62006TJ0208_EN
Parties
Grounds
Operative part
Parties
In Case T‑208/06,
Quinn Barlo Ltd,
established in Cavan (Ireland),
Quinn Plastics NV,
established in Geel (Belgium),
Quinn Plastics GmbH,
established in Mayence (Germany),
represented by W. Blau, F. Wijckmans and F. Tuytschaever, lawyers,
applicants,
v
European Commission,
represented initially by V. Bottka and S. Noë, and subsequently by V. Bottka and N. Khan, acting as Agents,
defendant,
APPLICATION for annulment of Articles 1 and 2 of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) in so far as it relates to the applicants and, in the alternative, application for annulment of Article 2 of that decision in so far as it imposes a fine on the applicants or, in the further alternative, application for a reduction in that fine,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 10 May 2011,
gives the following
Judgment
Grounds
Background to the dispute
1. By Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (‘the contested decision’), the Commission of the European Communities found inter alia that a certain number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, during various periods between 23 January 1997 and 12 September 2002, in a complex of anti-competitive agreements and concerted practices in the methacrylates industry, covering the whole EEA territory (Article 1 of the contested decision).
2. According to the contested decision, there was a single and continuous infringement involving three polymethyl-methacrylate (‘PMMA’) products as follows: PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware. The contested decision indicates that although those three PMMA products are physically and chemically distinct and have different uses, they may be considered as one homogenous product group due to their common raw-material input, methacrylate-monomers (‘MMA’) (recitals 4 to 8 of the contested decision).
3. According to the contested decision, the infringement in question consisted in discussing prices, agreeing, implementing and monitoring price agreements either in the form of price increases, or at least stabilisation of the existing price level; discussing the passing-on of additional service costs to customers; exchanging commercially important and confidential market and/or company-relevant information and participating in regular meetings and having other contacts which facilitated the infringement (Article 1 and recitals 1 to 3 of the contested decision).
4. The contested decision was addressed to Degussa AG, Röhm GmbH & Co. KG and Para-Chemie GmbH (‘Degussa’), Total SA, Elf Aquitaine SA, Arkema SA (formerly Atofina SA), Altuglas International SA and Altumax Europe SAS (collectively ‘Atofina’), Lucite International Ltd and Lucite International UK Ltd (collectively ‘Lucite’), ICI plc, and also the applicants Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH.
5. The applicants are part of the Irish conglomerate Quinn Group Ltd., which, on 7 May 2004, after the infringement period in question, took over the entire share capital of the ultimate parent company of the Barlo group (Barlo Group plc, subsequently renamed Barlo Group Ltd) (recital 299 of the contested decision). The applicants are the result of the integration of the activities of the three former companies of the Barlo group (‘Barlo’) into the Quinn group in January 2005:
– Quinn Plastics GmbH is the successor to Barlo Plastics GmbH. According to the contested decision, Barlo Plastics GmbH participated in the collusive behaviour in the methacrylates sector (recital 297 of the contested decision);
– Quinn Plastics NV is the successor to Barlo Plastics NV. The latter was the parent company of Barlo Plastics GmbH, holding 100% of its share capital indirectly (recitals 38, 43 and 301 of the contested decision);
– Quinn Barlo is the successor to Barlo Group Ltd. It is the parent company of the former Barlo group, which holds, directly or indirectly, 100% of the share capital of the former Barlo companies (recitals 300 and 301 of the contested decision).
6. All three applicants are addressees of the contested decision, the Commission having considered that Quinn Barlo and Quinn Plastics NV were responsible for the conduct of Quinn Plastics GmbH (formerly Barlo Plastics GmbH) during the infringement (recitals 301 and 304 and Article 1 of the contested decision).
7. The investigation which led to the adoption of the contested decision was initiated after Degussa submitted an application for immunity on 20 December 2002 under the Commission notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’).
8. On 25 and 26 March 2003, the Commission conducted inspections at the premises of Atofina, Barlo, Degussa and Lucite (recital 59 of the contested decision). Following those inspections, on 3 April and 11 July 2003 respectively Atofina and Lucite submitted applications for immunity or reduction in the amount of the fine under the Leniency Notice (recitals 60 and 66 of the contested decision). On 18 October 2004, ICI submitted an application for a reduction in the amount of the fine under the Leniency Notice (recital 83 of the contested decision). Barlo did not submit an application under that notice.
9. From 9 April 2003 to 29 July 2004, the Commission made a number of requests for information to Barlo under Article 11 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) and under 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) (recitals 62 to 79 of the contested decision).
10. On 17 August 2005 the Commission adopted a statement of objections concerning a single and continuous infringement relating to MMA, PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware and addressed it to, inter alia, the applicants and Quinn Plastics SA (recital 85 of the contested decision).
11. A hearing was held on 15 and 16 December 2005.
12. In the light of the evidence provided by the undertakings in their replies to the statement of objections and at the hearing, the Commission decided to withdraw certain objections, including:
– the objections directed at all of the undertakings to which the statement of objections had been addressed in respect of the part of the infringement relating to MMA;
– the objections directed at the applicants and Quinn Plastics, SA in respect of the PMMA moulding compounds;
– the objections directed at Quinn Plastics, SA in respect of the PMMA solid sheet (recital 93 of the contested decision).
13. On 31 May 2006, the Commission adopted the contested decision. As regards the applicants, the Commission found that they had participated in the anti-competitive agreements and concerted practices referred to in paragraphs 1 to 3 above in the period from 30 April 1998 to 21 August 2000 (Article 1(l) to(n) of the contested decision) and imposed on them a fine of EUR 9 million, for which they were held jointly and severally liable (Article 2(e) of the contested decision).
14. With regard to the calculation of the fine, the Commission examined the gravity of the infringement and found, first of all, that, in view of the nature of the infringement and the fact that it covered the entire territory of the EEA, it was a very serious infringement within the meaning of 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’) (recitals 319 to 331 of the contested decision).
15. The Commission then considered that, within the category of very serious infringements, it was possible to apply differential treatment to undertakings in order to take account of the effective economic capacity of the offenders to cause significant economic damage to competition. To that end, the Commission found in the present case that the undertakings concerned ‘[could] be subdivided into [three] categories according to their relative weight in turnover achieved with the PMMA products for which they participated in the cartel’. The Commission stated that Barlo, with EEA turnover of EUR 66.37 million in 2000 in PMMA solid sheet, was to be placed in the third category.
16. Moreover, again in relation to differential treatment, the Commission reduced by 25% the basic amount of the fine calculated for the applicants, for the following reasons (recital 335 of the contested decision):
‘… the Commission takes into account that it is not clear whether Barlo took part in any collusive contacts concerning PMMA moulding compounds or PMMA sanitary ware. Therefore it seems that Barlo was not aware or could not necessarily have had knowledge of the overall scheme of the anti-competitive arrangements …’
17. Those considerations led the Commission to set the starting amount for the fine to be imposed on the applicants at EUR 15 million (recital 336 of the contested decision).
18. Secondly, the Commission discussed the duration of the infringement and found that, as the applicants had been involved in the infringement for a period of two years and three months, the starting amount should be increased by 20% (10% for each full year of participation) (recitals 351 to 353 of the contested decision). The starting amount of the fine calculated for the applicants was thus EUR 18 million (recital 354 of the contested decision).
19. Thirdly, the Commission examined the aggravating and mitigating circumstances and found no aggravating circumstances against the applicants. So far as mitigating circumstances were concerned, the Commission accepted the applicants’ argument that they had had only a passive and minor role in the infringement and granted them a 50% reduction in the fine which would otherwise have been imposed (recitals 372 to 374 of the contested decision).
20. The Commission rejected the other mitigating circumstances put forward by the applicants (recitals 375 to 396 of the contested decision) and therefore set the fine at EUR 9 million (recital 397 of the contested decision). As the applicants received no benefit under the Leniency Notice, that is the final amount of their fine.
Procedure and forms of order sought
21. The applicants brought the present action by application lodged at the Registry of the Court on 8 August 2006.
22. The composition of the Chambers of the Court of First Instance (now the General Court) changed and the Judge-Rapporteur was assigned to the Third Chamber, to which this case was accordingly assigned.
23. Upon hearing the report of the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, to request the Commission to reply to certain questions and produce documents. The Commission complied with that request within the period prescribed.
24. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 10 May 2011. The Commission also lodged additional documents in response to the request referred to in the preceding paragraph, which were placed in the case file. As the applicants had stated that they had been able to adopt a position on those documents at the hearing, the oral procedure was closed at the end of the hearing.
25. The applicants claim that the Court should:
– by way of principal claim, annul Articles 1 and 2 of the contested decision in so far as it concerns them;
– in the alternative, annul Article 2 of the contested decision in so far as it concerns them;
– in the further alternative, annul Article 2 of the contested decision in so far as it imposes a fine on the applicants of EUR 9 million and reduce the amount of the fine in the light of the arguments put forward in support of the present action;
– order the Commission to pay the costs.
26. The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicants to pay the costs.
Law
27. The applicants put forward two pleas in law in support of their action. The first plea alleges infringement of Article 81 EC. The second plea alleges infringement of Article 23(3) of Regulation No 1/2003, the Guidelines and the principle of proportionality.
The first plea: infringement of Article 81 EC
28. In the context of the first plea, the applicants submit, in substance, that the Commission has not established sufficiently how Barlo’s conduct constituted an infringement of Article 81 EC. That plea is, in essence, divided into three parts. In the first part of the first plea, the applicants dispute the Commission’s assessment relating to five meetings on which the contested decision is based in so far as they are concerned and complain that the Commission failed to take account of the absence of other contacts or exchanges involving them. In the second part of the first plea, they state that the Commission has failed to establish that Barlo participated in a ‘single and common anti-competitive scheme’. In the third part of the first plea, the applicants maintain that the Commission has not established that Barlo participated in a continuous infringement.
The first part of the first plea: incorrect assessment of the meetings and other contacts or exchanges involving Barlo
29. This part of the first plea is based on three complaints.
30. First of all, whilst acknowledging Barlo’s presence at four of the five meetings in question (namely the meetings held in Germany in Dernbach in April 1998, Darmstadt on 29 June 1998, Heidelberg on 24 February 2000 and Deidesheim on 21 August 2000), the applicants argue that the Commission has failed to establish that its presence at those meetings constituted a significant restriction of competition and an infringement of Article 81 EC. Next, the applicants deny that Barlo was present at the fifth meeting in question, namely the meeting in Barcelona in May/June 1999, and they consider that the Commission has not demonstrated that such a meeting took place. Lastly, the applicants claim that the Commission failed to take into account the fact that, apart from the presence of a Barlo representative at the four abovementioned meetings, it had not established that there was any other anti‑competitive exchange or contact involving the applicants.
– The four meetings at which Barlo’s presence is admitted
31. The applicants deny that they infringed Article 81 EC on account of the presence of a Barlo representative at the four meetings in question. First, they dispute the description of those meetings as set out in the contested decision on the ground that it is not sufficiently supported by evidence. Second, the applicants maintain that there was a ‘legitimate explanation’ for Barlo’s conduct. They observe that the interests of the cartel participants were not necessarily aligned with those of Barlo because Barlo was not active in MMA or in all PMMA products. In the applicants’ submission, since Barlo’s pricing policy was not in line with the cartel’s objective and its market share was growing, the cartel participants presumably wanted to test Barlo to see whether it could be involved in the cartel by inviting Barlo to meetings with an ‘innocent’ agenda or on occasions when no meeting was scheduled at all. The evidence in the Commission’s file makes it clear that those attempts failed and that Barlo continued to follow its own commercial policy aimed at increasing its market share.
32. In that regard it should be borne in mind as a preliminary point that, according to Article 1 of the contested decision, the applicants infringed Article 81 EC and Article 53 of the EEA Agreement ‘… by participating … in a complex of agreements and concerted practices in the methacrylates industry which covered the whole EEA territory and which consisted of discussing prices, agreeing, implementing and monitoring price agreements either in the form of price increases, or at least stabilisation of existing price levels; discussing the passing-on of additional service costs to customers; exchange of commercially important and confidential market and/or company relevant information and participating in regular meetings and other contacts to facilitate the infringement’.
33. Under Article 81(1) EC, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market are incompatible with the common market and prohibited.
34. According to settled case-law, the concepts of ‘agreement’ and ‘concerted practice’ within the meaning of Article 81(1) EC cover forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves (Case C‑49/92 P Commission
v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 131 and 132, and Case C‑8/08 T‑Mobile Netherlands and Others
[2009] ECR I‑4529, paragraph 23).
35. In order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals
v Commission
[1991] ECR II‑1711, paragraph 256, and Case T‑9/99 HFB and Others
v Commission
[2002] ECR II‑1487, paragraph 199).
36. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them ( Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 115, and Case C‑199/92 P Hüls
v Commission
[1999] ECR I‑4287, paragraph 158).
