62007TJ0132_EN
Parties
Grounds
Operative part
Parties
In Case T‑132/07,
Fuji Electric Co. Ltd, previously Fuji Electric Holdings Co. Ltd and successor in title to Fuji Electric Systems Co. Ltd, established in Kawasaki (Japan), represented by P. Chappatte and P. Walter, Solicitors,
applicant,
v
European Commission, represented initially by F. Arbault, and subsequently by X. Lewis, J. Bourke and F. Ronkes Agerbeek, and then by N. Khan and F. Ronkes Agerbeek, acting as Agents, and by J. Holmes, Barrister,
defendant,
APPLICATION for the partial annulment of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) and reduction of the fine imposed on Fuji Electric Holdings and Fuji Electric Systems,
THE GENERAL COURT (Second Chamber),
composed of I. Pelikánová (Rapporteur), President, K. Jürimäe and S. Soldevila Fragoso, Judges,
Registrar: K. Andová, Administrator,
having regard to the written procedure and further to the hearing on 9 February 2010,
gives the following
Judgment
Grounds
Background to the dispute
1. The background to the dispute, as it is revealed essentially in the findings made by the Commission in Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas Insulated Switchgear) (‘the contested decision’), is as follows.
1. The goods concerned
2. Gas insulated switchgear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.
3. Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, the essential components of substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to protect the transformer from overload and/or insulate the circuit and the faulty transformer.
4. Insulation of switchgear may be by gas, air or a hybrid, where air and gas are combined. GIS is sold worldwide as an integral part of turnkey power substations or as separate equipment which has to be integrated in such substations. GIS represents approximately 30% to 60% of the total price of such substations.
5. The contested decision concerns GIS projects involving a voltage from 72.5 kV upwards (‘the GIS projects’), including both GIS as stand-alone products, with all associated services (transport, erection, testing, insulation, etc.), and turnkey power substations containing GIS, which comprise therefore the GIS and other parts of the substation, such as transformers and all associated services (transport, cabling, erection, insulation, etc.).
2. The undertakings concerned
6. Fuji Electric Holdings Co. Ltd (‘FEH’), is the holding company of the Fuji group, and presides over four operating subsidiaries, one of which is Fuji Electric Systems Co. Ltd (‘FES’). The Fuji group manufactures and markets a wide range of products, including GIS projects. The GIS activities of the Fuji group were carried out by, inter alia, FEH and FES.
7. On 1 October 2002 the Fuji group transferred its GIS activities to Japan AE Power Systems Corporation (‘JAEPS’), a joint venture in which Fuji has a 30% shareholding, the rest of the shares in the joint venture being held by Hitachi Ltd and Meidensha Corporation, with 50% and 20% respectively.
3. Administrative procedure
8. On 3 March 2004 ABB Ltd (‘ABB’) informed the Commission of anti-competitive practices in the GIS projects sector and made an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).
9. The practices reported by ABB consisted of a worldwide coordination of sales of GIS projects, which involved sharing of markets; allocation of quotas and maintenance of respective market shares; allocation of GIS projects to designated producers and manipulation of bidding procedures (bid-rigging) in order to ensure the award of contracts to those producers; price-fixing by means of complex arrangements for GIS projects which were not allocated; termination of licence agreements with non-cartel members, and the exchange of sensitive market information.
10. ABB’s oral application for immunity from fines was supplemented, in particular on 7 May 2004, by oral observations and documentary evidence. On 25 April 2004 the Commission granted conditional immunity to ABB.
11. On the basis of ABB’s statements the Commission launched an investigation and carried out inspections on 11 and 12 May 2004 at the premises of various companies in the GIS sector.
12. Between 14 and 25 May 2004 the Areva group cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.
13. On 30 July 2004 the group of which VA Technologie AG was the parent company (‘the VA Tech group’) cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.
14. From 9 September 2004 onwards the representatives of the Hitachi group or JAEPS also cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.
15. On 4 October 2004 FEH and FES replied to a request for information sent to them by the Commission 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 2002 L 1, p. 1) (‘the reply of 4 October 2004 to the request for information’). On the same day ABB also replied to a request from the Commission for information.
16. On 4 November 2004 Mitsubishi Electric System Corp. (‘Melco’) sent to the Commission an application pursuant to the Leniency Notice in respect of its ‘account of its involvement in certain arrangements relating to the GIS [projects] market’.
17. On 5 November 2004 the Areva group sent its reply to a request from the Commission for information.
18. On 20 April 2006 the Commission adopted a statement of objections which was notified to FEH and FES, and also to ABB, Alstom SA, Areva SA, Areva T & D AG, Areva T & D Holding SA and Areva T & D SA (together, ‘the Areva group companies), Hitachi and Hitachi Europe Ltd (together: ‘the Hitachi group companies’), JAEPS, Melco, Nuova Magrini Galileo SpA, Schneider Electric SA (‘Schneider’), Siemens AG, Toshiba Corp. and five companies in the VA Tech group, including VA Technologie.
19. On 30 June 2006 FEH and FES sent to the Commission, within the time allowed, their observations in reply to the statement of objections. As an annex to their reply to the statement of objections, they produced a number of statements or documents for which they requested confidentiality. Similarly, ABB, Alstom, the Areva group companies, the Hitachi group companies or JAEPS, Melco, Schneider, Siemens AG Österreich, Siemens and Toshiba replied in writing to the statement of objections within the time allowed.
20. By letter of 12 July 2006 FEH and FES cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.
21. On 14 July 2006 ABB sent to the Commission a ‘Supplement to response to the statement of objections’.
22. On 18 and 19 July 2006 the Commission held hearings for the companies to which the statement of objections had been addressed.
23. On 25 August 2006 the Commission made available to the parties to the procedure, for their comments, extracts of the non-confidential version of reply of FEH and FES to the statement of objections, the request of FEH and FES of 12 July 2006 pursuant to the Leniency Notice, ABB’s supplementary reply to the statement of objections and additional documents.
24. On 11 September 2006 FEH and FES submitted their views on ABB’s supplementary reply to the statement of objections.
25. By letter of 29 September 2006 FEH and FES sent to the Commission a further witness statement from one of their former employees, Mr M. H.
26. By letter of 10 November 2006 FEH and FES sent to the Commission their observations on the comments, relating to the management of JAEPS, which had been sent by the Hitachi group companies or JAEPS to the Commission by letter of 29 September 2006.
27. By letter of 14 November 2006 the Commission sought additional comments from FEH and FES on a number of pieces of evidence which they deemed relevant to the final decision. FEH and FES replied by letter dated 21 November 2006.
4. The contested decision
28. On 24 January 2007 the Commission adopted the contested decision, a summary of which was published in the Official Journal of 10 January 2008 (OJ 2008 C 5, p. 7). The decision was notified to FEH and FES on 9 February 2007.
29. In addition to FEH and FES, the contested decision was addressed to ABB, Alstom, the Areva group companies, the Hitachi group companies, JAEPS, Melco, Nuova Magrini Galileo, Schneider, Siemens, Siemens AG Österreich, Siemens Transmission & Distribution Ltd (‘Reyrolle’), Siemens Transmission & Distribution SA, Toshiba and VA Tech Transmission & Distribution GmbH & Co. KEG.
30. In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. The Commission stated that the allocation of GIS projects was carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the respective Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘the common understanding’), under which GIS projects, on the one hand, in Japan and, on the other, in the countries of European members of the cartel – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.
31. The GQ Agreement also contained rules relating to the exchange of information necessary for the operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries other than the ‘home countries’ were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.
32. According to the Commission, the allocation of GIS projects among European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E‑Group Operation Agreement for GQ-Agreement’ (‘the EQ Agreement’). It indicated that the allocation of GIS projects in Europe was to follow the same rules and procedures as those governing the allocation of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.
33. In recital 142 of the contested decision, the Commission stated that, in the GQ Agreement and in the EQ Agreement and for the purposes of organisation and operation of the cartel, the various members of the cartel were identified by a code, composed of figures for the European members and letters for the Japanese members. The initial codes were replaced by just numbers from July 2002.
34. The Commission found, in Article 1(g) of the contested decision, that FEH had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’) by participating in a complex of agreements and concerted practices in the GIS sector in the EEA from 15 April 1988 until 11 May 2004 and, in Article 1(h) of the contested decision, that FES had participated in the infringement for the same period. Furthermore, in Article 1(k) of the contested decision, the Commission found that JAEPS had participated in the same infringement from 1 October 2002 until 11 May 2004.
35. For the infringements found in Article 1 of the contested decision, FEH and FES were fined, in Article 2(d) of the contested decision, EUR 2 400 000, for which they were jointly and severally liable, and, in Article 2(f) of the contested decision, EUR 1 350 000, for which they, JAEPS and Hitachi were jointly and severally liable.
Procedure and forms of order sought
36. By application lodged at the Court Registry on 19 April 2007 FEH and FES brought the present action. In that document they stated, in particular, that the application, the annexes to it and the documents lodged at the Registry contained confidential information, which needed to be treated as confidential vis-à-vis third parties.
37. Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, put written questions to the parties and requested the production of documents. The parties responded within the time allowed.
38. By letter lodged at the Court’s Registry on 26 January 2010, FEH and FES made certain comments on the Report for the Hearing which had been sent to them on 11 January 2010, concerning the point of time when they transferred their GIS activities to JAEPS and when they acquired a holding in JAEPS.
39. The parties presented oral argument and their replies to the Court’s questions at the hearing on 9 February 2010. FEH and FES stated in particular that it was not their intention, when commenting on the Report for the Hearing, to bring incidentally before the Court a plea that the contested decision was vitiated by errors of fact in finding that FES was responsible, as the parent company of JAEPS, for the participation of JAEPS’s GIS business in the infringement from 1 October 2002 until 30 September 2003. At the hearing, the Court adopted a new measure of organisation of procedure and invited FEH and FES to clarify the subject-matter of their request in the application for confidentiality (see paragraph 36 above). The observations of FEH and FES and the abovementioned measure of organisation of procedure were recorded in the minutes of the hearing. By letter of 23 February 2010 FEH and FES clarified the subject-matter of their request for confidentiality within the period allowed.
40. The oral procedure was closed on 3 March 2010.
41. By order of 25 November 2010 the oral procedure was re-opened, and as part of measures of organisation of procedure under Article 64 of the Rules of Procedure, the Court sent further questions to the parties. The parties were, in particular, invited to offer their view of the implications which paragraphs 87 to 92 of the judgment in Case C‑407/08 P Knauf Gips
v Commission [2010] ECR I‑0000 had for the present case. The parties replied to the questions put by the Court within the time allowed.
42. The oral procedure was closed on 10 January 2011.
43. By letter dated 22 June 2011, with supporting documents, the representative of FEH and FES informed the Court that, as from 1 April 2011, FES had ceased to exist following its merger into FEH, which had itself changed its name and is now Fuji Electric Co. Ltd (‘the applicant’). By decision of the President of the Second Chamber of the Court of 29 June 2011, that letter was added to the file, and the Commission was duly informed.
44. The applicant, formerly named FEH and successor in title to FES, claims that the Court should:
– annul Article 1(g) of the contested decision in so far as it finds that the infringement imputed to FEH by that provision continued after September 2000;
– annul Article 1(h) of the contested decision;
– annul Article 2(d) of the contested decision, in so far as it imputes joint and several liability upon FES for the fine imposed;
– annul Article 2(f) of the contested decision, in so far as it imputes joint and several liability upon FEH and FES for the fine imposed;
– reduce the amount of the fine imposed on FEH and FES;
– order the Commission to pay the costs.
45. The Commission contends that the Court should:
– dismiss the action as unfounded;
– order the applicant to pay the costs.
Law
46. Although FEH and FES brought this action jointly, their interests within the action were not identical and coincided only in part, as is clear from the paragraphs of the application which summarise the purpose of these proceedings. However, since 1 April 2011, the interests of FEH and FES have come together in the person of the applicant.
47. In the present case, the applicant claims, in essence, that the Court should annul both Article 1(g) of the contested decision, in that the Commission holds FEH personally liable for the infringement for the period from September 2000 until 30 September 2002, and Article 2(d) of the contested decision, in that the Commission consequently imposes on FEH a fine of EUR 2 400 000, for which it is jointly and severally liable with FES. In support of that claim, the first three pleas in law relied on by the applicant concern, (i) manifest errors of assessment and an infringement of the right to a fair hearing and the principle of the presumption of innocence, (ii) an infringement of the rules relating to allocation of the burden of proof, and (iii) an infringement of the principle of equal treatment.
48. Further, the applicant claims that the Court should annul both Article 1(h) of the contested decision, in that the Commission holds FES personally liable for the infringement for the period from 15 April 1988 until 11 May 2004, and Article 2(d) and (f) of the contested decision, in that the Commission consequently imposes on FES a fine of EUR 2 400 000, for which it is jointly and severally liable with FEH, and a fine of EUR 1 350 000, for which it is jointly and severally liable with FEH, JAEPS and Hitachi. In support of that claim, the applicant’s fourth plea in law concerns a manifest error of assessment.
49. The applicant further claims that the Court should annul Article 2(f) of the contested decision in that the Commission relied on the finding that FEH and FES could be held personally liable for the participation of JAEPS in the infringement for the period from 1 October 2002 until 11 May 2004, and in that the Commission consequently imposed on them a fine of EUR 1 350 000, the applicant, JAEPS and Hitachi being jointly and severally liable therefor. In support of that claim, the applicant’s fourth and fifth pleas in law allege manifest errors of assessment.
50. The applicant claims, lastly, that the fines imposed on FEH and FES in Article 2(d) and (f) of the contested decision should be reduced. In support of that claim, the applicant puts forward argument in a sixth plea in law.
1. The claims for the partial annulment of the contested decision
51. In support of its claims for the partial annulment of the contested decision, the applicant puts forward five pleas in law.
52. In the first three pleas the applicant claims, in essence, that Article 1(g) and Article 2(d) of the contested decision should be annulled, in that the Commission found or relied on the finding that FES infringed Article 81 EC and Article 53 of the EEA Agreement from September 2000 until 30 September 2002, the date when the Fuji group transferred its GIS activities to JAEPS. In the first plea, it is claimed that the Commission made manifest errors of assessment and infringed the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, by concluding, in the contested decision, that FEH continued to participate in the cartel set up by the GQ Agreement after the Japanese members’ meeting which took place ‘in or around’ September 2000. In the second plea, it is claimed that the Commission infringed the rules relating to allocation of the burden of proof. In the third plea it is claimed that the Commission infringed the principle of equal treatment.
53. In the fourth plea, the applicant claims that Article 1(h) and Article 2(d) and (f) of the contested decision, in so far as the Commission holds FES jointly and severally liable for the fines imposed, should be annulled, since those articles are based on a manifestly incorrect assessment of the facts of the case, to the effect that FES could be held to be personally liable for the infringement for the period from 15 April 1988 until 11 May 2004.
54. In the fifth plea, the applicant maintains that Article 2(f) of the contested decision should be annulled, in that it is based on a manifestly incorrect assessment of the facts of the case, to the effect that, as parent companies of JAEPS, FEH and FES could be held personally and jointly and severally liable, with Hitachi and JAEPS, for the infringement for the period from 1 October 2002 until 11 May 2004.
Preliminary observations on the undertakings involved in the infringement found in Article 1(g) and (h) of the contested decision and on the liability incurred, for that reason, by FEH and FES
55. Before examining the applicant’s first five pleas, it is appropriate to identify the undertakings for whose participation in the infringement FEH and FES were held to be responsible in Article 1(g) and (h) of the contested decision.
