62007TJ0059_EN
Parties
Grounds
Operative part
Parties
In Case T‑59/07,
Polimeri Europa SpA,
established in Brindisi (Italy), represented by M. Siragusa and F. Moretti, lawyers,
applicant,
v
European Commission,
represented by V. Di Bucci, G. Conte and V. Bottka, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or, in the alternative, annulment or reduction of the fine imposed on Polimeri Europa SpA,
THE GENERAL COURT (First Chamber),
composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska-Białecka and N. Wahl, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 21 October 2009,
gives the following
Judgment
Grounds
Background to the dispute
1. By Decision C(2006) 5700 final of 29 November 2006 (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the market for those products.
2. The undertakings to which the contested decision is addressed are:
– Bayer AG, established in Leverkusen (Germany);
– The Dow Chemical Company, established in Midland, Michigan (United States) (‘Dow Chemical’);
– Dow Deutschland Inc., established in Schwalbach (Germany);
– Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG), established in Schwalbach;
– Dow Europe, established in Horgen (Switzerland);
– Eni SpA, established in Rome (Italy);
– Polimeri Europa SpA, established in Brindisi (Italy) (‘Polimeri’);
– Shell Petroleum NV, established in The Hague (Netherlands);
– Shell Nederland BV, established in The Hague;
– Shell Nederland Chemie BV, established in Rotterdam (Netherlands);
– Unipetrol a.s., established in Prague (Czech Republic);
– Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic);
– Trade-Stomil sp. z o.o., established in Łódź (Poland) (‘Stomil’).
3. Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe are wholly controlled, directly or indirectly, by Dow Chemical (collectively ‘Dow’) (recitals 16 to 21 to the contested decision).
4. Eni’s business in the relevant products was initially carried out by EniChem Elastomeri Srl, indirectly controlled by Eni through its subsidiary EniChem SpA (‘EniChem SpA’). On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its butadiene rubber and emulsion styrene butadiene rubber business) to its wholly-owned subsidiary Polimeri. Eni has had direct and full control of Polimeri since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial SpA (recitals 26 to 32 to the contested decision). The Commission uses the name ‘EniChem’ in the contested decision to refer to any company owned by Eni (‘EniChem’) (recital 36 to the contested decision).
5. Shell Nederland Chemie is a subsidiary of Shell Nederland, which is itself wholly controlled by Shell Petroleum (collectively ‘Shell’) (recitals 38 to 40 to the contested decision).
6. Kaučuk was created in 1997, following a merger between Kaučuk Group a.s. and Chemopetrol Group a.s. On 21 July 1997, Unipetrol acquired all assets, rights and obligations of the merged undertakings. Unipetrol owns 100% of the shares in Kaučuk (recitals 45 and 46 to the contested decision). Furthermore, according to the contested decision, Tavorex s.r.o. (‘Tavorex’), established in the Czech Republic, represented Kaučuk (and its predecessor Kaučuk Group) for exports between 1991 and 28 February 2003. Still according to the contested decision, from 1996 Tavorex represented Kaučuk at meetings of the European Synthetic Rubber Association (recital 49).
7. Stomil, according to the contested decision, represented the Polish producer Chemical Company Dwory SA (‘Dwory’) in its export business for around 30 years, until at least 2001. Still according to the contested decision, between 1997 and 2000 Stomil represented Dwory at meetings of the European Synthetic Rubber Association (recital 51).
8. The period taken to be the duration of the infringement is from 20 May 1996 to 28 November 2002 (for Bayer, Eni and Polimeri), from 20 May 1996 to 31 May 1999 (for Shell Petroleum, Shell Nederland and Shell Nederland Chemie), from 1 July 1996 to 28 November 2002 (for Dow Chemical), from 1 July 1996 to 27 November 2001 (for Dow Deutschland), from 16 November 1999 to 28 November 2002 (for Unipetrol and Kaučuk), from 16 November 1999 to 22 February 2000 (for Stomil), from 22 February 2001 to 28 February 2002 (for Dow Deutschland Anlagengesellschaft) and from 26 November 2001 to 28 November 2002 (for Dow Europe) (recitals 476 to 485 to and Article 1 of the operative part of the contested decision).
9. Butadiene rubber (‘BR’) and emulsion styrene butadiene rubber (‘ESBR’) are synthetic rubbers used essentially in tyre production. The two products are substitutable for each other and also for other synthetic rubbers and for natural rubber (recitals 3 to 6 to the contested decision).
10. In addition to the producers referred to in the contested decision, other producers located in Asia and in Eastern Europe sold limited quantities of BR and ESBR in the EEA. Moreover, a considerable amount of BR is produced directly by large tyre manufacturers (recital 54 to the contested decision).
11. On 20 December 2002 Bayer approached the Commission and expressed its desire to cooperate pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) with regard to BR and ESBR. As regards ESBR, Bayer provided an oral statement describing the activities of the cartel. That oral statement was recorded on tape (recital 67 to the contested decision).
12. On 14 January 2003 Bayer made an oral statement describing the activities of the cartel with respect to BR. That oral statement was recorded on tape. Bayer also provided minutes of meetings of the BR committee of the European Synthetic Rubber Association (recital 68 to the contested decision).
13. On 5 February 2003 the Commission notified Bayer of its decision to grant it conditional immunity from a fine (recital 69 to the contested decision).
14. On 27 March 2003 the Commission carried out an inspection pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at the premises of Dow Deutschland & Co. (recital 70 to the contested decision).
15. Between September 2003 and July 2006 the Commission sent the undertakings to which the contested decision is addressed a number of requests for information pursuant to Article 11 of Regulation No 17 and Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recital 71 to the contested decision).
16. On 16 October 2003 Dow Deutschland and Dow Deutschland & Co. met Commission staff and expressed their desire to cooperate pursuant to the Leniency Notice. At that meeting, an oral presentation of the cartel’s activities with respect to BR and ESBR was given. That oral presentation was recorded. A file containing documents relating to the cartel was also handed over (recital 72 to the contested decision).
17. On 4 March 2005 Dow Deutschland was informed of the Commission’s intention to grant it a reduction in its fine of between 30% and 50% (recital 73 to the contested decision).
18. On 7 June 2005 the Commission initiated the procedure and sent a first statement of objections to the undertakings to which the contested decision is addressed – with the exception of Unipetrol – and also to Dwory. The first statement of objections was also adopted against Tavorex but was not notified to that undertaking since it had been in liquidation since October 2004. The procedure against Tavorex was therefore closed (recitals 49 and 74 to the contested decision).
19. The undertakings concerned lodged written comments in relation to that first statement of objections (recital 75 to the contested decision). They also had access to the file, in the form of a CD-ROM, and to the oral statements and documents relating thereto at the Commission’s premises (recital 76 to the contested decision).
20. On 3 November 2005 Manufacture française des pneumatiques Michelin (‘Michelin’) requested leave to intervene. It submitted written comments on 13 January 2006 (recital 78 to the contested decision).
21. On 6 April 2006 the Commission adopted a second statement of objections addressed to the undertakings to which the contested decision is addressed. The undertakings concerned lodged written comments in that regard (recital 84 to the contested decision).
22. On 12 May 2006 Michelin lodged a complaint pursuant to Article 5 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) (recital 85 to the contested decision).
23. On 22 June 2006 the undertakings to which the contested decision is addressed (with the exception of Stomil) and Michelin took part in the hearing before the Commission (recital 86 to the contested decision).
24. Since it did not have sufficient evidence of Dwory’s participation in the cartel, the Commission decided to close the procedure against that undertaking (recital 88 to the contested decision). The Commission also decided to close the procedure against Syndial (recital 89 to the contested decision).
25. Furthermore, although two different case numbers (one for BR and one for ESBR) had initially been used (COMP/E‑1/38.637 and COMP/E‑1/38.638), after the first statement of objections the Commission used a single number (COMP/F/38.638) (recitals 90 and 91 to the contested decision).
26. The administrative procedure led to the adoption of the contested decision by the Commission on 29 November 2006.
27. According to Article 1 of the operative part of the contested decision, the following undertakings had infringed Article 81 EC and Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors:
(a) Bayer, from 20 May 1996 to 28 November 2002;
(b) Dow Chemical, from 1 July 1996 to 28 November 2002; Dow Deutschland, from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft, from 22 February 2001 to 28 February 2002; Dow Europe, from 26 November 2001 to 28 November 2002;
(c) Eni, from 20 May 1996 to 28 November 2002; Polimeri, from 20 May 1996 to 28 November 2002;
(d) Shell Petroleum, from 20 May 1996 to 31 May 1999; Shell Nederland, from 20 May 1996 to 31 May 1999; Shell Nederland Chemie, from 20 May 1996 to 31 May 1999;
(e) Unipetrol, from 16 November 1999 to 28 November 2002; Kaučuk, from 16 November 1999 to 28 November 2002;
(f) Stomil, from 16 November 1999 to 22 February 2000.
28. On the basis of the findings of fact and legal assessments set out in the contested decision, the Commission imposed fines on the undertakings concerned calculated according to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and in the Leniency Notice.
29. Article 2 of the operative part of the contested decision imposes the following fines:
(a) Bayer: EUR 0;
(b) Dow Chemical: EUR 64.575 million, of which:
(i) EUR 60.27 million jointly and severally with Dow Deutschland;
(ii) EUR 47.355 million jointly and severally with Dow Deutschland Anlagengesellschaft and Dow Europe
(c) Eni and Polimeri, jointly and severally: EUR 272.25 million;
(d) Shell Petroleum, Shell Nederland and Shell Nederland Chemie, jointly and severally: EUR 160.875 million;
(e) Unipetrol and Kaučuk, jointly and severally: EUR 17.55 million;
(f) Stomil: EUR 3.8 million.
30. Article 3 of the operative part of the contested decision orders the undertakings listed in Article 1 immediately to bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.
Procedure and forms of order sought
31. By application lodged at the Registry of the Court on 20 February 2007, Polimeri brought the present action.
32. By decision of the President of the Court of 1 April 2009, N. Wahl was designated to complete the Chamber as one of its members was prevented from attending.
33. Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
34. In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court requested the parties to answer certain questions and to produce certain documents. The parties complied with those requests within the periods prescribed.
35. The parties presented oral argument and their answers to the questions put by the Court at the hearing on 21 October 2009.
36. Polimeri claims that the Court should:
– carry out the measures of inquiry requested;
– annul the contested decision, in whole or in part, with all the consequences entailed as regards the amount of the fine;
– in the alternative, annul or reduce the fine;
– in any event, order the Commission to pay the costs.
37. The Commission contends that the Court should:
– dismiss the action;
– order Polimeri to pay the costs.
Law
38. In support of its claims, Polimeri puts forward, in essence, 16 pleas in law relating to procedural defects, to the substance of the contested decision and to the setting of the amount of the fine.
I – Claims for partial annulment of the contested decision
A – The pleas in law relating to procedural defects
1. First plea in law: inappropriate use of the Leniency Notice
a) Arguments of the parties
39. Polimeri maintains that the contested decision is ‘90%’ based on the statements of Bayer and Dow. The contested decision refers predominantly to oral statements. The documents produced as evidence are, moreover, very few in number and open to several interpretations.
40. The purpose of oral statements is to enable the Commission to start the investigation. In this case, those statements served as instruments for ascertaining facts, largely taking the place of the investigation itself, and as a means of exerting pressure on the undertakings which had cooperated with the Commission.
41. In particular, firstly, Polimeri points out that Bayer’s statement of 20 December 2002 served to launch only one inspection, namely of Dow. No other undertaking mentioned by Bayer in its first statement was inspected.
42. Secondly, as regards the evidence adduced, it is extremely meagre and equivocal. Those documents could be interpreted as evidence of exchanges of sensitive information, or as evidence of agreements, but could equally merely reflect market price data known throughout the sector and coming from other sources.
43. Polimeri makes reference, in particular, to some notes taken by one of the participants in a meeting held in Düsseldorf (Germany) on 21 February 1996, which it annexes to the application. The Commission initially used those documents as evidence of an agreement on prices, before concluding that that meeting was not one of the alleged cartel meetings and withdrawing the documents in question from the inculpatory evidence. Those documents are as detailed as, or perhaps even more detailed than, the other documents drawn up by that same participant, to which the Commission attributed value as evidence of illegal agreements.
44. In that context, the undertakings found it necessary to include unprovable details in their statements. An early disastrous effect of that policy is illustrated by the statements made in the second round of interviews. Polimeri thus points out that, at the meeting of 12 December 2005 with Dow employees (Mr N. and Mr F.), the Commission asked some ad hoc questions to try to force those persons to make ‘obliging’ statements about the alleged cartel meetings, but also about the possible price increases which were the subject of the alleged agreements. The Commission even went to the extent of itself providing the data for possible price increases and, when it had not obtained the results hoped for, the Commission omitted to mention it in the contested decision. Similarly, recital 244 to the contested decision illustrates the fact that Dow was ‘forced’ to give evidence. Dow’s statement of 17 November 2005 thus shows that it altered its version of the facts after reading Bayer’s statements. The Commission’s conclusion in that regard does not reflect Dow’s statements. Similarly, Bayer’s statement of 6 December 2005 concerning the meeting held in Düsseldorf on 21 February 1996 (see paragraph 43 above) illustrates the fact that that company managed to accuse itself of acts which it did not commit.
45. Thirdly, Polimeri states that the only legislative reference to the status of statements taken by virtue of the Commission’s powers of investigation is contained in Article 19(1) of Regulation No 1/2003. It is established that the Commission may not use oral statements made by undertakings in the context of an application for immunity as decisive proof of the existence of a cartel. This stems from the fact that such statements are made by undertakings for their own advantage. According to Polimeri, in so far as most value was attached by the Commission to those statements (Polimeri points out in particular that, of the 15 meetings cited by the Commission which are supposed to have taken place between competitors, the existence of only four is also proved in writing), the assertion that the ‘total refusal [of Syndial and Polimeri] to admit their participation (in the cartel or in specific conduct) cannot, in itself, outweigh the evidence available to the Commission’ (recital 327 to the contested decision) reflects a system in which the prosecution, which is also judge, takes advantage of its powers with impunity.
46. Moreover, the case-law cited by the Commission in recitals 203 to 205 to the contested decision does not support its case. The General Court thus held that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, could not be regarded as constituting adequate proof of an infringement committed by the latter unless it was supported by other evidence (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). That approach was confirmed by the Court of Justice on appeal.
47. Polimeri adds that the arguments put forward by it do not relate to the ‘substance of the case’, as the Commission states in its pleadings. According to Polimeri, its complaints relate to the infringement of the right to a fair hearing caused by the reversal of the burden of proof resulting from the singular use made of the statements of the undertakings which sought the adoption of leniency measures. Polimeri observes that the Commission responds to its arguments in the context of the eighth plea by citing the case-law relating to the burden of proof. However, the case-law cited in that regard is not relevant, since, in the cases to which the Commission refers, the involvement of the undertakings was borne out by documentary evidence. In this case, the contested decision contains a general part which is nothing but a jigsaw of statements.
48. The Commission states that the complaints made by Polimeri relate to proof of the infringement, and therefore to the substance of the case, and not to alleged procedural defects. The Commission therefore refers to the part of the defence relating to alleged errors in the assessment of the evidence relating to the existence of the cartel.
b) Findings of the Court
49. As a preliminary point, it must be held that, even though some of the arguments made in the context of the first plea relate to proof of the infringement and are therefore ineffective in the context of the pleas relating to procedural defects allegedly vitiating the adoption of the contested decision, Polimeri also takes issue, in general, with the Commission’s use of statements made by undertakings as evidence. In that regard, Polimeri maintains, in essence, that too much importance was attached to statements made by undertakings, to the detriment of documentary evidence, and that those statements are not reliable.
50. It should be recalled that, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 86). It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Case T‑62/98 Volkswagen
v Commission
[2000] ECR II‑2707, paragraph 43 and the case-law cited).
51. Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel
v Commission
[2007] ECR I‑729, paragraph 51).
52. In that connection, no general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschaapij and Others
v Commission
[1999] ECR II-931 (‘ PVC II ’), paragraph 512, and JFE Engineering and Others
v Commission, cited in paragraph 46 above, paragraph 192).
53. Furthermore, statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks (see, to that effect, JFE Engineering and Others
v Commission, cited in paragraph 46 above, paragraphs 205 and 211, and Sumitomo Metal Industries and Nippon Steel
v Commission, cited in paragraph 51 above, paragraph 103).
54. It is true that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is challenged by several other undertakings accused of participating in the same cartel, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence ( JFE Engineering and Others
v Commission, cited in paragraph 46 above, paragraph 219).
55. However, in this case, the contested decision is based on a number of statements made by undertakings which are to the same effect, namely statements by Bayer, Dow and Shell, such that they substantiate each other (see, to that effect, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 168). Moreover, it is common ground that the contested decision is also based on documentary evidence, in particular handwritten notes taken at meetings. The fact that Polimeri disputes the evidential value of those documents cannot affect the contested decision as regards the procedure followed by the Commission.
56. In the light of those considerations, there is nothing to support a finding that the contested decision is vitiated by procedural defects affecting its lawfulness.
57. The other arguments put forward by Polimeri cannot affect that conclusion.
58. As regards the alleged fact that the Commission is not entitled to act on the basis of statements made under the Leniency Notice, it must be pointed out, firstly, that no provision prohibits the Commission from using such statements for the purpose of demonstrating the existence of an infringement of the competition rules. Secondly, such statements cannot be regarded as devoid of probative value, since statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence ( Bolloré and Others v Commission, cited in paragraph 55 above, paragraph 166). Thirdly, even though some caution as to evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, in view of the fact that it is possible that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact remains that Polimeri’s argument does not correspond to the inherent logic of the procedure provided for in the Leniency Notice. The fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction of the fine does not necessarily create an incentive to submit evidence which distorts the truth regarding the conduct of the other participants in the cartel. Any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 70). In particular, it must be concluded that where a person admits that he has committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth ( JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 212).