37. In that regard, Article 81(1) EC strictly precludes any direct or indirect contact between such operators of such a kind as to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the conduct decided upon or envisaged on the market, where the object or effect of such contact is to create conditions of competition which would not correspond to the normal conditions of the market in question (see, to that effect, Commission
v Anic Partecipazioni, paragraph 34 above, paragraphs 115 to 117, and T‑Mobile Netherlands and Others, paragraph 34 above, paragraph 33).
38. It follows inter alia that the exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted ( T‑Mobile Netherlands and Others, paragraph 34 above, paragraph 35).
39. Moreover, in deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. Consequently, it is not necessary to examine the effects of a concerted practice once its anti-competitive object has been established (see, to that effect, T‑Mobile Netherlands and Others, paragraph 34 above, paragraph 29 and the case-law cited).
40. Furthermore, even though the concept of a concerted practice implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two, it must be presumed, subject to proof to the contrary, which the economic operators concerned must adduce, that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market (see, to that effect, T‑Mobile Netherlands and Others, paragraph 34 above, paragraph 51 and the case-law cited).
41. In the context of a complex infringement which has involved many producers seeking over a number of years to regulate the market between them the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission
v Anic Partecipazioni, paragraph 34 above, paragraphs 111 to 114, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others
v Commission
[1999] ECR II‑931, paragraph 696).
42. In such a situation, the dual characterisation of ‘agreement and concerted practice’ must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type ( Hercules Chemicals
v Commission, paragraph 35 above, paragraph 264, and HFB and Others
v Commission, paragraph 35 above, paragraph 187).
43. In relation to adducing evidence of an infringement of Article 81(1) EC, it should be pointed out that it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C-185/95 P Baustahlgewebe
v Commission
[1998] ECR I-8417, paragraph 58). In this respect, it must produce sufficiently precise and consistent evidence to establish the existence of the infringement (see Case T‑62/98 Volkswagen
v Commission
[2000] ECR II‑2707, paragraph 43 and the case-law cited, and judgment of 8 July 2008 in Case T‑54/03 Lafarge
v Commission, not published in the ECR, paragraph 55).
44. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others
v Commission
[2004] ECR II‑2501, paragraph 180 and the case-law cited).
45. The items of evidence on which the Commission relies in the decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see Case T‑53/03 BPB
v Commission
[2008] ECR II‑1333, paragraph 185 and the case-law cited).
46. It should also be borne in mind that anti-competitive activities take place in a clandestine fashion and that, in most cases, the existence of an anti-competitive practice or agreement must therefore 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).
47. It is, moreover, settled case-law that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs ( Hüls
v Commission, paragraph 36 above, paragraph 155; Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 96; and Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 81).
48. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it ( Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 82).
49. Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive object such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 85).
50. Furthermore, it has been held that the notion of publicly distancing oneself as a means of excluding liability must be interpreted narrowly. In particular, silence by an operator in a meeting during which the parties colluded unlawfully on a precise question of pricing policy cannot be regarded an expression of firm and unambiguous disapproval (see, to that effect, Case T‑303/02 Westfalen Gassen Nederland
v Commission
[2006] II‑4567, paragraphs 103 and 124).
51. It should also be noted, however, that the abovementioned case-law on tacit approval is based on the premise that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded ( Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 81) or which were manifestly anti-competitive ( Hüls
v Commission, paragraph 36 above, paragraph 155). Consequently, where the anti-competitive nature of a meeting has not been established beyond doubt, that case-law does not apply (see, to that effect, T‑36/05 Coats Holdings and Coats
v Commission, judgment of 12 September 2007, not published in the ECR, paragraph 91).
52. As regards the applicants’ arguments concerning the value of the statements made in the context of their applications under the Leniency Notice, it should be borne in mind that, according to settled case-law, there is no general provision or principle of European Union law which prohibits the Commission from using statements against an undertaking which have been provided by other undertakings involved in the infringement ( Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 41 above, paragraph 512). Statements made pursuant to the Leniency Notice cannot therefore be regarded as devoid of probative value on that ground alone ( Lafarge
v Commission, paragraph 43 above, paragraphs 57 and 58).
53. Some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is understandable, since they might tend to play down the importance of their contribution to the infringement and maximise that of others. However, given the inherent logic of the procedure provided for in the Leniency Notice, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the cartel in question to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking seeking to benefit, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II‑4441, paragraph 70, and Lafarge
v Commission, paragraph 43 above, paragraph 58).
54. In particular, when a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that fact implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence ( JFE Engineering and Others
v Commission, paragraph 44 above, paragraphs 211 and 212; 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 166; and Lafarge
v Commission, paragraph 43 above, paragraph 59).
55. However, according to settled case-law, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence ( JFE Engineering and Others
v Commission, paragraph 44 above, paragraph 219; Case T‑38/02 Groupe Danone
v Commission
[2005] ECR II‑4407, paragraph 285; and Lafarge
v Commission, paragraph 43 above, paragraph 293).
56. For the purpose of examining the probative value of statements by undertakings which have submitted an application under the Leniency Notice, the Court takes into account inter alia the strength of consistent evidence supporting the relevance of those statements (see, to that effect, JFE Engineering and Others
v Commission, paragraph 44 above, paragraph 220, and Peróxidos Orgánicos
v Commission, paragraph 53 above, paragraph 70) and the absence of evidence indicating that they have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings (see, to that effect, Lafarge
v Commission, paragraph 43 above, paragraphs 62 and 295).
57. Lastly, regarding the scope of the judicial review in the present case, it should be borne in mind that, according to settled case-law, where it hears an action for the annulment of a decision applying Article 81(1) EC, the General Court must undertake in general a comprehensive review of the question whether or not the conditions for applying Article 81(1) EC are met (see Case T‑41/96 Bayer
v Commission
[2000] ECR II‑3383, paragraph 62 and the case-law cited).
58. Moreover, where the Court is in doubt the undertaking which is the addressee of the decision finding an infringement must have the benefit of that doubt, in keeping with the principle of the presumption of innocence which, as a general principle of European Union law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments ( Hüls
v Commission, paragraph 36 above, paragraphs 149 and 150).
59. The applicants’ arguments to the effect that, in essence, the Commission has not established that Barlo’s attendance at the four meetings in question constituted an infringement of Article 81 EC must be examined in the light of those general considerations.
60. In the first place, as regards the April 1998 meeting in Dernbach, it is described as follows in recital 151 of the contested decision:
‘In April 1998, the second of the meetings mentioned above in recital 144 took place in the … [h]otel in Dernbach. According to Atofina, the purpose of this meeting was also the implementation of new price structures in Germany and the participants ensured the functioning and respecting of these new price structures, especially as regards the charging of higher prices for small quantities and cutting costs that were to be passed on to customers. Barlo confirms this meeting and the presence of Mr [B], states that the original purpose of the meeting had been the discussion of market trend issues but that the agenda was then extended to the announcement of new price structures involving charging higher service costs to customers. As the attendees did not agree upon the charge of service costs to customers there was no attempt by Barlo to increase the average price of PMMA solid sheet after the meeting. Although Degussa considers it possible that this meeting was identical to the one of 16 March 1998 mentioned above in recital 148, the Commission concludes, on the basis of the statements by Atofina and Barlo, that the meeting mentioned in this recital actually took place in April 1998.’
61. It is apparent from the case-file and from the very wording of recital 151 of the contested decision that, in order to ascertain the content of the meeting in question, the Commission relied on two pieces of evidence: a statement made by Atofina as part of its application under the Leniency Notice and the applicants’ reply to the statement of objections.
62. In the light of that evidence, the Court finds, first of all, that it has been established to the requisite legal standard that the meeting in question had a manifestly anti-competitive object.
63. First, the applicants are incorrect in suggesting that the description given by Mr B. is the only piece of evidence concerning the anti-competitive nature of that meeting. Atofina’s statement indicates that the object of that meeting was to ensure the functioning of and compliance with the new price structures, an object must be held to be manifestly anti-competitive. This finding is unaffected by the mere fact that it is a general description applying to a number of meetings.
64. Second, it should be observed that the applicants do not call in question the accuracy of the description given by their own representative, Mr B. Contrary to their assertion, that description also shows that it was a cartel meeting. It is apparent that there was an announcement of new price structures and that those new price structures were discussed, even if, according to Mr B., the participants had not reached agreement on them. The fact that, according to Mr B., that discussion did not lead to an agreement does not make that meeting any less manifestly anti-competitive, since it involved, at the very least, an exchange of commercially sensitive information.
65. It should also be observed that those two factors corroborate each other, inter alia, as regards the discussion of the ‘new pricing structures’ and the presence of Barlo at that discussion. In those circumstances, the fact that Atofina mentioned the presence of other undertakings at that meeting, whose presence is not confirmed by the contested decision, does not affect the validity of the Commission’s finding as regards the applicants.
66. In addition, Degussa’s statements in its response to the statement of objections does not cast doubt on the description given by Atofina and Mr B. Degussa simply stated that it could not confirm specifically that a meeting had taken place in April 1998, whilst emphasising that it could not rule out the possibility either. It stated that it was possible that it was the same meeting as the one on 16 March 1998. It should be noted that, as evidenced by footnote 92 of the contested decision, Degussa also referred to the presence of a Barlo representative at the latter meeting.
67. Moreover, in a subsequent statement, in response to a request for information from the Commission, Atofina also situated the meeting not in April, but on 16 March 1998, whilst confirming the description thereof. That uncertainty, however, as to the exact date of the meeting in question is not such as to exonerate the applicants, given their statements and the fact that the date accepted, namely April 1998 instead of 16 March 1998, is advantageous to them, since it is that date (the last day of April) which was accepted by the Commission as the start of their participation in the infringement.
68. Second, as regards the assessment of Barlo’s conduct during the Dernbach meeting, it should be borne in mind that the applicants do not deny that Barlo was present at the meeting in question and do not allege that Barlo publicly distanced itself from the content thereof (see paragraph 47 above).
69. Under those circumstances, the mere presence of Barlo at the meeting suffices for a finding that its conduct was contrary to Article 81 EC, since, as is apparent from the foregoing, it involved, at the very least, a discussion about prices and must therefore be categorised as manifestly anti-competitive (see paragraphs 37 and 38 above). In that situation, contrary to what the applicants claim, Mr B ought to have realised that he was attending a cartel meeting and have distanced himself publicly from it (see paragraphs 47, 48 and 51 above).
70. Furthermore, even if it were established that Barlo did not increase its prices following that meeting, that would not be sufficient to call the applicants’ liability in question (see paragraph 49 above). In any event, the applicants have not shown that Barlo, in its conduct on the market, did not take account of the information exchanged at the meeting (see paragraph 40 above).
71. In the second place, as regards the meeting of 29 June 1998 in Darmstadt, referred to in recital 155 of the contested decision, the applicants do not dispute the anti-competitive nature of that meeting. They state, however, that it has not been established that Barlo intended to contribute through its own conduct to the other participants’ common objectives, with the result that Barlo’s presence at that meeting could not be categorised as an infringement of Article 81 EC.
72. That line of argument cannot succeed, however.
73. According to the description of that meeting in recital 155 of the contested decision, which is not disputed by the applicants, it was a manifestly anti-competitive meeting. Under those circumstances, under the case-law referred to in paragraph 47 above, it was for Barlo to distance itself publicly from its content.
74. In particular, the fact that Barlo did not convey that it would change its pricing policy (recital 155, in fine, of the contested decision) does not qualify as distancing itself publicly (see paragraph 50 above).
75. Similarly, the argument that the participants in the cartel invited Barlo to that meeting so as to involve it in the cartel and that that attempt failed cannot succeed. Since it did not publicly distance itself, it has not been proved that Barlo did not give the other participants the impression that it concurred in or would submit to what had been decided, as the applicants allege.
76. Under those circumstances, the applicants’ arguments to the effect, first, that it was the first meeting about price negotiations in the presence of a Barlo representative and that he was not expecting such anti-competitive content, second, that Barlo denied any active participation at the meeting and that it has not been demonstrated that Barlo had changed its pricing policy following that meeting and, lastly, that the contested decision does not refer to the Barlo representative at any follow-up meetings, are not relevant. Moreover, as is apparent from the foregoing, it was not the first meeting attended by the Barlo representative. Lucite’s statements to that effect are contradicted by those of Atofina, Degussa and the applicants themselves, as set out above.
77. In the third place, as regards the meeting of 24 February 2000 in Heidelberg, the applicants argue that the description given by the Commission in recital 167 of the contested decision is not correct and that it was not a cartel meeting but rather an ‘unexpected attempt’ to put a pricing agreement in place and involve Barlo, one which failed.