56. In that regard, it must be recalled that competition law is aimed at ‘undertakings’ and that, in that context, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question (see, to that effect, Case 170/83 Hydrotherm Gerätebau
[1984] ECR 2999, paragraph 11; Case T‑234/95 DSG
v Commission
[2000] ECR II‑2603, paragraph 124, and Case T‑325/01 DaimlerChrysler
v Commission
[2005] ECR II‑3319, paragraph 85). In prohibiting undertakings from, inter alia, entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see, to that effect, Case T‑6/89 Enichem Anic
v Commission
[1991] ECR II‑1623, paragraph 235, and Case T‑11/89 Shell
v Commission
[1992] ECR II‑757, paragraph 311).
57. In order to be applied and enforced, decisions taken pursuant to Article 81 EC must, however, be addressed to entities possessing legal personality (see, to that effect, 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
(‘PVC II’) [1999] ECR II‑931, paragraph 978, and Case T‑112/05 Akzo Nobel and Others
v Commission [2007] ECR II‑5049, paragraph 59). Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be penalised for that conduct, and the decision will be addressed to them (see, to that effect, Hydrotherm Gerätebau, paragraph 56 above, paragraph 11).
58. In accordance with the principle of personal liability (Case 48/69 ICI
v Commission
[1972] ECR 619, paragraphs 131 to 141; Case C‑49/92 P Commission
v Anic Partecipazioni
[1999] ECR I‑4125, paragraph 78, and Case C‑280/06 ETI and Others
[2007] ECR I‑10893, paragraph 39; see also the Opinion of Advocate General Kokott in said Case C‑280/06 ETI and Others point 71 et seq.), under which a person can be held liable only for his own acts (Opinion of Advocate General Cosmas in said Case C‑49/92 P Commission
v Anic Partecipazioni [1997], point 74), it falls, in principle, to the person managing the undertaking when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility or under the management of a different person (Case C‑297/98 P SCA Holding
v Commission
[2000] ECR I‑10101, paragraph 27, and Case C‑286/98 P Stora Kopparbergs Bergslags
v Commission
[2000] ECR I‑9925, paragraph 37; see, also, to that effect, Case C‑279/98 P Cascades
v Commission
[2000] ECR I‑9693, paragraph 79).
59. According to the case-law, where a number of persons may be held personally liable for the participation of one and the same undertaking, for the purposes of competition law, in an infringement, they must be considered to be jointly and severally liable for that infringement (see, to that effect, Joined Cases 6/73 and 7/73 Istituto Chemicoterapico Italiano and Commercial Solvents
v Commission
[1974] ECR 223, paragraph 41; Case C‑294/98 P Metsä-Serla and Others
v Commission
[2000] ECR I‑10065, paragraphs 33 and 34; Case T‑9/99 HFB and Others
v Commission [2002] ECR II‑1487, paragraphs 54, 524 and 525; the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, not published in the ECR, paragraph 62, and Akzo Nobel and Others
v Commission, paragraph 57 above, paragraphs 57 to 62). It is, moreover, apparent from those judgments that the person who had direct responsibility for or managed the undertaking at the time the infringement was committed, or the person who, by reason of actually exercising control over the undertaking and determining its conduct on the market, indirectly managed that undertaking at the time when the infringement was committed, may be held personally liable and jointly and severally liable for the participation of one and the same undertaking in an infringement (see also, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others
v Commission [2009] ECR I‑7191, paragraphs 40, 43 and 44). It follows that the case-law cited in paragraph 58 must be understood as covering the personal liability of both the person directly managing the undertaking at the time when the infringement was committed and the person who, at the same time, indirectly managed that undertaking.
60. The case-law referred to in paragraphs 56 to 59 above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission adopted pursuant to that article.
61. It is clear from the contested decision and, in particular, the description made, in recitals 5 to 87, of the ‘industry subject to the proceeding’ and, in recitals 28 to 44 and 482, of the ‘undertakings subject to the proceedings’ or of the ‘differential treatment’ accorded to those undertakings that the Commission identified, among the undertakings found to have participated in the infringement in Article 1 of the contested decision, (i) the unitary organisation of personal, tangible and intangible elements which operated the Fuji group’s GIS business in the period from 15 April 1988 until 30 September 2002 (‘the first undertaking concerned’) and (ii) the unitary organisation of personal, tangible and intangible elements which operated the GIS businesses of the Fuji group, Hitachi and Meidensha – which were transferred to JAEPS – in the period from 1 October 2002 until 11 May 2004 (‘the second undertaking concerned’).
62. It is clear moreover from recital 379 of the contested decision that FEH and FES were held to be personally and jointly and severally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 September 2002. It follows from recitals 32, 33 and 373 of the contested decision that the liability thereby incurred by FEH and FES stems from the fact that they ‘presided over’ or managed ‘inter alia’ the first undertaking concerned in that period and that they were therefore directly involved in that undertaking’s participation in the infringement.
63. Further, it is clear from recital 380 of the contested decision that FEH and FES were held to be personally and jointly and severally liable, with Hitachi and JAEPS, for the participation of the second undertaking concerned in the infringement in the period from 1 October 2002 until 11 May 2004. Moreover, it follows, in particular, from recitals 380, 385 and 402 of the contested decision that the liability thereby incurred by FEH and FES stems solely from the fact that they had, with Hitachi, determined the conduct on the market of JAEPS, their joint subsidiary which was directly in charge of the second undertaking concerned, and that they were therefore indirectly involved in that undertaking’s participation in the infringement, as the parent companies of JAEPS.
64. The applicant’s first five pleas must be examined in the light of the foregoing considerations. In the interests of expediency and procedural economy, it is appropriate to examine together the first two pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of the burden of proof.
The first and second pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of the burden of proof
Arguments of the parties
65. By the first and second pleas the applicant complains, in essence, that the Commission made a number of manifest errors of assessment and infringed the rules relating to the allocation of the burden of proof, in that, in Article 1(g) of the contested decision, the Commission held FEH to be personally liable for the participation of the first undertaking concerned in the infringement for the period dating from the Japanese members’ meeting which took place ‘in or around’ September 2000 until 30 September 2002, the date when the Fuji group transferred its GIS activities to JAEPS, and in that, in Article 2(d) of the contested decision, the Commission consequently imposed on FEH a fine of EUR 2 400 000, jointly and severally with FES. The Commission did not discharge its burden of proving to the requisite legal standard that the first undertaking concerned had continued to participate in the ‘GQ Agreement cartel’, which for its part continued after the Japanese members’ meeting which took place ‘in or around’ September 2000. Further, the applicant claims that the Commission’s reasoning is, in that regard, vitiated by a number of manifest errors of assessment of evidence.
66. The Commission contests the applicant’s arguments and contends that the first and second pleas should be rejected.
Findings of the Court
67. Before analysing the substance of the first and second pleas, it is important to identify the exact point of dispute which underlies those pleas and the recitals of the contested decision in dispute and to recall the rules applicable to proof of an infringement of Article 81 EC and Article 53 of the EEA Agreement and to proof of an undertaking’s participation in such an infringement.
– The exact point of dispute underlying the first and second pleas
68. In the present case, the applicant does not dispute either the participation of the first undertaking concerned in the infringement from 15 April 1988 until September 2000 or the liability incurred personally by FEH because of that participation. Moreover, the applicant does not dispute that FEH, with other companies, managed the first undertaking concerned from September 2000 until 30 September 2002.
69. Furthermore, while the applicant is careful to distinguish ‘the GQ Agreement cartel’, which ended following the departure of Siemens and Hitachi, from the ‘New Scheme cartel’ which commenced in the middle of 2002, the applicant does not develop specific pleas or arguments to counter the Commission’s findings, in recitals 2, 3, 248, and 270 to 299 of the contested decision, that the various successive agreements and concerted practices in the period from 15 April 1988 until 11 May 2004 were no more than various manifestations of a single and common plan. Consequently, it cannot be held that the applicant has, in the first and second pleas, validly called into question those findings and, therefore, validly disputed the fact that the infringement was single and continuous.
70. Lastly, the applicant does not dispute that the second undertaking concerned participated in the infringement from 1 October 2002 until 11 May 2004. The applicant disputes only that FEH could have incurred any liability and, as a result, be fined on that basis, since FEH did not determine JAEPS’s conduct on the market and, consequently, was not involved, as the parent company of JAEPS, in the participation of the second undertaking concerned in the infringement (see paragraph 173 et seq., below).
71. On the other hand, the applicant complains that the Commission assessed incorrectly the evidence submitted to it and infringed the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and infringed the rules relating to the allocation of the burden of proof, by holding that the infringement found in Article 1 of the contested decision continued from September 2000 until 30 September 2002, that the first undertaking concerned continued to participate in it and that FEH could be held personally liable for that participation because of the control it exercised over that undertaking when the infringement was committed. According to the applicant, the Commission failed to discharge its burden to provide in the contested decision proof, to the requisite legal standard and without manifest errors of assessment of evidence, that the first undertaking concerned had continued to participate, under FEH’s management, in the infringement found in Article 1 of the contested decision, that infringement as such having continued from 1 October 2002 to 11 May 2004.
72. The Commission maintains that, in the circumstances of this case, it was for the companies in the Fuji group to establish that the first undertaking concerned had ended its participation in the infringement during the period at issue.
73. In the light of the parties’ arguments, the Court must assess whether in the contested decision the Commission established to the requisite legal standard that the infringement continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002.
– The recitals of the contested decision disputed by the underlying argument of the first and second pleas
74. The Commission’s findings in respect of (i) the continuation of the infringement found in Article 1 of the contested decision from September 2000 until 30 September 2002 and (ii) the participation of first undertaking concerned in that infringement during that period are as follows.
75. In recital 323 of the contested decision the Commission concluded that the agreements and/or concerted practices between the producers of GIS had lasted at least from 15 April 1988 until 11 May 2004. The reference in that recital to the year ‘1998’, instead of the year ‘1988’, is clearly the result of mere clerical error, which should be corrected.
76. In recitals 324, 326 and 373 of the contested decision the Commission stated that FEH and FES had participated in the infringement from 15 April 1988, the date of adoption and entry into force of the GQ and EQ agreements, until 11 May 2004, the date of the cartel’s last working meeting, which was abruptly interrupted by the Commission inspections. The reference in recital 324 of the contested decision to the year ‘1998’, instead of the year ‘1988’, is clearly the result of mere clerical error, which should be corrected.
77. In recitals 177 to 216 of the contested decision, the Commission presented a ‘chronological overview of the evolution of the cartel’. In that context, the Commission made the following findings, in recitals 178 and 179 of the contested decision:
‘(178) Siemens discontinued its participation in the cartel meetings in September 1999, followed by Hitachi and Schneider/VA Tech in 2000. Siemens’s absence was particularly destabilising from the European perspective, since it had been the E‑Secretary since 1988 and it was a major market player both outside and inside Europe. However, the cartel activities continued and Alstom took over as E‑Secretary. With fewer members as compared with 1988, the logistics were simplified, and a complex structure was no longer justified.
(179) In 2002, Siemens, Hitachi and VA Tech returned to the cartel. …’.
78. In recitals 270 to 299 of the contested decision, the Commission stated why it considered that ‘the complex arrangements in this case present[ed] the characteristics of a single and continuous infringement’. In recital 279 of the contested decision, the Commission stated in particular that ‘[s]ome cartel members have argued that the evolution of the cartel made it change its nature as from 2002, and two infringements should be distinguished accordingly, rather than a single and continuous one’. However, in recitals 279 to 299 of the contested decision, the Commission set out the factors which, in its opinion, proved that the various successive agreements and concerted practices between 15 April 1988 and 11 May 2004 were only various manifestations of a single and common plan and the Commission stated that it would have been artificial to split up such continuous conduct, characterised by a single aim, into several separate infringements.
79. In recital 284 of the contested decision, the Commission stated the following:
‘ABB has submitted an explanation for the practices described coherent with the facts and the documents in the file, including the written agreements. The submissions made by those undertakings arguing that there were two successive infringements diverge considerably as to the end date of the first one (see recital 290 below). The contradicting submissions are also at variance with the documentary evidence obtained from the inspections. A closer analysis reveals that the contradicting submissions constitute simple statements (none of them contemporaneous with the facts) unsupported by any contemporaneous or otherwise compelling evidence showing that the GIS [projects] cartel would have ended on any of the various dates suggested. They do not constitute factual evidence, but assessments of the facts proposed by the parties or inferences by witnesses in documents written at the request of the attorneys for the purpose of the companies’ defence in this procedure. Parties tend to allege dates on which they consider that the cartel worked less efficiently as dates where the cartel should be deemed as ended de facto .’
80. Recital 290 of the contested decision further states:
‘The Commission cannot rely on the submissions by [the] Areva [group of companies], Melco, [the] Hitachi [group of companies] or JAEPS and Toshiba as regards their respective claims that the cartel would have ended for the first time in 1997 ([the] Areva [group of companies [in their leniency submission, see paragraph 12 above]), or in September 1999 (Melco [in its reply to the statement of objections] and Toshiba [in its reply to the statement of objections]), or in 1999 after the departure of Siemens (the Hitachi [group of companies][or] JAEPS [in their reply to the statement of objections]), or around September 2000 ([FEH and FES in their reply to the statement of objections]). They are not reliable on that point, because they contradict each other and, as already mentioned, they are at odds with the evidence in the file. Melco, Toshiba, Fuji, ABB, Alstom, Reyrolle/VA Tech and Magrini/Schneider (both became later VAS and hence VA Tech) continued to take part in multilateral meetings and contacts in 2000 and/or 2001 (see recitals 191 to 198 above). Furthermore, they are ambiguous and inconclusive.’
81. In recitals 191 to 198 of the contested decision, the Commission set out the evidence, produced by ABB or the Fuji group companies, which demonstrated, in its opinion, that the cartel had continued after the departures of Siemens in September 1999 and then Hitachi and ‘Schneider/VA Tech’ in 2000, and before their gradual return after March 2002. First, the Commission referred, in recitals 191 to 196 of the contested decision, to documents sent by ABB in its immunity application (see paragraph 8 above), consisting of a series of fax messages exchanged, between 18 December 2000 and 22 January 2001, by ABB, Melco and Alstom on the subject of meetings and allocations of GIS projects. Next, in recital 197 of the contested decision, the Commission referred to a document sent by ABB in its immunity application containing a list of ‘committee meetings’ covering part of the years 2000-2001 and dated 12 May 2000. The Commission stated that it was clear from that list that the participants at those meetings were Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba, but not Siemens and ‘JAEPS (Hitachi)’, which was consistent with ABB’s statement, in its reply of 4 October 2004 to a request from the Commission for information (see paragraph 15 above): ‘that the latter two undertakings did not take part in the cartel at that stage’. Lastly, in recital 198 of the contested decision, the Commission relied on a set of documents, provided by FEH and FES in their application pursuant to the Leniency Notice and by ABB in a supplement of 7 May 2004 to its immunity application (see paragraph 10 above), recording agreements entered into by the cartel members on eight GIS projects bearing, within the cartel, the reference numbers [ confidential ] (1), which demonstrated that the cartel had been active during that period.
82. The Commission also found, in recital 372 et seq. of the contested decision, that the first undertaking concerned had continued to participate in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000. In that regard, the contested decision reads as follows:
‘(372)	Two periods must be distinguished in the attribution of liability to the relevant legal entities within [the] Fuji [group]: before and after the transfer of Fuji’s GIS activities to JAEPS on 1 October 2002.
(373)	[FEH] and [FES] have participated in the collusive behaviour described in this Decision from at least 15 April 1988 (date on which Fuji entered into the GQ Agreement) until 30 September 2002. (Fuji’s GIS activities were transferred to JAEPS on 1 October 2002). [FEH] is the 100% owner of [FES] ….