59. As regards the claim that some of the undertakings concerned had been ‘forced’ to make statements, Polimeri pleads a breach of the principle of sound administration. It must be recalled, in that regard, that the guarantees conferred by the Community legal order in administrative procedures include, in particular, the principle of sound administration, which entails the obligation for the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case T‑44/90 La Cinq
v Commission
[1992] ECR II‑1, paragraph 86, and Case T‑410/03 Hoechst v Commission
[2008] ECR II‑881, paragraph 129). A breach of the principle of sound administration may lead to annulment of the decision in question if it is established that the content of that decision would have differed if that irregularity had not occurred (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others
v Commission
[1975] ECR 1663, paragraph 91; see also Volkswagen v Commission, cited in paragraph 50 above, paragraph 283). In this case, Polimeri has not adduced such proof. In any event, even if the alleged breach of the principle of sound administration leads the Court to disregard the statements by undertakings which are referred to by Polimeri, that would not affect the other considerations contained in the contested decision. There is therefore nothing to support a finding that, in that context, the Commission would have been led to conclude that no infringement of the competition rules occurred.
60. In the light of those considerations, the first plea in law raised by Polimeri must be rejected as unfounded.
2. Second plea in law: unjustified sending of a second statement of objections
a) Arguments of the parties
61. Polimeri submits that the sending to the parties concerned of an additional statement of objections is made necessary only where the result of inspections leads the Commission to charge the undertakings with new acts or to alter substantially the evidence for the infringements found.
62. In this case, the Commission justified the sending of the new statement of objections by numerous items of evidence which it claimed were discovered during the additional investigations which took place after the receipt of the written comments of the parties concerned on the first statement of objections. It merely took new statements from the same companies and often from the same individuals with regard to events which had already been covered by numerous statements.
63. The only genuinely new item is the request for leave to intervene made by Michelin on 3 November 2005, which was put into concrete form by comments submitted on 13 January 2006 and the provision of data relating to the prices paid to its suppliers during the reference period. However, the data provided by Michelin were not used by the Commission.
64. The new statement of objections is therefore not justified by any new factor and does not seem lawful in the light of the case-law. Moreover, it led to a significant delay in the course of the procedure and caused the undertakings to incur additional expenditure for their defence.
65. Furthermore, the function of the statement of objections was distorted, in so far as it was used to reply to the arguments put forward by the undertakings. Indeed, the replies of Syndial and Polimeri were used by the Commission as an instrument to refine its case, all factors liable to weaken the latter having been deliberately discarded. Polimeri states, in that regard, that any quantitative allusion to the relationship between the total market for the product(s) and the market hypothetically controlled by the alleged cartel as well as the fundamental finding of substitutability between natural rubber and synthetic rubber are disregarded in the precise quantitative analysis of the price variations.
66. Finally, the contested decision introduces an enormous change as regards the quantification of the market for the products concerned, as compared with the second statement of objections. That market was estimated in 2001 at EUR 820 million in the second statement of objections and at EUR 550 million in the contested decision (recital 66). That difference of more than 30%, which is unexplained, produces adverse effects on the situation of the undertakings. It changes the relationship between the market covered by the participants in the alleged cartel and the ‘non-rigged’ market. It also changes the position of the undertakings on the market and therefore the hypothetical capacity of each of them to affect the dynamics of competition. Those factors were new, Polimeri alleging that its rights of defence were infringed, since it was unable to put forward its arguments in that regard.
67. The Commission contends that the plea should be rejected. It submits, in essence, that the sending of a second statement of objections in this case does not indicate any illegality.
b) Findings of the Court
68. The statement of objections is a procedural and preparatory document which, in order to ensure that the rights of the defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing the latter from relying on other objections in its decision terminating the procedure in question (order in Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries
v Commission
[1986] ECR 1899, paragraphs 13 and 14; see, by analogy, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala
[2008] ECR I‑4951, paragraph 63).
69. Moreover, the Commission’s drawing–up of a statement of objections cannot possibly be considered to be evidence of a presumption of the culpability of the undertaking concerned. Otherwise, the opening of any proceedings in this area would potentially be liable to infringe the principle of the presumption of innocence (Case C‑167/04 P JCB Service v Commission
[2006] ECR I‑8935, paragraph 99).
70. In those circumstances, the drawing-up, in this case, of a second statement of objections cannot, in itself, result in a finding of any irregularity.
71. In so far as Polimeri’s arguments may be construed as in fact alleging a breach of the ‘reasonable time’ principle, it must be recalled that such a breach, if proved, can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that breach of that principle has adversely affected the rights of defence of the undertakings concerned. Save in that specific case, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure (see, to that effect, Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission
[2006] ECR I‑8725, paragraphs 42 to 44; see also Case T‑62/99 Sodima
v Commission
[2001] ECR II‑655, paragraph 94, and Joined Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v Commission
[2003] ECR II‑5761, paragraph 74).
72. In this case, in any event, the arguments put forward by Polimeri must be regarded as general arguments and would not be capable of establishing that there was an actual breach of its rights of defence, which must be examined by reference to the specific circumstances of each particular case (see, to that effect, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission, cited in paragraph 71 above, paragraph 59, and Hoechst
v Commission, cited in paragraph 59 above, paragraph 228).
73. As regards the claim that the second statement of objections contains amendments in relation to the first statement of objections, it must be recalled that that procedural document is inherently provisional and subject to amendments to be made by the Commission in its further assessment on the basis of the observations submitted to it by the parties and subsequent findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see Bertelsmann and Sony Corporation of America v Impala, cited in paragraph 68 above, paragraph 63 and the case-law cited). Consequently, if the Commission is entitled to amend, both in fact and in law, its arguments between the statement of objections and its final decision, it is a fortiori entitled to do so between two statements of objections.
74. Finally, as regards the fact that the contested decision introduces a change with regard to the quantification of the market for the products concerned, Polimeri’s arguments do not support its plea. By its second plea, Polimeri contests the Commission’s sending of a second statement of objections. By its arguments, Polimeri complains that the Commission did not give it more opportunity to defend itself during the administrative procedure. Polimeri’s arguments in that regard are therefore ineffective.
75. In any event, it must be recalled that, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche
v Commission
[1979] ECR 461, paragraph 9; Case C‑176/99 P Arbed
v Commission
[2003] ECR I‑10687, paragraph 19; and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie
v Commission, cited in paragraph 71 above, paragraph 32). That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts alleged, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see Arbed
v Commission, paragraph 20 and the case-law cited, and Hoechst
v Commission, cited in paragraph 59 above, paragraph 421).
76. In this case, it is sufficient to observe that, as the Commission rightly points out, the diminution in value of the market for BR and ESBR was not relied on in the contested decision as constituting inculpatory evidence against the undertakings concerned. In those circumstances, no infringement of Polimeri’s rights of defence can be found to have been committed in that regard. Furthermore, as was recalled in paragraph 73 above, the statement of objections is inherently provisional and subject to amendments both in fact and in law. However, that does not prevent Polimeri from contesting before the Court the quantification of the value of the market in question in the 4th and 10th pleas in support of the present action.
77. In the light of those considerations, the second plea in law raised by Polimeri must be rejected as unfounded.
3. Third plea in law: in essence, infringement of Polimeri’s rights of defence
a) Arguments of the parties
78. Polimeri argues that, in the contested decision, the Commission excludes any direct imputability in the case of Syndial whereas, by contrast, it had addressed both the first and the second statements of objections to it (recital 374).
79. As a result, although Polimeri was not active, during the period from 20 May 1996 to 1 January 2002, in the production and distribution of the products concerned, since it became the transferee of the BR and ESBR business only as from 1 January 2002, the Commission holds it liable for a period of nearly seven years (from 20 May 1996 to 28 November 2002) (recital 373 to the contested decision).
80. In those circumstances, Polimeri did not have the opportunity to respond to the new legal assessment of its liability. There is a difference between its being held liable jointly and severally with the company which, in practical terms, performed the acts constituting the infringement and having imposed on it sole liability for that infringement in respect of the whole of the period covered by the alleged cartel. The non-inclusion of Syndial among the addressees of the contested decision therefore had a significant impact on Polimeri’s position and on its defensive strategy.
81. The Commission contends that the plea should be rejected. It points out that, contrary to what Polimeri maintains, it had imputed to it, in both statements of objections, liability covering the whole period of the cartel. The fact that that liability may also be imputed, jointly and severally, to Syndial cannot have influenced Polimeri’s line of defence. Furthermore, Polimeri does not show how Syndial’s being found jointly and severally liable could have led to a different outcome of the proceeding.
b) Findings of the Court
82. By its third plea in law, Polimeri effectively claims an infringement of its rights of defence, in so far as the Commission did not enable it to submit its comments on a possible non-inclusion of Syndial among the addressees of the contested decision.
83. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts alleged, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it (see the case-law cited in paragraph 75 above).
84. Polimeri’s third plea is founded on the premiss that, in the statements of objections, the Commission found EniChem SpA (now Syndial) liable in respect of the period from 20 May 1996 to 1 January 2002, whereas, in the contested decision, the Commission finds only Polimeri liable, including in respect of the abovementioned period during which it was not active in the production and distribution of the products concerned.
85. First of all, the second statement of objections finds that, in view, in particular, of the transfer of businesses carried out on 1 January 2002 between EniChem SpA and Polimeri and of the fact that those two companies belong to the same undertaking, Polimeri must be held liable for the infringement in respect of the period from 20 May 1996 to 28 November 2002. It follows that the second statement of objections, in line with the contested decision (recitals 365 to 373), finds Polimeri liable for the whole period of the infringement, thus including for the offences committed by EniChem SpA before 1 January 2002.
86. Next, the second statement of objections states that, in so far as EniChem SpA controlled 100% of Polimeri’s capital between 1 January and 20 October 2002, Syndial must be held liable, jointly and severally, for Polimeri’s infringement in respect of that period. It follows that the second statement of objections finds Syndial liable only for a limited period, in its capacity as Polimeri’s parent company between 1 January and 20 October 2002, and not for the entire duration of the infringement.
87. It follows that Polimeri’s premiss is incorrect.
88. In the absence of more detailed arguments, the complaint alleging infringement of Polimeri’s rights of defence in that regard must be rejected.
89. As regards the argument put forward by Polimeri at the hearing, that Syndial’s non-inclusion among the addressees of the contested decision enabled the Commission to ‘avoid’ the upper limit of the fine of 10% of turnover, and assuming that such an argument is admissible despite its lateness, it must be observed that it closely resembles the arguments put forward in the context of the 16th plea. For the reasons set out in paragraphs 313 to 316 below, that argument must be rejected.
90. In the light of those considerations, the third plea in law raised by Polimeri must be rejected as unfounded.
B – The pleas in law relating to the substance of the contested decision
1. Fourth plea in law: incorrect definition of the relevant market
a) Arguments of the parties
91. Polimeri states that, in the contested decision, the Commission joined the two cases relating to BR and ESBR, even though they were separate during the investigation. The examination of that hypothetical combined sector is confined to the production of a table (Table 3 of the contested decision), without any explanatory comment. Polimeri points out that, in the context of concentration procedures, the Commission has always been careful to distinguish between two separate markets. In this case, Polimeri submits that the conditions are not met, either from the technical and commercial point of view or from the point of view of the competition system, for such a joinder to be justified.
92. Firstly, Polimeri states that BR is in competition with natural rubber. It is used in tyres for light and heavy commercial vehicles, mainly for the side wall of the tyre. Providing an analysis in that regard, Polimeri maintains that the market for BR should comprise the sum of the market for BR and part of that for natural rubber. In that context, Polimeri’s market share never exceeded 11.8% between 1996 and 2002. Polimeri points out that, in Table 1 of the contested decision, the Commission omitted all references to market shares, to the total market for BR and to the share of that market not covered by the undertakings concerned. Those data, although questionable according to Polimeri, were included in the second statement of objections. There is therefore no reference in the contested decision to the power of the alleged cartel to influence that market, or to the power of each of the participants. Polimeri adds that the omissions made by the Commission are designed to eliminate factors establishing the questionable nature of its analysis, such as the level of market coverage represented by the undertakings concerned, which was much lower than that originally mentioned in the second statement of objections.
93. Secondly, Polimeri points out that ESBR is the most widely used rubber, suitable for multiple applications without excelling in any. The most important area of application is the production of tyre treads. However, there is no area of application where ESBR is technically irreplaceable. Providing some analyses in that regard, Polimeri maintains that the market for ESBR should comprise the sum of the market for ESBR and part of that for natural rubber. Within that framework, Polimeri’s market share never exceeded 13.8% between 1996 and 2002. Here too, the market shares for ESBR were omitted in the contested decision, as was the reference to the total market and the quantification of other producers’ sales. Polimeri points out that, as regards other producers’ sales, it disputed the data originally contained in the second statement of objections.
94. Thirdly, while submitting that the markets for BR and ESBR should not have been combined, Polimeri points out that, in the contested decision, the Commission radically altered the valuation of the combined market. Polimeri notes that the valuation of the total market in Table 3 of the contested decision is far lower than that in the table on the same subject in the second statement of objections, whereas the turnover figures for the undertakings concerned remain constant. That difference results from the sales of BR and ESBR attributed to other producers. Thus, according to the contested decision, the alleged cartel seems to control 90% of the market, whereas, in the second statement of objections, it accounted for barely 60% of the market. Polimeri adds that, if the presence of the undertakings concerned on the market for natural rubber, the product which competes with BR and ESBR, were to be taken into consideration, the sphere of influence would be reduced to levels far below 50%.
95. Fourthly, with regard to demand, Polimeri states that BR and ESBR are not used exclusively, as the Commission claims, in tyre production, even though that use is predominant (between 60% and 70%). The significant differences of application which exist between BR and ESBR, apart from tyre production, support the argument that it is wrong to seek to bring the two products together in a combined market or sector. With regard to tyres, five major producers absorb the volumes of BR and ESBR intended for that use. However, none of those major customers obtains its supplies from a single synthetic rubber producer. Furthermore, the Commission itself acknowledges that many tyre manufacturers have their own synthetic rubber production and also purchase supplies of natural rubber on a large scale. It follows that the contractual power of the tyre manufacturers is significant compared with that of the rubber producers and that the degree of market transparency created by the tyre manufacturers at the negotiating stage is high. Those factors undermine the credibility of the existence of any agreement between the producers. Furthermore, a substantial percentage of contracts (between 40% and 60%) is based on a ‘price formula’ which contains a reference to the price of raw materials. That deprives the quarterly discussions on prices between competitors of any real significance and renders them ineffective.
96. Polimeri adds that, in its pleadings, the Commission quotes incompletely from the order of 16 February 2006 in Case C‑111/04 P Adriatica di Navigazione
v Commission, not published in the ECR. In paragraph 32 of that order, the Court of Justice noted that ‘the Court of First Instance admitted that the confused and incomplete definition of the relevant market [might] result in an error in the attribution of liability’. In the present case, the market taken into account enabled the Commission to characterise absolutely neutral conduct as illegal. In particular, there is, as such, no case relating to BR.
97. The Commission contends that the plea should be rejected. It submits, in particular, that the objection to the definition of the market in question is irrelevant as regards the existence of the cartel.
b) Findings of the Court
98. The Commission states, in the contested decision, that initially two case numbers had been assigned. The first referred to Bayer’s application for immunity in relation to BR. The second referred to the application for immunity, also submitted by Bayer, in relation to ESBR. However, the investigation was conducted as a single investigation, and most of the procedural documents (notably the two statements of objections) covered both sectors. Following the first statement of objections, a single case number was used. In both statements of objections and in the contested decision, the Commission concludes that the practices in question constituted a single and continuous infringement (recitals 90 and 91 to the contested decision).
99. By its arguments, Polimeri effectively raises two complaints against the contested decision. Firstly, it submits that the Commission should not have joined the two original proceedings relating to BR and ESBR. Secondly, it challenges the sectoral definition of the market, as relied on by the Commission.
100. As regards the first complaint raised by Polimeri, it must be recalled that the Commission is entitled both to disjoin and to join proceedings for objective reasons (see judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer
v Commission, not published in the ECR, paragraph 64 and the case-law cited). In the present case, there is nothing to permit the inference that the joinder of the two original proceedings was not done for objective reasons. In particular, it cannot be disputed that BR and ESBR belong to the same business sector, in view, inter alia, of the physical characteristics and uses of those two products. In addition, it is apparent from the contested decision and from the statements of the undertakings concerned that some of the illegal meetings in question related both to BR and to ESBR. In those circumstances, Polimeri’s arguments cannot call into question the choice made by the Commission in that regard. Furthermore, even if the infringement in question can be regarded as in fact covering two distinct infringements, whether those infringements are established in a number of decisions or in a single decision is of no account, since it is established in this case that the infringements in question are not time-barred (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 63, and Joined Cases T-101/05 and T-111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 158). In particular, there is nothing to support a finding that, as a result of the joinder of those proceedings, the Commission wrongly imputed an infringement to Polimeri. Indeed, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When, as in this case, the different actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others
v Commission, cited in paragraph 51 above, paragraph 258).
101. As regards the second complaint raised by Polimeri, it is sufficient to observe that the objection to the definition of the relevant market is ineffective in the context of the fourth plea, since it cannot, on its own, lead to the conclusion that the conditions for the application of Article 81(1) EC have not been satisfied. Polimeri cannot therefore infer therefrom that it did not participate in the cartel (see, to that effect, order in Adriatica di Navigazione
v Commission, cited in paragraph 96 above, paragraph 30; see also, to that effect, Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 172). In particular, there is nothing to support a finding that, as a result of the definition of the relevant market, the Commission wrongly imputed an infringement to Polimeri. It must be pointed out in that regard that the contested decision clearly finds Polimeri responsible as regards both BR and ESBR. In those circumstances, the fact that the Commission found that there was a single infringement in respect of those two products cannot lead to the imputation to Polimeri of an infringement for which it should not be held responsible. However, that does not prevent Polimeri from challenging the definition of the relevant market in the context of the 10th plea, relating to the assessment of the gravity of the infringement.
102. In the light of those considerations, the fourth plea in law raised by Polimeri must be rejected as unfounded.
2. Fifth plea in law: the trend of prices during the period in question
a) Arguments of the parties
103. Polimeri states that, in the first statement of objections, the Commission had set out a price trend analysis for the BR and ESBR markets. In the second statement of objections, and subsequently in the contested decision, the Commission withdrew the part relating to ‘economic evidence’ for the infringement. There was thus an implicit admission that the alleged infringement did not produce any actual effect. Polimeri points out that the omission followed upon a detailed analysis, provided by Syndial during the administrative procedure, which it attaches to the application. That analysis demonstrates that the prices charged do not follow a logic of control and alignment and that the alleged coordination of prices, if it was apparent, actually represents the producers’ reaction to the cost of raw materials and to the market trend.