78. It should be observed in that regard, first, that recital 167 of the contested decision does reproduce correctly the content of the statement made by the applicants in their response to the statement of objections, the accuracy of which is not disputed in the present action. Moreover, contrary to what the applicants suggest, that statement is in itself sufficient to establish that the meeting in question was manifestly anti-competitive in nature. There is no doubt whatsoever that Degussa and Atofina presented their new pricing structures in order to encourage the other participants to follow them and that there was a ‘discussion’ amongst the participants on the topic. Even if that ‘discussion’ did end without any tangible result, as the applicants allege, that would not be sufficient to eliminate the anti-competitive nature of the meeting, since it involved, at the very least, a discussion about pricing and a significant exchange of commercially important information. As Barlo did not distance itself publicly from such content of the meeting, the applicants’ participation in the cartel is established by the mere presence of Barlo at that meeting (see paragraphs 37 and 47 to 51 above).
79. Second, the Commission’s statements that the undertakings ‘[had] held a meeting aimed at verifying the implementation of the price increase agreements’, that ‘[t]he previous months had shown that prices in some national markets had not or had only partly increased’ and that the ‘participants [had] also exchanged market relevant information’ are supported by the content of the statements made by Degussa, which were produced by the Commission at the request of the Court (see paragraph 23 above). Moreover, the Commission’s claim, referring to recital 117 of the contested decision, that the exchange concerned inter alia the prices on the market is corroborated by the applicants’ statement referred to in the preceding paragraph, which mentions that Degussa and Atofina presented their new pricing structures.
80. Under those circumstances, given the applicants’ own – undisputed – statement as to the content of the meeting in question, their other arguments cannot succeed. In particular, it is irrelevant that the undertaking Repsol is not referred to in the contested decision as being among the participants at the meeting, whereas its presence was referred to by Degussa, or that Lucite does not remember any meeting on that date. The same is true of the arguments alleging that, in its response to the statement of objections, Degussa corrected certain aspects of its earlier statements. In addition, Degussa did not call in question the anti-competitive nature of the discussions amongst the undertakings involved. Lastly, as to the applicants’ argument that the Commission’s assertion that the exchange concerned information ‘such as mentioned … in recital 117’ is unsubstantiated, it must be borne in mind that the applicants themselves acknowledged that Degussa and Atofina had presented their new pricing structures. Therefore, even if the exchange concerning all the types of information referred to in recital 117 of the contested decision has not been established, that does not affect the finding that an exchange of commercially important information had indeed taken place at the meeting in question.
81. In the fourth place, as regards the meeting of 21 August 2000 in Deidesheim, it must be noted that recital 168 of the contested decision contains a detailed description of that meeting which is based mainly on handwritten notes taken by Lucite’s representative at the meeting, which were found at Lucite’s premises at the time of the inspection and refer inter alia to a price increase planned for Barlo. That meeting, including its anti-competitive nature, was subsequently confirmed by Lucite in the context of its application under the Leniency Notice, as well as by Degussa and Atofina. As for Barlo, it confirmed its presence at the meeting in question, as well as its manifestly anti-competitive nature, by stating the following:
‘On 21 August 2000, a fourth meeting took place in Deidesheim … under the agenda of “E-Commerce” which was at that time also much discussed at CEFIC-meetings. The invitation to the meeting came again from Degussa. Instead of talking about E-Commerce, Degussa and Atofina made a change to the agenda of the meeting in order to propose a price increase for November 2000. Degussa and Atofina, after exchanging details of their prices, announced their plan to raise prices in November 2000. [The applicants] understand … that Mr [B.] did not agree on any increase of prices.’
82. In the light of the foregoing, the Court finds that the manifestly anti-competitive nature of the meeting and Barlo’s presence at it have been established to the requisite legal standard.
83. Nor in the context of the present action have the applicants called in question the description given in recital 168 of the contested decision; they have merely asserted that the Commission has not proven that Barlo’s presence at it was contrary to Article 81 EC, on the ground that Barlo did not give its approval to the proposals from Atofina and Degussa. Thus, according to the applicants, that meeting was an ‘unexpected attempt’ to involve Barlo in the cartel. They add that there is no evidence that Barlo implemented the increase which had been decided on at that meeting, a fact acknowledged by the Commission, as the date of that meeting corresponds to the end of its participation in the infringement.
84. That line of argument does not cast doubt on the Commission’s finding relating to the infringement of Article 81 EC, however.
85. First, the argument that Barlo did not agree to the price increases is contradicted by the content of the handwritten notes taken by Lucite’s representative, which was subsequently confirmed by Lucite, Degussa and Atofina.
86. Second, even if Barlo did not give its explicit agreement to a price increase, it nevertheless attended a manifestly anti-competitive meeting, at which price increases were discussed and decided and commercially sensitive information was exchanged, without distancing itself publicly from its content. Under those circumstances, the infringement of the competition rules is established, in accordance with the principles established in the case-law as referred to in paragraph 49 above. In particular, the fact that the content of the meeting was ‘unexpected’ for Barlo and that Barlo did not implement what was decided at the meeting is irrelevant.
87. In addition, Atofina’s statement to the effect that ‘the purpose of the meeting was to attempt to re-establish trust between Degussa/Ato[fina]/Lucite/Barlo in order to increase prices’, far from establishing that the meeting was not planned as a cartel meeting, as the applicants maintain, rather confirms the manifestly anti-competitive nature of the meeting, Barlo’s presence at it, and the fact that Barlo had already been involved in the cartel previously to that meeting.
88. In the light of the foregoing, the Court finds that the Commission was correct in finding that Barlo’s attendance at the four abovementioned meetings constituted an infringement of Article 81 EC.
89. That conclusion is not affected by the applicants’ arguments that in the present case ‘particular attention’ must be paid to the burden of proof – which the Commission is allegedly attempting to reverse – in view of the fact that the applicants acquired Barlo four years after the end of the infringement and it is therefore impossible for them to adduce their own evidence. It follows from the foregoing that the infringement of Article 81 EC has been established according to settled case-law on the burden of proof.
90. Similarly, since the conclusion drawn in paragraph 88 above is based on unequivocal evidence gathered by the Commission, the applicants’ arguments attempting, in essence, to provide another ‘plausible explanation’ of the facts than that accepted by the Commission cannot succeed (see, to that effect, Coats Holdings and Coats v Commission, paragraph 51 above, paragraphs 72 and 74).
91. Accordingly, the present complaint must be rejected.
– The disputed Barcelona (Spain) meeting in May-June 1999 (recital 164 of the contested decision)
92. Unlike the four meetings analysed above, the applicants deny that Barlo took part in any meeting in May or June 1999, adding that the Commission has not even established that it was held. That meeting is, they claim, of ‘crucial importance’ for them, since it makes the link between two meetings in 1998 and the meetings in 2000, at which Barlo was present.
93. It must be borne in mind in that regard that recital 164 of the contested decision states:
‘In May or June 1999, a meeting took place between representatives of Atofina, ICI, Degussa, Barlo and Irpen (a local producer) at a hotel in Barcelona. The purpose of the meeting was to inform Irpen about the price agreements and to include them in the agreements. The discussions also related to the definition of minimum prices and the fixing of minimum prices per pallet. The discussions were based on a country-per-country and a client-per-client basis with a precise definition of the timing of the price increases for each country.’
94. As the applicants observe, it is common ground that the Commission has no documentary evidence relating to that meeting, not only as regards its anti-competitive nature, but also in relation to its content and the persons attending. In support of the description of that meeting, the Commission merely referred, in the contested decision, to a statement made by Atofina in the context of its application under the Leniency Notice and Degussa’s confirmation in its response to the statement of objections.
95. It is therefore appropriate to ascertain whether those statements made it possible to establish Barlo’s participation at the alleged meeting to the requisite legal standard.
96. In that regard, it must be noted that, as shown by the case-law referred to in paragraphs 52 to 54 above, the statements made in the context of the leniency policy play an important role. Those statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks (see also Case T‑385/06 Aalberts Industries and Others
v Commission
[2011] ECR I-0000, paragraph 47). However, it is also apparent from the case-law referred to in paragraphs 53 and 55 above that statements made by undertakings in the context of their applications under the Leniency Notice must none the less be assessed with caution and, in general, cannot be accepted without corroboration.
97. Moreover, in order to examine the probative value of statements made by undertakings which have made applications under the Leniency Notice, the Court takes account in particular of how much consistent evidence there is supporting the relevance of those statements ( JFE Engineering and Others
v Commission, paragraph 44 above, paragraph 220, and Peróxidos Orgánicos
v Commission, paragraph 53 above, paragraph 70). Similarly, the relevance of a statement has a bearing on the degree of corroboration required (see, to that effect, JFE Engineering and Others
v Commission, paragraph 44 above, paragraph 220).
98. In the present case, the applicants argue that Atofina’s statement, made in its application lodged under the Leniency Notice, has no probative value because it is not sufficiently precise.
99. It should be observed in that regard that Atofina places the meeting in question in the context of a series of meetings held in the period from the summer of 1997 until 1999, which are described in a page taken from its application under the Leniency Notice, annexed to the statement in defence. At the top of that page, under the heading ‘Acteurs’ (‘Players’), Atofina indicated the undertakings concerned, namely Atoglas, Röhm, Degussa, Lucite (ICI), Repsol and Barlo, and also the names of their representatives, including ‘W. [B.] + E. [S.] as from 99’ as regards Barlo. Next, Atofina described a number of meetings in Germany, including two meetings in Darmstadt in the summer and autumn of 1998, in France and in Italy. Lastly, at the bottom of that page, Atofina stated the following:
‘In May/June 99
Meeting in a hotel in the centre of Barcelona: the same plus Irpen (local producer) and presence of representatives of local networks.
Content of discussions in Darmstadt and at local level:
Distributors’ price levels (70% of the market), definition of objectives of mini prices for converters, fixing mini prices per palette.’
100. In fact, contrary to what the applicants assert, that statement identifies both the participants at and the anti-competitive nature of that meeting. The reference to ‘the same plus Irpen’ must be read in the light of the list of participants at the different meetings at the top of the page of Atofina’s statement, where it stated inter alia: ‘Barlo[:] W. [B.] + E. [S.] as from 99’. Similarly, the reference to ‘content of discussions … at local level’, in the context of that page, must necessarily be construed as referring inter alia to the meeting in question in Barcelona. Thus, according to Atofina, the content of that meeting consisted in the fixing of ‘distributors’ price levels’, the ‘definition of objectives of mini prices for converters’, and ‘fixing mini prices per palette’. Moreover, even if that document is not referred to in recital 164 of the contested decision, it is clear from the case-file that, subsequently, in response to a request for information from the Commission, Atofina provided additional comments on the disputed meeting, referring explicitly to the presence of Barlo’s representative. Atofina added a further clarification as to the anti-competitive content of the meeting by stating that its ‘purpose … was to extend the pricing structure to Spain/Portugal and to convince the local manufacturers to join in’.
101. It is absolutely clear therefrom that, according to Atofina, Barlo’s representative was among the participants at the meeting in question and that the meeting was anti-competitive in nature.
102. It should also be observed, however, that the applicants are correct in stating that Atofina’s statement does not contain much in the way of explanation about the alleged Barcelona meeting. It does not identify the date, exact location of the meeting, or the topics specifically discussed at it. Further explanations about the topics were added only subsequently (see paragraph 100 above). That description contrasts with that of the other meetings referred to on the page in question, which refers to the names of the hotels where those meetings took place, the specific topics and sometimes also further information, such as the name of the undertaking which paid the hotel costs. Similarly, apart from the mention of Barlo’s representative among the participants at the meeting, Atofina’s statement does not contain any specific information about it.
103. Moreover, it is possible to put the relevance of Atofina’s statement in perspective in the light of the Commission’s assessment of other meetings it mentioned. Of the eight other meetings included in the series referred to in Atofina’s statement (meetings of September 1997 in Dernbach, April 1998 in Dernbach, June 1998 in Idstein (Germany), the spring of 1998 in Paris (France), the summer of 1998 in Darmstadt, the autumn of 1998 in Darmstadt and two meetings in or near Milan (Italy) in 1999), only two, which Barlo has admitted attending, namely the Dernbach meeting in April 1998 and the Darmstadt meeting in June 1998, were relied on as against the applicants in the contested decision. According to Atofina, the ‘players’, including Barlo, referred to at the top of the page of its statement, attended all the meetings in the series.
104. Under those circumstances, in the absence of any documentary evidence about the disputed meeting, particular attention must be paid to Degussa’s statement in so far as concerns Barlo’s presence at the disputed meeting.
105. It must be stated at the outset, however, that Degussa’s statement is of limited relevance, given its content and the circumstances in which it was made.
106. First, Degussa confirmed, in a very general manner, ‘the content and occurrence of and participants at’ the meeting, without providing any specific information about Barlo. The only specific information in that statement relates to its object (involvement of Irpen in the agreements) and does not concern Barlo specifically. As to the rest, Degussa stated explicitly that it no longer remembered details and that, in particular, it could not give the date of the meeting as it did not have travel expense vouchers for Mr F. for that period.