Arguments by Fuji
(374)	Fuji admits having participated in the cartel described in the Statement of Objections between 1988 and September 2000, but not thereafter. Fuji’s participation in the cartel would have ended “at the latest in or around September 2000. Fuji did not participate in the new scheme at any time” on the grounds that Fuji would not have participated in joint meetings with European suppliers and that it would not have continued to exchange information either.
(375)	Fuji argues that, although some of the arrangement sheets provided by [it] (see recital 198) “are expressed to be valid beyond this date (September 2000), Fuji would not have been able to act upon these arrangements after September 2000, since all the ‘Tender Due Dates expired several months before’. Furthermore, Fuji understood that the arrangements previously made in connection to the GQ Agreement no longer had any binding force between the cartel participants; Fuji did not win any of the tenders listed and so it did not profit from any of the arrangements”.
The Commission’s assessment
(376) Since Fuji was not a member of the E/J Committee, it was not expected to meet with European producers either at management or at working level, but only at Annual Meetings. Furthermore, annual meetings were not essential for the practical implementation of the cartel, as implicitly confirmed by Fuji’s admission of having participated in the cartel also in 2000 (when no annual meeting took place).
(377)	Fuji’s claim that it would have left the cartel around September 2000 has not been supported by any of the other parties to the proceedings, despite the fact that it was part of the information submitted for their comments. Fuji’s contention is also unclear, since it sometimes claims that it [the departure from the cartel] happened “in or around September 2000” and other times it claims in the same document that it was “at the latest in September 2000”. Fuji also states that “the latest arrangement sheet received by [Mr Oz.] was dated 28 September 2000” and that “Fuji did not conduct any further GQ Agreement cartel communications after that date”. This means that Fuji was supposed to present an “arranged” bid to a client to create the impression that there was competition for the project, but it does not provide any evidence of having dropped the project or having bid for it in competitive terms. In addition to this, Mr [I.H.]’s statement says that Fuji left the cartel “soon after Siemens”, but it has been established that Siemens left in September 1999. The claim is further not supported by any indication or evidence in the file that they would have publicly distanced themselves from the cartel in September 2000.
(378)	Finally, even if the Commission were to admit that there were no other cartel exchanges with Fuji until the creation of JAEPS, the Commission must take into account that the information already exchanged could not be disregarded by Fuji in its commercial activities and that the arrangements already agreed upon were still in force. According to the evidence in the file, and in particular the information provided by Fuji, it was a party to some arrangements listed in recital 198 above, which had a validity date extending beyond September 2000 and non-compliance with which was subject to penalties. Despite the fact that the Commission granted Fuji the possibility to comment and provide further evidence to contest these conclusions, it [Fuji] has not provided any evidence showing that it withdrew from the arrangements, that it actually contested them, or did not respect them. On the contrary, the fact that all “Tender Due Dates expired several months before”, as Fuji argues, only adds to the conclusion that the arrangements were already adopted and in force, and the fact that Fuji would not have finally won the tenders (which is also argued without supporting evidence) does not detract from the aforementioned conclusions. First, Fuji was a participant in all the arrangements listed, but not their organiser or, necessarily, their beneficiary. Its appearance in the list meant that it should submit the bids, not that it was the nominated winner. Second, even if it had been the designated winner by the cartel members (which Fuji has not argued or proved), that would still not be a total guarantee that the bid would have been ultimately won, since other bidders outside the cartel could have been more successful.
(379)	For the reasons explained above and in recitals 334 and 373, [FEH] and [FES] should be held jointly and severally liable for Fuji’s involvement in the infringement between 15 April 1988 and 30 September 2002.’
– The rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s participation in such an infringement
83. Since the parties disagree on the question of which party should bear the burden of proof and, more generally, on whether or not, in this case, there has been compliance with the rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s participation in such an infringement, it is appropriate, first, to recall the relevant law.
84. According to settled case-law on the burden of proof, it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (Case T‑120/04 Peróxidos Orgánicos
v Commission [2006] ECR II‑4441, paragraph 50; see also, to that effect, Case C‑185/95 P Baustahlgewebe
v Commission [1998] ECR I‑8417, paragraph 58, and Joined Cases C‑204/00 P, C‑205/00 P, C 211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others
v Commission [2004] ECR I‑123, paragraph 78). 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 (Case T‑43/92 Dunlop Slazenger
v Commission
[1994] ECR II‑441, paragraph 79 and Peróxidos Orgánicos
v Commission, paragraph 51).
85. That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos
v Commission, paragraph 84 above, paragraph 53).
86. As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered evaluation of evidence (Case C‑407/04 P Dalmine
v Commission [2007] ECR I‑829, paragraph 63; 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 273). Since the prohibition on participating in anti‑competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others
v Commission, paragraph 84 above, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law (Case C‑113/04 P Technische Unie
v Commission [2006] ECR I‑8831, paragraph 166).
87. In any event, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Case T‑62/98 Volkswagen
v Commission
[2000] ECR II‑2707, paragraphs 43 and 72 and case-law cited; JFE Engineering v Commission, paragraph 86 above, paragraph 179, and case-law cited, and Case T‑38/02 Groupe Danone
v Commission [2005] ECR II‑4407, paragraph 217). 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 ( JFE Engineering
v Commission, paragraph 86 above, paragraph 180, and Groupe Danone
v Commission, paragraph 218; see also, to that effect, ‘ PVC II ’, paragraph 57 above, paragraphs 768 to 778 and, in particular, paragraph 777). As regards the duration of the infringement, 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 ( Technische Unie
v Commission, paragraph 86 above, paragraph 169; Dunlop Slazenger
v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos
v Commission, paragraph 84 above, paragraph 51).
88. As regards the probative value to be accorded to various pieces of evidence, it must be emphasised that the only relevant criterion for the purpose of assessing the evidence adduced relates to its reliability ( Dalmine
v Commission, paragraph 86 above, paragraph 63; see Case T‑44/00 Mannesmannröhren-Werke
v Commission [2004] ECR II‑2223, paragraph 84 and case-law cited, and JFE Engineering and Others
v Commission, paragraph 86 above, paragraph 273). According to the general rules of evidence, the reliability and therefore the probative value of a document depends on the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and its content (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others
v Commission [2000] ECR II‑491, paragraph 1053; Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89 Rhône-Poulenc
v Commission
[1991] ECR II‑867, II‑869, at II‑956). It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events (Case T‑157/94 Ensidesa
v Commission [1999] ECR II‑707, paragraph 312), or by a direct witness of those events (see, to that effect, JFE Engineering
v Commission, paragraph 86 above, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others
v Commission
[1975] ECR 1663, paragraphs 175 and 179). Further, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see, to that effect, JFE Engineering
v Commission, paragraph 86 above, paragraphs 207, 211 and 212).
89. Lastly, it must be borne in mind that the role of a court hearing an application for annulment brought under Article 230 EC (now Article 263 TFEU) against a Commission decision finding an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement ( JFE Engineering
v Commission, paragraph 86 above, paragraphs 174 and 175; see also, to that effect, ‘ PVC II ’, paragraph 57 above, paragraph 891). Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point ( JFE Engineering
v Commission, paragraph 86 above, paragraph 177, and Groupe Danone
v Commission, paragraph 87 above, paragraph 215). In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’), which is one of the fundamental rights which, according to the case-law of the Court of Justice, and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case C‑199/92 P Hüls
v Commission
[1999] ECR I‑4287, paragraphs 149 and 150; Case C‑235/92 P Montecatini
v Commission
[1999] ECR I‑4539, paragraphs 175 and 176, and Groupe Danone
v Commission, paragraph 87 above, paragraph 216).
90. The existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement has been proved by that evidence ( Cimenteries CBR and Others
v Commission, paragraph 88 above, paragraph 726).
91. The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission adopted pursuant to that article.
92. In the light of the rules set out in paragraphs 84 to 91 above the Court must determine whether the Commission assembled evidence in the contested decision which is sufficiently reliable, precise and consistent to support, within a global assessment and after consideration of alternative explanations or justificatory arguments offered by the applicant, the firm conviction that the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002, and that FEH could be held personally liable for the infringement because of the management which it exercised over that undertaking when the infringement was committed.
– Analysis of the evidence relied on in the contested decision
93. First, it is useful to recall the essential facts on which the Commission based its assessment in the contested decision that the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002.
94. In recital 290 of the contested decision the Commission stated that it was disregarding the submissions by FEH and FES, the Areva group companies, Melco, the Hitachi group companies or JAEPS and Toshiba – to the effect that the cartel ended for the first time either sometime in 1997, or in September 1999 or sometime in 1999, after Siemens’ departure, or in or around September 2000 – on the ground that those submissions were not reliable or, further, that they were ambiguous and inconclusive, because they contradicted each other and were at odds with the evidence in the file (see paragraph 80 above). The Commission noted, again in recital 290 of the contested decision, read together with recitals 191 to 198, that the first undertaking concerned and other undertakings had continued to take part in multilateral meetings in 2000 and/or 2001. The factors on which the Commission relies in order to show that the cartel continued to operate – with the participation of the first undertaking concerned – after the departure of ‘Schneider/VA Tech’ on 13 December 2000 are those referred to in paragraph 81 above.
95. As regards, first, the fax messages exchanged by certain cartel members between 18 December 2000 and 22 January 2001, on the subject of meetings and allocating GIS projects, it must be observed that, as is accepted by the Commission, the undertakings involved in those exchanges are solely Alstom (subsequently Areva), Melco and ABB. Accordingly, as the applicant correctly argues, while that exchange, dating from the material time, is credible and precise evidence of the activities of the cartel around December 2000 and January 2001, it does not, on the other hand, provide any indication that the first undertaking concerned itself participated.
96. Next, in relation to the list of 12 May 2000, that indeed is a record of thirteen ‘committee meetings’ scheduled between 18 May 2000 and 17 May 2001. The anti-competitive purpose of those ‘committee meetings’ can be deduced from the fact that the list designates each of the undertakings concerned by means of the code ascribed to it as a cartel member, as reproduced in recitals 142 and 197 of the contested decision, and the fact that, as was confirmed by several cartel members, some meetings of bodies – the joint Europe/Japan committee and the Europe committee – which took part in the operational functioning of the cartel were planned, as is also clear from recitals 150 and 151 of the contested decision. Further, since the fact that six of those committee meetings actually took place is either confirmed by some cartel members or proved by other material in the file, such as notes of travelling expenses or annotations in personal agendas, the activities of the cartel in the period from 18 May 2000 to 18 January 2001 can be considered to be established. However, as the Commission acknowledges, the undertakings which took part in those meetings are only Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba. It follows that, as the applicant correctly argues, while that list is credible and precise evidence of the activities of the cartel between 18 May 2000 and 17 May 2001, it does not, on the other hand, provide any indication that the first undertaking concerned itself participated.
97. Lastly, as regards the documents which were drawn up concerning events of the same period, relating to eight GIS projects with the reference numbers [ confidential ], those are a record of agreements entered into by the cartel members, with the aim of allocating the abovementioned GIS projects, which differ in their periods of validity. Those documents indicate that the first undertaking concerned participated, with other cartel members, in arrangements for the allocation of eight GIS projects, which were organised by other undertakings participating in the cartel, and which were agreed or entered into force between [ confidential ] and [ confidential ] and which were valid for around [ confidential ] after the date of signature, in other words, as regards the last project, with the reference number [ confidential ], until [ confidential ].
98. In that regard, it must be recalled that in order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑2/89 Petrofina
v Commission [1991] ECR II‑1087, paragraph 211, and Case T‑13/89 ICI
v Commission [1992] ECR II‑1021, paragraph 253; see, also to that effect, Case 41/69 ACF Chemiefarma
v Commission
[1970] ECR 661, paragraph 112). Further, Article 81 EC is applicable where a cartel has continued to produce effects, although it has formally ceased to be in force (see, to that effect, Case T‑13/89 ICI
v Commission, paragraph 254, and Case T‑48/98 Acerinox
v Commission [2001] ECR II‑3859, paragraph 63). The cited case-law is applicable, by analogy, to Article 53 of the EEA Agreement.
99. In this case, the applicant has not disputed that FEH complied with the cartel rules by entering into agreements for the allocation, within the cartel, of eight GIS projects with reference numbers [ confidential ]. Further, the applicant has not disputed that the terms of those agreements show that they were intended to produce their effects between [ confidential ], the date when the agreement on the project with reference number [ confidential ] entered into force, and [ confidential ], the date when the validity of the agreement on the project with reference number [ confidential ] ended.
100. Moreover, there is nothing in the file to suggest that the first undertaking concerned publicly distanced itself from the cartel and the agreements entered into within the cartel. An undertaking which does not publicly distance itself from the results of a meeting which it has attended or an agreement to which it has been a party remains, as a general rule, wholly liable for its participation in the cartel. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (see, to that effect, Mannesmannröhren-Werke
v Commission, paragraph 88 above, paragraph 278 and case-law cited). It follows that, even if the first undertaking concerned did not comply with all of the agreements entered into within the cartel, that fact is not enough, without evidence that it publicly distanced itself from the other cartel members, to exempt it from the liability it incurs as a consequence of its participation in those agreements and, through those agreements, in the infringement found in Article 1 of the contested decision.
101. Consequently, it must be held that the fax messages exchanged by some cartel members between 18 December 2000 and 22 January 2001, the list of ‘committee meetings’ dated 12 May 2000 and the documents relating to eight GIS projects, detailed in recitals 191 to 198 of the contested decision, as referred to in recital 290, are reliable, precise and consistent evidence that the infringement found in Article 1 of the contested decision continued from September 2000 until 30 September 2002. Further, having regard to the particularly long duration of the infringement found in Article 1 of the contested decision, the existence of that infringement for the period from 15 April 1988 until September 2000 not being disputed by the applicant, and the elaborate precautions taken by the cartel members in order to disguise or conceal their existence, as described in recital 170 of the contested decision, it can be held that that evidence relates to events sufficiently proximate in time, within the meaning of the case-law cited in paragraph 87 above, for it to be reasonable to accept that that infringement continued uninterruptedly throughout that period.
102. Furthermore, the evidence on which the contested decision is based in that regard is sufficiently reliable, precise and consistent. It cannot be rebutted by submissions of FEH and FES, in their letter to the Commission dated 21 November 2006 and in their reply to the statement of objections (see paragraphs 19 and 27 above), nor by the submissions of Melco, the Hitachi group companies or JAEPS and the VA Tech group, in their applications pursuant to the Leniency Notice (see paragraphs 13, 14 and 16 above), to the effect that the cartel had ended, for the first time, prior to the period between September 2000 and 30 September 2002. Those submissions that the cartel had ended earlier are not supported by reliable and precise evidence. Moreover, those submissions are contradictory, in that the parties making those submissions claim that the cartel ended either sometime in 1997 (Melco), or sometime in 1999 (the Hitachi group companies or JAEPS and the VA Tech group), or again ‘in or around’ September 2000 (FEH and FES). Consequently, as the Commission correctly states in recitals 284, 285 and 290 of the contested decision, those submissions are incapable of calling into question the documentary evidence concerning contemporaneous events and produced by the very undertakings which participated in the infringement found in Article 1 of the contested decision, according to which that infringement continued from September 2000 until 30 September 2002.
103. The applicant indeed claims that the submissions in the letter of FEH and FES to the Commission of 21 November 2006 and in their reply to the statement of objections should be accorded a particular probative value or reliability because they are ‘self-incriminating’ (see paragraph 88 above and paragraph 107 below). However, those submissions, in which FEH and FES argue that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000, cannot be regarded as contrary to their interests. Those submissions tend rather to minimise the significance of the contribution made by the first undertaking concerned to the infringement and, consequently, to limit the personal liability incurred by FEH because of the management which it exercised over that undertaking when the infringement was committed. Consequently, such submissions are incapable of rebutting the evidence relied on by the Commission in the contested decision.