104. The explanation given by the Commission in recitals 275 to 280 to the contested decision, in response to the analysis provided by Syndial, is not convincing. Polimeri, detailing the calculation of the trend of selling prices on the relevant market, submits that the variations in price levels between the undertakings were too great to be characterised as a ‘high degree of correlation’. Polimeri states, for example, that the increase in EniChem SpA’s prices was more than 30% greater than that in Shell’s prices between the first quarter of 1992 and the third quarter of 1995. As regards the Commission’s criticism that the analysis arbitrarily attributes to all products an identical starting value for the actual price, Polimeri explains that, on the contrary, that analysis shows the effect of the variations on each producer’s initial price, irrespective of the absolute starting value. Polimeri nevertheless acknowledges that, for producers whose complete series of price variations was not available (namely Bayer, Dwory and Kaučuk), the starting point of the series was fixed in relation to a cumulative price variation equal to that of EniChem SpA. However, in no case does that involve the attribution of an actual price to the producer and any other choice would have led to the same result. Finally, Polimeri points out that it has never asserted that the butadiene cost is the only factor determining the final price of BR and ESBR, although it is the main factor.
105. Polimeri adds – an observation which also applies to the sixth plea – that the failure to demonstrate the effects of the alleged cartel constitutes a failure to investigate and contributes to the devaluing of the evidence otherwise collected. Polimeri also points out that, in Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491 (‘ Cement ’), paragraph 245, the Court, referring to Case T‑30/91 Solvay v Commission
[1995] ECR II‑1775 and Case T‑36/91 ICI
v Commission
[1995] ECR II‑1847, found that, in those judgments, ‘on account of the weakness of the documentary evidence ..., the Court [had] held that the Commission should, in order to prove to the requisite legal standard the concerted practice alleged against ICI and Solvay, have been prompted to make an overall and detailed economic assessment, in the statement of objections, in particular of the relevant market and the size and conduct of the undertakings active on that market’.
106. The Commission contends that the plea should be rejected. It points out that it is not necessary to take account of the concrete effects of an agreement for the purposes of applying Article 81(1) EC when it has as its object the prevention, restriction or distortion of competition. The Commission adds – a remark which also applies to the sixth plea – that the existence of the cartel is irrefutably demonstrated by a number of precise and consistent factors fully set out in the contested decision.
b) Findings of the Court
107. As a preliminary point, it must be observed that, by its arguments, Polimeri calls into question the Commission’s finding of the existence of a cartel between the undertakings concerned. Polimeri submits, in essence, that the prices charged were not prompted by coordination, but resulted, in particular, from the trend in the cost of raw materials and the market trend.
108. According to settled case-law, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition ( Commission
v Anic Partecipazioni, cited in paragraph 50 above, paragraphs 122 and 123; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 491; and Case C‑407/04 P Dalmine
v Commission
[2007] ECR I‑829, paragraph 84). As regards, in particular, agreements of an anti-competitive nature which, as in the present case, are reached at meetings of competing undertakings, the Court of Justice has already held that Article 81(1) EC is infringed where those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraphs 508 and 509; Sumitomo Metal Industries and Nippon Steel
v Commission, cited in paragraph 51 above, paragraph 47; and Dalmine
v Commission, paragraph 84). In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking concerned to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C‑199/92 P Hüls
v Commission
[1999] ECR I‑4287, paragraph 155; Aalborg Portland and Others
v Commission, cited in paragraph 51 above, paragraph 81; and Sumitomo Metal Industries and Nippon Steel
v Commission, cited in paragraph 51 above, paragraph 47).
109. In this case, it is apparent from the contested decision that the proof of the concerted action between the undertakings is based not on a mere finding of parallel market conduct but on documents which show that the practices in question were the result of concerted action. In those circumstances, the alternative explanation given by Polimeri as regards the prices charged is not such as to call into question the Commission’s finding of the existence of a cartel between the undertakings concerned (see, to that effect, PVC II, cited in paragraph 52 above, paragraphs 727 and 728).
110. In the light of those considerations, the fifth plea in law raised by Polimeri must be rejected as unfounded.
3. Sixth plea in law: the supply of the main customers
a) Arguments of the parties
111. According to Polimeri, it is difficult to comprehend the significance and impact of Michelin’s intervention. The latter has not even attempted to demonstrate that the parallel pricing observed in 1995 continued during the subsequent years. Moreover, Polimeri states that Michelin was supplied by four producers for BR and by six producers for ESBR. It is apparent from an analysis sent to the Commission during the administrative procedure that the supplies made by EniChem SpA could not form part of an allocation or ‘no challenge’ plan. That is apparent in particular from the variations in the volumes attributed to each of the tyre manufacturers during the period from 1997 to 2003.
112. The Commission contends that the plea should be rejected. It reiterates that it was not necessary to take account of the actual effects of the agreement, since its object was to restrict competition.
b) Findings of the Court
113. As a preliminary point, it must be observed that, by its arguments, Polimeri calls into question the Commission’s finding that there was a cartel between the undertakings concerned. Polimeri submits, in essence, that the supply of the main customers was not subject to any coordination, as is shown by the variations in sales volumes.
114. For the same reasons as those set out in the context of the fifth plea, in paragraphs 107 to 109 above, the arguments advanced by Polimeri are not capable of calling into question the Commission’s finding that there was a cartel between the undertakings concerned.
115. In the light of those considerations, the sixth plea in law raised by Polimeri must be rejected as unfounded.
4. Seventh plea in law: unlawful imputation of the infringement to Polimeri
a) Arguments of the parties
116. Polimeri maintains that, if it is found to have participated in the cartel, which it denies, the Commission should have distinguished between Syndial’s and its own liability according to the respective periods when they managed the BR and ESBR businesses (that is from 20 May 1996 to 31 December 2001 in the case of Syndial and from 1 January 2002 to 28 November 2002 in the case of Polimeri). It refers in that regard to the principle developed by the case-law that it falls, in principle, to the natural or legal person managing the undertaking in question when the infringement of the Community competition rules was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking (Case C-279/98 P Cascades
v Commission
[2000] ECR I‑9693, paragraph 78, and Case C‑286/98 P Stora Kopparbergs Bergslags
v Commission [2000] ECR I‑9925, paragraph 38). The Commission acknowledges that principle in recital 337 to the contested decision. However, Polimeri points out that, in the following recital, the Commission decided to assign all liability for the infringement to it, including in respect of the period when Syndial was active in the sectors in question, and releases Syndial from any liability.
117. The Commission justifies its choice, in recitals 367 to 369 to the contested decision, by invoking the economic continuity test and referring to the judgment in Aalborg Portland and Others
v Commission, cited in paragraph 51 above. However, in that judgment, the Court of Justice also found that there were structural links between the transferor and the transferee, that is to say, the one controlled 50% of the other. Polimeri adds that, in that case, the transferee company, Aalborg, was nothing but an ad hoc creation for the purposes of the infringement, in order to take over the parent company’s operations in the cement sector. In this case, Polimeri has existed as a company since 1995 and, while the BR and ESBR producers were concluding (according to the Commission) anti-competitive agreements, it was dealing in polyethylenes (not in elastomers) in a perfectly legitimate way. Unconsidered use of the ‘same economic entity’ test in order to transfer liability from the transferor to the transferee undertaking could, absurdly, lead, inter alia, to disregard of the principle that punishment should be applied only to the offender (Opinion of Advocate General Ruiz-Jarabo Colomer in Aalborg Portland and Others v Commission, cited in paragraph 51 above, ECR I‑133). If the Commission wishes to transfer liability, it should refer to other factors. In this case, the Commission claims in particular, firstly, that the transfer of businesses which took place on 1 January 2002 involved the transfer to Polimeri of Syndial’s main businesses and its staff, secondly, that, at the time of the transfer of businesses, Syndial’s corresponding turnover had decreased and there was therefore a serious risk that Syndial would no longer have sufficient assets to be able to pay the fine and, thirdly, that, following the transfer, Polimeri participated in the meetings of the European Synthetic Rubber Association through the same person belonging to the staff of EniChem SpA. However, the first and third arguments are not relevant for the purpose of justifying a transfer of liability. Polimeri points out in that regard that those factors are also present in the relationship between Dow and Shell and did not result in Dow’s being held liable for the infringement committed by Shell prior to the transfer of the business. As regards the second argument put forward by the Commission, it is irrelevant from a legal point of view, unless it is demonstrated that the company is bankrupt, which is not the case with Syndial, which continues to exist today. Furthermore, that argument is even less credible given that, in this case, the Commission imposed joint and several liability in order to avoid any risk of non-payment. Polimeri adds that EniChem SpA’s control of Polimeri for 10 years after the transfer of the businesses was only a provisional solution, before control was exercised by the holding company.
118. Polimeri concludes that the economic continuity test was applied in this case in breach of the principle that punishment should be applied only to the offender, in a manner not consistent with the Community case-law, without an adequate statement of reasons, and in a discriminatory manner.
119. The Commission contends that the plea should be rejected. It maintains, in particular, that there was economic continuity between the transferor company involved in the cartel (EniChem SpA/Syndial) and the transferee company (Polimeri).
b) Findings of the Court
120. As was pointed out in paragraph 4 above, Eni’s business in relation to the products concerned was originally carried out by to EniChem Elastomeri, indirectly controlled by Eni through its subsidiary EniChem SpA. On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including the business concerned with the products in question) to its wholly-owned subsidiary, Polimeri. Eni has controlled Polimeri directly and fully since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial (recitals 26 to 32 to the contested decision).
121. In the contested decision, the Commission states that there are structural links between EniChem SpA (now Syndial) and Polimeri, since those companies belong to the same undertaking. In this case, it concludes that Polimeri should be held liable for the infringement committed by Syndial, even though the latter company remains in existence (recitals 338, 368 and 369 to the contested decision).
122. The Commission adds that Polimeri’s liability is also supported by the fact, firstly, that EniChem SpA was Polimeri’s only shareholder before and after the transfer of the businesses in question and that that transfer did not give rise to any actual payment. Secondly, EniChem SpA’s assets and turnover decreased considerably after that transfer and that company’s activities were limited. Finally, the employee who participated in the infringement for EniChem SpA continued to participate in that infringement for Polimeri (recitals 369 to 373 to the contested decision).
123. In that regard, it must be recalled that, when an entity engaged in an economic activity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (see, to that effect, Commission
v Anic Partecipazioni, cited in paragraph 50 above, paragraph 145; Cascades
v Commission, cited in paragraph 116 above, paragraph 78; and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39).
124. However, where two entities constitute the same economic unit, the fact that the entity which committed the infringement still exists does not in itself preclude the entity to which it transferred its economic activities from being subject to a penalty (see, to that effect, Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraphs 355 to 358, and Case T‑43/02 Jungbunzlauer
v Commission
[2006] ECR II‑3435, paragraph 132).
125. Applying penalties in this way is permissible in particular where those entities have been subject to control by the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions ( ETI and Others, cited in paragraph 123 above, paragraph 49).
126. In this case, it is established that, at the time of their offending conduct, EniChem SpA and Polimeri were wholly owned, directly or indirectly, by the same company, namely Eni. In those circumstances, the principle of personal responsibility does not preclude the penalty for the infringement initially committed by EniChem SpA and subsequently continued by Polimeri from being imposed in its entirety on Polimeri (see, to that effect, ETI and Others, cited in paragraph 123 above, paragraph 51).
127. The other arguments put forward by Polimeri cannot alter that finding.
128. In particular, as regards the objection that the factors put forward by the Commission, set out in paragraph 122 above, are not relevant, it must be pointed out that the Commission’s conclusion that Polimeri should be held liable for the actions of EniChem SpA (now Syndial) is based on the fact that the transfer of the businesses in question took place between two companies belonging to the same undertaking. The other factors put forward by the Commission in the contested decision, set out in paragraph 122 above, merely support the Commission’s conclusion, as indicated by the use of the adverb ‘also’ in recital 369 to the contested decision. Consequently, even assuming that the factors put forward by the Commission are irrelevant, that finding cannot affect the lawfulness of the contested decision in that regard.
129. In any event, the factors put forward by the Commission, which are not contested by Polimeri from a factual point of view, are relevant. Indeed, those factors illustrate the fact that a penalty imposed on an undertaking that continues to exist in law, but has ceased economic activity, is likely to have no deterrent effect and that, if no possibility of imposing a penalty on an entity other than the one which committed the infringement were available, undertakings could escape penalties by simply changing their identity through restructurings, transfers or other legal or organisational changes (see, to that effect, ETI and Others, cited in paragraph 123 above, paragraphs 40 and 41).
130. Finally, in so far as, by its arguments, Polimeri alleges failure to state the reasons on which the contested decision is based, it is sufficient to observe that the Commission clearly identified, in the recitals referred to in paragraphs 120 to 122 above, the criteria which enabled it to hold Polimeri liable in this case.
131. In the light of those considerations, the seventh plea in law raised by Polimeri must be rejected as unfounded.
5. Eighth plea in law: unsubstantiated finding of the existence of a cartel
a) Arguments of the parties
Preliminary observations
132. The eighth plea in law raised by Polimeri breaks down formally into two parts. In the first part, Polimeri challenges the sources of the evidence used by the Commission. In the second part, Polimeri challenges the part of the contested decision headed ‘General description of the cartel’.
133. As regards the part of the contested decision headed ‘Cartel meetings’, Polimeri refers to three annexes which it attaches to the application and which, contrary to the Commission, it maintains are admissible. It can be inferred from the case-law referred to by the Commission in its pleadings that the possible inadmissibility of an annex should be assessed in relation to whether the plea in law to which that annex relates is adequately set out and formulated in the application. A general reference to one or more annexes should be regarded as inadmissible where the legal basis (the plea in law) to which the aspects developed in the annex relate is not adequately set out in the application. In this case, Polimeri has, firstly, specifically outlined the content of the various annexes in the application and, secondly, referred to one of them in more detail in that application. Added to this is the fact that the actual text of the annexes makes several references to certain parts of the application and to the other annexes and that a French translation was lodged at the same time. The annexes in question therefore have a purely evidential and instrumental function in relation to a plea raised in the application.
The first part of the eighth plea in law, concerning the sources of the evidence
134. Firstly, as regards the statements made by the undertakings which applied for immunity or a reduction of their fine, Polimeri points out that the factual context described by the Commission is, in several instances, different from the content of the statements made by the employees. Polimeri, referring to the employees in question, states that there are differences not only between the various companies, but also internally within the same company. Polimeri adds that the contradictions to which it refers are set out at several points in the application. The Commission’s complaint in that regard, that Polimeri’s arguments do not contain any particulars or evidence, is purely formal.
135. Secondly, as regards the handwritten notes of Mr N. (Dow) collected during an inspection, they represent the only real documentary basis which the Commission is able to put forward in support of its charge.
136. Polimeri points out in particular that, on that basis, recital 202 to the contested decision, concerning an alleged illegal meeting between the competitors of 16 November 1999 in Frankfurt (Germany), states: ‘After the 16 November 1999 meeting and a dinner, Mr [P.], Mr [F.], Mr [N.], Mr [V.], Mr [L.], Mr [L.] and Mr [T.] met at the Casablanca Bar at the Meridien hotel’. However, the investigation file shows that, at the time stated, Mr P. was no longer in Frankfurt. Polimeri attaches, as an annex, copies of the documents from the investigation file. In addition, Polimeri adduces evidence showing that Mr L. (EniChem) had already returned to Milan (Italy). It also expresses doubts as to the presence of Mr F., in the light of a payment by credit card made at the hotel on 16 November 1999. Polimeri adds that one of the documents annexed to the defence (namely a hotel receipt issued to Mr P.) should be excluded from the inculpatory evidence. Although the document in question formed part of the investigation file, it was not used as evidence, either in the statements of objections or in the contested decision. Polimeri was therefore unable to make observations in that regard. The same applies to the fact that the Commission, in its pleadings before the Court, changes the date of the unofficial meeting, now finding it to have taken place on 15 November 1999. Nor does the Commission explain how the unofficial meeting could have taken place on the evening of 15 November 1999, when the first part of Mr N.’s handwritten notes starts with the official meeting (which took place on 16 November 1999). The contested decision thus suffers from a failure to investigate, but also from a failure to state reasons. The new version of the facts put forward by the Commission in its defence should therefore be declared inadmissible. Polimeri further points out that, contrary to what the Commission seems to suggest, it has always denied having participated in the meeting in question.
137. Finally, two other handwritten notes by Mr N., originally used as evidence of the cartel (for meetings held on 21 February 1996 in Düsseldorf and on 30 November and 1 December 1998 in Brussels (Belgium)), have lost their status as evidence. Polimeri therefore concludes that, of five handwritten notes by Mr N., at least three are unrelated to illegal meetings. The Court should therefore examine comprehensively and carefully the wording and meaning of Mr N.’s handwritten notes and, where appropriate, carry out further checks on them, in particular in order to establish how and in what form those notes were obtained by the Commission.
138. Polimeri adds that, contrary to what the Commission states in its pleadings, it referred on a number of occasions in the application to factors which raise doubts as to the evidential value of Mr N.’s handwritten notes, and not only those concerning the meeting of 16 November 1999. Moreover, it points out that, according to the case-law, where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement ( JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 177).
139. Thirdly, in the reply, Polimeri maintains, with regard to BR and ESBR, that the evidence relating to the alleged cartel meetings is non-existent. Polimeri makes, in that regard, a comment on each of the meetings in question (for the period from 1996 to 2002). Polimeri further states that it has already provided a visual illustration of those factual circumstances in the application.
The second part of the eighth plea in law, concerning the general description of the cartel
140. As a preliminary point, Polimeri states that the part of the contested decision headed ‘General description of the cartel’ is a collection of statements in which the genuinely relevant aspects are few. Polimeri thus notes that the assertion by Mr W. (Bayer), reproduced in recital 112 to the contested decision, that Mr L. (EniChem) and Mr W. asked Mr N. (Dow) no longer to take notes of the unofficial discussions, is not credible. In particular, Polimeri observes that that assertion is denied by Mr L. and is not confirmed by Mr N. Moreover, Mr W.’s statement concerns Mr N.’s handwritten notes relating to the meetings of 21 February 1996. Finally, there is inconsistency between the alleged time when Mr N. was asked no longer to take notes and the actual time when he complied with that request. Polimeri adds that the charge, the truth of which the Commission seeks to confirm, arises from that statement alone.