107. Accordingly, the degree of corroboration of that statement, as regards Barlo’s presence at the disputed meeting, is relatively low.
108. Second, as to the applicants’ arguments alleging that that confirmation was introduced at a very late stage of the procedure, namely in the response to the statement of objections, it should be noted that that fact does not in itself mean that no probative value whatsoever must be accorded to Degussa’s statement, which must be examined in the light of all of the relevant facts of the case.
109. However, such a statement has less probative value than one made spontaneously, irrespective of Atofina’s statement. In particular, when the undertaking lodging an application for immunity is aware of the information gathered by the Commission in its investigation, the inherent logic of the procedure provided for in the Leniency Notice, according to which any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking (see paragraph 53 above), does not apply to the same degree as where it is a spontaneous statement, made without knowledge of the Commission’s objections. Similarly, the consideration that statements made under the Leniency Notice run counter to the interests of the declarant and must in principle be regarded as particularly reliable evidence (see paragraph 54 above) may not be fully applicable in respect of the response to the statement of objections coming from an undertaking lodging an application for immunity, such as Degussa.
110. Nor can the possibility be ruled out that the scope of such a statement might be influenced by the content of the statement of objections where, as in the present case, it is a very general confirmation of the ‘holding’ and ‘content’ of and ‘participants’ at a meeting. That is illustrated by the discussion of two meetings in or near Milan which, according to Atofina’s statement, were held in 1999. In its response to a question from the Court, the Commission explained that ‘[f]or the [two] meetings indicated by Atofina [in its statement], the Commission [had not held] these against [the applicants] as the second leniency source, Degussa did not explicitly confirm the presence of Barlo at those meetings’. It further stated that ‘[a]t paragraph 160 of its reply to the statement of objections Degussa [had] merely recalled the attendance of Atofina, Degussa, Lucite, Madreperla and Plastidit, as had been stated at paragraph 240 of the statement of objections’. However the Commission has not explained why, in paragraph 240 of the statement of objections, it had chosen not to mention Barlo among the participants at two meetings in or near Milan, whereas it had done so for the disputed Barcelona meeting, in a situation where, in both cases, the presence of Barlo had been referred to by Atofina in the same terms (‘the same plus …’). Accordingly, the possibility cannot be ruled out that, as regards the identity of the participants at anti-competitive meetings, Degussa relied to a certain extent on the wording of the statement of objections, instead of making an objective reconstruction of the facts.
111. Lastly, it must be borne in mind, first, that the applicants firmly dispute the presence of Barlo at the disputed meeting, whilst they explicitly acknowledge its presence at all the other meetings held against it in the contested decision and, second, that the contested decision does not refer to any other confirmation of that meeting which, in Atofina’s submission, also implicated ICI (now Lucite), and the undertakings Repsol and Irpen, even though ICI and Lucite also lodged applications under the Leniency Notice.
112. Having regard to all of the factors examined above and, in particular, the Commission’s inability to gather documentary evidence relating to the meeting in question or more substantiated statements regarding Barlo’s presence at it, and given the principle according to which where the Court is in doubt the undertaking which is the addressee of the decision finding an infringement must have the benefit of that doubt (see paragraph 58 above), the Court finds that the Barcelona meeting referred to in recital 164 of the contested decision could not be held against the applicants.
113. In that regard, the Commission is correct in arguing that, although it must adduce specific and coherent evidence in order to establish with certainty that the infringement has been committed (see, to that effect, Volkswagen
v Commission, paragraph 43 above, paragraph 43 and the case-law cited, and Lafarge
v Commission, paragraph 43 above, paragraph 55), it is not necessary for every item of evidence produced by it to satisfy those criteria in relation to every aspect of the infringement. Rather, it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see, to that effect, JFE Engineering and Others
v Commission, paragraph 44 above, paragraph 180 and the case-law cited). Similarly, the Commission is also correct in stating that the evidence must be assessed in its entirety, taking into account all relevant circumstances of fact (see, to that effect, Case T‑141/94 Thyssen Stahl
v Commission
[1999] ECR II‑347 paragraph 175).
114. However, although the Commission alleges that the Barcelona meeting in May-June 1999 must be assessed in the light of the ongoing cooperation between the cartel members which, in Degussa’s submission, began as early as 1984-1985, it must be borne in mind that the Commission acknowledged in the contested decision that ‘Barlo’s involvement in the cartel was not comparable to that of most other undertakings’, inter alia because ‘proven anti-competitive contacts comprised sporadic attendance [at] meetings which were mainly limited to Barlo being informed about the anti-competitive agreements or practices for PMMA solid sheet’ (recital 373 of the contested decision). Moreover, the Commission also acknowledged that Barlo had participated in the infringement during a shorter period than the other undertakings, from 30 April 1998 to 21 August 2000, whilst the infringement as such was established for the period from 23 January 1997 to 12 September 2002. In the light of those circumstances, it is entirely plausible that Barlo’s involvement in the cartel was limited to the four meetings which the applicants have admitted it attended. Therefore, neither the overall body of evidence adduced by the Commission as against the applicants nor the context of the case affects the conclusion set out in paragraph 112 above.
115. It follows that the present plea must be upheld.
– The lack of other contacts or exchanges in which Barlo was involved
116. The applicants dispute the accuracy of the statements in recital 227 of the contested decision. They submit, first, that the detailed description of the meetings which Barlo attended shows that those meetings did not serve to inform it of the content of the meetings it had missed. Second, the applicants maintain that the contested decision does not in any way indicate that there were other contacts or exchanges in which Barlo took part and that no evidence has been adduced to show that there were such contacts or exchanges.
117. Recital 227 of the contested decision states the following:
‘… the fact that Barlo may not have participated in all of the meetings as regards the product where it was active (i.e. PMMA solid sheet) in no way detracts from the assessment of its participation in the cartel, since it participated in meetings before or after the meetings it missed and it was in a position to be informed and take account of the information exchanged with its competitors when determining its commercial conduct on the market’.
118. The applicants’ line of argument is in fact based on an incorrect reading of that recital. In that passage, the Commission merely rejected the argument that the applicants could not be held liable for the single and continuous infringement due to the limited number of meetings in which Barlo had participated. The Commission did not allege that Barlo had in fact been informed of the content of the meetings it had missed, nor did it suggest that there were other contacts or exchanges involving Barlo. It merely referred to the possibility that Barlo might have been informed (‘was in a position’), which is moreover not disputed in the application.
119. The applicants’ line of argument is therefore ineffective.
120. It is, moreover, common ground amongst the parties that the complaints upheld by the Commission as against the applicants is based on Barlo’s participation in five anti-competitive meetings concerning PMMA solid sheet, which were examined above.
121. Furthermore, inasmuch as the applicants dispute their liability for the single infringement, reference is made to the examination of the second part of the first plea, set out below.
122. Accordingly, the present complaint must be rejected.
– Conclusion on the first part of the first plea in law
123. In the light of the foregoing, the first part of the first plea in law, alleging an incorrect assessment of the meetings and other contacts or exchanges involving Barlo, must be upheld as regards the assessment of Barlo’s alleged participation in the May or June 1999 meeting in Barcelona and be rejected as to the remainder. The possible impact of this conclusion on the legality of the contested decision and the determination of the amount of the fine will be examined below.
Second branch of the first plea in law: incorrect assessment of Barlo’s participation in ‘a single, common anti-competitive project’ covering PMMA products
124. The applicants submit that, in the contested decision, the Commission found incorrectly that they had infringed Article 81 EC by joining or contributing to ‘a single, common anti-competitive project’ covering three categories of products: PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware.
125. In that regard, it should be borne in mind as a preliminary point that, given the nature of the infringements of the competition rules and also the nature and the degree of severity of the related sanctions, responsibility for committing those infringements is personal in nature ( Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 78).
126. Next, it should be observed that the agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collusion on the part of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect ( Commission
v Anic Partecipazioni
paragraph 34 above, paragraphs 79 and 80).
127. 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 several elements of that series of acts or continuous conduct could also constitute in themselves and individually an infringement of that provision (see, to that effect, Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 81). When the various acts form part of an ‘overall plan’ because they have the same object of distorting competition within the common market, the Commission is entitled to attribute liability for those actions on the basis of participation in the infringement considered as a whole (see Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 258 and the case-law cited), even if it is established that the undertaking concerned directly participated in only one or some of the constituent elements of the infringement (see Joined Cases T‑101/05 and T‑111/05 BASF and UCB
v Commission
[2007] ECR II‑4949, paragraph 161 and the case-law cited).
128. According to the Court’s case-law, in order to establish that an undertaking participated in such a single agreement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of those same objectives, or that it could reasonably have foreseen it, and that it was prepared to take the risk ( Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 87, and Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 83).
129. Lastly, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine ( Commission
v Anic, paragraph 34 above, paragraph 90, and Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 86).
130. In the present case, in the first place, it must be noted that the operative part of the contested decision does not specify the exact scope of the infringement for which the addressees of the decision were held liable, Article 1 merely referring to ‘a complex of agreements and concerted practices in the methacrylates industry’, without mentioning specifically the products concerned.
131. It must be borne in mind, however, that it is settled case-law that the operative part of an act is indissociably linked to the statement of reasons for it and when it has to be interpreted account must be taken of the reasons that led to its adoption (see T‑201/04 Microsoft
v Commission
[2007] ECR II‑3601, paragraph 1258 and the case-law cited).
132. Recital 2 of the contested decision states clearly that the single and continuous infringement relates to three PMMA products in the following terms:
‘The addressees of this decision participated in a single and continuous infringement of Article 81 [EC] and Article 53 of the EEA Agreement in the methacrylates industry involving three products:
– [PMMA] moulding compounds;
– [PMMA] solid sheet, and
– [PMMA] sanitary ware.’
133. Moreover, in recitals 222 to 226 of the contested decision, the Commission set out the reasons why it had found that the cartel in question could be classified as a single and continuous infringement involving the three aforementioned products. In that context, the specific situation of the applicants is discussed in the following terms:
‘The fact that an undertaking concerned did not participate in all the constituent elements of the overall cartel cannot relieve it of responsibility for the infringement of Article 81 [EC]. In this case the fact that one company, namely Barlo, does not produce all three PMMA products like the other participants of the anti-competitive arrangements does not change the nature and the object of the infringement which was to distort the normal movement of prices with regard to the three PMMA products. From the facts described above in [recital] 3 [of the contested decision] it is clear that all participants in the anti-competitive arrangements adhered and contributed, to the extent they could (i.e. to the extent they were active in one or more of the products concerned by the arrangements) to the common anti-competitive plan.’ (recital 226 of the contested decision).
134. It is therefore clear, in the light of the reasons given in the contested decision, that Article 1 thereof holds the applicants liable for participation in a single and continuous infringement as regards PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware.
135. Secondly, the question referred for the Court’s appraisal is not that of the existence of a single infringement relating to the three products in question, but that of the applicants’ liability for the entirety of such an infringement. It was only in the reply that the applicants developed a line of argument questioning the existence, as such, of such a single infringement. That line of argument must be considered as a new plea in law and rejected as inadmissible under Article 48(2) of the Rules of Procedure of the Court. Moreover, given the considerations set out below, it is not necessary in any event to examine it.
136. It is therefore necessary to consider whether the applicants’ participation in the infringement, through their own conduct, was such as to give rise to liability on their part for the entire infringement committed during the time that they participated.
137. First of all, the argument that Barlo was not active in one of the product sectors, namely PMMA sanitary ware, must be rejected. As the Court has already held, an undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself (Case T‑99/04 AC‑Treuhand
v Commission
[2008] ECR II‑1501, and Case T‑29/05 Deltafina
v Commission
[2010] ECR II-0000, paragraph 48). Consequently, the mere fact that Barlo was not active in PMMA sanitary ware does not necessarily mean that the applicants could not be held liable for an infringement committed in respect of that product.
138. Secondly, the fact that, in the contested decision, the Commission ‘drop[ped] objections against [the applicants] in relation to PMMA moulding compounds’ (recital 93 of the contested decision), does not mean that they could not be held liable for the single infringement relating to, inter alia, that product.
139. Admittedly, the wording employed by the Commission in recital 93 of the contested decision is somewhat infelicitous and might appear to contradict the applicants’ liability for such an infringement, as set out in Article 1 of the contested decision and as interpreted in the light of recitals 2 and 226 thereof (see paragraphs 130 to 134 above). However, in the light of all of the reasons set out in the contested decision, recital 93 of the contested decision must be understood as meaning that, in the Commission’s view, Barlo’s direct participation in the part of the cartel relating to PMMA moulding compounds was not established. However, that does not by itself rule out the applicants’ liability for the single infringement relating to the three products concerned (see paragraph 126 above).