104. Accordingly, there is no foundation for the applicant’s complaint that the Commission disregarded the probative value of the submissions in the letter of FEH and FES to the Commission dated 21 November 2006 and in their reply to the statement of objections when it concluded that the first undertaking concerned had participated in the infringement from September 2000 until 30 September 2002, and that FEH could be held personally liable for that infringement because of the management which it exercised over that undertaking when the infringement was committed.
105. Moreover, the documents relating to the agreements entered into within the cartel, as described in recitals 191 and 198 of the contested decision, are credible and precise evidence supporting the Commission’s finding that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002, since it is stated in those documents that ‘Fuji’ was party to those agreements, entered into within the cartel, which were intended to produce their effects between 27 August 1998 and 28 October 2001.
106. It remains accordingly to be determined whether the alternative explanations or justificatory arguments submitted by the applicant are capable of rebutting the reliable and precise evidence on which the contested decision relies. Failing that, it can be concluded that the Commission has discharged the burden on it of proving that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002 (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos
v Commission, paragraph 84 above, paragraphs 63 and 71), and that FEH could be held personally liable for that infringement because of the management which it exercised over that undertaking when the infringement was committed.
– Analysis of the alternative evidence submitted by the applicant
107. The applicant complains that the Commission disregarded some arguments or facts which confirmed the credibility of the submissions made in the reply of FEH and FES to the statement of objections, that the first undertaking concerned had ceased to participate in the cartel ‘in or around’ September 2000. First, the applicant claims that the first undertaking concerned ceased to take part in cartel meetings after September 2000, whereas, previously, it attended meetings of the Japanese members, prior to meetings of the members of the Europe committee and the Japan committee, in accordance with the GQ Agreement. Secondly, the applicant argues that the submissions of FEH and FES are supported by certain submissions made by ABB, Melco, the Hitachi group companies or JAEPS, and the VA Tech group. Thirdly, the applicant calls attention to the lack of any reference to the first undertaking concerned in documents subsequent to September 2000. Fourthly, the applicant claims that the Commission failed to take into account the fact that the submissions of FEH and FES that the infringement and the participation of the first undertaking concerned in that infringement had ended in September 2000 were ‘self-incriminating’. Fifthly, they observe that the documents relating to two bidding procedures in [ confidential ], drawn up in [ confidential ], which they produced as an annex to the application and in response to the Court’s questions and request for the production of documents (see paragraph 37 above), are evidence that the first undertaking concerned ceased to comply with the arrangements agreed within the cartel and, finally, ceased to participate in cartel activities after September 2000, since, in those bidding procedures, the first undertaking concerned considerably lowered its prices below the ‘level prices’ fixed in the arrangements entered into within the cartel. The applicant claims that those documents show that, in relation to the GIS project for the [ confidential ] contract in [ confidential ], the price estimates submitted by the first undertaking concerned to its partners were [ confidential ] to [ confidential ]% lower than the ‘level price’ fixed in the arrangement sheet and that, as regards two GIS projects for the [ confidential ] contract in [ confidential ], the price invoiced to its partner was [ confidential ]% lower than the ‘level price’ fixed in the arrangement sheet.
108. The applicant complains further that the Commission committed a manifest error of assessment of the evidence submitted to it and infringed their right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo by rejecting the submissions of FEH and FES that the first undertaking concerned had ended its participation in the infringement ‘in or around’ September 2000 on the grounds that the date on which that undertaking left the cartel was not clearly stated in those submissions and that that undertaking did not publicly distance itself from the cartel.
109. The contested decision does not however suggest that, in order to establish the participation of the first undertaking concerned in the infringement from September 2000 until 30 September 2002, the Commission relied on ABB’s statement, in its reply of 4 October 2004 to a request for information (see paragraphs 15 and 81 above), that ‘[d]uring the period when Siemens and Hitachi were not part of the cartel, the GIS projects cartel continued to exist with … ABB, Alstom, Areva, VA Tech, Schneider …, [Melco], Toshiba and Fuji’. Consequently, there is no need to determine whether, as the applicant maintains, that statement was capable of supporting the Commission’s conclusions in relation to the participation of the first undertaking concerned from September 2000 until 30 September 2002.
110. As regards the applicant’s other arguments, first, it must be observed that, as the applicant correctly claims, there is no evidence in support of the contested decision to allow the finding that the first undertaking concerned took part in a meeting of the undertakings which participated in the cartel and, in particular, in a Japanese members’ meeting, in the period from September 2000 to 30 September 2002. However, contrary to what is maintained by the applicant, that fact is not sufficient to rebut the reliable and precise evidence that the first undertaking concerned continued to participate in the infringement during that period.
111. The fact that it is not apparent from the list of ‘committee meetings’ of 12 May 2000 (see paragraph 96 above) that the first undertaking concerned took part in or must have attended those meetings has no relevance in that regard. That list concerns only meetings of the joint Europe/Japan committee and preparatory meetings related thereto of the Europe committee. It is evident from recitals 150, 151, and 376 of the contested decision, and from footnote No 320 to recital 255, that the first undertaking concerned was not a member of either the Japan committee or consequently the joint Europe/Japan committee. It did not directly take part either in working level meetings or in the management meetings of the cartel, gathering together the Japanese and European undertakings.
112. As regards the fact that it is not apparent either from the fax messages exchanged by certain cartel members between 18 December 2000 and 22 January 2001 or from the list of ‘committee meetings’ of 12 May 2000 that the first undertaking concerned was a party, during December 2000 and January 2001, to cartel meetings and discussions and, in particular, those relating to the allocation of the GIS projects referred to in paragraph 95 above, that does not establish that that undertaking ended its participation in the infringement in the period from September 2000 to 30 September 2002. It is apparent from the documentary evidence referred to in recital 198 of the contested decision that, during that period, the first undertaking concerned was party to the application of the agreements entered into by the cartel members in relation to eight GIS projects with reference numbers [ confidential ], according to which it was obliged, on pain of the usual penalties, to protect tenders submitted by other undertakings which were cartel members and, ultimately, the actual allocation of the GIS projects concerned to those undertakings, and to do that for the entire validity period of those arrangements. In the light of the validity period of those agreements, as provided therein (see paragraphs 99 and 105 above), there is no basis for the applicant’s claims that those arrangements all lapsed from the end of January 2000, when the bidding procedures for the GIS projects corresponding to those arrangements came to an end on the specified dates. Further, as stated by the Commission in recital 377 of the contested decision (see paragraph 82 above), the first undertaking concerned was, after receiving an arrangement sheet dated 28 September 2000, supposed to present an ‘arranged’ bid to a client to create the impression that there was competition for the GIS project concerned.
113. Secondly, contrary to what is claimed by the applicant, it has not been established that the first undertaking concerned ceased to apply the arrangements relating to the eight GIS projects with reference numbers [ confidential ] during the period from September 2000 to 30 September 2002 and that it took no action on the arrangement sheet which it received on 28 September 2000, as stated in the applicant’s reply to the statement of objections, on the ground that those arrangements had lapsed following the ending of its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000.
114. The applicant claims that the submissions of FEH and FES are supported, in that regard, by submissions by ABB, in its supplementary reply to the statement of objections (see paragraph 21 above), and those by Melco, within its application pursuant to the Leniency Notice (see paragraph 16 above).
115. As regards, in the first place, ABB’s submissions in its supplementary reply to the statement of objections, it cannot be inferred therefrom that the first undertaking concerned ended its participation in the cartel and ceased to act on the arrangements entered into within that cartel ‘in or around’ September 2000. It is true that those submissions confirm that ABB, Alstom, Melco and Toshiba publicly notified other cartel members, at a meeting which took place in September or October 2000, of their intention to bring the cartel activities to an end. Further, the first undertaking concerned is not mentioned among the undertakings participating in the cartel when that notification was made. However, it is stated that the information that the activities of the cartel were to be brought to an end was a ‘trick’ and that the sole purpose of communicating that information within the cartel was to ensure that ‘Schneider/VA Tech’ ceased to participate in those activities. Further, it is stated that the cartel members met a further one or two times before organising the meeting which was apparently to end the cartel activities, in December 2000. Moreover, it is stated that the cartel members present at that last meeting were ‘ABB, Alstom, Schneider/VA Tech, [Melco] and Toshiba’ and that Hitachi and Siemens were not present, since they no longer participated, at that time, in the cartel activities. Those submissions therefore do not in any specific way enhance the reliability of the submissions of FEH and FES to the effect that the first undertaking concerned could legitimately have believed that the cartel had ended ‘in or around’ September 2000 and, consequently, ended its participation and, in particular, ceased to give effect to the arrangements entered into within the cartel. First, it is evident from those submissions that the false information communicated by ABB, Alstom, Melco and Toshiba was not intended to engineer the departure of the first undertaking concerned from the cartel. Consequently, as rightly observed by the Commission, it is scarcely credible that that manœuvre could have brought about a result which was not sought by its perpetrators, without any reaction from them. Secondly, it is evident from those submissions that the meeting which was apparently to end the cartel activities took place only in December 2000, and consequently the manœuvre perpetrated by ABB, Alstom, Melco and Toshiba cannot serve as an explanation of the first undertaking concerned choosing to end its participation in the cartel after September 2000. Third, the fact that the submissions do not mention ‘Fuji’ among the undertakings which were participating in the cartel at the time of the abovementioned manœuvre has no specific probative value since (i) that manœuvre was performed within the joint Europe/Japan committee, of which the first undertaking concerned was not a member and (ii) ‘Fuji’ is equally not referred to among the undertakings who were no longer cartel members when that manœuvre was performed. In any event, the fact that the first undertaking concerned refrained from participating in further meetings or discussions within the cartel, in the period from September 2000 to 30 September 2002, does not imply that it ceased to give effect to the arrangements which had been agreed within the cartel and, therefore, that it was not a member of the cartel during that period. It follows that ABB’s submissions, in its supplementary reply to the statement of objections, do not refute the documentary evidence referred to in the contested decision, from which it is evident that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002.
116. Similarly, the fact that, in its submission pursuant to the Leniency Notice, Melco does not mention ‘Fuji’ among the undertakings which continued to have limited discussions within the cartel, in the period between the interruption by Siemens and Hitachi of their participation and Siemens’ resumption of participation, is not determinative of whether the first undertaking concerned participated in the infringement from September 2000 to 30 September 2002, since Melco equally does not say that the first undertaking concerned left the cartel in the period between Siemens’ interruption of its participation in that infringement in September 1999 and Siemens resumption of its participation in that infringement in July 2002, and that, therefore, the first undertaking concerned ceased to act in a way consistent with the arrangements agreed within the cartel.
117. Moreover, the Commission made a correct assessment of the submissions in the reply of FEH and FES to the statement of objections to the effect that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000 when the Commission held that those submissions were not particularly reliable and that, consequently, they could not refute the documentary evidence referred to in the contested decision, from which it is clear that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002.
118. First, for the reasons set out in paragraph 103 above, it cannot be held that the submissions in reply of FEH and FES to the statement of objections, to the extent that it is claimed that the undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000, are contrary to the interests of the declarants, in this case FEH, and that, therefore, such submissions ought to have been regarded as particularly reliable.
119. Secondly, the Commission made a correct assessment of the submissions in the reply of FEH and FES to the statement of objections when it found that their reliability was affected by a degree of inconsistency, in particular in relation to the date on which the first undertaking concerned ended its participation in the infringement. FEH and FES, in their reply to the statement of objections and in their letter to the Commission of 21 November 2006 (see paragraphs 19 and 27 above), and one of the Fuji group employees, namely Mr Oz., in a statement annexed to the reply of FEH and FES to the statement of objections, asserted that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000, whereas another Fuji group employee, Mr I.H., in a statement annexed to the same reply, stated that the meetings of the Japanese members ceased shortly after the departure of Siemens in 1999. In their written pleadings, FEH and FES also stated that Mr I.H.’s statement with regard to the possible participation of the first undertaking concerned in the infringement, after 1999, was questionable because, at that time, Mr I.H. had ceased to represent [FEH] at the Japanese members meetings and that, consequently, he was no longer a direct witness of the facts.
120. Thirdly, as the Commission correctly observes (see paragraphs 115 and 116 above), account must be taken of the fact that none of the other parties subject to the proceedings, to whom the FEH and FES submissions were sent for their comments, confirmed that the first undertaking concerned had in fact ended its participation in the infringement and ceased to give e ffect to the arrangements entered into within the cartel either after Siemens interrupted its participation in the cartel in 1999 or ‘in or around’ September 2000.
121. Fourthly, since, in the circumstances of this case, the applicant’s claims that the first undertaking concerned could legitimately have believed that the cartel ended in September 2000 are scarcely credible and, consequently, are insufficient to refute the documentary evidence referred to in the contested decision (see paragraph 115 above), the Court must find that, as maintained by the Commission, the applicant has failed to refer to or produce any third party statement or any documentary evidence to indicate that the first undertaking concerned publicly distanced itself, in September 2000, from the cartel and the arrangements, then valid, which had been agreed within the cartel.
122. As regards the documents relating to two bidding procedures in [ confidential ], drawn up in [ confidential ], the Commission contends, in essence, that these cannot be validly relied on against it in this action, since they were not produced by FEH or FES in the course of the administrative procedure.
123. The first matter therefore to be examined is whether the documents at issue must be disregarded, on the ground that they may not be relied on against the Commission because the Commission was not made aware of them in the course of the administrative procedure and they were produced for the first time before the Court.
124. In that regard, it must be recalled that the competition rules cannot be interpreted as meaning that the person concerned in an administrative procedure is under an obligation to reply to the statement of objections sent to him by the Commission. Neither the rules setting out the rights and duties of undertakings within the administrative procedure provided for by competition law nor any general principle of law oblige those undertakings to do any more than supply the Commission with such information as it has requested from them under Article 18 of Regulation No 1/2003. Such a duty would, in the absence of any legal basis, be difficult to reconcile with the principle of respecting the rights of the defence, since it would create difficulties for a person who, having failed for whatever reason to reply to a statement of objections, wished to bring legal proceedings (see, by analogy, Case T‑30/89 Hilti
v Commission [1991] ECR II‑1439, paragraphs 37 and 38). Thus, while the legality of the Commission decision finding that a person has infringed competition law and consequently imposing a fine on that person can be assessed only in relation to the facts and points of law pertaining at the date when the decision was adopted (Case T‑241/01 Scandinavian Airlines System
v Commission [2005] ECR II‑2917, paragraph 225), it does not follow that the person concerned is under an obligation to supply to the Commission, at the stage of the administrative procedure, all the material on which it may wish to rely in support of an action for annulment, brought before the Courts of the European Union, of the decision adopted at the conclusion of the administrative procedure.
125. It follows that, contrary to what is maintained by the Commission, FEH and FES were not under an obligation to produce, at the stage of the administrative procedure, the documents at issue in order to be able to rely on them within this action.
126. Consequently, the Court must examine the substance of whether, as the applicant claims, the documents relating to two bidding procedures in [ confidential ], drawn up in [ confidential ], demonstrate that the first undertaking concerned ended its participation in the cartel ‘in or around September 2000’, in that they establish that, after that date, that undertaking set prices directly dictated by its production costs and substantially lower than those resulting from the arrangements agreed within the cartel.
127. In that regard, it must be stated that the documents produced by FEH and FES before the Court, as well as the additional explanations provided by them in reply to the Court’s questions, are fragmentary, incomplete and relatively difficult to interpret. In any event, they do not allow the Court to form any clear idea of, first, the conditions under which the GIS projects and, more generally, the contracts concerned were negotiated or allocated and, second, the exact reasons why adjustments were made in relation to price estimates or prices of those particular GIS projects in [ confidential ] after September 2000. There is nothing in those documents, even though they are purely internal, to indicate that those adjustments were in fact made possible because the first undertaking concerned had considered that it no longer needed to comply with the price arrangements agreed within that cartel.