141. On the substance, Polimeri distinguishes between the price agreements, the market-sharing agreements, the exchange of sensitive commercial information, the monitoring of compliance with the agreements and the general factual framework described by Mr N.
– Price agreements
142. As regards BR, Polimeri points out that the statements of Mr W. (Bayer), reproduced in recitals 105 and 106 to the contested decision, are vague and, in any case, implausible. It disputes, in that regard, the references made by the Commission in its pleadings to other recitals to the contested decision and makes reference, as regards those recitals, to a number of sections of the application or of the annexes to it. Polimeri further states that some of the recitals referred to by the Commission do not relate to BR.
143. Moreover, the assertion that Mr D. (EniChem) asked Bayer – threateningly – to raise prices (recital 103 to the contested decision) is not credible in light of the fact that Bayer was the largest market operator. Bayer had moreover denied the statements of its own employee. The Commission cannot therefore contradict that fact with a mere opinion which it expresses in its pleadings. Polimeri also states that there are no other specific indications relating to hypothetical price agree ments for BR in that part of the contested decision. Furthermore, there is no written documentation on the hypothetical illegal discussions relating to BR. Finally, Polimeri points out that the analysis of the price variations in the first statement of objections clearly demonstrates, with the aid of the information provided by all the producers, that there had been no synchronous trend of prices, that there had been as many increases as decreases in prices, that the price trend reflected, with a certain time lag, the increase or decrease in the cost of raw materials and that the prices of the various products were always very different from each other.
144. As regards ESBR, Bayer asserts that it was primarily Mr D. (EniChem) and Mr de J. (Shell) who were involved in the agreements (recital 111 to the contested decision). However, those two persons always firmly denied having taken part in the anti-competitive agreements. The statement reproduced in recital 119 to the contested decision, relied on by the Commission in its pleadings, is irrelevant since it was made by Mr V. (Shell) in a personal capacity. It cannot call into question Mr de J.’s statement. The Commission relies solely on the statements by the cooperating undertakings and by Shell, without providing any other evidence or indicia. As for Shell, it unreservedly admitted, in the first statement of objections, its participation in the agreements on prices, although Mr de J. categorically denied that. However, Polimeri maintains that Shell’s subsequent confessions have evidential value only with regard to the company which made them, given that they post-date the first formal accusation and are not supported by other relevant documents. Polimeri disputes, in that regard, the references made by the Commission in its pleadings to other recitals to the contested decision. Polimeri makes reference, as regards those recitals, to a number of sections of the application or of the annexes to it.
145. Moreover, Bayer’s position, set out in recitals 110 to 114 to the contested decision, is not consistent with the statements of some of its employees, in this instance Mr O. and Mr Ü. Polimeri refers in that regard to certain documents in the investigation file. As regards Mr O., Polimeri maintains, contrary to what the Commission contends in its pleadings, that he participated in a meeting of the European Synthetic Rubber Association on 2 and 3 September 1996, a meeting which was mentioned among the ‘cartel meetings’. Furthermore, it is inconceivable that Bayer representatives would have concluded agreements without Mr O., that company’s business manager, having been informed of them. The subsequent review carried out is irrelevant, since it is based on new versions of the facts stemming from conversations with Mr W., who was never responsible for ESBR at Bayer. Polimeri points out, in that regard, that the Commission has given prominence to the statements of the most cooperative persons. There is no proof that the undertakings concerned concluded an agreement to increase prices, or that they designed and developed a joint mechanism for the systematic coordination of ESBR prices. Polimeri reiterates, in that regard, the objections to Mr N.’s handwritten notes. Finally, the analysis of the variations in the price for ESBR gives the same results as for BR, which was examined previously.
146. Polimeri also states that the proof that the agreement in question had no effects is relevant, contrary to what the Commission maintains in its pleadings. It is the only way for Polimeri to demonstrate that the content of the statements, which are not confirmed by other evidence, is without foundation.
– Market-sharing agreements
147. As a preliminary point, Polimeri states that is not clear from the contested decision whether the alleged market-sharing agreements concern only ESBR or also BR. Polimeri observes, in that regard, a contradiction between recitals 124 and 301 to the contested decision.
148. As regards BR, Polimeri points out that only one of the statements quoted in the section relating to market-sharing agreements (namely that of Mr W. of Bayer) specifically concerns that product (recital 129 to the contested decision). However, in the light of recitals 56 and 57 to the contested decision, Polimeri declares that it queries the ability of the producers to share out among themselves customers (in this case tyre manufacturers) of the size of those referred to by the Commission. Furthermore, as is apparent from recital 125 to the contested decision, because of technical specifications, not all producers were approved as suppliers by every customer. No document proves the alleged market-sharing agreements. Polimeri states, moreover, that EniChem SpA’s supplies to the tyre manufacturers referred to by the Commission (60% to 65% of EniChem SpA’s BR production) were constantly fluctuating. That is incompatible with the idea of maintaining a status quo, at least in Polimeri’s case. Furthermore, EniChem SpA marketed the remainder of its BR production (namely 35% to 40%) to customers other than tyre manufacturers, who were not common customers. Polimeri points out that, contrary to what the Commission states in its pleadings, it does not claim that it did not have a commercial interest in the conclusion of anti-competitive agreements.
149. As regards the statement of Mr V. (Shell), reproduced in recital 127 to the contested decision, that Mr L. (EniChem) had told him to stay out of the carpet back market in the United Kingdom, it is not credible. Polimeri draws attention, in that regard, to the fact that Shell’s statements changed, to the fact that Mr L. categorically denies having had a conversation in those terms and to the fact that the carpet back market does not involve BR.
150. As regards ESBR, Polimeri raises the point that, according to the statement of Mr P. (Bayer), who took up his post in 1999 (and therefore makes no reference to the previous years), reproduced in recital 124 to the contested decision, he denies that agreements to freeze capacities or market shares took place and claims that the decision not to engage in aggressive competition was left to the discretion of the undertakings. That testimony is anything but proof of the existence of an agreement. This is confirmed by the fact that the quantities of ESBR sold by EniChem SpA to the main customers varied constantly. The Commission’s argument that Polimeri’s position is based on a mistranslation into Italian of Mr P.’s statement should be declared inadmissible. Furthermore, the Commission had the opportunity to rectify that mistranslation in order to enable Polimeri to exercise its rights of defence. In any event, the statement in question, even in its original language (German), is ambiguous. Polimeri also disputes the references made by the Commission in its pleadings to other recitals to the contested decision, which are supposed to demonstrate the existence of a cartel concerning ESBR in respect of the years prior to 1999.
151. As regards Dow’s assertion, reproduced in recital 125 to the contested decision, that ‘they assured EniChem [SpA] that they would not attack EniChem’s position with Michelin or Bridgestone’, it does not make reference to a specific period and is therefore inconsistent with the variations in the quantities supplied by EniChem SpA throughout the period in question. So far as concerns Bayer’s statement reproduced in recital 126 to the contested decision, that in some meetings Dow and EniChem SpA accused each other of having stolen each other’s customers, it appears to be the best demonstration of the existence of a high level of competition on the market, at least as between EniChem SpA and Dow.
– Exchange of sensitive commercial information
152. As regards BR, Polimeri refers to recitals 120, 128 and 132 to the contested decision and submits, in essence, that the statements contained in them are not credible (recital 132) or are not supported by evidence (recitals 120 and 128). Furthermore, recital 128 makes reference to information which is in part public, a fact which the Commission acknowledges in recital 329 to the contested decision. The Commission therefore also admits, by implication, that the objection relating to the exchange of information is without substance.
153. As regards ESBR, recitals 131 to 133 to the contested decision mention no specific accusation. Polimeri therefore refers to the observations made in regard to BR.
154. Polimeri adds that, contrary to what the Commission maintains, it objected, in the application, to the documents relating to the meetings of 20 May 1996 in Milan and of 15 and 16 November 1999 in Frankfurt. Moreover, according to Polimeri, the information in question was almost exclusively public information.
– Monitoring of compliance with the agreements
155. The Commission refers, in recital 136 to the contested decision, to the bilateral telephone contacts between the competitors between meetings. According to Polimeri, the part of the contested decision which describes the alleged mechanism for monitoring the cartel agreements consists of an extremely fragmented description of events. There is thus no proof of the existence of a common intention on the part of all the undertakings involved to implement among themselves a mechanism for monitoring compliance with the alleged agreements. Polimeri also draws attention to the case-law according to which it must be proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk ( Bolloré and Others v Commission, cited in paragraph 55 above). Such proof must be based, not on a presumption of guilt, but on specific documentary evidence ( Cement, cited in paragraph 105 above).
156. As regards BR, Polimeri refers to recitals 137, 138, 143 and 144 to the contested decision and submits, in essence, that the statements reproduced in them are not substantiated (period, product, customers) and therefore have little evidential value. More specifically, so far as concerns the statement of Mr F. (Dow), reproduced in recital 143, Polimeri points out that another statement by Dow contained in the file mentions, in respect of the same period, litigation between Dow and EniChem SpA relating to the breach of confidentiality of business information by Karbochem (an undertaking owned by Dow). That litigation, settled by a compromise, necessitated repeated contacts between the two undertakings. So far as concerns the statement of Mr W. (Dow), reproduced in recital 144, it is unexpectedly included among assertions concerning the meetings of the European Synthetic Rubber Association and, in particular, that of November 2001.
157. As regards ESBR, Polimeri refers to the statement of Mr F. (Bayer) according to which Mr L. (EniChem) contacted him about twice a year following their first meeting, in February 1999 (recital 140 to the contested decision). According to Polimeri, those contacts were connected with a supply contract between EniChem SpA and Bayer relating to a specific product which, strictly speaking, does not come into the ESBR category. Polimeri produces, in that regard, a document showing the sale to Bayer of the product in question in 1999 and refers to a statement contained in the investigation file. Bayer’s statements were, not entirely innocently, taken out of context and quoted in extracts. Furthermore, Mr F. did not have direct responsibility for the ESBR business. Mr F. confirmed, moreover, that the conversations in question could not contain agreements on prices.
– The general factual framework described by Mr N.
158. Polimeri draws the Court’s attention to a statement by Mr N. (Dow), made during a conversation on 13 December 2005, which was not reproduced in the contested decision. That statement, which it quotes in full, is particularly significant. It shows that the contacts which took place at the margins of the European Synthetic Rubber Association meetings were merely unavoidable and natural encounters between sector operators, who discussed diverse questions, in most cases on the basis of public information, with no collusive intent. It is possible that, in that context, fortuitous situations arose, which could be described as ‘borderline’. But there is a big difference between such a situation and a cartel, which the Commission has not bridged by adducing relevant evidence. Polimeri adds that the Commission deliberately overlooks the fundamental difference between sharing public information and concluding an agreement on the prices of a particular product. Polimeri also points out that Mr N.’s statement confirms that there was no joint vision, not only as regards the trend of raw material prices, but also as regards the ultimate objective pursued by the companies.
159. The Commission contends that the plea should be rejected. First of all, the Commission submits that, in Annexes A 23 to A 25 to the application, Polimeri sets out numerous complaints and arguments which do not appear in the text of the application. By proceeding in that way, Polimeri contravenes the first paragraph of Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure. As to the remainder, the Commission submits, in essence, that it did not err in finding that an infringement was committed in Polimeri’s case.
b) Findings of the Court
160. It must be pointed out that, as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see the case-law cited in paragraph 50 above). It is also clear from the case-law in that in order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case 41/69 ACF Chemiefarma
v Commission
[1970] ECR 661, paragraph 112; Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others
v Commission
[1980] ECR 3125, paragraph 86; and Case T-7/89 Hercules Chemicals
v Commission
[1991] ECR II‑1711, paragraph 256). 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 (Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 215).
Admissibility of certain arguments put forward by Polimeri in the context of the eighth plea in law
161. Under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, each application is required to state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. According to settled case-law, it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C‑52/90 Commission
v Denmark
[1992] ECR I-2187, paragraph 17, and Case T‑201/04 Microsoft
v Commission
[2007] ECR II‑3601, paragraph 94). Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T-84/96 Cipeke
v Commission
[1997] ECR II-2081, paragraph 34, and Case T-231/99 Joynson
v Commission
[2002] ECR II-2085, paragraph 154).
162. Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, Case T-352/94 Mo och Domsjö
v Commission
[1998] ECR II-1989, paragraph 333).
163. In this case, Polimeri states that: ‘[O]n account of the strictly limited number of pages with which this application has to comply, the applicant will put forward its arguments on the part headed “General description of the cartel”, whereas it will reserve its specific observations on the part headed “Cartel meetings” for Annex [A] 23, Annex [A] 24 and Annex [A] 25 [to the application].’
164. Accordingly, Polimeri sets out in the body of the application a complaint concerning the part of the contested decision headed ‘General description of the cartel’ (that is Section 4.2). The complaint concerning the part of the contested decision headed ‘Cartel meetings’ (that is Section 4.3) is fully explained, in law and in fact, only in Annexes A 23 to A 25 to the application.
165. More specifically, the only arguments advanced by Polimeri in the body of the application as regards the part of the contested decision headed ‘Cartel meetings’ are the following:
‘So far as concerns the period from 1996 to 2000 (in Annex [A] 23 [to the application]), Polimeri claims that it is impossible to maintain that there was any form of cartel between competitors on either ESBR or BR prices. In the few cases where the annexed documentation refers to meetings apart from official meetings, documentation which relates in very large part to ESBR, there really is nothing to support the conclusion that the commercial policy of the undertakings was coordinated in any way whatsoever.
As for 2001, Polimeri demonstrates, in Annex [A] 24 [to the application], that it was an absolutely irrelevant year from the antitrust point of view, both as regards BR and as regards ESBR, so that if the Commission were to find as established the existence of a cartel in the case of EniChem, although it is not established, that cartel should in any event be regarded as having ended in 2000 at the latest.
Finally, in 2002 (Annex [A] 25 [to the application]), as the Commission itself admits, BR is not covered by any objection. So far as ESBR is concerned, no illegal activity has been demonstrated in the case of Polimeri.’
166. The places and dates of the meetings in question are indicated in footnotes.
167. Moreover, the eighth plea in law raised by Polimeri in the application breaks down into two parts, excluding the part headed ‘Introduction’. Those two parts, headed ‘Sources of the evidence’ and ‘General description of the cartel’, relate to specific parts of the contested decision with the same headings. Nowhere does the eighth plea raised by Polimeri in the application contain a part headed ‘Cartel meetings’.
168. In those circumstances, Polimeri’s complaint against the section of the contested decision headed ‘Cartel meetings’ (that is Section 4.3), the main points of fact and law of which are set out only in Annexes A 23 to A 25 to the application, does not satisfy the requirements laid down by Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure.
169. Polimeri cannot compensate for that deficiency by introducing, at the reply stage, certain factual or legal data relating to ‘Cartel meetings’ and by referri ng to Annexes A 23 to A 25 to the application or by providing new annexes to the reply. In reviewing the compliance of the application with the requirements of Article 44(1) of the Rules of Procedure, the content of the reply is, by definition, not relevant. In particular, the admissibility, permitted by the case-law (Case T‑106/95 FFSA and Others v Commission
[1997] ECR II‑229, paragraph 125, and Case T‑14/96 BAI
v Commission
[1999] ECR II‑139, paragraph 66), of pleas and arguments put forward in the reply as amplifications of pleas in the application cannot be raised with the aim of compensating for a failure, arising during the initiation of the action, to comply with the requirements of Article 44(1) of the Rules of Procedure, without rendering the latter provision devoid of purpose (order in Case T‑144/04 TF1 v Commission
[2008] ECR II-761, paragraph 30; see also, to that effect, Joined Cases T‑33/89 and T‑74/89 Blackman
v Parliament
[1993] ECR II‑249, paragraph 65, and order in Case T‑85/92 De Hoe v Commission
[1993] ECR II‑523, paragraph 25).
170. In the light of those considerations, in so far as it relates to Section 4.3 of the contested decision headed ‘Cartel meetings’, Polimeri’s complaint is inadmissible (see, to that effect, Mo och Domsjö
v Commission, cited in paragraph 162 above, paragraph 334; Case T‑322/01 Roquette Frères
v Commission
[2006] ECR II‑3137, paragraph 210; and Case T‑340/03 France Télécom
v Commission
[2007] ECR II‑107, paragraph 168).
The first part of the eighth plea in law, concerning the sources of the evidence
171. Firstly, as regards the statements made by the undertakings which had applied for immunity or a reduction of their fine, Polimeri’s arguments are raised, as the Commission points out, in general terms, without providing sufficiently precise information. Those arguments cannot, therefore, affect the lawfulness of the contested decision in that regard. Assuming that Polimeri’s arguments seek to call into question the evidential value of the statements made by undertakings in the context of the Leniency Notice, they must be rejected for the same reasons as those set out in the context of the first plea in law (see paragraph 58 above).
172. Secondly, as regards the handwritten notes of Mr N. (Dow), it must be pointed out first of all that, in the part of the application relating to ‘sources of the evidence’, Polimeri disputes only those relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt (recital 201 to the contested decision). Polimeri does not dispute Mr N.’s handwritten notes relating to the illegal meeting of 25 and 26 February 1997 in Vienna (Austria) (recital 173 to the contested decision). Moreover, Polimeri does not dispute, in that part of the application, Mr N.’s handwritten notes relating to the illegal meeting of 20 and 21 May 1996 in Milan (recital 163 to the contested decision). The fact that Polimeri may have disputed the evidential value of the last-mentioned notes elsewhere in the application, and in particular in the context of the 13th plea in law, cannot alter that conclusion. In any event, for the reasons which will be set out in the context of that plea, Polimeri has not adduced any evidence to call into question the evidential value of those notes. Consequently, even if there may be some doubt as to the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt or the contested decision suffers from a defective statement of reasons in that regard, as Polimeri maintains, that cannot impair the evidential value of the other handwritten notes mentioned previously.