140. Thirdly, the fact that, in the contested decision, the Commission referred only to five meetings in reference to the applicants, spread out over a period of more than two years, none of which was a ‘summit level meeting’ at which the ‘basic understanding for collaboration’ was agreed upon (recital 105 of the contested decision), is not sufficient to rule out their liability for a single infringement.
141. According to the case-law, the fact that the roles played by various undertakings in pursuit of a common objective were different does not cancel out the fact that the anti-competitive object, and hence the infringement, was identical, provided that each undertaking has contributed, at its own level, to the pursuit of the common objective (see Case T‑452/05 BST
v Commission
[2010] ECR II-0000, paragraph 32 and the case-law cited). Further, it has been held that, in the context of an overall agreement extending over several years, a gap of several months between the manifestations of the cartel is of little relevance. The fact that the various actions form part of an overall plan owing to their identical object, on the other hand, is decisive ( Aalborg Portland and Others
v Commission, paragraph 46 above, paragraph 260, and Lafarge
v Commission, paragraph 43 above, paragraph 483).
142. Fourthly, it thus remains to be ascertained, in the light of the arguments put forward by the applicants, whether the conditions laid down by the case-law referred to in paragraph 128 above are satisfied.
143. In that regard, the Court has held that 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 that overall plan included all the constituent elements of the cartel (see, to that effect, Case T‑48/00 Corus UK
v Commission
[2004] ECR II‑2325, paragraph 176, and BST
v Commission, paragraph 141 above, paragraph 32).
144. Accordingly, the mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice to render that undertaking responsible for the global cartel. It is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that global cartel (Case T-28/99 Sigma Tecnologie
v Commission
[2002] ECR II-1845, paragraph 45, and Bolloré and Others
v Commission, paragraph 54 above, paragraph 209).
145. In that regard it should be observed at the outset that the Commission has not established, or even alleged, that Barlo knew or should have known that, by participating in an agreement relating to PMMA solid sheet, it was joining in a global cartel relating to three PMMA products.
146. On the contrary, as rightly pointed out by the applicants, the Commission itself acknowledged in the contested decision that ‘Barlo was not aware or could not necessarily have had knowledge of the overall scheme of the anti-competitive arrangements’ (recital 335 of the contested decision).
147. Similarly, the Commission does not allege that Barlo was aware of the material conduct envisaged or implemented by other undertakings in pursuit of the same objectives or that it could reasonably foresee it and was prepared to take that risk. On the contrary, it affirms in its statement in defence that Barlo was aware of the actions of its competitors that aimed at achieving that single objective ‘at least as regards the product PMMA solid sheet’.
148. The Commission’s position is based solely on the allegation that the infringement that Barlo ‘subjectively may have perceived’ as covering only PMMA solid sheet was in fact an integral part of a larger single infringement covering all three PMMA products. However, it is clear from the case-law referred to in paragraphs 128, 143 and 144 above that the subjective perception of the infringement is a relevant factor for the purposes of Article 81(1) EC. In that regard, it should be recalled that that provision does not apply unless there is a concurrence of wills between the parties concerned (see Case T‑18/05 IMI and Others
v Commission
[2010] ECR II-0000, paragraph 88 and the case-law cited).
149. It should also be observed that the mere fact that Barlo was aware of and pursued the anti-competitive objectives in PMMA solid sheet did not mean that it was aware of the single objective pursued by the cartel as a whole in the methacrylates sector. As has already been held, the concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether as object or effect, is an essential element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement ( BASF and UCB
v Commission, paragraph 127 above, paragraph 180, and Case T‑446/05 Amann & Söhne and Cousin Filterie
v Commission
[2010] ECR II‑0000, paragraph 92).
150. The view advocated by the Commission would allow an undertaking to be held liable for a single infringement solely because of objective links between that infringement and the agreement in which that undertaking participated, such as belonging to the same economic sector, even though it had not been established that it was aware of the existence of such a single infringement or that it could reasonably have foreseen it and was prepared to take that risk.
151. Accordingly the Court finds that the Commission has not established that Barlo’s participation in the infringement in respect of PMMA solid sheet gave rise to liability for the applicants for the entire single infringement; the second part of the first plea in law must therefore be upheld.
152. Consequently, Article 1 of the contested decision must be annulled in so far as it finds that the applicants infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in a complex of concerted agreements and practices, not only in respect of PMMA solid sheet, but also PMMA moulding compounds and PMMA sanitary ware.
153. The impact of that finding on the amount of the fine imposed on the applicants will be examined below, as part of the analysis of the second part of the second plea in law, alleging incorrect assessment of the gravity of the infringement.
The third part of the first plea in law: incorrect assessment of Barlo’s participation in a continuing infringement
154. The applicants submit that the Commission has not established to the requisite legal standard that they had committed a continuing infringement. They state that the contested decision is based on Barlo’s presence at five meetings held over a period of more than two years, which, practically speaking, rules out any form of continuing participation in the cartel. The applicants add that, leaving aside the alleged Barcelona meeting in May or June 1999, which they deny took place, the contested decision is based on four meetings, the first two of which supposedly were held in the first half of 1998, whilst the other two took place in 2000, that is, 20 months apart.
155. It should be borne in mind in that regard that the duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. In this respect, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see Case T‑450/05 Peugeot and Peugeot Nederland
v Commission
[2009] ECR II‑2533, paragraph 220 and the case-law cited).
156. It has also been held that the fact that the cartel as such was uninterrupted does not exclude the possibility that one or more of its participants may have interrupted their participation for a certain time ( IMI and Others
v Commission, paragraph 148 above, paragraph 83).
157. Moreover, the Commission’s argument that the continuing nature of an infringement must be analysed by taking into account the failure of a party to distance itself from the cartel and the failure to pursue a genuinely independent policy, and not simply the non-participation in the activities of the cartel during a brief period, is relevant only where the Commission has satisfied the burden of proof incumbent upon it by adducing evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates ( IMI and Others
v Commission, paragraph 148 above, paragraph 86 and the case-law cited). To allow the Commission’s argument in the absence of such evidence would amount to placing the burden of proof of the duration of the infringement on the applicants, contrary to the principles referred to in paragraphs 43 and 155 above.
158. Consequently, it is appropriate to consider whether, in the present case, the Commission did in fact adduce evidence of facts sufficiently proximate in time, as it claimed.
159. It should also be observed in that regard that, although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question ( IMI and Others
v Commission, paragraph 148 above, paragraph 89), including, as the case may be, the specific method by which the undertaking concerned participated in the cartel.
160. In the light of its assessment of the first part of the first plea in law, the Court finds that the Commission’s complaints about the applicants are based on Barlo’s presence at the following four meetings: the meeting of April 1998 in Dernbach (recital 151 of the contested decision), the meeting of 29 June 1998 in Darmstadt (recital 155 of the contested decision), the meeting of 24 February 2000 in Heidelberg (recital 167 of the contested decision) and the meeting of 21 August 2000 in Deidesheim (recital 168 of the contested decision).
161. The Court finds, as a first point, that only a few months separated the meeting in Dernbach and the one in Darmstadt, on the one hand, and the meeting in Heidelberg and the one in Deidesheim, on the other. Those intervals, viewed in the context of the functioning of the cartel, are not sufficiently long to substantiate a finding of interruption in Barlo’s participation in the cartel. Nor do the applicants claim otherwise.
162. Secondly, it is necessary to determine whether the Commission established Barlo’s continuous participation in the cartel between the meeting of 29 June 1998 in Darmstadt (recital 155 of the contested decision) and the meeting of 24 February 2000 in Heidelberg (recital 167 of the contested decision).
163. In should be noted in that regard that it is apparent from recital 155 of the contested decision that, at the meeting of 29 June 1998 in Darmstadt, the participants agreed on a price increase for October 1998. Even though that recital states that Barlo did not indicate that it would change its pricing policy and although Barlo is not referred to in recital 157 of the contested decision as one of the undertakings which actually did conclude an agreement at the meeting of 29 June 1998 in Darmstadt, the fact remains that it was able to benefit from the information relating to the price increases planned for October 1998 and adapt its commercial conduct accordingly. The Court finds, therefore, that Barlo participated in the cartel, continuously, until the end of October 1998.
164. The Court notes, moreover, that the contested decision lists 10 meetings concerning PMMA solid sheet in that period, which were held subsequently to the Darmstadt meeting, quite regularly and at least until the end of the first half of 1999 (the meetings on 18 August, 11 September, and 10 December 1998, the meetings on 20 January, 4 and 19 March and 5 May 1999, the meetings in May or June 1999 and two additional meetings held on unspecified dates in Italy in 1999: recital 157 et seq. of the contested decision). According to the contested decision, at those meetings the participants agreed to increase prices and pass on service costs to customers and exchanged market information. In addition, recital 166 of the contested decision refers to a price increase announced on 1 November 1999 and implemented in January 2000 (recital 166 of the contested decision).
165. Those considerations indicate, first, that the period in which there were no collusive contacts or manifestations by Barlo amounted to almost 16 months (from the end of October 1998 to 24 February 2000) and, second, that that period largely exceeded the intervals at which the undertakings which were members of the cartel had each shown their wish to restrict competition. It is therefore clear that Barlo’s continuous participation in the cartel has not been established for that period.
166. Furthermore, even though, according to the contested decision, Barlo’s participation in the cartel was in any event limited to ‘sporadic attendance at meetings’ which consisted merely in keeping ‘abreast of anti-competitive agreements or practices agreed for PMMA solid sheet’ (recital 373 of the contested decision), that does not affect the finding as to the interruption in its participation in the infringement during the abovementioned period. In the absence of any established anti-competitive contact, Barlo cannot be considered as having been informed of the agreements concluded during that period.
167. The contested decision must therefore be annulled in so far as it holds the applicants liable for their participation in the cartel between 1 November 1998 and 23 February 2000. The impact of that finding on the determination of the amount of the fine will be examined below.
The second plea in law: infringement of Article 23(3) of Regulation No 1/2003, the Guidelines and the principle of proportionality
168. The applicants submit that, even if they are found to have infringed Article 81 EC, the fine imposed on them does not comply with the rules laid down in Article 23(3) of Regulation No 1/2003 and in the Guidelines and infringes the principle of proportionality.
The first part of the second plea in law: incorrect assessment of the duration of the alleged infringement
169. The applicants submit that the duration of their participation in the infringement, fixed in the contested decision at two years and three months, is wrong because the Commission found, incorrectly, that their participation in the infringement began on 30 April 1998 and ran until 21 August 2000, especially because the contested decision does not contain sufficient evidence in support of the statement that the infringement was continuous and uninterrupted during that period.
170. In the first place, the applicants’ criticisms about the dates established by the Commission must be rejected as regards the beginning and end of their participation in the infringement.
171. First, as is apparent from the foregoing, Barlo’s attendance at the anti-competitive meeting in April 1998 in Dernbach has been established to the requisite legal standard. Moreover, the fact that the Commission was unable to establish the exact date of that meeting is irrelevant to the amount of the fine imposed on the applicants, since the more advantageous date for them (30 April 1998) was used.
172. In addition, as regards the date on which the applicants’ participation in the infringement ended (21 August 2000), it is clear from the foregoing that, on that date, Barlo attended an anti-competitive meeting, from which it did not distance itself. Under those circumstances, the argument that Barlo did not agree to the price increases, even if it were to be established, is irrelevant. The same holds true for the argument that the Commission has not made out Barlo’s unlawful conduct following that meeting.
173. In the second place, it should be borne in mind that it has already been held, in the examination of the third part of the first plea in law, that the applicants’ participation in the cartel between 1 November 1998 and 23 February 2000 has not been established and that the contested decision must be annulled in so far as the Commission held them liable for that period. Consequently, the Court also finds that the Commission incorrectly took account of that period for the purpose of determining the duration of their participation in the infringement in calculating the amount of the fine.
174. The Court rejects the Commission’s argument that an interruption in the participation in the cartel should give rise to two fines, the total amount of which would be even higher. As is clear from the foregoing, the applicants participated in one and the same infringement, even if that participation was interrupted. Accordingly, the gravity of that infringement, and not of two separate infringements, must guide the determination of the amount of the fine. Moreover, the gravity of the infringement, assessed inter alia according to its nature and geographical scope, remains the same, despite the interruption in the applicants’ participation in it.
175. It is therefore appropriate, in the exercise of the Court’s unlimited jurisdiction, to recalculate the amount of the fine which was imposed on the applicants, taking account of the duration of their actual participation in the infringement (see, to that effect, IMI and Others
v Commission, paragraph 148 above, paragraphs 96, 97 and 190).
176. In the light of the foregoing, the duration of that participation in the infringement totalled 11 months and 28 days. Consequently, according to the method for calculating the fine as set out in the Guidelines and applied by the Commission in the contested decision, that participation amounted to a short-term infringement, for which no additional amount added to the amount of the fine is, as a rule, provided for (Section 1 B of the Guidelines). That provision does not, however, lay down an imperative rule and it cannot, in any event, bind the court in the exercise of its unlimited jurisdiction.