128. Quite to the contrary, in the GIS project for the [ confidential ] contract in [ confidential ], where the first undertaking concerned was acting solely as the subcontractor of several undertakings which had submitted tenders, some of whom, such as [ confidential ] and [ confidential ], were cartel members, the fax messages of [ confidential ] exchanged between FEH and one of its then partners suggest that the new price estimate followed ‘technical clarifications’ and fresh discussions with the client on [ confidential ]. To ensure that meeting the client’s new requirements did not raise the price in the tender to be submitted, in particular, by [ confidential ], the undertaking which was the partner of the first undertaking concerned states that it had reduced costs in order to reduce, as far as possible, the GIS project price. That reduction might be linked to the alteration of the components of the GIS project concerned, such as gas insulated busbars. The applicant acknowledges that gas insulated busbars are equipment which is rather expensive to manufacture, and that has an effect on the final price. Their use and the scale of their use are, as a general rule, determined by the client and not by the supplier. A handwritten note on a fax message sent internally within the Fuji group on [ confidential ] states the following on the GIS project concerned:
‘It seems that the reduction is quite substantial. Is that because we don’t have GIB [gas insulated busbars]? …’
129. The applicant indeed claims that the use and the extent of use of gas insulated busbars in that GIS project were not altered between the price estimate submitted on [ confidential ] and that submitted on [ confidential ]. However, the evidence on which the applicant relies in that regard, in particular the technical drawing of [ confidential ], before the technical negotiations with the client on [ confidential ], is insufficient to verify that claim.
130. In any event, unless it is accepted that there was a conspiracy by certain cartel members against other cartel members, it is scarcely credible that the first undertaking concerned could have tendered to its partner, which, according to the contested decision, was not a cartel member, a price estimate manifestly in breach of a price arrangement agreed within the cartel and still in force, without there being any reaction from the other cartel members to whom the evidence indicates that estimate was sent, namely [ confidential ] and [ confidential ], in the form of a communication to the first undertaking concerned pointing out that the cartel was still in force and that its rules had to be respected.
131. It seems more probable, from that perspective, that, in the GIS project for the [ confidential ] contract in [ confidential ], the ‘level price’ fixed in the arrangement was adjusted downwards to take account of the technical alterations sought by the client, or to take account of any competitive constraints applied by undertakings which were not cartel members.
132. It is evident from the documents in the file that price arrangements could be revised to take account of subsequent technical modifications desired by the client, as was the case, in [ confidential ], in relation to the GIS project with reference number [ confidential ]. Moreover, the joint action of cartel members against outside competition went so far as to provide that, if a GIS project in which the members had shown an interest and which was subject to arrangement on the ‘level price’ was threatened by strong price competition from outside the cartel, the cartel members were to fight together against the external competitor and decide exceptionally on a price reduction in order to eliminate the competition. It is evident from the documents in the file that a substantial reduction as compared with the ‘level price’ was also agreed in [ confidential ] in the GIS projects with the reference numbers [ confidential ] and [ confidential ] and in [ confidential ] in the GIS project with the reference number [ confidential ], also relating to contracts in [ confidential ]. Likewise, it is evident from material in the file that the price arrangement seems to have been rediscussed, in the light of pressure from competitors in [ confidential ], in the GIS project with the reference number [ confidential ], again relating to a contract in [ confidential ]. Lastly, it is evident from recital 169 of the contested decision that the Commission’s file contains evidence that, when Siemens temporarily interrupted its participation, in other words during the period at issue, ‘[t]he cartel attempted for a certain time to punish Siemens for its departure by fighting it worldwide for particular [GIS] projects’.
133. Such a cartel defence mechanism vis-à-vis outside competition may therefore very well also have operated both in the GIS project for the [ confidential ] contract in [ confidential ], where it may be said that the first undertaking concerned and, therefore, [ confidential ] and [ confidential ] seem not to have been successful, and in the [ confidential ] contract in [ confidential ], where the applicant states that the first undertaking concerned bid for the two GIS projects at a price representing [ confidential ]% of the ‘level price’ resulting from the arrangement agreed on [ confidential ] within the cartel and that ultimately it won the contract.
134. It is also possible, as suggested by the Commission, that in certain GIS projects, cartel members and, in these cases, the first undertaking concerned acted, secretly, to promote their individual interests, contrary to the interests of other cartel members and their joint interests.
135. In any event, the documents produced by FEH and FES contain no indication and are not accompanied by any other evidence from which it can be inferred that the GIS project price reductions agreed by the first undertaking concerned in [ confidential ] in two tendering procedures in [ confidential ] were the manifestation or consequence of that undertaking publicly distancing itself, in September 2000, from the cartel and the arrangements agreed within that cartel. Accordingly, even if those documents can be interpreted as meaning that the first undertaking concerned ceased, on a number of occasions after September 2000, to submit tenders in compliance with the arrangements agreed within the cartel, that does not permit the conclusion that it had, at that time, ended its participation in that cartel.
136. It follows that the documents relating to two bidding procedures in [ confidential ] drawn up in [ confidential ] are not in themselves of sufficient probative value to establish that the first undertaking concerned entirely ended its participation in the cartel activities after September 2000.
137. It is evident from the foregoing analysis that the applicant has not put forward any evidence of sufficient probative value or any persuasive alternative explanation to refute the documentary evidence referred to in the contested decision from which it is clear that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002.
138. Consequently, it must be held that the Commission demonstrated in the contested decision, in accordance with the rules applicable to proof of the participation of an undertaking in an infringement of Article 81 EC and Article 53 of the EEA Agreement, as stated in paragraphs 84 to 91 above, and without committing the manifest errors of assessment complained of in this action, that the first undertaking concerned continued to participate in the infringement, which continued from September 2000 until 30 September 2002. In those circumstances, the applicant cannot justifiably claim that the Commission infringed general principles of law, such as the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, by deciding that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002.
139. In the light of all the foregoing considerations, the first and second pleas must be rejected.
The third plea in law: infringement of the principle of equal treatment vitiating the Commission’s conclusion that FEH continued to participate in the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000
Arguments of the parties
140. By the third plea, the applicant claims, in essence, that the Commission infringed, in several respects, the principle of equal treatment by concluding that the first undertaking concerned had continued to participate in the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000. First, the Commission treated the first undertaking concerned differently from Siemens, Hitachi, VA Tech or Schneider by presuming, because that undertaking was not able to give a definitive indication of when it ended its participation in the infringement, that that undertaking had continued to participate in that infringement, notwithstanding the fact that a cogent body of indirect evidence, to be found in the file, supported their submissions. Secondly, the Commission treated the first undertaking concerned differently from Siemens, Hitachi, VA Tech or Schneider, by presuming, in recital 378 of the contested decision, that, because that undertaking was party to the agreements concerning GIS projects which continued after September 2000, that undertaking had continued to participate in the infringement. Thirdly, the Commission treated the first undertaking concerned differently from VA Tech and Schneider, by presuming, in recital 377 of the contested decision, that, since that undertaking had not publicly distanced itself from the cartel after September 2000, it had continued to participate in the infringement.
141. The Commission does not accept that it infringed the principle of equal treatment as claimed and contends that the third plea should be rejected as unfounded.
Findings of the Court
142. According to settled case-law, the principle of equal treatment is breached only where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified (Case C‑76/06 P Britannia Alloys & Chemicals
v Commission [2007] ECR I‑4405, paragraph 40, and Case T‑311/94 BPB de Eendracht
v Commission
[1998] ECR II‑1129, paragraph 309).
143. According to the Commission, the situation of the first undertaking concerned differs from that of Siemens, Hitachi, VA Tech or Schneider because, unlike the various submissions of Siemens, the Hitachi group companies, the VA Tech group or Schneider to the effect that they left the cartel for a specific period, the submission of FEH and FES that the first undertaking concerned ended its participation in the cartel ‘in or around’ September 2000 was not supported by reliable evidence, such as consistent submissions by other cartel members or documentary evidence.
144. In the present case, as observed previously in paragraphs 113 to 137 above, it has not been established that the first undertaking concerned ceased to apply the agreements relating to eight GIS projects, with reference numbers [ confidential ], which remained valid after September 2000 and that FEH and FES took no action on the arrangement sheet which they themselves state, in their reply to the statement of objections, they received on 28 September 2000, because those agreements had lapsed as regards the first undertaking concerned after the ending of its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000. The submissions of Siemens, the Hitachi group companies, the VA Tech group companies or Schneider are a different matter, all those being supported by reliable evidence, as is clear from recitals 186 to 189 of the contested decision. Accordingly, as regards those undertakings, the Commission could establish that they had left the cartel on a specific date, which means that they then ceased to apply the arrangements which remained valid or to take action on the arrangement sheets which they received. It is clear from recital 169 of the contested decision that, when Siemens temporarily interrupted its participation in the cartel, the cartel members engaged in competition with Siemens worldwide for specific GIS projects (see paragraph 132 above).
145. Moreover, whereas it is evident from the submissions of the other cartel members that they were aware that Siemens, Hitachi, VA Tech or Schneider had left the cartel on a specific date and for a specific period, it is not at all evident from those submissions that the other cartel members also believed that the first undertaking concerned had ended its participation in the infringement after the Japanese members’ meeting which took place ‘in or around’ September 2000.
146. The difference between the situation of Siemens, Hitachi, VA Tech or Schneider, on the one hand, and the situation of the first undertaking concerned, on the other, as demonstrated by the Commission in the contested decision, is such as to justify the observed difference of treatment of those undertakings, in relation to the date when they may have ended their participation in the infringement.
147. It follows that the third plea must also be rejected.
The fourth plea in law: manifest error of assessment vitiating the Commission’s conclusion that FES participated in the infringement from 15 April 1988 until 11 May 2004
Arguments of the parties
148. In the fourth plea, the applicant claims that Article 1(h) of the contested decision, and Article 2(d) and (f) thereof, to the extent that FES is held jointly and severally liable for payment of the fines imposed, must be annulled, since they are based on manifestly erroneous assessments of the facts of the case, to the effect that FES participated in the infringement from 15 April 1988 until 11 May 2004. First, the applicant claims that the first undertaking concerned did not participate in the infringement from September 2000 until 30 September 2002 and that FES itself managed that undertaking only from 1 July 2001 until 30 September 2002, a period during which that undertaking was not participating in the infringement. Secondly, the applicant does not accept that FES managed indirectly, through JAEPS, the second undertaking concerned between 1 October 2002 and 11 May 2004. In short, only FEH or JAEPS, who managed the first undertaking concerned and/or the second undertaking concerned during all or part of the period from 15 April 1988 to 11 May 2004, could incur any liability by reason of the participation of those undertakings in the infringement.
149. The Commission contends that the fourth plea should be rejected as inadmissible, since it rests on a ground of complaint which was not submitted by FEH and FES during the administrative procedure, to the effect that FES was not involved, before 1 July 2001, in the Fuji group’s GIS activities. Further, since FEH and FES explicitly accepted, in their reply to the statement of objections, the personal liability incurred by FES by reason of the participation of the first undertaking concerned in the infringement for the period from 15 April 1988 to September 2000, they cannot revisit that acceptance in the present action. In any event, the plea is both legally and factually unfounded.
150. The applicant claims that the Commission’s plea of inadmissibility should be rejected, since FEH and FES clearly established that FES was not involved, before 1 July 2001, in the Fuji group’s GIS activities, if not in their reply to the statement of objections, at least in their reply of 4 October 2004 to the request for information (see paragraph 15 above) and, in particular, in certain evidence annexed to that reply.
Findings of the Court
151. It is apparent from Article 1(h) of the contested decision that FES was held personally liable for the participation of the undertakings concerned in the infringement from 15 April 1988 until 11 May 2004. Consequently, in Article 2(d) and (f) of the contested decision, the Commission imposed on FES, jointly and severally with FEH, a fine of EUR 2 400 000 and, jointly and severally with FEH, JAEPS and Hitachi, a fine of EUR 1 350 000.
152. It is also apparent from recitals 379 and 380 of the contested decision, which refer to recitals 334, 373 and 385 to 402 of the contested decision, that the Commission held FES and FEH jointly and severally liable for the participation of the first undertaking concerned in the infringement between 15 April 1988 and 30 September 2002 and that the Commission held FES, FEH, JAEPS and Hitachi jointly and severally liable for the participation of the second undertaking concerned in the infringement between 1 October 2002 and 11 May 2004.
153. According to the case-law cited in paragraph 59 above, persons who are held by the Commission to be personally liable for the participation of one and the same undertaking in an infringement, because, when the infringement was committed, they either directly managed that undertaking or in fact exercised control over the persons who were managing that undertaking and thereby determined their conduct on the market, must be held liable jointly and severally for that participation.
154. It is apparent from recitals 334, 373 and 385 to 402 of the contested decision, read together with recitals 32 and 33, that the Commission considered that (i) the first undertaking concerned, which participated in the infringement for the entire period from 15 April 1988 until 11 May 2004, was, between 15 April 1988 and 30 September 2002, directly managed by FES and FEH and (ii) the second undertaking concerned, which participated in the infringement from 1 October 2002 to 11 May 2004, was, during that period, directly managed by JAEPS and indirectly managed, via that jointly owned company, by FES, FEH and Hitachi.
155. Since the second ground of complaint raised by the applicant within the fourth plea overlaps with the fifth plea in law which claims in essence that manifest errors of assessment or errors of law vitiate the Commission’s conclusion that FEH and FES should be held personally and jointly and severally liable, as parent companies of JAEPS, for the participation of the second undertaking concerned in the infringement, it is appropriate to examine them together and, consequently, to incorporate the examination of that second complaint in that of the fifth plea (see paragraph 175 et seq. below).
156. As regards the first ground of complaint raised by the applicant in this fourth plea, the point to be determined is whether Article 1(h) and Article 2(d) of the contested decision are based on a manifestly erroneous assessment of the facts of the case, to the effect that FES can be held personally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 September 2002 – the date when, according to the contested decision, the Fuji group’s GIS activities were transferred to JAEPS (see paragraph 7 above) –, in that FES managed that undertaking during that period.
157. The first issue to examine is whether, as maintained by the Commission, it is admissible that the applicant should challenge for the first time before this Court the personal liability incurred by FES in the contested decision, by reason of the participation of the first undertaking concerned in the infringement for the period from 15 April 1988 to 30 September 2002, that liability also being declared in the statement of objections sent to FEH and FES, and even revisit for that purpose, before the Court, matters which they expressly accepted within the administrative procedure.
158. As already stated in paragraph 124 above, the rules setting out the rights and duties of undertakings within the administrative procedure provided for under competition law cannot be interpreted as meaning that a legal or natural person concerned in an administrative procedure is under an obligation to cooperate and, in reply to the statement of objections sent to that person by the Commission, to present, at the stage of the administrative procedure, all the grounds of complaint on which it wishes to rely to support an action for annulment, brought before the Courts of the European Union, of the decision adopted on the conclusion of that procedure. That position is not called into question by the case-law cited by the Commission. In Aalborg Portland and Others
v Commission, paragraph 84 above, it was accepted that the Court could review the merits, in the decision at issue, of the attribution of liability for an infringement to a company which had not challenged that attribution during the administrative stage, the significance of the latter being solely in relation to assessing the scope of the duty to state reasons which, in that case, lay with the Commission ( Aalborg Portland and Others
v Commission, paragraph 84 above, paragraphs 346 to 361, and Cimenteries CBR and Others
v Commission, paragraph 88 above, paragraphs 1335 and 1336).