173. Next, Polimeri’s eighth plea in law is part of the pleas relating to the substance of the contested decision and not part of the pleas relating to the cancellation or reduction of the fine. Polimeri’s eighth plea therefore seeks a declaration by the Court that no infringement was committed by Polimeri. However, even if the Court finds it necessary to negate the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 15 and 16 November 1999 in Frankfurt or to hold that Polimeri did not participate in that meeting, that would not have the effect of establishing that no infringement was committed by that undertaking. The finding of the infringement is based on other evidence, including statements by undertakings which corroborate other statements of the same nature, handwritten notes of other illegal meetings and documentary evidence collected in the course of the Commission’s investigation. Moreover, in the case of agreements reached at meetings of competing undertakings, the competition rules are infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 145).
174. It follows that the arguments made by Polimeri with regard to the sources of the evidence must be rejected.
The second part of the eighth plea in law, concerning the general description of the cartel
175. As a preliminary point, regarding the criticism directed by Polimeri against the assertion by Mr W. (Bayer), reproduced in recital 112 to the contested decision, that Mr L. (EniChem) and Mr W. asked Mr N. (Dow) no longer to take notes of the unofficial discussions, it must be held that, even if Polimeri’s criticism can be upheld and Mr W.’s assertion is rejected, such a circumstance would not affect the lawfulness of the contested decision. That would not call into question Bayer’s other statements, since they are confirmed by Dow or Shell or are supported by documentary evidence. Moreover, the abovementioned statement by Mr W. enabled the Commission to explain why, according to it, no handwritten notes concerning illegal meetings could be found in respect of the years 2000 and 2001 (recital 113 to the contested decision). That explanation does not affect the substance of the contested decision. The Commission also makes use of Mr W.’s statement in recital 152 to the contested decision, where it describes the role of each undertaking concerned in the cartel. However, it is not evident from the contested decision that the Commission took account of that circumstance in assessing the gravity of the infringement with respect to Polimeri. In any event, even if an error on the part of the Commission in that regard might have affected the amount of Polimeri’s fine, it cannot affect the finding of the infringement.
176. As a further preliminary point, it should be noted that Polimeri’s arguments will be analysed separately for BR and ESBR, even though Polimeri has failed to show that the Commission erred in classifying the present infringement as single (see, in that regard, the fourth plea in law above).
– Price agreements
177. As regards BR, and so far as concerns the fact that the statements of Mr W. (Bayer), reproduced in recitals 105 and 106 to the contested decision, are vague, it must also be pointed out that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated therein. In that context, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission ( JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 203). Consequently, Polimeri’s arguments are not capable of calling into question Mr W.’s statements reproduced in recitals 105 and 106 to the contested decision, which are, moreover, supported by the statements of Dow and Shell and by documentary evidence.
178. As regards Mr W.’s statement reproduced in recital 103 to the contested decision, it is adduced by the Commission for the purpose of establishing the history of the relations between the undertakings concerned. More specifically, the statement in question concerns 1995, that is a period in respect of which the Commission did not find any infringement of the competition rules. Consequently, Polimeri’s arguments are irrelevant for the purpose of establishing that no infringement took place in this case.
179. As regards ESBR, and so far as concerns the fact that Mr de J. (Shell) has always denied having taken part in the agreements in question, it is sufficient to observe that Shell expressly admits having participated in price-fixing agreements between 30 August 1995 and 31 May 1999 (recital 119 to the contested decision). Contrary to what Polimeri seems to suggest, that statement was made on behalf of Shell and not on behalf of Mr V. personally. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion (Case T-23/99 LR AF 1998
v Commission
[2002] ECR II-1705, paragraph 45, and JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 205). As regards the fact that statements by undertakings have evidential value only with regard to the company which makes them, it is sufficient to point out that Shell’s statements are supported not only by the statements of Bayer and Dow but also by documentary evidence adduced by the Commission.
180. As regards the claim that Bayer’s statement reproduced in recitals 110 to 114 to the contested decision conflicts with the position stated by certain of its employees, it must be observed that Bayer’s statement tends to acknowledge the existence of agreements on ESBR prices between September 1996 and 1999. As noted in the previous paragraph, the answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion. Consequently, the statements of Bayer’s employees cannot have greater evidential value than that company’s statement. Furthermore, Bayer’s statement is supported by the statements of Dow and Shell and by a number of items of documentary evidence.
181. Finally, as regards the price analyses cited by Polimeri, as regards both BR and ESBR, proof of consultation between the undertakings does not result from a mere finding of parallel conduct on the market, but from documents showing that the practices were the result of consultation. In those circumstances, the explanation give by Polimeri as regards the prices charged is not capable of calling into question the Commission’s finding that a cartel existed between the undertakings concerned.
182. For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion regarding price agreements.
– Market-sharing agreements
183. As regards BR, it must be pointed out, firstly, that Polimeri states that only Bayer’s statement reproduced in recital 129 to the contested decision relates to market-sharing agreements. However, Polimeri’s premiss is incorrect. The Commission’s conclusion is also based on a statement by Dow, reproduced in recital 125 to the contested decision, ‘covering both BR and ESBR’. In that statement, Dow states inter alia that bilateral discussions between the producers concerned specific customers. In particular, Dow notes that the producers had assured EniChem SpA that they would not attack its position with Michelin or Bridgestone. Moreover, Shell’s statement, reproduced in recital 127 to the contested decision, mentions a discussion between Mr W. (Bayer) and Mr V. (Shell) concerning sales of BR to ‘BP’. The fact that Mr L. (EniChem) denies having participated in that discussion or that BR does not concern the carpet market cannot call that statement into question, at least as regards the bilateral contact between Bayer and Shell. Moreover, Bayer’s statement reproduced in recital 129 to the contested decision, which Polimeri does not formally challenge, is explicit as regards the market-sharing agreements between the competitors for BR. In it Bayer states that, ‘also for BR’, it was agreed not to take other competitors’ customers. It follows that the sharing of the BR market is confirmed by the statements from three of the undertakings concerned, namely Bayer, Dow and Shell. It must be recalled, in that regard, that the statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks. That probative value is particularly high when, as is the case here, the statements of undertakings support other statements of the same nature.
184. Secondly, certain statements by undertakings, even though they do not relate specifically to BR, mention instances of market sharing. That is true of Shell’s statement in recitals 120 and 128 to the contested decision, and of Bayer’s statement in recital 126 to the contested decision.
185. Thirdly, as regards the alleged fact that sharing of the BR market is unlikely in view of the commercial strength of the customers or the fluctuations in EniChem SpA’s sales, it must be recalled that, in the case of agreements reached at meetings of competing undertakings, the competition rules are infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see the case-law cited in paragraph 173 above).
186. As regards ESBR, and so far as concerns Bayer’s statement reproduced in recital 124 to the contested decision, Polimeri’s arguments are actually based on a mistranslation into Italian of Mr P.’s statement made in German. However, regrettable though that mistranslation may be, it is not such as to call into question either Mr P.’s statement or its evidential value. It must be pointed out, in that regard, that the original version of Mr P.’s statement is reproduced in a footnote to the contested decision, regardless of the language version of the latter. Moreover, that mistranslation cannot have affected Polimeri’s rights of defence before the Court, since it was able to put forward arguments in that regard at the reply stage. Finally, even if the translation produced by the Commission before the Court is to be disregarded, as Polimeri maintains, that would leave intact the original version of Mr P.’s statement reproduced in the contested decision, which was notified to Polimeri. The Court would therefore have every right to refer to that version in assessing the lawfulness of the contested decision. It is evident from the original version of Mr P.’s statement that, even though he states that no agreement to freeze market shares or production capacities had been concluded, it was nevertheless understood that none of the undertakings involved wished to hurt the others and that they were also minded not to engage in aggressive competition towards the main customers of the other parties. Consequently, it must be concluded that the undertakings concerned were following a consistent pattern of non-aggression as regards customers.
187. As regards Dow’s statement, reproduced in recital 125 to the contested decision, it supports Bayer’s statement that the undertakings concerned were following a consistent pattern of non-aggression. The fact that Polimeri specifically disputes the assertion that the producers assured EniChem SpA that they would not attack its position with Michelin and Bridgestone, in particular because EniChem SpA’s sales had fluctuated, does not affect the finding that Dow’s statement supports that of Bayer. Furthermore, in the case of agreements reached at meetings of competing undertakings, Article 81 EC is infringed where those meetings have an anti-competitive object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see the case-law cited in paragraph 173 above).
188. Finally, as regards Bayer’s statement reproduced in recital 126 to the contested decision, the fact that the undertakings concerned (in this case Dow and EniChem SpA) accused each other, at joint meetings with the other undertakings, of having stolen each other’s customers or market shares is evidence that the underlying reasoning of the undertakings was one of non-aggression, and not the opposite.
189. The consistent pattern of non-aggression adopted by the undertakings concerned is also confirmed by Shell’s statements, reproduced in recitals 120 and 128 to the contested decision, and by that of Bayer, reproduced in recital 129 to the contested decision. Furthermore, certain items of documentary evidence demonstrate at the very least that information concerning the customers of the undertakings concerned was exchanged. This is apparent, inter alia, from the handwritten notes of Mr N. (Bayer) made at the illegal meeting of 20 and 21 May 1996 in Milan.
190. For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards market-sharing agreements.
– Exchange of sensitive commercial information
191. It is sufficient to observe, in this regard, that, in view of the conclusions relating to the agreements on prices and on market sharing, the undertakings concerned necessarily exchanged sensitive commercial information, namely, at the very least, data on prices or on customers.
192. For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards the exchange of sensitive commercial information.
– Monitoring of compliance with the agreements
193. As a preliminary point, it must be observed, as the Commission correctly points out, that Polimeri criticises certain recitals to the contested decision, relating to the monitoring of the agreements in so far as they specifically concern EniChem SpA. Polimeri does not contest the recitals to the contested decision which implicate other undertakings. An undertaking may be held liable for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements, if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and if th at overall plan included all the constituent elements of the cartel ( PVC II, cited in paragraph 52 above, paragraph 773, and JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 370). Similarly, the fact that different undertakings have played different roles in the pursuit of a common objective does not mean that there was no identity of anti-competitive object and, therefore, of infringement, provided that each undertaking has contributed, at its own level, to the pursuit of the common object ( JFE Engineering and Others v Commission, cited in paragraph 46 above, paragraph 370). Since it has already been concluded that Polimeri had participated in agreements on prices and on market sharing, Polimeri’s arguments relating to its individual participation in complying with the agreements are not capable of calling into question the finding of an infringement of the competition rules so far as it is concerned.
194. In any event, as regards BR and the statements of Bayer and Dow reproduced in recitals 137, 138 and 143 to the contested decision, it must be held that, although the events described in them are not precisely dated, they are sufficiently detailed (names of undertakings, and even of the employees concerned or their superiors, names of customers or products, date ranges). There is nothing to cast doubt on their evidential value as, in general terms, Polimeri does. More specifically, as regards Dow’s statement reproduced in recital 143 to the contested decision, even though it mentions the name of Karbochem (an undertaking owned by Dow at the time), it does not refer to the litigation mentioned by Polimeri in its pleadings. On the other hand, Dow’s statement does explicitly mention bilateral contacts aimed at increasing the prices charged by Karbochem for sales to Pirelli. So far as concerns the statement by Mr W. (Dow) reproduced in recital 144 to the contested decision, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were entitled to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. In any event, that statement is in line with the statement by Mr F. (Dow) reproduced in recital 143 to the contested decision, which, for its part, is detailed. The statement reproduced in recital 144 to the contested decision seeks to show that another Dow employee had been contacted by EniChem SpA for the same reasons (namely actual selling prices). Furthermore, even assuming that that conversation did not take place, that would not take away the probative value of the other evidence contained in the part of the contested decision relating to the monitoring of compliance with the agreements, the majority of which is not contested by Polimeri.
195. As regards ESBR, Polimeri challenges only the statement of Bayer reproduced in recital 140 to the contested decision. According to Polimeri, the contacts in question were connected with a supply contract relating to a product which does not fall within the ESBR category. However, Bayer’s statement refers specifically to discussions on ESBR (market, raw material prices, and so forth). The fact alleged by Polimeri is therefore not capable of justifying the bilateral contacts set out in recital 140 to the contested decision.
196. For those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s conclusion as regards the monitoring of compliance with the agreements.
– The factual framework described by Mr N.
197. In the light of the considerations set out above, it must be held that the contacts between the undertakings concerned in the margins of the meetings of the European Synthetic Rubber Association were anything but ‘unavoidable and natural’, as Polimeri maintains.
198. Furthermore, it is clear from the statements of Dow (namely Mr N.’s employer) that that company expressly acknowledges having participated in the conclusion of agreements contrary to the competition rules. Mr N.’s statement referred to by Polimeri in its pleadings cannot, therefore, have more evidential value than that made by the company employing him. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion (see the case-law cited in paragraph 179 above).
199. For those reasons, Polimeri’s arguments are not capable of calling into question the finding, in this case, of an infringement of the competition rules.
200. In the light of those considerations, the eighth plea in law raised by Polimeri must be rejected as unfounded.
6. Ninth plea in law: unsubstantiated finding that Polimeri participated in the alleged cartel
a) Arguments of the parties
201. Firstly, Polimeri notes that recital 152 to the contested decision, which states that cartel discussions were initiated following pressure from EniChem SpA, itself refers to recital 103 to the contested decision. However, it argues, the latter recital refers to a period – 1995 – which is no longer covered by the accusation. The same observation also applies to the Commission’s findings concerning ESBR and the reference to recital 108 to the contested decision, since the latter recital refers to a meeting held in August 1995. Moreover, a cartel would have been absurd since, during that period, prices continued to increase spontaneously.
202. Secondly, as regards the Commission’s finding that Bayer and Dow considered that EniChem SpA played a leading role within the cartel, it was unrealistic to expect those two market leaders (one for BR, the other for ESBR) to admit to being themselves the instigators of the cartel. Recital 150 to the contested decision is however interesting, inasmuch as Dow identifies Bayer as one of the two companies which drove BR price discussions, whereas Bayer dismisses any responsibility in that regard.
203. Thirdly, Polimeri states that it has already expressed its views on Shell’s subsequent evidence, only confirmed a posteriori by the vague recollections of Mr W. (Bayer), who described the meeting of 19 and 20 February 1998 with Mr L. (EniChem), and refers to an annex to the application.
204. Fourthly, as regards the assertion that Mr L. (EniChem) telephoned ‘around’ to coordinate the activities of the cartel, it comes from the first statement of objections. However, the second statement of objections and the contested decision indicate the contrary. Polimeri also observes that the Commission mentions the fact that Mr L. intervened to persuade Mr N. (Dow) to stop taking notes of the cartel meetings, but does not mention, in recital 150 to the contested decision, the fact that Mr W. (Bayer) did the same thing. In any event, that assertion is unfounded.
205. Finally, Polimeri argues, the Commission’s claim that in 1998, 2000 and 2001 EniChem was the largest combined supplier of BR and ESBR is incorrect. EniChem was the market leader for ESBR only in 1998. Bayer has always been the market leader for BR. Dow was the market leader for ESBR, at least from 2000 onwards (that is from when it acquired Shell’s share).
206. In conclusion, the elements cited in recital 152 to the contested decision to establish the leading role played by EniChem SpA in the alleged cartel are unsubstantiated.
207. The Commission contends that the plea should be rejected. It points out that it was not required to demonstrate that EniChem SpA/Polimeri had played a leading role in the cartel in question, but merely that that undertaking had participated in it. The analysis of the complaints relating to alleged errors in the assessment of the evidence concerning the existence of the cartel (see the eighth plea above) shows clearly that Polimeri has not demonstrated the unsubstantiated nature of the numerous items of evidence showing the existence of a single and continuous infringement of Article 81 EC and the participation of EniChem SpA/Polimeri in that infringement.
b) Findings of the Court
208. By its ninth plea in law, Polimeri maintains that the elements cited in recital 152 to the contested decision to establish the leading role played by EniChem SpA in the alleged cartel are unsubstantiated.
209. It must be observed, in that regard, that the ninth plea was put forward by Polimeri in the context of the pleas relating to the substance of the contested decision and not in the context of the pleas relating to annulment or reduction of the fine.
210. For the reasons set out in the context of the eighth plea, the Commission correctly found that EniChem SpA participated in the infringement. Consequently, even if the Commission erred as regards the allegedly leading role of EniChem SpA in the cartel, the arguments raised in the context of the ninth plea are not capable of calling into question the lawfulness of the contested decision as regards the finding of the infringement in Polimeri’s case.
211. It should nevertheless be pointed out that Polimeri stated at the hearing that the ninth plea also concerned the amount of the fine. It must be held, in that regard, that, in view of the wording used in the pleadings lodged before the Court, and in particular that of the application, the argument put forward by Polimeri at the hearing constitutes a new plea in law which must, on that basis, be declared inadmissible. In any event, it is not apparent from the contested decision that the Commission took account of the allegedly leading role of EniChem SpA in the cartel for the purpose of setting the amount of the fine imposed on Polimeri.
212. In the light of those considerations, the ninth plea in law raised by Polimeri must be rejected as unfounded.
C – The pleas in law relating to the setting of the amount of the fine
1. Tenth plea in law: unsubstantiated assessment of the gravity of the infringement
a) Arguments of the parties
213. Firstly, according to Polimeri, the analysis carried out in the context of the pleas relating to the substance of the contested decision shows that the conduct at issue cannot be classified as very serious in itself, since the term ‘cartel’ cannot apply to the situation in this case. Even if the Court were to confirm the contested decision as a whole, it should nevertheless take account of the fact that, of the two products in respect of which the contested decision was adopted, at least one – BR – was never the subject of any form of collusion.
214. Secondly, the Commission should have taken account of the actual impact of the alleged cartel on the market, in so far as it was measurable. As is apparent from recital 462 to the contested decision, the Commission did not carry out such an analysis. It merely claimed that the infringement in question was very serious by definition (recital 464 to the contested decision). Polimeri takes issue with that approach and refers, inter alia, to Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraphs 223 and 243 to 254. In particular, Polimeri submits that, if it is proved that the cartel did not have any effect, the Commission should set the amount of the fine at a lower level than that which would have been set in the absence of that finding. Polimeri points out in particular that, if an actual effect on the market constitutes a factor to be taken into account in any increase of the fine, the absence of harmful effects on the sectors concerned can only justify a reduction of the penalty. The absence of any analysis of the effects of the alleged cartel does not arise from an objective impossibility of making an assessment, but from an inability on the part of the Commission to carry out such an analysis or from a clumsy attempt on its part to conceal an item of data fundamental for evidential purposes and for the determination of the amount of the fine. The fact that the Commission included an analysis of prices in the first statement of objections, then withdrew it, confirms that conclusion.