177. In the light of the circumstances of the present case, in particular the necessarily approximate nature of the duration referred to in the preceding paragraph, which takes 30 October 1998 to be the date of the end of the first period of the applicants’ participation in the cartel, and the fact that that participation was subsequently resumed, the Court finds that an additional amount of 10% of the starting amount of the fine reflects adequately the duration of that participation in the infringement.
178. Consequently, it is appropriate to reduce the amount of the fine by replacing the increase of 20% of the starting amount applied by the Commission in recital 353 of the contested decision by an increase of 10% and to dismiss the remainder of the first part of the second plea in law.
The second part of the second plea in law: incorrect assessment of the gravity of the alleged infringement
179. The applicants submit that, according to settled case-law, in determining the gravity of the infringement, it is necessary to determine the individual liability of the undertakings concerned and the relative gravity of the participation of each of them. In their view, in the contested decision either the Commission did not conduct that individual examination or it made an incorrect assessment. Consequently, the starting amount of the fine (EUR 15 million) is not justified.
180. In that regard it should be borne in mind as a preliminary point that, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined by the Commission (see Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 153 and the case-law cited), in order to determine whether there are, in regard to those undertakings, aggravating or mitigating circumstances (Case T‑73/04 Carbone‑Lorraine
v Commission
[2008] ECR II‑2661, paragraph 190).
181. That conclusion follows logically from the principle that penalties must be specific to the offender and the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under European Union competition law (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission  [2008] ECR II‑2597, paragraph 261).
182. As regards the application of the Guidelines, it should be borne in mind that the method they set out for determining the amount of the fine follows an approach based on the fixing of a basic amount according to the gravity and the duration of the infringement, to which additional amounts are applied to take account of aggravating circumstances and decreases applied to take account of mitigating circumstances.
183. It is clear from the case-law that, in applying the Guidelines, a distinction must be drawn between the assessment of the gravity of the infringement, which is used to determine the general starting amount of the fine, and the assessment of the relative gravity of the participation of each of the undertakings concerned, which must be examined in the context of any aggravating or mitigating circumstances ( Carbone‑Lorraine
v Commission, paragraph 180 above, paragraph 100; see also, to that effect, Case T‑220/00 Cheil Jedang
v Commission
[2003] ECR II‑2473, paragraph 189, and Case T‑18/03 CD-Contact Data
v Commission
[2009] ECR II‑1021, paragraph 95).
184. It must be remembered that Sections 2 and 3 of the Guidelines provide for a variation in the basic amount of the fine on the basis of certain aggravating or mitigating circumstances, which are specific to each of the undertakings concerned. In particular, Section 3 of the Guidelines sets out, under the title of ‘attenuating circumstances’, a non-exhaustive list of circumstances which might lead to a reduction in the starting amount of the fine. Thus, reference is made to the passive role of the undertaking, to the non-implementation in practice of the offending agreements or practices, to termination of the infringement as soon as the Commission intervenes, to the existence of reasonable doubt on the part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement, to the fact that the infringement was committed as a result of negligence and to the effective cooperation by the undertaking in the proceedings outside of the scope of the Leniency Notice.
185. By contrast, in the determination of the starting amount of the fine, the Commission is not required to assess the effects resulting from the conduct of an undertaking in particular. It is settled case-law that the effects to be taken into consideration in determining the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted but those resulting from the whole of the infringement in which it participated ( Commission
v Anic Partecipazioni, paragraph 34 above, paragraph 152, and the judgment of 12 November 2009 in Case C‑554/08 P Carbone-Lorraine
v Commission, not published in the ECR, paragraphs 21 and 24).
186. In the present case, in the first place, the applicants criticise the Commission, in essence, for having failed to examine their conduct in the assessment of the gravity of the infringement. They state that, in categorising the infringement as ‘very serious’ in recitals 319 to 331 of the contested decision, the Commission focused on the cartel as such, without considering the individual conduct of the different competitors and that of Barlo in particular. In the applicants’ submission, Barlo’s conduct cannot be categorised as ‘very serious’, particularly in the light of the principal characteristics of the infringement as analysed in recital 320 of the contested decision.
187. It should be noted in that regard that, as is apparent from the foregoing, in the assessment under the Guidelines, such factors relating to the conduct of an undertaking are to be taken into account, if necessary, at the stage of assessment of aggravating and mitigating circumstances (Sections 2 and 3 of the Guidelines), in order to adapt the basic amount of the fine, as determined inter alia according to the gravity of the infringement in which it participated. Therefore, the argument that, at that stage of the determination of the amount of the fine, the Commission ought to have analysed specifically the applicants’ individual conduct must be rejected.
188. Moreover, the applicants do not actually challenge the gravity of the infringement as such, as established by the Commission. In particular, although they allege that the Commission did not conduct any analysis of the size of the geographical market concerned, they do not put forward any factors casting doubt on the well-foundedness of the Commission’s finding that that market covered the entire EEA.
189. In any event, the Court has held that it is apparent from the Guidelines that the Commission may classify horizontal price or market sharing agreements as very serious infringements solely on account of their nature and is not required to demonstrate an actual impact of the infringement on the market (Case C‑534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I‑7415, paragraph 75, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others
v Commission
[2009] ECR I‑8681, paragraph 103). By reason of their very nature, such agreements merit the severest fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the level of fines (Case T‑127/04 KME Germany and Others
v Commission
[2009] ECR II‑1167, paragraph 64). Consequently, the applicants’ argument that their conduct had not had any impact on the market does not, in any event, call in question the categorisation of the infringement as ‘very serious’.
190. Therefore, the Court finds that the Commission was correct in finding, in recital 331 of the contested decision, that the cartel in question constituted a ‘very serious’ infringement by reason of its very nature and the fact that it covered the entire EEA.
191. In the second place, the applicants dispute the assessment made by the Commission in recitals 332 to 336 of the contested decision by way of ‘differential treatment’ which led it to grant them a 25% reduction in the amount of the fine.
192. First, the applicants state that the amount of the fine, before the application of the 25% reduction, does not reflect any differential treatment, as it results from the application of the same ‘mathematical formula’ to all the undertakings concerned. According to the applicants, in order to fix the starting amount of the fine, the Commission used a percentage of approximately 30% of the turnover achieved in the EEA by the undertakings concerned on PMMA products (recital 334 of the contested decision).
193. In that regard, it should be borne in mind that the sixth subparagraph of Section 1 A of the Guidelines provides for the possibility of differentiating the starting amounts to be applied to undertakings involved in the same infringement ‘in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’. This is what the Commission did in recital 332 et seq. of the contested decision. It stated that ‘the proposed scale of likely fines ma[de] it possible to apply differential treatment to undertakings in order to take account of the effective economic capacity of the offenders to cause significant damage to competition’ and that ‘[t]his [was] appropriate where, as in this case, there is considerable disparity as regards the turnover in the cartelised products of the undertakings participating in the infringement’ (recital 332 of the contested decision). It should also be observed that, although it is not clear from the contested decision that the Commission applied the ‘mathematical formula’ as alleged by the applicants, it is nevertheless clear that, in order to fix the starting amount of the fine, it applied the same criteria to all the undertakings concerned, namely the criterion of the ‘relative weight in turnover achieved with the PMMA products for which they participated in the cartel’ (recital 333 of the contested decision).
194. There is nothing to criticise in this approach. On the contrary, it enabled account to be taken, in a non-discriminatory manner, of objective differences between the participants in the cartel in the light of the objective pursued, namely the determination of the amounts of the fine in the light of the actual economic capacity of the offenders to cause damage to competition. Since that treatment gave rise to different starting amounts, it is clear that the Commission indeed applied genuine ‘differential treatment’ for the purposes of the Guidelines, contrary to what the applicants assert.
195. It should further be noted that the criterion used by the Commission also takes account of the fact that the applicants’ direct participation in the cartel has been established only in relation to PMMA solid sheet. The Commission stated clearly that ‘for Barlo, this concern[ed] PMMA solid sheet only’ (recital 333 of the contested decision) and it therefore took account of the EEA turnover in 2000 recorded for that product. As is clear from the case-file, the applicants were in fact also active in the PMMA moulding compounds sector. Consequently, the fact that the second part of the first plea in law is well founded (see inter alia paragraph 152 above) does not affect the Commission’s assessment on that point.
196. Second, the applicants argue that the 25% reduction in the amount of the fine, applied in recital 335 of the contested decision, was not supported by a sufficient statement of reasons and that it is insufficient. In their submission, that reduction ought to have taken account of the fact that they were not liable for the entire cartel, not just the fact that they were unaware of it, whilst holding them liable for the single infringement. Consequently, they consider that a reduction reflecting the MMA distribution between the different categories of products in question would have been an ‘absolute minimum’. They observe that, according to recital 5 of the contested decision, that distribution was as follows: 49% for solid sheet, 36% for moulding compounds and 15% for sanitary ware.
197. In that regard, the Court finds that the applicants are correct in maintaining that the fact that they were not liable for the entire cartel, as evidenced by the examination of the second part of the first plea in law, should have been taken into account in the determination of the starting amount of the fine.
198. As is apparent from the foregoing, unlike the other addressees of the contested decision, the applicants could only be held liable for one branch of the cartel, the one relating to PMMA solid sheet. Therefore, the infringement of the competition rules was necessarily less serious than that attributed to the offenders who participated in all branches of the infringement and thereby contributed more to the effectiveness and the gravity of the cartel than an offender involved in only one branch of it (see, to that effect, IMI and Others
v Commission, paragraph 148 above, paragraphs 162 and 164).
199. An undertaking may never be fined an amount which is calculated to reflect its participation in collusion for which it is not held liable ( Sigma Tecnologie
v Commission, paragraph 144 above, paragraphs 79 to 82, and IMI and Others
v Commission, paragraph 148 above, paragraph 157).
200. With regard to the application of the Guidelines, that assessment necessarily has to be made at the stage when a specific starting amount is set, since the taking into account of attenuating circumstances only allows the basic amount of the fine to be adjusted by reference to the way in which the offender implemented the cartel. An offender who is not held responsible for certain branches of that cartel cannot have been involved in the implementation of them ( IMI and Others
v Commission, paragraph 148 above, paragraph 164).
201. It is clear in the present case, however, that although the Commission made an error in the determination of the applicants’ liability for the cartel, it nevertheless determined the amount of the fine correctly, in accordance with the principles set out above.
202. First, as demonstrated by the foregoing (see paragraph 195 above), the stage of calculating the amount of the fine consisting in classifying the undertakings concerned in a number of categories according to their relative weight in the turnover achieved through the sale of PMMA products, for which they participated in the cartel, is not affected by the error made in determining liability for the infringement.
203. Furthermore, as regards the applicants’ argument that the turnover taken into account should not include the turnover achieved by Quinn Plastics, SA, since, in the contested decision, the Commission withdrew all complaints against that company, it should be noted that the applicants do not dispute the Commission’s statement that the fact that that company is not an addressee of the contested decision does not affect the turnover recorded for PMMA solid sheet that can be attributed to the undertaking Barlo, which also includes the parent company addressee Quinn Barlo, which owned 100% of Quinn Plastics, SA at the time of the infringement.
204. Second, in recital 335 of the contested decision, the Commission granted the applicants a specific reduction of 25% of the starting amount of the fine on the ground that it ‘[was] not clear whether Barlo took part in any collusive contacts concerning PMMA moulding compounds or PMMA sanitary ware’ and that, accordingly ‘it seem[ed] that Barlo was not aware or could not necessarily have had knowledge of the overall scheme of the anti-competitive arrangements’.
205. That reduction was not based on the applicants’ bearing no liability for the branches of the cartel relating to PMMA moulding compounds or PMMA sanitary ware, but only on their lack of direct involvement in those branches or knowledge of them.
206. However, that consideration alone is not such as to call in question the reduction granted, as the Commission was fully entitled to grant a reduction in the amount of the fine on such a basis.
207. It remains therefore to be ascertained whether that reduction and the specific starting amount resulting therefrom (EUR 15 million) reflect adequately the gravity of the infringement committed by the applicants, assessed in the light of the partial annulment of Article 1 of the contested decision (see paragraph 152 above).
208. It should be observed in that regard that, even if that infringement related to only one of the three products concerned, the fact remains that it was by nature a very serious infringement (see paragraph 189 above) which, moreover, covered the entire EEA. In particular, the fact that the single infringement, taken as a whole, might have been an even greater infringement of the competition law rules does not in any way mean that the infringement committed by the applicants is not, as such, ‘very serious’ (see, to that effect, Case T‑448/05 Oxley Threads
v Commission, judgment of 28 April 2010, not published in the ECR, paragraph 37).