159. Where the person concerned decides voluntarily to cooperate and, within the administrative procedure, accepts explicitly or implicitly facts or points of law which justify the attribution of the infringement to it, the actual exercise of its right to bring proceedings under the fourth paragraph of Article 230 EC is not thereby restricted (see, to that effect, Knauf Gips
v Commission, paragraph 41 above, paragraphs 89 and 90). In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence ( Knauf Gips
v Commission, paragraph 91). It must further be observed that the right to an effective remedy and of access to an impartial court is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and that, under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law (see Knauf Gips
v Commission, paragraph 91).
160. In the light of the legal rules set out in paragraphs 158 and 159 above, the plea of inadmissibility raised by the Commission must therefore be rejected.
161. In the present action, the applicant does not dispute the participation of the first undertaking concerned in the infringement from 15 April 1988 until September 2000. Moreover, as stated in paragraph 138 above, the Commission was fully entitled to decide in the contested decision that the first undertaking concerned had participated in the infringement for the entire period from September 2000 until 30 September 2002. It follows that there is no basis for the applicant’s claim, as part of the first ground of complaint within the fourth plea in law, that the contested decision is vitiated, on that point, by a manifest error of assessment.
162. As regards the applicant’s challenge to the Commission’s finding that FES could be held personally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 June 2001, in that FES managed that undertaking during that period, it must initially be recalled that (i) the statement of the reasons on which a decision having adverse effect is based must make it possible to carry out an effective review of its legality and must provide the party concerned with details sufficient to allow that party to ascertain whether or not the decision is well founded and (ii) the adequacy of such a statement of reasons must be assessed in the context of the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which addressees may have in obtaining explanations (Case T‑38/92 AWS Benelux
v Commission [1994] ECR II‑211, paragraph 26 and case-law cited). In order to perform those functions, an adequate statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority of the European Union which adopted the measure in question ( AWS Benelux
v Commission, paragraph 26 and case-law cited). Where, as in the present case, a decision pursuant to Articles 81 EC and Article 53 of the EEA Agreement relates to several addressees and raises a problem of attribution of liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for that infringement ( AWS Benelux
v Commission, paragraph 26).
163. The fact that the applicant has, in the present case, relied on a substantive plea, alleging a manifest error of assessment, and not a failure to state reasons or a failure to state adequate reasons, in other words a plea relating to an infringement of an essential procedural requirement, within the meaning of Article 230 EC (now Article 263 TFEU), does not deprive the Courts of the European Union of the possibility of raising such a plea of their own motion, since such a plea is a matter of public policy which may, or even must, be raised by the Courts of their own motion (Case C‑89/08 P Commission
v Ireland and Others [2009] ECR I‑11245 paragraph 54), provided that the rule that the parties should be heard is respected ( Commission
v Ireland and Others, paragraph 54).
164. In the present case, in recital 32 of the contested decision the Commission confined itself to stating baldly that the Fuji group’s GIS activities were carried out by, inter alia, FES, which is why, as is clear from recitals 373 and 379 of that decision, liability for the infringement was attributed to FES, in particular for the period from 15 April 1988 until 30 September 2002, in Article 1(h) of that decision. The contested decision does not acquaint either the applicant or the Court with the facts or points of law on which the Commission relied in order to decide that FES had, with others, carried out the Fuji group’s GIS activities between 15 April 1988 and 30 June 2001 and that consequently liability for the infringement for that period could be attributed to FES.
165. In reply to a question from the Court (paragraph 41 above), the Commission’s explanation for the lack of detail, in that regard, in the contested decision was that FEH and FES had expressly accepted, in their reply to the statement of objections, that liability for the infringement fell on FES. That explanation cannot be accepted. It is true that, in recital 374 of the contested decision, when the Commission set out the ‘Arguments by Fuji’, it stated that ‘Fuji admits having participated in the cartel described in the statement of objections between 1988 and September 2000, but not thereafter’. However, from that statement alone it cannot be concluded, clearly and unequivocally, that the Commission intended to base its findings that FES had managed the Fuji group’s GIS activities between 1988 and 30 June 2001 and could consequently be held liable for the infringement solely on the arguments advanced by FEH and FES in the course of the administrative procedure. In particular, recitals 32, 373 and 379 of the contested decision contain no reference to the arguments of FEH and FES as referred to in recital 374 of that decision. A fortiori, they contain no information to enable the applicant and the Court to understand why the Commission was led to interpret the arguments of
FEH and FES as meaning that FES admitted carrying out the Fuji group’s GIS activities between 15 April 1988 and 30 June 2001 and could consequently be held liable for the infringement for that period. Such information was all the more necessary, in this case, when the interpretation chosen by the Commission was inconsistent with the information which FEH and FES had provided in their reply of 4 October 2004 to the Commission’s request for information (paragraph 15 above). It is clear from a careful reading of that reply and, in particular, Annex D thereto, the specific purpose of which was to answer the Commission’s questions about the legal entities which had managed the Fuji group’s GIS activities, that before 1 July 2001 the only legal entities which carried out such activities were FEH and two subsidiaries which were wholly owned by FEH, namely Fuji Electric Corp. of America (FECOA) and Fuji Electric International Corp. (FEIC).
166. Further, a fuller explanation was needed in the contested decision, since the interpretation of the arguments of FEH and FES chosen by the Commission was incapable of explaining the attribution of liability for the infringement to FES for the entire period from 15 April 1988 until 30 June 2001. The admission of liability relied on by the Commission covers the period until September 2000 but not ‘thereafter’.
167. As regards, moreover, the Commission’s claim that the contested decision is, in any event, justified in the light of the fact, accepted by the applicant, that some of the Fuji group’s GIS activities were transferred to FES on 1 July 2001 and, since it thereby succeeded economically FEH or its wholly owned subsidiaries, there was also transferred to FES, in accordance with the relevant case-law ( Aalborg Portland and Others
v Commission, paragraph 84 above, paragraphs 346 to 360), the liability which FEH or its wholly owned subsidiaries incurred by reason of the participation of the first undertaking concerned in the infringement, in particular, for the period from 15 April 1988 until 30 June 2001, it must be recalled that, under Article 263 TFEU (formerly Article 230 EC), the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure (Case T‑331/94 IPK-München
v Commission [2001] ECR II‑779, paragraph 91). In this case, the reasons advanced by the Commission cannot be considered to be set out in the contested decision. Neither in the contested decision nor for that matter in the statement of objections did the Commission state that it intended to hold FES liable for the participation of the first undertaking concerned in the infringement for the period in question on the basis of FES’s status as the economic successor of FEH or its wholly owned subsidiaries. On the contrary, the Commission always declared, in order to attribute liability for the infringement to FES, that the Fuji group’s GIS activities were carried out by ‘inter alia’ FES, and, therefore, that FES had directly managed the first undertaking concerned during that period. However, those two forms of liability differ substantially, since a person who was managing an undertaking when it was participating in the infringement must, as a general rule, be liable for that infringement in accordance with the principle of personal liability (see the case-law cited in paragraph 58 above), whereas the transfer of liability resulting from the application of the so-called ‘economic continuity’ test is obviously an exception to that rule (see, to that effect, ETI and Others, paragraph 58 above, paragraphs 39, 40 and 46).
168. It follows that the new reasons, based on application of the so-called principle of ‘economic continuity’, relied on by the Commission within the present proceedings cannot be taken into account in relation to the review of the lawfulness of the contested decision and that the Commission’s arguments relying on those reasons must be rejected.
169. In the light of the foregoing and the observations made by the parties, the Court must observe of its own motion that the contested decision, in that it attributes to FES liability for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 June 2001, is vitiated by a failure to state sufficient reasons which adversely affected the applicant’s rights of defence and right to an effective remedy and precludes the Court reviewing the merits of the points of the contested decision criticised by the ground of complaint concerned.
170. Article 1(h) and Article 2(d) of the contested decision, in that they are based on the finding, unsupported by a statement of reasons, that the first undertaking concerned was managed by ‘inter alia’ FES from 15 April 1988 until 30 June 2001 must therefore be annulled.
171. Further, in so far as the applicant does not accept that FES can be held personally liable for the participation of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002, it needs to be said that the applicant does not dispute that after 1 July 2001 FES carried out some of the Fuji group’s GIS activities – particularly because of the absorption of FEIC, one of FEH’s wholly owned subsidiaries – but dispute only that those activities, in particular those which were previously carried out by FEIC, were then a part of the first undertaking concerned. In that regard, it must be noted that, as is acknowledged by the applicant and as is evident, moreover, from Annex D to the reply of 4 October 2004 to the request for information, FEIC carried out, particularly in the period from 15 April 1988 until 30 June 2001, the activities of marketing GIS projects to international clients, excluding public utilities in North America – the North American market, unaffected by the infringement, was reserved to FECOA –, and that FEIC was therefore, in principle, directly responsible for the implementation of the common understanding and the failure to seek new customers in the entire internal market and, externally, in the European Economic Area. It follows that, contrary to what is claimed by the applicant, the GIS activities carried out by FEIC are necessarily included in ‘Fuji’s GIS activities … carried out by, inter alia, [FEH] and [FES]’, as referred to in recital 32 of the contested decision. Those activities are therefore part of the first undertaking concerned by the contested decision, as described in paragraph 61 above. Consequently, the Commission did not commit the error complained of by deciding, in the contested decision, to hold FES personally liable for the participation of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002.
172. In the light of all the foregoing considerations, the first ground of complaint in the fourth plea in law must be partly upheld and Article 1(h) and Article 2(d) of the contested decision must be annulled, in so far as the Commission finds or relies on the finding that FES, of which the applicant is the successor, can be held personally liable for the infringement from 15 April 1988 until 30 June 2001 because it directly managed the first undertaking concerned during that period. For the remainder, the first ground of complaint in the fourth plea in law must be rejected.
The fifth plea in law: manifest errors of assessment or errors of law vitiating the Commission’s conclusion that FEH and FES must be held personally and jointly and severally liable for the participation of JAEPS in the infringement
Arguments of the parties
173. The applicant claims, in essence, that Article 2(f) of the contested decision must be annulled since it is based on a manifestly erroneous assessment of the facts, to the effect that FEH and FES could be held personally and jointly and severally liable for the participation in the infringement of JAEPS or, more precisely, the second undertaking concerned, then managed by JAEPS, for the period from 1 October 2002 until 11 May 2004. According to the applicant, the Commission failed to discharge the burden of proving that FEH and FES were able to exercise a decisive influence on JAEPS, such as to justify their being held personally and jointly and severally liable, with JAEPS and Hitachi, for payment of the fine imposed due to the participation of the second undertaking concerned in the infringement from 1 October 2002 until 11 May 2004.
174. The Commission considers that there are a number of indicia which, taken together, support the finding in the contested decision that FEH and FES exercised a decisive influence on JAEPS, by allowing the infringement to continue after the transfer to JAEPS on 1 October 2002 of the Fuji group’s GIS business. The Commission contends, therefore, that the fifth plea should be rejected as unfounded.
Findings of the Court
175. Before undertaking the substantive analysis of this plea and, for the reasons set out in paragraph 155 above, of the second ground of complaint in the fourth plea, it is necessary to identify the exact point of dispute underlying the fifth plea and the recitals of the contested decision in dispute, and to recall the rules applicable to attributing liability for infringement of the competition rules as between a subsidiary and its parent company.
– The point of dispute underlying the fifth plea
176. The applicant does not dispute that the second undertaking concerned participated in the infringement between 1 October 2002 and 11 May 2004. Nor does the applicant dispute that, for that period, that undertaking was directly the responsibility of or managed by JAEPS. On the other hand, the applicant does not accept that FEH and FES, by means of directly or indirectly holding 30% of JAEPS’s share capital, actually exercised any managerial power over the second undertaking concerned and, consequently, that they indirectly managed that undertaking between 1 October 2002 and 11 May 2004.
– The recitals of the contested decision targeted by the fifth plea
177. In recitals 383 to 403 of the contested decision the Commission deals with the liability personally incurred by FEH and FES, as the parent company of JAEPS, which was directly responsible for the second undertaking concerned, by reason of the participation of that undertaking in the infringement from 1 October 2002 until 11 May 2004. The Commission stated, inter alia, the following:
‘(383)	[JAEPS] was incorporated in July 2001 and has participated in the collusive behaviour described in this Decision between 1 October 2002 (when Hitachi’s and Fuji’s GIS activities were transferred to JAEPS) and 11 May 2004 (date of the last cartel meeting, due to the notification of the Commission’s inspections).
(384)	JAEPS was formed to combine the T & D [transmission and distribution of electricity] businesses of the parent companies for the supply of T & D customers [footnote No 399: p. 23134 (Hitachi’s reply to the Statement of Objections)]. [Hitachi] and [FES] (100% subsidiary of [FEH]) are respectively 50% and 30% owners of the joint venture JAEPS (the third owner being [Meidensha]).
…
(389)	The respective stakes alone of the parent companies in JAEPS do not allow the Commission to presume that they have exercised a decisive influence on JAEPS market behaviour in general or its cartel activities in particular. Nevertheless, the factual record shows clearly that Hitachi and Fuji were able to exercise and have actually exercised a decisive influence with regard to the involvement of JAEPS in the cartel activities described in this Decision from 1 October 2002 until 11 May 2004. The Commission considers that JAEPS did not determine autonomously its market behaviour, but followed the commercial practices and behaviour established by Hitachi and Fuji.
(390)	By transferring their GIS interests to JAEPS (without transferring their respective subsidiaries formerly active in this area), Hitachi and Fuji were in effect using JAEPS as a vehicle to continue their long standing involvement in the cartel [Footnote No 400: the Commission file does not contain any evidence against Meidensha] of GIS [project] producers (both Hitachi et Fuji continued to sell [GIS] under their own name, but outsourced the production to JAEPS).
(391)	Those conclusions are based on objective factors such as … the supervisory and management role of Hitachi and Fuji on JAEPS activities … the previous involvement of both Hitachi and Fuji in the cartel activities before the creation of JAEPS … the fact that Hitachi and Fuji’s subsidiaries formerly involved in GIS activities withdrew from them in order for JAEPS to succeed them with their subsequent assistance and kept their interest in the products as distributors thereof … the presence in cartel meetings of individuals representing JAEPS and holding simultaneous or consecutive positions in Hitachi and/or Fuji and … the fact that many individuals holding senior positions in JAEPS also held simultaneously or consecutively senior positions in Hitachi and Fuji.
…
(402)	Hitachi’s and Fuji’s choice to pursue their involvement in the cartel by means of a joint venture should not allow them to evade liability for it.
(403)	Therefore [JAEPS], [Hitachi], [FEH] and [FES] should be held jointly and severally liable for the involvement of JAEPS in the infringement from 1 October 2002 until 11 May 2004.’
178. It is therefore apparent from the contested decision that, for the period from 1 October 2002, the Commission held FEH and FES to be personally liable not because they could be categorised as directly managing the first undertaking concerned, but because they could be categorised as the parent companies of JAEPS, which was directly responsible for the second undertaking.
– The rules applicable to attributing liability for an infringement of competition law as between a subsidiary and its parent company
179. For the purposes of applying competition law, formal separation of two companies resulting from their separate legal personality is not decisive. The test is whether or not there is unity in their conduct on the market. It may therefore be necessary to establish whether two companies with separate legal personality form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market ( DaimlerChrysler
v Commission, paragraph 56 above, paragraph 85; see also, to that effect, Imperial Chemical Industries
v Commission, paragraph 58 above, paragraph 140).