215. Thirdly, Polimeri points out that the studies which it carried out, without great difficulty despite the absence of actual data (that is to say, only on the basis of the price data with which the parties provided the Commission), demonstrate that the alleged infringement had no effect on the trend of prices. The latter increased only in line with the rise in the prices of raw materials. Furthermore, even on the disputed assumption that the sporadic market-sharing agreements actually existed, they had no impact on customers, since the latter continued to buy from whom they wished and when they wished to do so. Polimeri also refers to Commission Decision 1999/210/EC of 14 October 1998 relating to a proceeding pursuant to Article [81] EC (Case IV/F‑3/33.708 – British Sugar plc, Case IV/F-3/33.709 – Tate & Lyle plc, Case IV/F-3/33.710 – Napier Brown & Company Ltd, Case IV/F‑3/33.711 – James Budgett Sugars Ltd) (OJ 1999 L 76, p. 1), in which the Commission ruled out a very serious infringement, since the effects of the infringement had not been demonstrated.
216. Fourthly, Polimeri reiterates its position that the Commission reduced the overall value of the market in order to make the case that the cartel accounted for more than 80% of BR and ESBR sales. That conclusion, it argues, is invalid. Furthermore, Polimeri has, it maintains, demonstrated that the alleged cartel never involved more than one third of the market for BR/natural rubber, or more than half the market for ESBR/natural rubber. Polimeri refers, finally, to Degussa
v Commission, cited in paragraph 214 above, in which the Court reduced the fine by 15% because, ‘according to the Commission’s own findings, the cartel members’ market share had fallen progressively, from the time of Monsanto’s entry into the market, reaching 60% towards the end of the infringement’.
217. Fifthly, Polimeri states that the assessment of the gravity of the infringement should have differentiated between the two markets in question. However, even when analysed together, those two markets are, it maintains, of little significance. The Court has stated, in that regard, that the adjustment of the starting amounts of fines according to market size is a reasonable and coherent practice (Case T‑15/02 BASF
v Commission
[2006] ECR II‑497). Moreover, Polimeri’s fine amounts to nearly half the value of the market for 2001 (recital 467 to the contested decision). That approach is unreasonable and contrary to the principle of proportionality. Polimeri adds that, since that observation also applies in the context of the increase for repeated infringement, the Commission cannot base an argument on the fact that Polimeri did not contest in the application Eni’s involvement in the cartel. It is not for Polimeri, but for Eni itself, to challenge that fact.
218. The Commission contends that the plea should be dismissed. It submits, in essence, that it did not err in its assessment of the gravity of the infringement.
b) Findings of the Court
219. The gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up ( Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 108 above, paragraph 465, and Dansk Rørindustri and Others v Commission, cited in paragraph 173 above, paragraph 241).
220. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see Dalmine v Commission, cited in paragraph 108 above, paragraph 130 and the case-law cited).
221. Furthermore, the Guidelines state, inter alia, that in assessing the gravity of the infringement account must be taken of its nature, its actual impact on the market, where that can be measured, and the size of the relevant geographic market. Infringements are thus put into one of three categories: minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1.A).
222. In the present case, the Commission finds, first of all, in the contested decision that the undertakings concerned concluded agreements on price targets and market sharing, and exchanged sensitive commercial information. For the Commission, these practices are, by their very nature, very serious infringements (recital 461 to and Article 1 of the operative part of the contested decision). Next, the Commission states that it is not possible to measure the actual impact of the cartel on the EEA market. The Commission further contends that, even if it is not possible to measure the actual impact of the cartel, the agreements in question were implemented by the undertakings concerned and, therefore, had an effect on the market. The Commission concludes by stating that it will not take into account the impact on the market in determining the amounts of the fines (recital 462 to the contested decision). Finally, the Commission notes that the infringement covers the whole of the EEA (recital 463 to the contested decision). For those reasons, the Commission takes the view that the infringement at issue can be described as very serious (recital 464 to the contested decision).
223. Thereafter the Commission applies differential treatment to the undertakings concerned on the basis of their combined BR and ESBR sales for 2001, the last full year of the infringement, except in respect of Shell (1998, since Shell sold its businesses in 1999) and Stomil (1999, since Stomil ended its infringement in 2000). The Commission places the undertakings concerned in five categories, EniChem being in the first category (starting amount of the fine: EUR 55 million) (recitals 465 to 473 to the contested decision).
224. Firstly, it must be observed that, by its arguments, Polimeri maintains that the cartel had no effect on the market.
225. It should be recalled that, as is clear from the considerations set out in the context of the eighth plea, the Commission correctly concluded that the undertakings concerned had infringed Article 81(1) EC in respect of BR and ESBR. In that regard, it follows from the description of very serious infringements in the Guidelines that agreements or concerted practices aimed in particular, as in this case, at setting target prices or the allocation of market shares may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without the Commission being required to demonstrate an actual impact of the infringement on the market (see, to that effect, Case C‑534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I‑7415, paragraph 75; see also Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others
v Commission
[2005] ECR II‑3033, paragraph 178, and Hoechst
v Commission, cited in paragraph 59 above, paragraph 345). Similarly, it is settled case-law that horizontal price agreements are particularly injurious under Community competition law and may, by reason of that fact alone, be classified as very serious (see, to that effect, Joined Cases T‑202/98, T‑204/98 and T‑207/98 Tate & Lyle and Others
v Commission
[2001] ECR II‑2035, paragraph 103, and Groupe Danone
v Commission, cited in paragraph 160 above, paragraph 147).
226. The Commission did not therefore err in finding that the practices at issue were, by their nature, very serious infringements.
227. As regards the Commission’s previous decision-making practice, and in so far as Polimeri alleges a breach of the principle of equal treatment, it is sufficient to point out that the considerations which led to the adoption of Decision 1999/210 (see paragraph 215 above), referred to by Polimeri in its pleadings, are different from those of this case. In particular, Decision 1999/210 made it clear that the geographic scope of the relevant market was confined to Great Britain (recital 193 to Decision 1999/210). It cannot therefore be inferred from Decision 1999/210 that the Commission concluded that a serious, and not a very serious, infringement had taken place solely on the basis of the fact that the effects of the infringement had not been demonstrated, as Polimeri in essence maintains. Furthermore, the contested decision finds that there was a single and continuous agreement under which the undertakings concerned agreed, inter alia, to share customers. No such circumstance was mentioned in Decision 1999/210.
228. In the light of those considerations, the arguments put forward by Polimeri as regards the absence of effects of the cartel on the markets concerned must be dismissed.
229. Secondly, as regards the alleged fact that the Commission incorrectly determined the overall value of the relevant market, it must first be recalled that the size of the market is one of the factors to be taken into account in determining the gravity of the infringement (see, to that effect, Dalmine v Commission, cited in paragraph 108 above, paragraph 132, and Case T‑329/01 Archer Daniels Midland
v Commission
[2006] ECR II‑3255, paragraph 102). Secondly, it is apparent from the documents produced by the Commission in response to a question put by the Court that the assertion contained in recital 66 to the contested decision, that sales of BR and ESBR by producers outside the cartel totalled ‘at least around EUR 70 million’ in 2001, is not incorrect. In those circumstances, there is nothing to support a finding that the Commission erred in the contested decision by estimating the value of the market concerned at ‘at least’ EUR 550 million in 2001 (recital 467). In any event, as the Commission rightly points out, there is nothing to support a finding that an underestimate of that figure was detrimental to Polimeri.
230. Thirdly, as regards the alleged fact that the Commission should have taken account of natural rubber, which is substitutable for BR and ESBR, in determining the value of the market in question and, therefore, the market shares of the undertakings concerned, it must be pointed out that the cartel did not cover that product. The assessment of the gravity of an infringement, and in particular of the effective economic capacity of the offenders to cause damage to other operators (fourth paragraph of Section 1.A of the Guidelines), cannot be made by reference to products other than those to which the cartel related (Case T‑48/02 Brouwerij Haacht
v Commission
[2005] ECR II‑5259, paragraph 59).
231. Fourthly, as regards the arguments put forward in the alternative by Polimeri, relating to the taking into account of the size of the relevant market as it appears from the contested decision (namely the amount of EUR 550 million for 2001 in the EEA), it must be held that, although that factor may be taken into consideration in determining the gravity of the infringement, account must be taken of the other relevant factors in the specific case (see, to that effect, Dalmine
v Commission, cited in paragraph 108 above, paragraph 132, and Archer Daniels Midland
v Commission, cited in paragraph 229 above, paragraph 102). In the present case, account must be taken of the fact that the infringement in question was intrinsically very serious and that it covered the whole of the EEA. In particular, it must be pointed out that the undertakings concerned agreed to set price targets, share customers by non-aggression agreements and exchange sensitive information on prices, competitors and customers. Furthermore, it must be borne in mind that, under Section 1.A of the Guidelines, the likely fine for a very serious infringement is more than EUR 20 million. Next, it must be noted that EniChem’s sales for the products in question in 2001 amounted to more than EUR 164 million (recital 468 to the contested decision). Finally, Polimeri does not dispute that the amount of the fine set does not exceed the cap of 10% of its turnover during the preceding business year laid down by Article 23(2) of Regulation No 1/2003, a limit which is designed to prevent the undertaking concerned from being unable to pay the fine in question (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 119). In the light of those circumstances, the setting of a starting amount of the fine of EUR 55 million cannot be called into question by the arguments put forward by Polimeri.
232. As regards the disproportion alleged as between the final amount of the fine jointly and severally imposed on Eni and Polimeri (namely EUR 272.25 million) and the size of the relevant market for 2001 (namely EUR 550 million), it must be recalled that, when fixing the amount of each fine, the Commission has a discretion (Case C‑283/98 P Mo och Domsjö
v Commission
[2000] ECR I‑9855, paragraph 47, and Case T‑303/02 Westfalen Gassen Nederland
v Commission
[2006] ECR II‑4567, paragraph 151). Moreover, under Article 23(3) of Regulation No 1/2003, the amount of the fine is to be determined on the basis of the gravity of the infringement and its duration. Furthermore, that amount is the result of a series of arithmetical calculations performed by the Commission in accordance with the Guidelines. That amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the existence of aggravating or attenuating circumstances (Case T‑304/02 Hoek Loos
v Commission
[2006] ECR II‑1887, paragraphs 82 and 85). It cannot be inferred from that legal framework that the Commission must ensure a proportion between the amount of the fine, as thus calculated, and the overall volume of the relevant product market in the EEA, for a given year of the infringement (in this case 2001), when the infringement in question lasted more than six years and when the amount of the fine also depends on other factors linked to the individual conduct of the undertaking (see, to that effect, Hoechst
v Commission, cited in paragraph 59 above, paragraph 342). It follows that Polimeri’s argument in that regard must be dismissed.
233. In the light of those considerations, the 10th plea in law raised by Polimeri must be dismissed as unfounded.
2. Eleventh plea in law: unlawful application of differential treatment
a) Arguments of the parties
234. Polimeri points out that the specific weight of the undertakings was established by comparing the combined sales of BR and ESBR with the total value of sales in 2001. The latter value is, it argues, far from verified, in so far as it was visibly reduced between the second statement of objections and the contested decision. Moreover, by adding together the value of the sales of the two products, Polimeri was wrongly assigned a specific weight which it never had, since it was always positioned after Bayer for BR and it was positioned before Dow only in respect of 1998. If the two markets had been separated, the result would have been different. Polimeri observes, in that regard, that the Guidelines lay down that account is to be taken of the ‘real impact of the offending conduct of each undertaking on competition’. That means first identifying the markets concerned by the infringement. Even in deciding to aggregate the two markets, account should have been taken of their competitive environment, and in particular of natural rubber. Finally, the starting amount of the fine for Polimeri is equivalent to 33% of the combined value of its sales. In view of the fact that the specific weight assigned to Polimeri is unjustified, that amount is excessive.
235. The Commission contends that the plea should be dismissed. It points out in particular that, according to the wording of Section 1.A of the Guidelines, the criterion under consideration is intended to apportion the basic amount of the fine between the undertakings participating in the cartel found to exist, and not to assess the impact of the cartel (as a whole) on the relevant market (by also taking account of possible replacement products).
b) Findings of the Court
236. It is sufficient to note that most of the arguments raised by Polimeri overlap with those put forward in the context of the 4th and 10th pleas. Consequently, for the same reasons as those set out in paragraphs 100, 101, 229 and 230 above, Polimeri’s arguments must also be dismissed in that regard.
237. As regards the starting amount of the fine imposed on EniChem (namely EUR 55 million) being equivalent to 33% of the combined value of its sales on the relevant market for 2001 (namely EUR 164.9 million), it must be held that, for the same reasons as those set out in paragraph 231 above, the setting of a starting amount of the fine of EUR 55 million cannot be called into question by the arguments put forward by Polimeri.
238. In the light of those considerations, the 11th plea in law raised by Polimeri must be dismissed as unfounded.
3. Twelfth plea in law: unlawful application of a multiplier for deterrence
a) Arguments of the parties
239. Firstly, Polimeri maintains that the Commission failed to fulfil its obligation to state reasons. Recital 474 to the contested decision states that the multiplier for deterrence was determined, inter alia, having regard to the ‘circumstances of the case’. However, those circumstances are neither described nor analysed. The Court has already drawn attention to the need for the basic factors taken into account in order to fix the amount of fines to be set out in the body of the decision (Case T‑295/94 Buchmann v Commission
[1998] ECR II‑813, paragraph 173). According to Polimeri, the Commission’s element of discretion in setting the rate of increase for deterrent effect ( Degussa
v Commission, cited in paragraph 214 above, paragraph 317) is not absolute. The definition of those ‘circumstances’ given by the Commission in the defence is questionable and, in any event, belated. The Commission thus infringed the rights of defence of Polimeri, which did not have the opportunity to debate a fundamental element in the determination of the fine.
240. Secondly, Polimeri submits that the Commission breached the principles of equal treatment and proportionality. It is apparent from recital 474 to the contested decision that the Commission used the turnover of the group to which the undertakings involved in the infringement belong. The difference in turnover between Eni and Bayer, which is EUR 46.355 billion, and that between Shell and Eni, which is 3.7 times larger, that is EUR 172.81 billion, resulted in increases in the multiplier of 0.5 and 1 respectively. Without maintaining that there should be a precise relationship of proportionality between the turnover and the multiplier, Polimeri claims that it was wrongly the subject of a highly penalising method of calculation. Polimeri refers, in particular, to Degussa
v Commission, cited in paragraph 214 above, and adds that the existence of an upper limit (namely a multiplier of 3), which is not in fact provided for by the legislation, should not, in any event, operate to its disadvantage. Polimeri adds that it does not understand why the Commission calculated the increase in the fine for the purposes of deterrence on the basis of turnover figures which represent, under the legislation governing concentrations, the amounts deriving from the sale of goods and the provision of services. Furthermore, using Eni’s turnover to determine Polimeri’s multiplier is disproportionate, since it finds itself jointly and severally liable for payment of a fine which was doubled on the basis of the parent company’s turnover.
241. The Commission contends that the plea should be dismissed. It submits, in essence, that it did not err in the application of a multiplier for deterrence.
b) Findings of the Court
242. The Guidelines provide that, in addition to the nature of the infringement, its actual impact on the market and the size of the relevant geographic market, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect (fourth paragraph of Section 1.A).
243. The Commission’s power to impose fines on undertakings which, intentionally or negligently, commit an infringement of Article 81 EC is one of the means given to it with which to carry out the task of supervision conferred on it by Community law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that, in assessing the gravity of an infringement for the purpose of setting the amount of the fine, the Commission must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community (see, to that effect, Musique Diffusion française and Others
v Commission, cited in paragraph 231 above, paragraphs 105 and 106; Case T‑31/99 ABB Asea Brown Boveri
v Commission
[2002] ECR II‑1881, paragraph 166; and Groupe Danone
v Commission, cited in paragraph 160 above, paragraph 169).
244. That requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed. This is so that the fine is not rendered negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, firstly, the need to ensure that the fine is effective and, secondly, respect for the principle of proportionality. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that imposed in respect of the same infringement committed by an undertaking without such resources (see, to that effect, 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, paragraphs 241 and 243; see also ABB Asea Brown Boveri
v Commission, cited in paragraph 243 above, paragraph 170, and BASF
v Commission, cited in paragraph 217 above, paragraph 235).
245. It should be added that the Court of Justice has recognised in particular the relevance of taking into account the overall turnover of each undertaking participating in a cartel in setting the amount of the fine (see, to that effect, Case C‑291/98 P Sarrió
v Commission
[2000] ECR I‑9991, paragraphs 85 and 86, and Case C-57/02 P Acerinox
v Commission
[2005] ECR I‑6689, paragraphs 74 and 75; see also Case C‑289/04 P Showa Denko
v Commission
[2006] ECR I‑5859, paragraph 17).
246. Finally, it must be observed that the objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings comply with the competition rules laid down by the Treaty in respect of the conduct of their activities within the Community or the EEA. It follows that the deterrence factor which may be included in the calculation of the fine is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. That principle applies, in particular, where the Commission has determined a ‘deterrence multiplier’ with which the fine imposed on an undertaking is adjusted (see, to that effect, Showa Denko
v Commission, cited in paragraph 245 above, paragraphs 23 and 24).
247. In the present case, the Commission stated that, within the category of very serious infringements, the scale of fines made it possible to set the fines at a level which would ensure that they had a sufficiently deterrent effect, taking into account the size of each undertaking. On the basis of the worldwide turnover of the undertakings concerned in 2005, the Commission noted that there was a considerable difference in size between, on the one hand, Kaučuk (turnover: EUR 2.718 billion) and Stomil (turnover: EUR 38 million) and, on the other, the other undertakings concerned, particularly Bayer (turnover: EUR 27.383 billion), the first of the large undertakings covered by the contested decision. On that basis, and taking the circumstances of the present case into account, the Commission concluded that no multiplier for deterrence should be applied in respect of Kaučuk and Stomil, and that a multiplier of 1.5 was appropriate in respect of Bayer. Finally, still on that basis, and taking the circumstances of the present case into account, the Commission applied multipliers of 1.75 in relation to Dow (turnover: EUR 37.221 billion), 2 in relation to EniChem (turnover: EUR 73.738 billion) and 3 in relation to Shell (turnover: EUR 246.549 billion) (recital 474 to the contested decision).