209. That finding is not affected by the applicants’ arguments that it has not been established that they participated in the main features of the cartel, set out in recital 320 of the contested decision. Given the considerations set out in paragraphs 180 to 187 above, the relevant question at the stage of determining the starting amount of the fine was not that of the applicants’ own conduct, but that of the features of the infringement in which they had participated. Yet the applicants do not argue that the main features of the cartel set out in recital 320 of the contested decision are not applicable to the infringement at issue because it concerned only PMMA solid sheet. Moreover, even if the applicants did not participate directly in all the types of anti-competitive conduct referred to in recital 320 of the contested decision, it should be noted that the applicants took part in meetings concerning PMMA solid sheet, during which, inter alia, pricing agreements were concluded, prices were discussed and market information was exchanged (see paragraphs 60 to 78 above), and they were thus aware of that anti-competitive conduct, including that in which it did not participate directly, or they could reasonably have foreseen it (see paragraph 128 above).
210. It is clear, therefore, that the infringement committed by the applicants must be categorised as ‘very serious’ for the purpose of the Guidelines. It must also be borne in mind that those Guidelines provide for EUR 20 million as the general minimum starting amount for such infringements.
211. As to the applicants’ argument that, in essence, the starting amount of the fine applied to them should reflect the size of PMMA solid sheet market in relation to all the PMMA products which were included in the single infringement, it should be remembered that the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see BST
v Commission, paragraph 141 above, paragraph 60 and the case-law cited).
212. As is apparent from the case-law, however, the size of the relevant market is not as a rule a factor which must be taken into account, but just one among a number of other factors to be taken into account in evaluating the gravity of the infringement and setting the amount of the fine ( Prym and Prym Consumer
v Commission, paragraph 189 above, paragraph 55). Similarly, according to the method set out in the Guidelines, it is not a decisive factor in the determination of the starting amount of the fine (see, to that effect, Case T‑116/04 Wieland-Werke
v Commission
[2009] ECR II‑1087, paragraphs 62 to 64).
213. It follows that the reduction in the starting amount of the fine to which the applicants could be entitled by virtue of their participation in the cartel only as regards PMMA solid sheet did not have to reflect proportionately the size of the market for that product as compared with all PMMA products covered by the single infringement. On the contrary, such a reduction would not have been in keeping with the principle of proportionality referred to in paragraph 211 above, as it would not have taken sufficient account of the fact that, like the other addressees of the contested decision, the applicants had participated in a cartel which, by its nature, was very serious and covered the entire territory of the EEA.
214. It should further be noted that the applicants’ claim asking, in essence, for a 51% reduction in the starting amount of the fine, instead of the 25% reduction granted by the Commission (see paragraph 196 above), is based not on turnover recorded for the sales for each of the three PMMA products concerned, but for the raw material (MMA) distribution between those three products, without the applicants’ explaining how that criterion is relevant for assessing the gravity of the infringement committed by them. As regards the question of which share of the turnover recorded for sales of all three of the PMMA products concerned at EEA level in 2000 may be attributed solely to PMMA solid sheet, it is clear from the documents produced by the Commission in response to the Court’s request that most of the undertakings concerned, including the applicants, estimated it to be 60% or more during the administrative proceedings, with only one undertaking estimating it to be approximately 50%.
215. Under those circumstances, the Court finds that the 25% reduction in the starting amount of the applicants’ fine, granted in recital 335 of the contested decision, is a suitable reflection of the gravity of the infringement in which they participated. It follows, first, that notwithstanding the error committed in the determination of the applicants’ liability for the cartel (see paragraph 152 above), the Commission did not make a manifest error of assessment in the determination of the starting amount of their fine and, second, that it is not necessary to reduce the amount further in the exercise of the Court’s unlimited jurisdiction.
216. Accordingly, the second part of the second plea must be rejected.
The third part of the second plea in law: incorrect assessment of mitigating circumstances
217. The applicants submit that the assessment in the contested decision relating to mitigating circumstances does not provide sufficient reasons and infringes the Guidelines and the principle of proportionality.
– The passive and minor role in the implementation of the infringement
218. The applicants submit that the reasons given for the Commission’s assessment in recital 373 of the contested decision concerning the 50% reduction for the passive and minor role are incorrect, as that recital contains inaccurate and unsubstantiated statements. Consequently, that reduction is insufficient.
219. It should be borne in mind as a preliminary point that it is settled case-law that where the Commission adopts guidelines intended to specify, consistent with the Treaty, the criteria which it intends to apply in the exercise of its discretion, there is a self-imposed limitation of that discretion in that it is obliged to comply with the guiding rules which it imposed on itself (see Carbone‑Lorraine
v Commission, paragraph 180 above, paragraph 192 and the case-law cited).
220. The self-limitation on the Commission’s discretion arising from the adoption of the Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulation No 1/2003, as interpreted by the Court of Justice (see, to that effect, Wieland-Werke
v Commission, paragraph 212 above, paragraph 31, and Case T‑161/05 Hoechst
v Commission
[2009] ECR II‑3555, paragraph 129).
221. Thus, in the absence of any binding indication in the Guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances.
222. Regarding the mitigating circumstance relating to the entirely passive or ‘follow my leader’ role in the implementation of the infringement, provided for in the first indent of Section 3 of the Guidelines, the Commission stated as follows in recital 373 of the contested decision:
‘… It is clear from the facts described in recitals 137 and 223 that Barlo’s involvement in the cartel was not comparable to that of most other undertakings. There appears not to be much evidence that Barlo actively participated in the creation of any anti-competitive agreements or practices. Rather, proven anti-competitive contacts comprised sporadic attendance [at] meetings which were mainly limited to Barlo being informed about the anti-competitive agreements or practices for PMMA solid sheet. It also seems that Barlo did not participate in many of the significant multilateral meetings in which key aspects of the price agreements and anti-competitive practices were agreed.’
223. In the light of those considerations, the Commission found that the applicants had played a ‘passive and minor role’ and granted them a 50% reduction in the amount of the fine which otherwise would have been imposed on them (recital 374 of the contested decision).
224. It should be noted in that regard that, according to the case-law, a passive role implies that the undertaking adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anti-competitive agreements. Amongst the circumstances that may indicate the adoption by an undertaking of a passive role within a cartel is the situation where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ‘ordinary’ members of the cartel, and likewise its belated entry to the market where the infringement occurred, irrespective of the duration of its participation in the infringement, or again the existence of express statements to that effect emanating from representatives of other undertakings which participated in the infringement (see Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky
v Commission
[2010] ECR II-0000, paragraphs 184 and 185 and the case-law cited).
225. It is therefore clear that the Commission was correct in assessing the mitigating circumstance relating to the applicants’ passive role in the present case. It stated, in essence, that the applicants’ involvement in the cartel could not be compared to that of most of the other undertakings because the anti-competitive contacts established showed rather that Barlo had only sporadically attended meetings which were mainly limited to informing it of the anti-competitive agreements or practices agreed for PMMA solid sheet.
226. It is, moreover, clear from the wording of recital 373 of the contested decision that, in its assessment of the mitigating circumstance in question, the Commission took account only of the facts analysed as part of the examination of the first part of the first plea in law. It should also be borne in mind in that regard that recital 373 of the contested decision refers expressly to recital 137 thereof, which states that ‘in [their] reply to the statement of objections, [the applicants] den[ied] the attendance of Mr [B.] at most meetings in which he is alleged to have participated’, whilst ‘confirm[ing] the presence of Mr [B.] at four meetings’. Under those circumstances, the findings that ‘[t]here appears not to be much evidence that Barlo actively participated in the creation of any anti-competitive agreements or practices’ or that ‘[i]t also seems that Barlo did not participate in many of the significant multilateral meetings’ cannot be interpreted as attributing to the applicants active involvement in drawing up anti-competitive agreements or practices or involvement in significant multilateral meetings. Therefore, the applicants’ complaints on this point are therefore ineffective.
227. Furthermore, the applicants merely dispute the wording of recital 373 of the contested decision, without explaining how the facts of the present case justify an even greater reduction for the mitigating circumstance examined.
228. Accordingly, the present complaint must be rejected.
– Non-implementation in practice of the unlawful agreements or practices
229. The applicants submit that the grounds on which the Commission rejected, in the contested decision, their argument alleging as a mitigating circumstance the fact that there was no implementation in practice of the unlawful agreements or practices (recital 381 of the contested decision) are incorrect.
230. The Commission stated the following in recital 381 of the contested decision:
‘Whilst it remains unproven that Barlo systematically refrained from applying the price agreements or service costs to customers, it was able to benefit from the market-related information exchanged and alter its commercial conduct accordingly (perhaps facilitating market share increases). Furthermore, Barlo did not explicitly refrain as regards the other undertakings from following the proposed common objectives agreed by all the undertakings (irrespective of whether these objectives were occasionally only unexpectedly revealed during the meeting). The Commission therefore rejects Barlo’s claim that its non-implementation in practice of the offending agreements or practices comprises a mitigating circumstance.’
231. It must be borne in mind in that regard that, according to the case-law, for the purpose of determining whether a party may benefit from mitigating circumstances on the basis of the non-implementation in practice of agreements under Section 3, second indent, of the Guidelines, it is necessary to determine whether the circumstances put forward by the undertaking concerned are capable of showing that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (Case T‑26/02 Daiichi Pharmaceutical
v Commission
[2006] ECR II‑713, paragraph 113, and Carbone‑Lorraine
v Commission, paragraph 180 above, paragraph 196).
232. It should be observed that, in recital 381 of the contested decision, the Commission based its assessment on correct criteria in accordance with the case-law referred to in the preceding paragraph.
233. In particular, the applicants cannot validly criticise the Commission for having taken account of the lack of evidence that Barlo systematically refrained from applying the price agreements or passing on additional service costs to customers, since it clearly is a relevant factor for assessing the mitigating circumstance in question. Moreover, contrary to what the applicants appear to suggest, it is clear from the wording of recital 381 of the contested decision that it was one factor among several, the overall assessment of which led the Commission to refuse to grant the benefit of the mitigating circumstance in question.
234. The applicants’ arguments are not such as to cast doubt on that overall assessment conducted by the Commission.
235. In the first place, the circumstances put forward by the applicants are not sufficient to establish that Barlo actually did refrain from applying the price agreements or passing on additional service costs to customers.
236. The applicants merely put for ward, first, the statements by Mr B., to the effect that Barlo had not implemented anything following the meetings he attended and, second, the statement by Atofina, referred to in recital 326 of the contested decision. As to the remainder, they acknowledge explicitly that they were unable to provide specific proof on the pricing policy for the period 1999-2000.
237. It should also be observed that Atofina’s statement refers to an increase in Barlo’s market share for PMMA solid sheet during the period from 2000 to 2002. Since Barlo’s involvement in the infringement took place over the period from 30 April 1998 to 21 August 2000, that is not a factor enabling it to be established that there was non-implementation of the pricing agreements, even less in a systematic manner. As to the statements by Barlo’s representative, they cannot by themselves be considered as sufficiently probative, in the absence of objective documentary evidence supporting them.
238. Similarly, the fact that the contested decision does not contain any evidence proving that Barlo implemented the pricing agreements is not in itself decisive. It cannot be argued that, because it failed to establish that the unlawful agreements or practices were implemented by an undertaking, the Commission was automatically required to grant the applicants a reduction in the amount of the fine.
239. In the second place, the applicants do not question the Commission’s assessment that Barlo was able to benefit from the market information exchanged at the meetings and adapt its commercial conduct accordingly. They merely argue that that allegation has not been proven by the Commission. Yet, according to the case-law referred to in paragraph 231 above, it was for the applicants to put forward the circumstances capable of showing that the mitigating circumstance sought should be allowed, in particular those concerning any non-implementation of the branch of the infringement relating to the exchange of commercially important and confidential market and/or company-relevant information.
240. In the third place, the applicants dispute the Commission’s assessment in the second sentence of recital 381 of the contested decision, on the ground that no common objective was agreed on at the meetings attended by Barlo. As is clear from the examination of the first part of the first plea in law, that allegation is inaccurate.
241. Moreover, the applicants have not alleged that Barlo had, at the very least, clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (see paragraph 231 above).
242. It follows that the applicants’ criticisms of the Commission’s assessment contained in recital 381 of the contested decision are unsubstantiated.
243. For the sake of completeness, it should be observed that, in the circumstances of the present case, the refusal to allow the mitigating circumstance thus analysed is also justified by the overall scheme of the contested decision.