180. According to settled case-law, the fact that a subsidiary has separate legal personality is not sufficient to exclude the imputation of its conduct to the parent company, especially where the subsidiary does not determine its market conduct independently but in all material respects carries out the instructions given to it by the parent company ( Imperial Chemical Industries
v Commission, paragraph 58 above, paragraphs 132 and 133, and PVC II, paragraph 57 above, paragraph 960). Where a subsidiary does not enjoy real autonomy in determining its course of action in the market, the prohibitions set out in Article 81(1) EC may be considered inapplicable in the relationship between it and the parent company with which it forms one economic unit ( Imperial Chemical Industries
v Commission, paragraph 58 above, paragraph 134; Case T‑102/92 Viho
v Commission [1995] ECR II‑17, paragraph 51). The cited case-law is applicable, by analogy, to Article 53(1) of the EEA Agreement.
181. Against that background, it is, as a rule, for the Commission to demonstrate that the parent company or companies actually exercised a decisive influence on the market conduct of their subsidiary, on the basis of a body of factual evidence, including, in particular, any management power exercised by the parent company or companies over their subsidiary (see, to that effect, Case T‑314/01 Avebe
v Commission [2006] ECR II‑3085, paragraph 136 and case-law cited).
182. It is generally the case that if a parent company holds a majority interest in the subsidiary’s share capital, that can enable it actually to exercise a decisive influence on its subsidiary and, in particular, on the subsidiary’s market conduct. It has accordingly been held that where the control actually exercised by a parent company over a subsidiary in which it has a 25.001% holding represents a minority interest, far short of a majority interest, it cannot be concluded that the parent company and its subsidiary belong to a single group, within which they form an economic unit (see, to that effect, Case T‑141/89 Tréfileurope
v Commission [1995] ECR II‑791, paragraph 129).
183. None the less, a minority interest may enable a parent company actually to exercise a decisive influence on its subsidiary’s market conduct, if it is allied to rights greater than those normally granted to minority shareholders in order to protect their financial interests and which, when considered in the light of a set of consistent legal or economic indicia, are such as to show that a decisive influence is exercised over the subsidiary’s market conduct. Proof of the actual exercise of a decisive influence may therefore be adduced by the Commission by relying on a body of evidence, even if each of those indicia taken in isolation does not have sufficient probative value.
184. The actual exercise of management power by the parent company or parent companies over their subsidiary may be capable of being inferred directly from the implementation of the applicable statutory provisions or from an agreement between the parent companies, entered into under those statutory provisions, in relation to the management of their common subsidiary (see, to that effect, Avebe
v Commission, paragraph 181 above, paragraphs 137 to 139). The extent of the parent company’s involvement in the management of its subsidiary may also be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive influence on its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent with the line laid down at management level by the parent company. That objective can be attained even though member(s) of the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company. Lastly, the involvement of the parent company or companies in the management of the subsidiary may follow from the business relationship which they have with each other. Accordingly, where a parent company is also the supplier or customer of its subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order to take full advantage of the added value created by the vertical integration thus achieved (see, to that effect, Opinion of Advocate General Mischo in Case C‑286/98 P Stora Kopparbergs Bergslags
v Commission [2000] ECR I‑9925, paragraph 58 above, paragraphs 50 and 51).
185. Having regard to the fact that, under Article 263 TFEU (formerly Article 230 EC), the Court must confine itself to a review of the legality of the contested decision on the basis of the reasons set out in that measure ( IPK-München
v Commission, paragraph 167 above, paragraph 91), the question whether a parent company actually exercises management power over its subsidiary must be assessed solely by reference to the evidence assembled by the Commission in the decision which attributes liability for the infringement to the parent company. In fact, the only relevant question is therefore whether the infringement is or is not proved in the light of that evidence ( Cimenteries CBR and Others
v Commission, paragraph 88 above, paragraph 726).
– The evidence that FEH and FES actually exercised management power over JAEPS, assembled by the Commission in the contested decision
186. First, in the light of the case-law referred to in paragraphs 179 to 185 above, it is appropriate to examine the indicia, assembled in the contested decision, relating to the provisions of the Master Agreement on the creation of the joint subsidiary, JAEPS (‘the Master Agreement’), entered into on [ confidential ] by Hitachi, FEH and Meidensha (‘the founding companies’).
187. In order to prove the supervisory and managerial role played by FEH and FES within JAEPS, the Commission states, in recital 395 of the contested decision, the following:
‘[ confidential ]’.
188. As regards those findings of fact, FEH and FES have only claimed, in their written pleadings or their written reply to questions from the Court, that it cannot be inferred from such findings that they exercised a decisive influence on the market conduct of JAEPS, since [ confidential ].
189. Article [ confidential ] of the Master Agreement, as produced by FEH and FES as an annex to their reply to the statement of objections, stipulates that [ confidential ].
190. Article [ confidential ] of the Master Agreement provides for [ confidential ]. Under Article [ confidential ]) of the Master Agreement, [ confidential ]. Article [ confidential ] of the Master Agreement stipulates in that regard that [ confidential ]. Lastly, Article [ confidential ] of the Master Agreement stipulates that [ confidential ].
191. Article [ confidential ] of the Master Agreement also provides that [ confidential ].
192. Lastly, according to Article [ confidential ] of the Master Agreement [ confidential ].
193. It is apparent therefore from Article [ confidential ] of the Master Agreement, read in the light of other provisions of that agreement, that each of the founding companies had the power, [ confidential ], to exercise a decisive influence on JAEPS’s market conduct. [ confidential ]. It follows that the founding companies had necessarily to agree on the important decisions concerning the market conduct of their joint subsidiary.
194. The applicant has produced no evidence to support their claims that [ confidential ]. In that context, the fact, undisputed by the applicant, that [ confidential ] is evidence that [ confidential ] the founding companies must, in practice, have agreed on the important decisions relating to JAEPS’s management and business.
195. As regards the applicant’s claim that [ confidential ] even if true, that is not in itself decisive, since [ confidential ]. In paragraph 4.3 of their reply to the statement of objections, FEH and FES in fact acknowledged that [ confidential ] and that [ confidential ]. In any event, as observed by the Commission, it is clear from paragraphs 5.7 and 5.8 of the applicant’s reply to the statement of objections that [ confidential ]. Lastly, in their letter to the Commission of 10 November 2006, the applicant admits that [ confidential ]. [ confidential ]. Taking into account the provisions of Article [ confidential ] of the Master Agreement, it is, in any event, clearly incorrect to claim, as the applicant does, that [ confidential ].
196. As regards the fact that the participation of the second undertaking concerned, then directly managed by JAEPS, was not discussed at the meetings of the Presidents and/or senior officers of the founding companies, that is of no relevance, since there is no requirement, in order to attribute to a parent company liability for the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. The reason why the Commission is able to address a decision imposing fines to the parent company of a group of companies is not that the parent company instigated its subsidiary to commit the infringement nor, a fortiori, that the parent company was involved in the infringement, but that the parent company and the subsidiary adopted the same course of conduct on the market when the infringement was committed ( Akzo Nobel and Others
v Commission, paragraph 57 above, paragraph 58, and Case T‑12/03 Itochu
v Commission [2009] ECR II‑883, paragraph 58). In the present case, the Commission was therefore not required to show that FEH and FES were directly involved in or that they were aware of the participation in the infringement of the second undertaking concerned, which was then directly managed by JAEPS, but needed only establish that, at the time of that participation, those companies actually exercised a decisive influence on the market conduct of their subsidiary, in particular, as members of the operation conference (see paragraphs 180 and 181 above).
197. Secondly, it is necessary to examine the indicia assembled in the contested decision relating to the fact that a large number of senior officers of JAEPS were simultaneously or consecutively senior officers of FEH or FES.
198. In recital 400 of the contested decision, the Commission stated:
‘In this regard, the following examples concerning Fuji’s overlapping senior management … are relevant:
(a) [Mr Os.] was the [ confidential ] of JAEPS from [ confidential ] until [ confidential ] as well as [ confidential ] of [FES] at the same time. He then became [ confidential ] of the latter [ confidential ].
(b) [Mr H.H.] [ confidential ] JAEPS from [ confidential ] until [ confidential ], was simultaneously [ confidential ] of [FEH]. He later became [ confidential ] of [FES].
(c) [Mr Ok.] succeeded [Mr I.] as [ confidential ] of JAEPS until [ confidential ]. He was simultaneously [ confidential ] of [FES].
(d) [Mr Y.], [ confidential ] of JAEPS from [ confidential ], was simultaneously [ confidential ] and then [ confidential ] of [FES].
(e) [Mr A.], [ confidential ] of JAEPS until [ confidential ], was simultaneously [ confidential ] of [FEH].
(f) [Mr K.] succeeded [Mr A.] as [ confidential ] of JAEPS from [ confidential ]. He was simultaneously [ confidential ] of [FES].’
199. The fact that managerial posts within FEH or FES overlapped with posts within JAEPS such as [ confidential ], necessarily placed FEH and FES in a position actually to have a decisive influence on JAEPS’s market conduct, since it enabled members of the management of those companies to check that JAEPS’s course of conduct on the market was consistent with that determined by [ confidential ], in accordance with the provisions of Article [ confidential ] of the Master Agreement. It is apparent from recital 393 of the contested decision, confirmed on this point by part H of the Hitachi group companies’ reply to the statement of objections and paragraphs 5.10 and 5.11 of the applicant’s reply to the statement of objections, that [ confidential ]. It has not been disputed nor even claimed by FEH and FES that their senior officers who were also [ confidential ] of JAEPS [ confidential ], were not in receipt of all the information required for the assumption of their responsibilities. Even if those persons did not receive information on [ confidential ], it is clear from paragraph 5.10 of the FEH and FES reply to the statement of objections that those persons were, for the founding companies, a conduit of information on matters discussed at [ confidential ] of JAEPS, that is, matters relating to [ confidential ] of JAEPS’s business.
200. Thirdly, it is necessary to examiner the indicia assembled in the contested decision relating to the fact that FES and FEH maintained their interest in the GIS projects produced by JAEPS, as distributors of them.
201. The fact that, upon the creation of JAEPS, FEH and FES continued, as stated in recital 398 of the contested decision, to sell GIS projects produced by JAEPS ‘to their own established non-utility customers’, which represented, according to the Commission, [ confidential ] to [ confidential ]% of the Fuji group’s GIS activities before the creation of JAEPS, and that they therefore became important customers of JAEPS, is evidence that they retained a specific commercial interest in actually exercising a decisive influence on the market conduct of their subsidiary, [ confidential ], in accordance with the provisions of Article [ confidential ] of the Master Agreement.
202. Accordingly, in the light of the foregoing findings, there is no need to examine the other indicia set out in that regard in the contested decision, the relevance of which has also been challenged by the applicant, and it must be concluded that the actual exercise by FEH and FES of a decisive influence on the course of conduct on the market followed by JAEPS has been proved by the Commission to the requisite legal standard simply by the following indicia set out in the contested decision: the provisions of the Master Agreement, the overlapping of management posts within FEH and FES and JAEPS and the interest which FEH and FES retained in the GIS projects produced by JAEPS, as the distributors of those GIS projects.
203. Consequently, in the circumstances of the present case, the Commission was fully entitled to hold FEH and FES personally liable and jointly and severally liable, with Hitachi and JAEPS, for the participation of the second undertaking concerned in the infringement from 1 October 2002 until 11 May 2004.
204. The fifth plea in law and the second ground of complaint in the fourth plea must therefore be rejected as unfounded.
2. The claims for the partial variation of the contested decision
205. The applicant invites, in essence, the Court, in the exercise of its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC), to reduce substantially the fines imposed on FEH and FES in Article 2(d) and (f) of the contested decision, by taking into account the fact that it is not possible in law to attribute to FEH liability for the infringement, found in Article 1 of the contested decision, for the period from September 2000 to 30 September 2002; the fact that it is not possible in law to attribute to FES liability for the same infringement for the period from 15 April 1988 to 30 September 2002; the fact that it is not possible in law to attribute to FEH and FES, as parent companies of JAEPS, liability for the infringement for the period from 1 October 2002 to 11 May 2004, and, lastly, the fact that it is necessary to reduce the fines imposed on FEH and FES in the light of the significant added value of the information provided by them during the administrative procedure, within the meaning of paragraph 23(b) of the Leniency Notice or, failing that, in the light of the attenuating circumstance residing in the fact that that information enabled the Commission to establish the existence of the infringement with less difficulty, for the purposes of the sixth indent of section 3 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’).
Preliminary observations on the unlimited jurisdiction of the Courts of the European Union
206. On the basis of Article 261 TFEU (formerly Article 229 EC), a number of regulations have given the Courts of the European Union unlimited jurisdiction with regard to penalties. In particular, Article 17 of Regulation No 17 and Article 31 of Regulation No 1/2003 provide that the General Court is to have unlimited jurisdiction to review decisions whereby the Commission fixes or has fixed a fine.
207. However, that unlimited jurisdiction can be exercised by the Courts of the European Union only in the context of the review of acts of the institutions, more particularly in actions for annulment. Article 261 TFEU (formerly Article 229 EC) does not constitute an autonomous legal remedy; its sole effect is to enlarge the extent of the powers the Courts of the Union have in the context of the action referred to in Article 263 TFEU (formerly Article 230 EC). Consequently, an action in which the Courts of the Union are asked to exercise their unlimited jurisdiction with respect to a decision imposing a penalty necessarily comprises or includes a request for the annulment, in whole or in part, of that decision (order in Case T‑252/03 FNICGV
v Commission [2004] ECR II‑3795, paragraph 25).
208. More than a simple review of legality within an action for annulment under Article 263 TFEU (formerly Article 230 EC), which merely permits dismissal of the action for annulment or annulment of the contested measure, as provided in Article 264 TFEU (formerly Article 231 EC), the unlimited jurisdiction conferred on the Courts of the Union authorises them to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others
v Commission [2002] ECR I‑8375, paragraph 692). It follows that, in areas where the Commission has retained a margin of discretion, such as determining the scale of the increase of the fine according to the duration of the infringement or the need to ensure that the penalty has a deterrent effect, or assessing the quality and usefulness of the cooperation provided by an undertaking in the administrative procedure, in particular by reference to the contributions made by other undertakings, the fact that the review of legality within an action for annulment under Article 263 TFEU (formerly Article 230 EC) is limited to determining the absence of manifest error of assessment does not, in principle, preclude the Courts of the Union from exercising their unlimited jurisdiction (see, to that effect, Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, paragraph 59 above, paragraph 164 and case-law cited, and Case T‑116/04 Wieland-Werke
v Commission [2009] ECR II‑1087, paragraphs 32, 33 and 124).
209. In the context of their unlimited jurisdiction, the Courts of the Union have the power to assess the appropriateness of the amounts of fines in the light of the criteria set out in Article 15(4) of Regulation No 17 or in Article 23(2)(a) of Regulation No 1/2003 as the case may be, (Case C‑248/98 P KNP BT
v Commission [2000] ECR I‑9641, paragraph 40; Case C‑280/98 P Weig
v Commission [2000] ECR I‑9757, paragraph 41, and Cascades
v Commission, paragraph 58 above, paragraph 41). That assessment may justify the production and taking into account of additional information which is not mentioned in the Commission decision imposing the fine (see Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission [2004] ECR II‑1181, paragraph 165 and case-law cited, and Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others
v Commission, paragraph 59 above, paragraphs 164 and 190).
210. In the present case, in accordance with all the claims for the partial variation of the contested decision, the Court must, in the exercise of its unlimited jurisdiction, examine whether Article 2(d) and (f) of the contested decision, even if they are not to be annulled, should be varied so as to alter the amount of the fines imposed on FEH and FES. In that context, account must be taken not only of defects relied on in support of the claims for annulment of Article 1(g) and (h) and Article 2(d) and (f) of the contested decision, which have already been raised in relation to the review of legality, but also defects which are solely relied on in support of the claims for variation of Article 2(d) and (f) of the contested decision and all the information, produced by the parties within these proceedings, which appear relevant to assessing the amount of the fines at issue.