248. Firstly, as regards the lack of reasoning alleged by Polimeri, it must be borne in mind that the statement of reasons for an individual decision must disclose, clearly and unequivocally, the reasoning of the institution which adopted it, in such a way as to allow those concerned to know the reasons for the measure and the competent Court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. The reasoning is not required to go into all the relevant facts and points of law, since the question whether it meets the requirements of Article 253 EC must be assessed by reference not only to the wording of the measure in question but also to the context in which it was adopted (Case C-367/95 P Co mmission
v Sytraval and Brink’s France
[1998] ECR I-1719, paragraph 63). The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration ( Sarrió
v Commission, cited in paragraph 245 above, paragraph 73, and Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 108 above, paragraph 463).
249. In the present case, it must be noted that the Commission stated that, in order to ensure that the fine had a sufficiently deterrent effect, it would take account of the size of each undertaking. On that basis, the Commission used the overall turnover in 2005 of the undertakings concerned. Furthermore, the Commission compared the respective sizes of the various undertakings for the purposes of setting multipliers for deterrence. More specifically, as regards EniChem, the Commission stated that the overall turnover of that undertaking was almost double that of Dow. It follows that the factors which enabled the Commission to fix the multiplier for EniChem are clear from the contested decision.
250. The fact that the Commission referred, moreover, to the ‘circumstances of the case’ cannot alter that conclusion. It is not apparent from the contested decision that the Commission referred explicitly to factors other than the overall turnover and relative size of the undertakings concerned in order to fix the multipliers for deterrence, a point confirmed, moreover, by the Commission at the hearing. Furthermore, the expression ‘circumstances of the case’ can be understood as referring precisely to the overall turnover and relative size of the undertakings concerned. In that context, it must be held that the contested decision is sufficiently reasoned to enable the Court to review its legality and Polimeri to exercise its rights of defence.
251. Secondly, as regards breach of the principle of equal treatment, it is apparent from the contested decision that the multipliers for deterrence chosen by the Commission were determined according to the relative size of the undertakings concerned. Polimeri does not dispute the turnover figures referred to by the Commission in the contested decision. In particular, Polimeri does not dispute that, in 2005, EniChem was larger than Bayer and Dow and smaller than Shell. It is therefore consistent and objectively justified for the multiplier applied to EniChem to be higher than that applied to Bayer and Dow, and lower than that applied to Shell. Moreover, it must be pointed out that the worldwide turnover figures for 2005 were EUR 27.383 billion for Bayer, EUR 37.221 billion for Dow (35.93% more than Bayer) and EUR 73.738 billion for EniChem (169.28% more than Bayer and 98.11% more than Dow). In those circumstances, the fact that EniChem’s multiplier was increased by 14.28% by comparison with Dow’s (2 as against 1.5) does not constitute a breach of the principle of equal treatment. On the contrary, the Commission would have been entitled on that basis to select an even higher multiplier for EniChem. As to the remainder, and in so far as, by its arguments, Polimeri requests the Court to examine the lawfulness of the amounts of the fines set for the large undertakings with which the applicant compares the fine imposed on it, particularly with regard to the multiplier chosen for Shell, it is apparent from the contested decision that the multiplier chosen for EniChem was calculated on the basis of that chosen for Dow, not on the basis of that chosen for Shell. Polimeri’s arguments are therefore ineffective in that regard. Moreover, it must be pointed out that the Commission has a discretion when determining the amount of the fine and is not required to apply any particular mathematical formula (see Hoek Loos
v Commission, cited in paragraph 232 above, paragraph 68 and the case-law cited). In the present case, the Commission did not, therefore, make a manifest error of assessment in taking into consideration the difference in the economic capacity of the undertakings concerned when selecting the multipliers that it applied (see, to that effect, judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others
v Commission, not published in the ECR, paragraph 155). As regards Degussa
v Commission, cited in paragraph 214 above, referred to by Polimeri, it is sufficient to observe that, in that case, the Commission had applied a multiplier for deterrence to undertakings displaying a significant disparity in turnover. The situation which gave rise to the judgment in Degussa
v Commission, cited in paragraph 214 above, is therefore not comparable to that in the present case. So far as concerns the argument put forward by Polimeri at the hearing, that Eni’s situation is different from those of Shell and Dow, in that the holding companies of the latter undertakings, unlike Eni, could have been informed of the cartel, and assuming that that argument is admissible despite its lateness and that it is capable of affecting the determination of the multiplier for deterrence, it is sufficient to observe that the holding companies of Shell and Dow were not held liable for their own participation in the infringement. Those companies, like Eni, were held responsible on account of the control which they exercised over their subsidiaries which participated directly in the infringement. Polimeri’s argument must therefore be rejected.
252. Thirdly, as regards breach of the principle of proportionality, Polimeri does not produce any detailed evidence to support a finding that the multiplier chosen in EniChem’s case is disproportionate to the gravity of the infringement and to the objective of ensuring that fines are set at a level that serves as a deterrent.
253. As regards the multiplier chosen being disproportionate in so far as Polimeri is held jointly and severally liable for payment of a fine which was doubled on account of its parent company’s turnover, it must be recalled first of all that the Commission does not commit an error of assessment when it takes the size of the resources of the group of undertakings as a whole as a basis in order to ensure that fines have a deterrent effect (see, to that effect, Case T‑330/01 Akzo Nobel
v Commission
[2006] ECR II‑3389, paragraph 120). Secondly, the fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The upper limit of 10% for the purposes of that provision must be calculated on the basis of the total turnover of all the companies constituting the economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraphs 528 and 529, and Case T‑112/05 Akzo Nobel and Others v Commission
[2007] ECR II‑5049, paragraph 90). Polimeri does not state that the maximum amount of 10%, calculated on the basis of the combined turnover of Polimeri and Eni, was exceeded. In those circumstances, the fact that Polimeri is jointly and severally liable for payment of a fine which was doubled on account of the parent company’s turnover cannot, in itself, and in the absence of other, more detailed arguments, lead to a finding that the multiplier applied in this case is disproportionate.
254. In the light of those considerations, the 12th plea in law raised by Polimeri must be dismissed as unfounded.
4. Thirteenth plea in law: incorrect determination of the duration of the infringement for Polimeri
a) Arguments of the parties
255. The Commission finds, in recital 478 to the contested decision, that Polimeri participated in the alleged infringement in respect of the period from 20 May 1996 to 28 November 2002.
256. As regards the period between 20 May 1996 and 31 December 2001, Polimeri observes, first of all, that the determination of the starting date of the infringement was uncertain (Polimeri refers, in particular, to the first statement of objections, then to the second statement of objections and, finally, to the contested decision). Next, so far as concerns the date of 20 May 1996, Polimeri points out, firstly, that that date is not referred to by any of the declarants as the starting date of the alleged cartel. Secondly, the handwritten notes of Mr N. (Dow) relating to that meeting are similar to those of an earlier meeting dating from February 1996. Those notes are therefore not probative. Polimeri points out, in that regard, contrary to what the Commission maintains in its pleadings, that it did dispute the evidential value of those notes. Thirdly, the participants in that meeting include employees of Bayer and Shell (Mr O. and Mr de J.), who have always denied participating in agreements or in anti-competitive discussions. That also corresponds to a period when Bayer had stated that it was unable to say whether there had been agreements between May and the end of November 1996 so far as concerns ESBR. So far as concerns BR, Polimeri points out that the Commission itself does not find any illegal agreement before the meeting of 4 September 1997. There is therefore no indication of circumstances showing that the undertakings concerned established a cartel on that occasion.
257. As regards the period between 1 January and 28 November 2002, Polimeri observes, so far as BR is concerned, that 31 August 2001 is the date of the last anti-competitive meeting found by the Commission for that product. The latter assertion is, moreover, unsubstantiated. Polimeri observes, in that regard, that the statements of Mr W. (Bayer), mentioned in recital 229 to the contested decision, do not refer explicitly to that meeting. Aware of that, the Commission withdrew the text originally included in the second statement of objections. Moreover, as is noted in recital 229 to the contested decision, certain participants at that meeting (Mr G., Mr W.’s successor) formally deny having participated in anti-competitive agreements. As regards ESBR, none of the events or documents cited by the Commission in the contested decision for 2002 supports the argument that the alleged cartel was continued during that year. Polimeri refers, in that regard, to its analysis in the context of the eighth and ninth pleas. As regards Bayer’s assertions reproduced in recitals 240 and 247 to the contested decision, they were contradicted by Mr N. and Mr W. and by Ms I. of Dow (Polimeri refers, in that regard, to the first statement of objections). In those circumstances, the Commission organised a second round of consultations with Dow’s employees, with the aim of obtaining a version of the facts more reconcilable with that of Bayer. However, the statements of one of Dow’s employees (Mr W.), reproduced in recital 244 to the contested decision, are only hypothetical. They do not, in any event, serve to substantiate the Commission’s conclusion that Bayer and Dow both state that the last cartel meeting took place on 2 September 2002 (recital 443 to the contested decision). Finally, Polimeri questions the fact that, after having placed so much emphasis on the meeting of 2 September 2002, the Commission determined that the infringement ended on 28 and 29 November 2002, the dates of a meeting which Polimeri did not attend. Polimeri adds, regarding the emails from Mr P. (Bayer), referred to in recital 241 to the contested decision and relied on by the Commission in its pleadings, that it has adduced rebutting evidence in that regard, notably in the annex to the application. That evidence had already been provided to the Commission during the administrative procedure.
258. In conclusion, Polimeri submits that, if the Court finds that an infringement was committed, it should, so far as concerns ESBR, start after 20 May 1996 and end before 2 September 2002 and, so far as concerns BR, start after 4 September 1997 and end before 31 August 2001. The fine should be reduced accordingly.
259. The Commission contends that the plea should be dismissed. It points out, in particular, that it adopted a cautious approach as regards the starting date of the infringement. Regarding the date on which the infringement ended, the Commission maintains inter alia that it was entitled to consider that the infringement found in this case had continued until the meeting of 28 and 29 November 2002, during which the members of the cartel seem to have collectively decided to end it.
b) Findings of the Court
260. It is clear from the case-law that it is incumbent on the Commission to prove not only the existence of the agreement but also its duration (Case T‑43/92 Dunlop Slazenger
v Commission [1994] ECR II‑441, paragraph 79; Case T‑48/98 Acerinox
v Commission
[2001] ECR II‑3859, paragraph 55; and Case T‑62/02 Union Pigments
v Commission
[2005] ECR II‑5057, paragraph 36). To calculate the duration of an infringement whose object is to restrict competition, it is necessary to determine the period during which the agreement existed, that is the time between the date on which it was entered into and the date on which it was terminated ( Brasserie nationale and Others v Commission, cited in paragraph 225 above, paragraph 185, and Westfalen Gassen Nederland
v Commission, cited in paragraph 232 above, paragraph 138). Otherwise, 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 without interruption between two specific dates ( Dunlop Slazenger
v Commission, paragraph 79, and Peróxidos Orgánicos
v Commission, cited in paragraph 58 above, paragraph 51).
261. In the present case, the Commission finds that Polimeri must be held liable for the infringement in respect of the period from 20 May 1996 to 28 November 2002 (recital 478 to the contested decision).
262. Firstly, so far as concerns the date of the start of the infringement found for Polimeri, it corresponds to the date of the first illegal meeting found by the contested decision, which took place in Milan (at the margins of a meeting of the European Synthetic Rubber Association) between representatives of Bayer, EniChem SpA, Shell and Buna Sow Leuna Olefinverbund (‘BSL’, which Dow would subsequently control) (recitals 161 and 162 to the contested decision).
263. Proof that an illegal meeting was held stems, firstly, from handwritten notes made by an employee of BSL at the time, who later became an employee of Dow (Mr N., recital 163 to the contested decision), and, secondly, from a statement by Dow (recital 164 to the contested decision).
264. As regards Mr N.’s handwritten notes, Polimeri contests their evidential value in so far as those notes and those of a previous meeting dating from February 1996 are ‘similar’. Polimeri refers, in point of fact, to some handwritten notes dated 21 February 1996. In the end, those notes were not used by the Commission as inculpatory evidence.
265. It is sufficient to observe, in that regard, that the evidential value of Mr N.’s handwritten notes relating to the illegal meeting of 20 May 1996 cannot be impaired by the fact that similar handwritten notes (that is to say, also containing market information) were not used by the Commission as inculpatory evidence. The only question is whether the handwritten notes in question are capable of constituting evidence to support the finding that there was an illegal meeting between the undertakings concerned.
266. In that regard, Polimeri does not formally deny that one of its representatives may have met representatives of Bayer, Shell and BSL on 20 May 1996 in Milan. Nor does it deny that, on the substance, Mr N.’s handwritten notes make it clear that sensitive data were exchanged between the undertakings. Thus, data concerning Bayer’s stock of ESBR appear in those notes. Similarly, a list of prices relating to Shell can also be seen. Moreover, one part of the handwritten notes states that Eni ‘will lay off’ staff ‘[a]t the end of the year’, which suggests, in the absence of any rebutting evidence, that a representative of that undertaking was present at that meeting. Finally, Mr N.’s handwritten notes show the date 20 May 1996 and the reference ‘Milano ESRA’. In the light of those considerations, it must be held that the handwritten notes in question are capable of constituting evidence to support the finding that there was an illegal meeting between the undertakings concerned in Milan on 20 May 1996.
267. Mr N.’s handwritten notes were, moreover, confirmed by Dow in a corporate statement. It must be recalled, in that regard, that statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks (see the case-law cited in paragraph 53 above). In particular, Dow states that certain prices noted in Mr N.’s handwritten notes were target prices for ESBR (recital 164 to the contested decision).
268. Moreover, the statements of the other undertakings concerned, notably Bayer and Shell, corroborate the abovementioned evidence.
269. In particular, Bayer states that Mr B., who was one of the persons present at the illegal meeting of 20 May 1996, participated ‘for Bayer’ in anti-competitive agreements concerning ESBR between the middle or end of 1995 and ‘mid-May 1996’ (recital 107 to the contested decision). The reference to ‘mid-May’ corroborates the evidence that there was an illegal meeting on 20 May 1996. The fact that Bayer was able to state, as Polimeri observes, that ‘Bayer could not say whether there were any agreements between May and the end of November 1996 as regards ESBR’ does not conflict with Bayer’s precise statement regarding the role of Mr B. until mid-May 1996. That statement may mean that, after that time (mid-May 1996) and until the end of November 1996, Bayer did not find any trace of anti-competitive agreements between the undertakings concerned.
270. Shell, for its part, states that its representatives participated in a price cartel between 30 August 1995 and 31 May 1999. In particular, Shell confirms the factual part of the first statement of objections, that is the part which already contained a summary of the illegal meeting of 20 May 1996 and which described the handwritten notes of Mr N. and the interpretation given by Dow. The fact that Mr de J., who represented Shell at certain meetings, and in particular that of 20 May 1996, did not concede that the first statement of objections correctly described the competitor contacts (recital 119 to the contested decision) cannot affect the corporate statement made by Shell. Answers given on behalf of an undertaking as such carry more weight than that of an employee of the undertaking, whatever his individual experience or opinion.
271. As regards Mr O. (Bayer), referred to by Polimeri in its pleadings, the Commission correctly points out that he did not participate in the illegal meeting of 20 May 1996.
272. Finally, as regards Polimeri’s argument that the Commission does not find any illegal agreement for BR before the meeting of 4 September 1997, it is sufficient to recall that an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When, as in this case, the different actions form part of an overall plan, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see the case-law cited in paragraph 100 above). When the Commission is legally entitled to conclude that the various manifestations were part of a single infringement in that they were elements of an overall plan designed to distort competition, the fact that the number and intensity of the collusive practices varied according to the market concerned does not mean that the infringement did not concern the markets on which the practices were less intense and less numerous. It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied according to the market concerned.
273. It follows from all those considerations that the Commission did not err in finding that Polimeri should be held liable for the infringement in respect of a period starting on 20 May 1996.
274. Secondly, as regards the date on which the infringement found in relation to Polimeri ended, namely 28 November 2002 (recital 447 to the contested decision), it corresponds to the last illegal meeting referred to by the contested decision, which took place in London (United Kingdom), at the margins of a meeting of the European Synthetic Rubber Association, between representatives of Bayer, Dow, Dwory and Kaučuk (represented by Tavorex) on 28 and 29 November 2002. According to Bayer’s statement, it informed Dow and Dwory that there was no reason to continue with the agreements in question (recitals 246 to 248 to the contested decision).
275. As regards the distinction which Polimeri makes in its arguments between BR and ESBR, it is sufficient to recall that it would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied according to the market concerned.
276. As regards the claim that the cartel was not continued in 2002, the contested decision finds that an illegal meeting on ESBR took place on 2 and 3 September 2002 in Prague. The Commission’s conclusion is based, firstly, on a statement by Bayer, which indicates that an agreement on prices was entered into between Bayer, Dow, Polimeri, Dwory and Kaučuk (represented by Tavorex). The Commission’s conclusion is based, secondly, on the confirmation of Bayer’s statement by Dow, after reading the first statement of objections. Contrary to Polimeri’s assertions, the Commission did not organise a second round of consultations with Dow’s employees. As recital 244 to the contested decision clearly indicates, Dow itself decided, on reading the statement of objections, to re-interview its employees regarding the facts alleged and it was therefore Dow which provided the Commission with a new corporate statement. Dow acknowledges in that statement that, following the new statements by its employees, it is entirely possible that the cartel did not end until 28 November 2002 and therefore, by implication, that the meeting of 2 and 3 September 2002 forms part of the illegal meetings. Even though Dow’s statement does not constitute an explicit admission of its participation in an illegal meeting on 2 and 3 September 2002, it corroborates Bayer’s statement rather than the converse. The Commission’s conclusion is based, finally, on documentary evidence consisting of two internal Bayer emails sent on 4 and 12 September 2002, providing for price increases for ESBR. Polimeri states that it disputed the evidential value of those emails in Annex A 25 to the application. However, for the reasons set out in the context of the eighth plea, the arguments made by Polimeri in that annex must be disregarded. For all those reasons, Polimeri’s arguments are not capable of calling into question the Commission’s assessment that the cartel continued in 2002.