244. First, it is clear from that decision that, during certain periods, the cartel as a whole was not fully effective, as the participants, including Barlo, had departed from the agreements concluded (see, for example, recital 329 of the contested decision). As that is a factor which is specific to the functioning of the cartel as such, it cannot be taken into account by way of mitigating circumstance; it can at most be weighed up in the consideration of the gravity of the infringement. It should be observed in that regard that, in determining the starting amount of the fine, the Commission examined arguments relating to the lack of effectiveness of the cartel (recitals 321 to 329 of the contested decision) and, in that context, particularly Atofina’s statement, relied on by the applicants (see paragraph 236 above). Although it found that the infringement could be categorised as very serious, it nevertheless stated explicitly that it was not relying ‘specifically on a particular impact [of the infringement on the market]’ (recital 321 of the contested decision), in determining the amount of the fine.
245. Second, even if Barlo’s conduct on the market was substantially different from that of the other undertakings that were addressees of the contested decision, it must be remembered that the Guidelines do not state that the Commission must always take account separately of each of the mitigating circumstances listed in Section 3 of those Guidelines ( KME Germany and Others
v Commission, paragraph 189 above, paragraph 114). Under those Guidelines, the Commission has a margin of discretion when making an overall assessment of the size of any reduction in the fines, taking into account all of the mitigating circumstances characterising the case before it (Case T‑44/00 Mannesmannröhren-Werke
v Commission
[2004] ECR II‑2223, paragraphs 274 and 275, and Case T‑50/00 Dalmine
v Commission
[2004] ECR II‑2395, paragraphs 325 and 326; see also, to that effect, Case T‑30/05 Prym and Prym Consumer v Commission, judgment of 12 September 2007, paragraph 204).
246. In the light of the circumstances of the present case, it is the recognition of the passive and minor role in the implementation of the infringement, on the ground in particular that Barlo’s involvement in the cartel could not be compared to that of most of the other undertakings (recital 373 of the contested decision), which best reflects the relative gravity of Barlo’s involvement in it. In any event, the factors put forward by the applicants and examined in paragraphs 236 to 241 above do not justify an additional reduction in the basic amount of the fine, over and above that already applied by the Commission on grounds of the passive role.
247. Accordingly, the present complaint must be rejected.
– The early termination of the infringement
248. The applicants submit that it is not disputed that the infringement attributed to Barlo ended well before the Commission’s initial investigation. They consider that the Commission’s rejection of that mitigating circumstance is manifestly contrary to the Guidelines, which provide that mitigating circumstances include ‘termination of the infringement as soon as the Commission intervenes’, and contest the reasons set out by the Commission in recitals 384 and 385 of the contested decision.
249. It should be observed in that regard that the end of Barlo’s participation in the infringement has been established as being 21 August 2000. It is therefore common ground that Barlo stopped participating in the infringement before the Commission first intervened in the present case by carrying out on-the-spot inspections on 25 and 26 March 2003 (recital 59 of the contested decision).
250. However, as regards the claim for a reduction in the amount of the fine, it is settled case-law that the benefit of a mitigating circumstance cannot be granted under Section 3, third indent, of the Guidelines where the infringement has already come to an end before the date on which the Commission first intervenes and independently of that intervention (see, to that effect, Prym and Prym Consumer
v Commission, paragraph 189 above, paragraphs 105 and 106).
251. Moreover, the fact that Barlo voluntarily terminated the infringement before the Commission opened its investigation has been taken into account sufficiently in the calculation of the duration of the infringement period attributed to the applicants, with the result that they may not rely on Section 3, third indent, of the Guidelines (see, to that effect, Amann & Söhne and Cousin Filterie
v Commission, paragraph 149 above, paragraph 260, and Case T‑21/05 Chalkor
v Commission, [2010] ECR I-0000, paragraph 152).
252. Therefore, the applicants’ criticisms directed at the Commission’s assessment as set out in recitals 384 and 385 of the contested decision are unfounded and the present plea must be dismissed.
– The introduction of a programme of compliance with the competition rules
253. The applicants state that the contested decision is the first decision under the European Union competition rules adopted against the Quinn group. They state that, as soon as the Quinn group learned of the investigation, it initiated a programme of compliance with the competition rules, the details of which were given to the Commission. Under those specific circumstances, the refusal to take that programme into account as a mitigating circumstance is unfounded.
254. That line of argument cannot be upheld.
255. First, it should be noted that the fact that the contested decision is the first decision finding an infringement of the European Union competition rules against the applicants does not justify a reduction in the basic amount of the fine. On the contrary, that circumstance was taken into account inasmuch as the Commission did not hold that repeated infringement was as an aggravating circumstance against the applicants.
256. Second, it should also be observed that the adoption of measures to prevent further infringements, although significant, does not change the fact that the infringement found has taken place.
257. Third, it has already been held that the mere adoption by an undertaking of a programme of compliance with the competition rules cannot constitute a valid and definite guarantee of future and continuing compliance by that undertaking with those rules, with the result that such a programme cannot require the Commission to reduce the fine on the ground that the objective of prevention pursued by it has already been at least partly achieved (Case T‑279/02 Degussa
v Commission
[2006] ECR II‑897, paragraph 361; see also BASF and UCB
v Commission, paragraph 127 above, paragraph 52).
258. On those grounds, the present complaint must be rejected.
– The absence of benefit, the absence of the need for deterrence and proportionality
259. The applicants observe that the fines provided for by competition law are directed, first, at depriving the perpetrators of the benefit they may have derived from the infringement and, second, to have a deterrent effect (recital 388 of the contested decision). In the present case, however, the fine imposed is not proportionate to those objectives since, not only did the applicants not derive any benefit from the alleged infringement, but neither Barlo nor the Quinn group have ever been found to have infringed the competition rules.
260. First of all, the circumstances relied on by the applicants under the present plea are not explicitly provided for as mitigating circumstances in Section 3 of the Guidelines.
261. Next, it should be observed that the Commission was correct in finding that those factors did not justify a reduction in the amount of the fine.
262. First, the argument relating to the absence of benefit has not been proven. The applicants also seem to acknowledge that such a benefit could have been derived, whilst stressing that it would have benefited the undertaking’s former shareholders, not the current shareholders, who must bear the financial consequences of the fine. However, not only is that latter argument unsubstantiated, it is irrelevant. Nor do the applicants deny being the legal successors of Barlo, or that the contested decision had to be addressed to them in the event of the infringement being established (see paragraph 5 above).
263. In any event, the Commission was correct in stating, in recital 388, in fine, of the contested decision, that any absence of profit does not change the gravity of the infringement committed, as established by the contested decision.
264. Second, regarding the fact that neither Barlo nor the Quinn group has ever been found to have infringed the European Union competition rules, reference is made to paragraph 255 above; the fact that there has been no repeated infringement is not in itself a mitigating circumstance.
265. The – unsubstantiated – claim that, because of the acquisition of Barlo through a hostile takeover, the current shareholders were unable to conduct a due diligence and were unaware of any potential infringement is not such as to mitigate the gravity of the infringement committed or influence the amount of the fine, inasmuch as it pursues an objective of deterrence.
266. Accordingly, the present complaint must be rejected.
– Active cooperation in the proceedings outside the scope of the Leniency Notice
267. The applicants state that they have cooperated fully with the Commission throughout the administrative proceedings. They did so by seeking confirmation of facts which were not immediately available to them and made considerable efforts to that end. In their submission, the Commission’s refusal in the contested decision to take account of that aspect as a mitigating circumstance is unfounded.
268. It should be borne in mind in that regard that, in Section 3, sixth indent, of the Guidelines, the Commission includes as a mitigating circumstance effective cooperation by the undertaking in the proceedings outside of the scope of the Leniency Notice.
269. In the present case, the Commission found, in recital 392 of the contested decision, that, pursuant to the aforementioned provision, it had considered whether cooperation by one of the undertakings concerned had enabled it to establish the infringement with less difficulty. In recital 393 of the contested decision, it found that, having regard to the very limited scope and value of their cooperation and the challenges on matters of fact made outside that limited cooperation, there were no other circumstances which would give rise to a reduction in the amounts of the fines outside the scope of the Leniency Notice which, in secret cartel cases, could in any event only be of an exceptional nature.
270. The Court finds that the Commission was correct in finding that the application of Section 3, sixth indent, of the Guidelines must, in the case of secret cartels, be exceptional.
271. The application of that provision cannot lead to the Leniency Notice being deprived of its useful effect. It is clear from that notice that it defines the framework for rewarding undertakings which are or were parties to secret cartels affecting the Community for their cooperation in Commission investigations. It follows that undertakings may, as a rule, obtain a reduction in the amount of the fine in return for their cooperation only when they satisfy the conditions laid down in that notice.
272. Thus, it has been held, for instance, that the Commission may reserve the application of Section 3, sixth indent, of the Guidelines to the undertaking which is the first to provide it with information enabling it to expand its investigation and to undertake the necessary measures in order to establish a more serious infringement or an infringement of greater duration (Case T‑11/05 Wieland-Werke and Others
v Commission, judgment of 19 May 2010, not published in the ECR, paragraph 232; see also paragraph 234).
273. In the present case, it should be observed, first, that the applicants have not explained in sufficient detail how and to what extent their cooperation enabled the Commission to establish the facts alleged.
274. Second, although the examination of the first part of the first plea in law does show that the applicants’ confirmation of certain matters in their reply to the statement of objections helped the Commission to establish Barlo’s participation in a number of anti-competitive meetings, nevertheless the applicants continue to challenge precisely the fact that that reply to the statement of objections was such as to establish their liability for the cartel.
275. Under those circumstances, it has not been established that there are circumstances justifying granting the benefit of mitigating circumstance as requested.
276. Accordingly, the present complaint must be rejected.
277. Lastly, in so far as certain of the arguments put forward by the applicants under the second plea in law must be construed as being directed at an infringement of the obligation to state reasons in relation to the determination of the amount of the fine, including the amounts of reductions granted (see paragraphs 196, 217 and 218 above), they must be dismissed. It follows from the foregoing that the Commission set out, in sufficient detail, the assessment factors which enabled it to determine the gravity and the duration of the infringement committed by the applicants, including, in recitals 335 and 372 to 374, the grounds on which it decided to grant the reductions in the amount of the fine. Thus, it fulfilled the essential procedural requirements of the obligation to state reasons (see, to that effect, Case C‑248/98 P KNP BT
v Commission
[2000] ECR I‑9641, paragraph 42). In particular, that obligation does not require the Commission to indicate in its decision the figures relating to the method of calculating the fines (see Microsoft
v Commission, paragraph 131 above, paragraph 1361 and the case-law cited) and nor, therefore, was it required to state any further reasons for the amounts of reductions granted.
Conclusion
278. It follows from all of the foregoing that the contested decision must be annulled, first, in so far as it holds the applicants liable for their participation in the cartel from 1 November 1998 to 23 February 2000 and, second, in so far as it finds that they infringed Article 81 EC and Article 53 of the EEA Agreement by participating in a complex of concerted agreements and practices, not only in respect of PMMA solid sheet, but also PMMA moulding compounds and PMMA sanitary ware. The other heads of claim seeking annulment must be dismissed.
279. Regarding the determination of the amount of the fine, it follows from all of the foregoing that, first, the increase of 20% in the starting amount applied by the Commission in recital 353 of the contested decision must be replaced by an increase of 10% and, second, the other heads of claim seeking a reduction in the amount of the fine must be dismissed.
280. Consequently, the amount of the fine imposed on the applicants under Article 2 of the contested decision is fixed at EUR 8 250 000.
Costs
281. 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 Article 87(3) of the Rules of Procedure, the Court may rule that costs are to be shared or that each party is to bear its own costs where each party succeeds on some and fails on other heads, or where the circumstances are exceptional.
282. In the present case, the applicants succeeded on some heads and the Commission was unsuccessful in its claim asking for the case to be dismissed in its entirety. However, the applicants were unsuccessful in seeking total annulment of the contested decision as regards them. The Court will make an equitable assessment of the case in ruling that the applicants are to bear 60% of their own costs and to pay 60% of the costs incurred by the Commission, whilst the Commission is to bear 40% of its own costs and 40% of the costs incurred by the applicants.
Operative part
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Annuls Article 1 of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates), first, in so far as it finds that Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH infringed Article 81 EC and Article 53 of the EEA Agreement (EEA) by participating in a complex of concerted agreements and practices, not only in respect of polymethyl-methacrylate solid sheet, but also polymethyl-methacrylate moulding compounds and polymethyl-methacrylate sanitary ware and, second, in so far as it holds those companies liable for their participation in the cartel from 1 November 1998 to 23 February 2000;
2. Sets the amount of the fine for which Quinn Barlo, Quinn Plastics NV and Quinn Plastics GmbH are jointly and severally liable under Article 2 of Decision C(2006) 2098 final at EUR 8 250 000;
3. Dismisses the action as to the remainder;
4. Orders Quinn Barlo, Quinn Plastics NV and Quinn Plastics GmbH to bear 60% of their own costs and to pay 60% of the costs incurred by the European Commission;
5. Orders the Commission to bear 40% of its own costs and to pay 40% of the costs incurred by Quinn Barlo, Quinn Plastics NV and Quinn Plastics GmbH.