicant’s argument in that regard must be rejected.
286. In so far as concerns the reference year, it is apparent from recitals 481, 482 and 484 of the contested decision that, when determining the value of worldwide sales, the Commission used the figures for 2001 for the applicant, Fuji, Hitachi and Melco, while it used 2003, that is the last full year of infringement, as the reference year for the European producers. Similarly, the calculation of the starting amount of the fines for the applicant, Fuji, Hitachi and Melco for the period of their participation in the cartel as individual undertakings was made on the basis of their turnovers for 2001, whereas the calculation of the starting amount of the fines of the European producers was made on the basis of their turnovers for 2003.
287. Therefore, the Commission did not treat the Japanese producers, including the applicant, and the European producers equally in terms of its choice of reference year. Consequently, in accordance with the case‑law cited in paragraph 282 above, it needs to be assessed whether there was an objective justification for that difference in treatment.
288. In that regard, in recital 482 of the contested decision, the Commission stated that the use of 2001 as the reference year for the applicant was justified by the fact that, for the most part of the period of infringement, the applicant participated in the cartel as an individual undertaking, and not through the joint venture TM T & D which took over the applicant’s and Melco’s GIS activities in 2002.
289. At the hearing, the Commission stated that its objective was to take account of the uneven competitive position of the two shareholders of TM T & D at the time the latter was created, due to the fact that Melco held a considerably larger share of the worldwide GIS market than the applicant. According to the Commission, by referring to the last full year of the applicant’s and Melco’s participation in the cartel as individual undertakings, that is to say 2001, it was able to reflect that disparity when calculating the fines, which would not have been possible with the method consisting in dividing TM T & D’s turnover for 2003 between the two shareholders in accordance with their respective shareholdings in the joint venture.
290. The objective referred to by the Commission is legitimate since it makes it possible to compare the capacity of the shareholders of a joint venture to harm competition during the period prior to the creation of the joint venture.
291. However, it is evident that the Commission could have used other methods to achieve its objective without treating the Japanese producers and the European producers unequally in its choice of reference year. By way of example, when determining the fines for the applicant and Melco for the period prior to the creation of TM T & D, the Commission could have taken the starting amount of TM T & D’s fine, calculated on the basis of its turnover for 2003 and divided it between the applicant and Melco in accordance with the proportion of GIS sales made by them during the year prior to the creation of the joint venture, namely 2001.
292. Consequently, it must be found that, in the present case, the Commission’s wish, in calculating the fines, to faithfully reproduce the relative positions of the applicant and Melco does not justify the unequal treatment of the applicant.
293. In the light of the foregoing, it must be concluded that, in choosing 2001 as the reference year for the determination of the value of the worldwide sales of the Japanese producers and for the calculation of the fine imposed on the applicant for its individual participation in the cartel, the Commission infringed the principle of equal treatment.
294. That infringement directly invalidates the calculation of the fine imposed on the applicant in Article 2(i) of the contested decision for its participation in the cartel as an individual undertaking. Indirectly, through the determination of the value of worldwide sales and market shares, it affects the calculation of the fine imposed on the applicant in Article 2(h) of the contested decision, relating to the period of TM T & D’s existence.
295. Therefore, the fourth part of the fourth plea must be upheld and consequently, Article 2(h) and (i) of the contested decision must be annulled. However, as the content of Article 1 of the contested decision was not affected by the choice of reference year it is not necessary to annul or amend that article.
296. In addition, there is no need to examine the fifth and sixth parts of the fourth plea. Even if those parts were upheld, the contested decision could not be annulled to any further extent than in the preceding paragraph.
297. Finally, given that the illegality which has been established concerns the choice itself of the basis on which to calculate the fine imposed on the applicant, the Court is not able to calculate that fine. Consequently, it is not appropriate, in the present case, for the Court to exercise its unlimited jurisdiction and to amend Article 2(h) and (i) of the contested decision.
Costs
298. Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that each party bear its own costs.
299. In so far as the application seeking annulment of Article 1 of the contested decision has been rejected, the applicant has been unsuccessful in a significant part of its pleadings, even though it has been successful in respect of a part of them.
300. Accordingly, the applicant must be ordered to bear three quarters of the costs incurred by the parties before the Court and the Commission ordered to bear a quarter of those costs.
301. In addition, it is settled case‑law that expenses incurred in providing a bank guarantee in order to avoid the enforcement of a decision are not expenses incurred for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure (see Cimenteries CBR and Others
v Commission, paragraph 92 above, paragraph 5133, and the case‑law cited). Consequently, the application that the Commission be ordered to bear such costs must be rejected.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Annuls Article 2(h) and (i) of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) in so far as it concerns Toshiba Corp;
2. Dismisses the action as to the remainder;
3. Orders Toshiba to bear three quarters of the costs incurred by the parties before the General Court;
4. Orders the European Commission to bear a quarter of the costs incurred by the parties before the General Court.