277. As regards the fact that Polimeri did not attend the meeting of 28 and 29 November 2002, it is irrelevant for the purpose of determining the date on which the infringement ended. The Commission does not find that an illegal agreement existed on 28 and 29 November 2002, but does find that it was the intention of the participants in that meeting to end the activities of the cartel.
278. It follows from all those considerations that the Commission did not err in concluding that Polimeri should be held liable for the infringement in respect of a period ending on 28 November 2002.
279. In the light of those considerations, the 13th plea in law raised by Polimeri must be dismissed as unfounded.
5. Fourteenth plea in law: unjustified increase in the basic amount of the fine for repeated infringement
a) Arguments of the parties
Arguments of Polimeri
280. Firstly, Polimeri submits that the condition that the undertakings should be the same is not satisfied.
281. Polimeri observes, in that regard, that, according to the Commission, the fundamental condition for entitlement to invoke repeated infringement is that a number of infringements have been committed by the same undertaking, a concept which, in the context of competition law, means an ‘economic unit … made up of a combination of personal and physical elements’ ( Commission
v Anic Partecipazioni, cited in paragraph 50 above). In this case, the increase in the fine was wrongly applied in relation to infringements for which penalties were imposed in 1986 and 1988, in which a completely different undertaking from Polimeri had participated. According to the Guidelines, the rules governing repeated infringement apply only where two or more instances of conduct similar to each other are imputable to the same undertaking. The Commission seems to confuse the concept of undertaking – the only relevant concept in this case – with that of legal personality. It is not possible to impute to Eni retroactively conduct which has not been attributed to it.
282. Moreover, the two sectors on which sanctions were previously imposed (PVC and polypropylene) do not belong to the same sphere of activity as elastomers, were not transferred from EniChem SpA to Polimeri and Polimeri has never engaged in business in them. Those sectors were sold to other companies, either in 1983 (in the case of polypropylene) or in 1986 (in the case of PVC), before the respective infringement decisions, that is approximately 18 and 15 years before Polimeri succeeded EniChem SpA in the BR and ESBR business.
283. Furthermore, there is a contradiction between the application of repeated infringement and the decision to use a multiplier for deterrence based on Eni’s turnover and not on that of Polimeri. According to Polimeri, if the reference turnover for the purposes of deterrent effect is Eni’s, the Commission was not entitled to increase the fine on the ground of repeated infringement, since that did not apply to Eni.
284. Secondly, Polimeri submits that the Commission breached the principles of legal certainty and proportionality. Polimeri observes, in that regard, that repeated infringement in the case of infringement of Community competition law is not provided for by any enactment of a legislative nature, since the Guidelines are a mere act of self-regulation. In the present case, the decisions serving as the basis for repeated infringement date from 18 and 20 years before the contested decision. However, the legal institution of repeated infringement should be subject to time-limits. Polimeri refers, in particular, to Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331, in which a 10-year period between two infringements appeared to be a limit. Polimeri adds that the legal orders of the 27 Member States make the application of repeated infringement subject to the condition that the interval of time between the new offence and the previous offence be five years or less. It is, moreover, paradoxical to consider proceedings for an infringement committed more than five years previously to be inexpedient or pointless on the basis that they are time-barred, and at the same time to wish to take into consideration for repeated infringement infringements dating back to more than 10 years before the start of the new infringement.
285. Polimeri concludes that, in any event, an increase of 50% is absolutely disproportionate and unacceptable, since it also starts from a basic amount of the fine calculated by reference to an undertaking – Eni – which has never been charged with any infringement. Polimeri observes, in that regard, that in Groupe Danone
v Commission, cited in paragraph 160 above, the Court considered that it should fix the overall increase of the basic amount of the fine in respect of aggravating circumstances at 40%, taking into account two previous infringements. The rate of increase of 50% is not the rule, as the Commission asserts in its pleadings.
Arguments of the Commission
286. Firstly, as regards the claim that the condition that the undertakings must be the same is not met, the Commission points out that Polimeri does not contest the imputability of the infringement to Eni. In addition, the Commission notes that the question of repeated infringement was addressed in the second statement of objections. Polimeri did not raise any objections in that regard.
287. Since Community competition law recognises that different companies belonging to the same group form an economic unit, the Commission could, had it so wished, have imposed the fine on the same parent company in the previous decisions. The Commission would, therefore, have been fully entitled to consider, in the contested decision, that the same undertaking had already been punished for the same type of infringement (Case T‑203/01 Michelin
v Commission
[2003] ECR II‑4071). The Commission points out that, in Michelin
v Commission, the Court approved the application of an increase in the fine for repeated infringement to another company in the group, more specifically a sister company of the company which had been punished previously.
288. The concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement has been made in the past ( Groupe Danone v Commission, cited in paragraph 160 above). Consequently, it is immaterial that the Commission did not impose a fine on Eni as such in previous decisions. On the other hand, the fact that the companies to which the previous decisions were addressed were wholly controlled by Eni is decisive. It is not acceptable that group companies, which are part of the same undertaking, should escape an increase in the fine for repeated infringement solely by virtue of the organisational structure of the group itself or its restructuring.
289. The finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and the Commission cannot be bound by any limitation period when making such a finding ( Groupe Danone
v Commission, cited in paragraph 284 above). Be that as it may, in the relevant cases, the infringements relating to polypropylene and PVC were found by decisions adopted in 1986 and 1994 respectively (Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article [81 EC] (IV/31.149 – Polypropylene)) (OJ 1986 L 230, p. 1; ‘the Polypropylene decision’) and Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article [81 EC] (IV/31.865 – PVC) (OJ 1994 L 239, p. 14; ‘the PVC II decision’). It is perfectly logical, normal and appropriate to take account of those precedents in the event of a new infringement committed from 1996 onwards.
290. Moreover, it is of little account that the previous infringements concerned the separate sectors of PVC and polypropylene ( Groupe Danone
v Commission, cited in paragraph 160 above) or that those activities have since been transferred to third parties (see, inter alia, Cascades
v Commission, cited in paragraph 116 above).
291. Finally, there is no contradiction between, on the one hand, determining the multiplier by reference to the turnover of Eni, the group’s parent company, and, on the other, taking into account the repeated nature of infringements found by decisions addressed to other companies in the group, but for which Eni was also responsible.
292. As regards the alleged breach of the principles of legal certainty and proportionality, the judgment in Groupe Danone
v Commission, cited in paragraph 284 above, reaffirmed that, under Article 15(2) of Regulation No 17, any repeated infringement was among the factors to be taken into consideration in the analysis of the gravity of the infringement in question and that, in that context, the applicant was still able to foresee the legal consequences of its conduct. The same applies with regard to Article 23(3) of Regulation No 1/2003. The judgment in Groupe Danone
v Commission, cited in paragraph 284 above, also rejected pleas regarding a possible limitation period. Moreover, as regards the increase in the basic amount of the fine of 50% being disproportionate, since Eni has never been charged with any infringement, the Commission reiterates that it was perfectly legitimate to take account of Eni’s situation. So far as concerns the rate of increase applied, the Commission showed leniency, since such a rate is generally applied to undertakings guilty of repeated infringement after only a single previous infringement. The fact that the Court decided, in Groupe Danone v Commission, cited in paragraph 160 above, to set the increase in the fine at 40% stems from the circumstances of that case.
b) Findings of the Court
293. Section 2 of the Guidelines refers, as an example of aggravating circumstances, to ‘repeated infringement of the same type by the same undertaking(s)’.
294. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements (Case T‑141/94 Thyssen Stahl
v Commission
[1999] ECR II-347, paragraph 617, and Michelin
v Commission, cited in paragraph 287 above, paragraph 284).
295. Any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question ( Aalborg Portland and Others v Commission, cited in paragraph 51 above, paragraph 91, and Groupe Danone
v Commission, cited in paragraph 284 above, paragraph 26).
296. In the present case, the Commission notes in the contested decision that EniChem had already been the addressee of Commission decisions concerning cartel activities (namely the Polypropylene and PVC II decisions). This proves that the first fines were not sufficient for that undertaking to change its conduct. The Commission concludes that that repeated infringement constitutes an aggravating circumstance that justifies an increase of 50% in the basic amount of the fine (recital 487 to the contested decision).
297. Polimeri lays particular emphasis on the fact that neither it nor Eni was covered by the previous decisions mentioned by the Commission in the contested decision.
298. It is evident from the contested decision that the Commission took account, in this case, of the concept of ‘undertaking’ within the meaning of Article 81 EC for the purpose of applying the aggravating circumstance of repeated infringement, a fact which the Commission confirms in its pleadings. More specifically, the Commission considered, in essence, that the same undertaking had repeated offending conduct, even if the legal persons involved in the infringements in question were not the same. It should be recalled, in that regard, that the concept of an undertaking within the meaning of Article 81 EC must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case C‑97/08 P Akzo Nobel and Others
v Commission [2009] ECR I‑8237, paragraph 55 and the case-law cited). In that context, it must be held that, when the Commission seeks to invoke the concept of ‘undertaking’ within the meaning of Article 81 EC, it must adduce detailed and specific evidence to support its assertion.
299. It must be pointed out, firstly, that the Commission makes reference, in a general way, in recital 487 to the contested decision, to ‘EniChem’, that term being defined in recital 36 to the contested decision as ‘any company owned by Eni SpA’. It must therefore be observed that the term used by the Commission in the contested decision, in the context of the assessment of the repeated infringement, is relatively imprecise, at least as regards the legal persons forming the economic unit covered by the Polypropylene and PVC II decisions. Furthermore, even if the legal persons in question are those mentioned in recitals 26 to 35 to the contested decision, it must be pointed out that the company which was the subject of the Polypropylene decision, namely Anic, is not one of the legal persons mentioned in those recitals. Moreover, recitals 26 to 35 to the contested decision are essentially intended to describe the development of the companies owned by Eni during the infringement, which post-dates the adoption of the Polypropylene and PVC II decisions. Those recitals are therefore not such as to provide sufficiently detailed and specific information on the companies owned by Eni before the infringement for which penalties are imposed by the contested decision.
300. Secondly, the Commission refers, in footnote 262 to the contested decision, to the Polypropylene and PVC II decisions, stating that ‘Eni’ was involved in those decisions. It must be pointed out, first of all, that the term ‘Eni’ is not defined in the contested decision, unlike the term ‘EniChem’, which is. In particular, it is apparent from recitals 26 to 36 to the contested decision that, whenever the Commission refers to Eni as the parent company of the other companies, it uses the term ‘Eni SpA’.
301. Thirdly, even if, by the use of the term ‘Eni’ in footnote 262 to the contested decision, the Commission is referring to the companies which form part of the ‘undertaking’ within the meaning of Article 81 EC, consisting of the legal persons controlled by Eni, it must be pointed out that the Commission did not adduce any detailed and specific evidence in that regard in the contested decision. The Commission merely notes, in its pleadings before the Court, that Eni ‘wholly’ controlled the companies addressed by the Polypropylene and PVC II decisions. However, apart from the fact that that assertion is not corroborated by any evidence, it was not included in the contested decision.
302. Fourthly, it must be pointed out that, in this case, the development of the structure and control of the companies concerned is particularly complex. More specifically, the Polypropylene decision was addressed to Anic, and Eni’s name did not appear in that decision. As for the PVC II decision, the Commission refers in recital 8 to that decision to the fact that Anic is ‘now’ EniChem SpA and, in recital 43, to the fact that that change is due to ‘various reorganisations’, without providing further details. Moreover, here again, Eni’s name does not appear in that decision. It must be added that, in the present case, Eni’s activity in respect of the products concerned was originally carried out by EniChem Elastomeri (before the latter company was merged into EniChem SpA in 1997, that is to say, after the adoption of the PVC II decision) and that the activities of EniChem SpA were then transferred to Polimeri, which adds to the complexity of the structural development of the undertakings concerned. In that context, it was for the Commission to be particularly precise and to adduce all the detailed evidence necessary for it to be considered that the companies addressed by the contested decision and those addressed by the Polypropylene and PVC II decisions formed the same ‘undertaking’ within the meaning of Article 81 EC.
303. Taking account of all those considerations, the Court considers that the Commission did not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same ‘undertaking’ within the meaning of Article 81 EC repeated offending conduct. In those circumstances, the 14th plea in law must be upheld and Article 2(c) of the contested decision must therefore be annulled, in so far as it sets the fine impose d on Polimeri at EUR 272.25 million.
6. Fifteenth plea in law: no account taken of mitigating circumstances
a) Arguments of the parties
304. Reiterating its view that the alleged cartel, even if proved to exist, was not implemented, Polimeri submits that the Commission failed, unlawfully, to apply to it the mitigating circumstance of ‘non-implementation in practice of the offending agreements or practices’ (Section 3, second indent, of the Guidelines). The fact that an undertaking participates in meetings or other contacts with its own competitors does not mean that what may have been discussed was actually implemented. Polimeri has demonstrated that the agreements at issue, even if established, were not implemented.
305. The Commission contends that the plea should be dismissed. It submits, in essence, that the facts of this case did not make it possible to grant the benefit of the mitigating circumstance pleaded by Polimeri.
b) Findings of the Court
306. According to the second indent of Section 3 of the Guidelines, ‘non-implementation in practice of the offending agreements or practices’ may also amount to a mitigating circumstance. However, the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself on the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined ( Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 490).
307. An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit (Case T‑327/94 SCA Holding
v Commission
[1998] ECR II‑1373, paragraph 142, and Case T‑308/94 Cascades
v Commission
[1998] ECR II‑925, paragraph 230) and an undertaking which does not distance itself from the results of a meeting in which it was present in principle retains full responsibility for the fact of its participation in the cartel (see Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 491 and the case-law cited). Therefore, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful cartel and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (Case T‑44/00 Mannesmannröhren-Werke
v Commission
[2004] ECR II‑2223, paragraphs 277 to 279, and Raiffeisen Zentralbank Österreich and Others v Commission, cited in paragraph 101 above, paragraph 491).
308. In this case, Polimeri does not adduce any evidence to support the conclusion that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. Accordingly, it was not possible for any mitigating circumstance to be taken into account with regard to it by the Commission on that basis.
309. Furthermore, even if it were shown that there were no effects on the market, that would be irrelevant, as it would not prove that the agreements had not been implemented in practice ( Groupe Danone
v Commission, cited in paragraph 160 above, paragraph 389).
310. In the light of those considerations, the 15th plea in law raised by Polimeri must be dismissed as unfounded.
7. Sixteenth plea in law: breach of the limit of 10% of turnover
a) Arguments of the parties
311. Reiterating its criticism of the fact that Syndial was not included among the addressees of the contested decision, Polimeri submits that the Commission was required to limit the fine imposed on Syndial/Polimeri to EUR 86 million, since Syndial’s turnover in 2005 was EUR 860 million. According to Polimeri, in the context of a single fine imposed jointly and severally, the Commission should adhere to the limit of the smallest undertaking. Otherwise, full payment of the fine could not be required of all the undertakings. In any event, the Commission should have imposed two separate fines, taking account of the period during which the undertakings concerned managed the business relating to the products in question.
312. The Commission contends that the plea should be dismissed. According to it, if Syndial had been an addressee of the contested decision, Article 23(2) of Regulation No 1/2003 could have prevented the Commission, in certain circumstances, from exceeding the amount of EUR 86 million in the case of the fine which would have been imposed on Syndial, but not at all in the case of that imposed on Polimeri.
b) Findings of the Court
313. The fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question ( HFB and Others
v Commission, cited in paragraph 253 above, paragraphs 528 and 529, and Case T‑112/05 Akzo Nobel and Others v Commission, cited in paragraph 253 above, paragraph 90).
314. Consequently, even if Syndial had been an addressee of the contested decision, the amount of the fine for which Polimeri would have been held jointly and severally liable would not have had to be limited to 10% of Syndial’s turnover. It follows that Polimeri’s arguments are ineffective.
315. Furthermore, Polimeri’s arguments to the effect that the Commission should have imposed two separate fines, taking account of the period during which the undertakings concerned managed the business relating to the products in question, must be rejected. The fine imposed on Polimeri reflects its direct participation in the infringement and its responsibility for the infringement committed by EniChem SpA (now Syndial). That fine is therefore not limited to the period during which Polimeri managed the business relating to the products in question. Even assuming that, by its arguments, Polimeri is in fact contesting the responsibility imputed to it for the infringement committed by EniChem SpA (now Syndial), those arguments must be rejected for the reasons set out in paragraphs 120 to 131 above.
316. In the light of those considerations, the 16th plea in law raised by Polimeri must be dismissed as unfounded.
317. It follows from all those considerations that the 14th plea in law must be upheld, that Article 2(c) of the contested decision must therefore be annulled, in so far as it sets the amount of the fine imposed on Polimeri at EUR 272.25 million, and that the remainder of the claims for partial annulment of the contested decision must be dismissed.
D – Measures of inquiry
318. Submitting that the evidence offered by the Commission in support of its charge is limited and equivocal, Polimeri requests that the Court hear a number of employees of Bayer, Dow and Shell.
319. The Court considers that it has sufficient information on the basis of the documents in the case and therefore decides not to undertake the measures of organisation of procedure requested by Polimeri.
II – Claims for alteration of the amount of the fine
320. For the reasons set out in paragraphs 298 to 303 above, the Court must, in the exercise of its unlimited jurisdiction under Article 31 of Regulation No 1/2003, amend Article 2(c) of the contested decision, in so far as the Commission, in arriving at the amount of EUR 272.25 million, wrongly took into account against Polimeri the aggravating circumstance of repeated infringement.
321. In the circumstances of this case, in order to set the amount of the fine at an appropriate level, the method of calculation applied by the Commission must, in all other respects, be kept unchanged.
322. The final amount of the fine imposed on Polimeri is therefore set at EUR 181.5 million.
Costs
323. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Under the first subparagraph of Article 87(3) of those rules, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared. In the circumstances of this case, each party is to bear its own costs.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Article 2(c) of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as it sets the amount of the fine imposed on Polimeri Europa SpA at EUR 272.25 million;
2. Sets the amount of the fine imposed on Polimeri Europa at EUR 181.5 million;
3. Dismisses the action as to the remainder;
4. Orders the parties to bear their own costs.