The impossibility of legally attributing to FEH liability for the infringement for the period from the end of September 2000 until 30 September 2002
Arguments of the parties
211. The applicant claims, having regard to the first, second and third pleas, that the Court should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount of the fine imposed on FEH, given the impossibility of legally attributing to FEH liability for the infringement for the period from the end of September 2000 until 30 September 2002.
212. The Commission considers that the first, second and third pleas must be rejected and consequently that the applicant’s claims must fail.
Findings of the Court
213. Since the Commission was legally entitled to attribute to FEH, in the contested decision, liability for the participation of the first undertaking concerned in the infringement, which itself continued without interruption from the end of September 2000 until 30 September 2002 and since, therefore, the first, second and third pleas must be rejected (see paragraphs 139 and 147 above), there is no need for the Court, in the exercise of its unlimited jurisdiction, to vary in that regard Article 2(d) of the contested decision.
214. Accordingly, the claims concerned for partial variation of the contested decision must be rejected.
The impossibility of legally attributing to FES liability for the infringement for the period from 15 April 1988 until 30 September 2002
Arguments of the parties
215. The applicant claims, having regard to the fourth plea in law, that the Court should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount of the fine imposed on FES, given the impossibility of legally attributing to FES liability for the infringement for the period from 15 April 1988 to 30 September 2002.
216. The Commission considers that the fourth plea must be rejected and consequently that the applicant’s claims must fail.
Findings of the Court
217. Since the Commission was legally entitled to attribute to FES, in the contested decision, liability for the participation of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002 (see paragraph 171 above), there is no need for the Court, in the exercise of its unlimited jurisdiction, to vary in that regard Article 2(d) of the contested decision. To that extent, the claims concerned for the partial variation of the contested decision must be rejected.
218. On the other hand, it is necessary that the Court, in the exercise of its unlimited jurisdiction, partially vary the contested decision further to the annulment of Article 2(d) of the contested decision, to the extent that it is based on the finding, unsupported by a statement of reasons, that FES can be held personally liable for the infringement from 15 April 1988 until 30 June 2001 (see paragraphs 170 and 172 above).
219. As regards the exact extent to which Article 2(d) of the contested decision should be varied, it must first be observed that, in the case of FES, the attribution of liability for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 June 2001 was taken into account in order to determine the amount of the fines to be imposed on it and the result was an increase in the amount of those fines, as is apparent from recital 498 of the contested decision.
220. Next, in order to decide on the increase to the starting amount of the fine to be imposed on FES according to the duration of the infringement for which it can be held liable, the Court should not depart from the method followed by the Commission, in recital 492 of the contested decision, to the effect that, for infringements lasting longer than one year, the starting amounts of fines are to be increased by 10% for each full year of infringement and by 5% for each additional period of at least six months but less than a year. While it is true that that method differs slightly from that set out in the Guidelines, which, in respect of infringements of medium duration (in general, one to five years), provide for an amount which may be up to 50% of the amount determined for the gravity of the infringement, it is nevertheless consistent with the Commission’s normal practice in applying those Guidelines. Further, it must be observed that the Commission applied that method to all of the undertakings which participated in the infringement found in Article 1 of the contested decision and that that method has not been disputed by the applicant within the present action.
221. Lastly, taking into account the annulment of Article 2(d) of the contested decision, to the extent that it is based on the erroneous finding that FES can be held personally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 June 2001, it can no longer be found with regard to FES, as stated in recital 498 of the contested decision, that the infringement is one of long duration, namely 14 years and four months, justifying, in accordance with the principles stated in recital 492 of the contested decision, an increase of 140% in the starting amount of the fine, but only that the infringement is one of medium duration, one year and three months, justifying an increase of 10% in the starting amount of the fine of EUR 1 000 000 imposed on FES, as stated in recital 490 of the contested decision, and therefore that the basic amount of the fine payable by FES should be set at EUR 1 100 000, jointly and severally with FEH, on account of the participation of the first undertaking concerned in the infringement from 1 July 2001 until 30 September 2002, without prejudice to any reduction which may be made to that amount to take due consideration of mitigating circumstances relied on by the applicant (see paragraphs 226 to 268 below).
The impossibility of legally attributing to FEH and FES, as parent companies of JAEPS, liability for the participation of the second undertaking concerned in the cartel for the period from 1 October 2002 until 11 May 2004
Arguments of the parties
222. The applicant claims, having regard to the fifth plea and the second ground of complaint in the fourth plea, that the Court should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC) and substantially reduce the amount of the fine imposed on FEH and FES, given the impossibility of legally attributing to them, as parent companies of JAEPS, liability for the participation of the second undertaking concerned in the infringement for the period from 1 October 2002 until 11 May 2004.
223. The Commission considers that the fifth plea and the second ground of complaint in the fourth plea must be rejected and, consequently, that these claims by the applicant must fail.
Findings of the Court
224. The Commission was legally entitled, in the contested decision, to attribute to FEH and FES, as parent companies of JAEPS, liability for the participation of the second undertaking concerned in the infringement from 1 October 2002 until 11 May 2004 (see paragraphs 203 and 204 above). The Court should not exercise its unlimited jurisdiction and alter, in that regard, Article 2(f) of the contested decision.
225. Consequently, these claims for the partial variation of the contested decision must be rejected.
Whether it is necessary to grant FEH and FES a reduction in their fines in the light of the significant added value of the information provided during the administrative procedure, pursuant to the Leniency Notice, or, alternatively, by reason of an attenuating circumstance, pursuant to the Guidelines
Arguments of the parties
226. The applicant claims that the Court should exercise its unlimited jurisdiction under Article 261 TFEU (formerly Article 229 EC) and grant FEH and FES a reduction of 50% in the amount of the fines imposed on them, in the light of points 21 and 22 and also point 23(b) of the Leniency Notice, taking into account the significant added value of the information which they provided to the Commission during the administrative procedure, in their submission pursuant to the Leniency Notice, their reply to the statement of objections and their letter of 29 September 2006 (see paragraphs 19, 20 and 25 above), which enabled the Commission to prove the suspected infringement. The fact that that information was provided after notification of the statement of objections does not mean that the test of significant added value, within the meaning of the Leniency Notice, cannot be satisfied.
227. Alternatively, the applicant requests that the Court reduce the amount of the fine imposed on FEH and FES, taking into account the fact that, since their effective cooperation during the administrative proceedings enabled the Commission more easily to establish the existence of the infringement, that factor can therefore be treated, in the light of the case-law, as an attenuating circumstance under the sixth indent of section 3 of the Guidelines.
228. The Commission contends that that claim should be rejected.
Findings of the Court
229. Before analysing the substance of these claims it is useful to identify the recitals in the contested decision which they challenge and to recall the rules applicable to the reduction of fines in the light of the evidence provided by an undertaking which participated in the infringement and its effective cooperation in the administrative procedure.
– The recitals of the contested decision challenged by the present claims for variation
230. In recitals 548 to 550 of the contested decision the Commission stated, in relation to the cooperation of FEH and FES during the administrative procedure, the following:
‘(548)	After the notification of the Statement of Objections to the parties, Fuji applied for a reduction of fines under the Leniency Notice (on 12 July 2006), while requesting that its reply to the statement of objections should also be taken into account for that purpose. On 28 September 2006 it supplemented its previous submissions with a further statement from a former employee.
(549)	In its submissions, Fuji described the cartel and acknowledged its existence in the terms depicted in the Statement of Objections as well as its participation in it from April 1988 until “on or around September 2000”, described the internal procedures of the cartel, in particular as regards the contacts between the Japanese companies and provided some evidence, including lists of documents which included projects agreed, under the cartel rules, to be implemented after September 2000 (see recital 198). However, Fuji contested its individual participation after September 2000 as well as its liability for the infringement committed by JAEPS.
(550)	In view of the fact that Fuji’s application was only made after the notification of the Statement of Objections and of the content of that submission, the Commission considers that Fuji’s submission did not significantly strengthen the Commission’s ability to prove the relevant facts, since Fuji confirmed factual elements that had already been established to the required legal standard by the Commission on the basis of other pieces of evidence and it did not provide the grounds for new objections. Therefore, its contribution did not amount to significant added value as compared with the information already in the Commission’s possession at the time of the submission of the evidence and does not justify the granting of a reduction of fines based on the Leniency Notice.’
– The rules applicable to reduction of fines in the light of the evidence submitted by an undertaking which participated in the infringement and its effective cooperation in the administrative proceedings
231. According to the case-law, the rationale underlying the reduction of fines for cooperation on the part of undertakings which have participated in an infringement of competition law is that such cooperation makes it easier for the Commission to carry out its task of establishing an infringement and, where possible, of bringing it to an end (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 399; BPB de Eendracht
v Commission, paragraph 142 above, paragraph 325, and Case T‑338/94 Finnboard
v Commission
[1998] ECR II‑1617, paragraph 363)
232. Points 20 to 23 of the Leniency Notice read as follows:
‘20. Undertakings that do not meet the conditions under section A [Immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.
21. In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
22. The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.
23. The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b) the level of reduction an undertaking will benefit from …
In order to determine the level of reduction …, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
233. The Guidelines provide that the new method of determining the amount of the fines follows a system based on the fixing of a basic amount, to which increases are applied to take account of aggravating circumstances and reductions applied to take account of attenuating circumstances.
234. The sixth indent of section 3 of the Guidelines provides that effective cooperation by the undertaking in the proceedings, outside the scope of the Leniency Notice may, for example, constitute an attenuating circumstance justifying a reduction in the basic amount of the fine.
235. While the Leniency Notice and the Guidelines, which stem from a self-imposed limitation of the Commission’s discretion (see paragraph 208 above), do not constitute rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration, when exercising its power to impose a fine for an infringement of Article 81 EC and Article 53 of the EEA Agreement, may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, to that effect and by analogy, Itochu
v Commission, paragraph 196 above, paragraph 63 and case-law cited).
– The material already in the Commission’s possession in comparison with information and evidence provided by FEH and FES which is claimed to constitute ‘significant added value’ and to represent ‘effective cooperation’ in the administrative proceedings
236. The applicant refers, in the present case, to certain information which FEH and FES provided to the Commission during the administrative proceedings, concerning the existence of the common understanding from 1988 and its reciprocity, as mentioned in recital 255 of the contested decision, and to a selection of documents, including agreements entered into within the cartel relating to thirteen GIS projects of various kinds, which are referred to in recital 198 of the contested decision.
237. The Commission contends, in general, that that information and those documents were scarcely liable to constitute ‘significant added value’ and to represent ‘effective cooperation’ by FEH and FES in the investigation, since the material was communicated after the notification of the statement of objections and, therefore, at a stage when the Commission had already stated, clearly, the facts on which it relied in the present case and their legal classification, as follows also from point 26 of the Leniency Notice.
238. It is true that the statement of objections must enable the parties concerned properly to identify the conduct complained of by the Commission, that requirement being satisfied if the final decision does not allege that those concerned have committed infringements other than those referred to in the statement of objections and only takes into consideration facts on which the parties concerned have had the opportunity of making known their views (Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others
v Commission [2003] ECR II‑3275, paragraph 138, and Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others
v Commission, paragraph 209 above, paragraph 47; see also, to that effect, ACF Chemiefarma
v Commission, paragraph 98 above, paragraph 94). However, while the infringements which an undertaking is alleged in a decision to have committed cannot be other than those stated in the statement of objections, the same cannot be said of the facts taken into consideration, since it is sufficient, with regard to those facts, that the undertakings subject to the proceedings have had the opportunity to make known their views on the facts considered to inculpate them. That has been expressly held by the Courts of the European Union, which have stated that there is no provision which prevents the Commission from sending to the parties after the statement of objections fresh documents which it considers support its argument, provided that it gives the undertakings the necessary time to submit their views on them (Case T‑23/99 LR AF 1998
v Commission [2002] ECR II‑1705, paragraph 190; see also, to that effect, Case 107/82 AEG-Telefunken
v Commission
[1983] ECR 3151, paragraph 29).
239. While it is correct that the date when evidence is delivered to the Commission has an effect on whether that evidence is to be classified as having significant added value, since that classification is dependent on what evidence is already held by the Commission at the date of delivery, the mere fact that such evidence has been delivered after the notification of the statement of objections does not mean that it may not still constitute, notwithstanding the advanced stage of the administrative proceedings, significant added value. In particular, in an application pursuant to the Leniency Notice submitted after the statement of objections has been sent, an undertaking may focus on the facts which, in its opinion, have not been proved to the requisite legal standard in order to provide significant added value compared with the evidence already in the Commission’s possession.
240. Further, point 26 of the Leniency Notice does no more than state a procedural obligation which must be met by the Commission. Point 26 does not provide that any cooperation by an undertaking in proving the infringement is necessarily deprived of any value if it occurs only after notification of the statement of objections. It must moreover be observed that such cooperation may be very useful where the material provided was previously unknown to the Commission and where it has a direct effect on the gravity or duration of the presumed cartel.
– Analysis of the information provided by FEH and FES on the existence of the common understanding from 1988 and its reciprocity
241. As a preliminary point, it must be recalled that, in recital 125 of the contested decision, the Commission held that ‘the common understanding’ was an unwritten agreement entered into by the Japanese and European undertakings, to the effect that ‘the Japanese should not quote for [GIS] projects in Europe and vice versa’ [‘European companies would not quote for Japanese [GIS] projects’(footnote 73)] and ‘Japan and the European countries where the European cartel members had their stronghold were reserved to the cartel members concerned, without interference by the others’. In recital 261 of the contested decision, the Commission further stated that ‘[f]urther to the logic of the cartel …, it is established, on the basis of [cartel members’] statements and other documentary evidence, that the anti-competitive agreement existed and included the mutual respect of most of the EEA market by the Japanese and the Japanese market by the Europeans’, and that ‘it [was] also established that, in the context of the monitoring of the global quotas, the sales made in the EEA outside the European home countries were taken into account under the global quotas’, and that ‘[t]his mechanism reveal[ed] by its mere definition and implementation the existence of a restrictive object …’.
242. The common understanding is the only evidence from which it can be inferred that the Japanese undertakings – to use the chosen wording of recital 261 of the contested decision – ‘in fact [took] part in the infringement’ found in Article 1 of the contested decision. First, as is apparent from recitals 119, 126, 244 and 246 of the contested decision, the GQ Agreement, to which the Japanese undertakings were parties, was not applicable in the countries of Western Europe. Secondly, as is apparent, for example, from recital 247 of the contested decision, the Commission did not find, in the contested decision, that the Japanese undertakings were parties to arrangements, such as the EQ Agreement, which had a direct impact on the European market. In those circumstances, it is therefore very much the common understanding, as described in recitals 125 and 261 of the contested decision, which allows the creation of a link between the Japanese undertakings and the EEA market and which is, consequently, the basis on which the Commission has any jurisdiction in their regard.
243. It is apparent from recitals 125 to 132 and 255 to 264 of the contested decision that, in order to prove the existence of the common understanding, as described in recitals 125 and 261 of the contested decision, the Commission did not, as incorrectly claimed by the applicant, rely solely on the conduct of the undertakings concerned in the market, but on ‘a coherent body of inculpatory evidence’ consisting of the following:
– the submissions of the Areva group companies (see footnotes Nos 70 and 71 of the contested decision) and those of ABB (see footnote No 72 of the contested decision) from which it is apparent that the cartel was designed to maintain the status quo, taking into account the parties’ historic market shares and historic stronghold positions (see recital 124 of the contested decision);
– the statements of ABB and, in particular, that of one of its former employees, Mr M., a direct witness of events (see footnotes Nos 73 to 75 of the contested decision), and the submissions of FEH and FES (see footnote No 76 of the contested decision), according to which the worldwide sharing of projects was based on the common understanding (see recitals 125, 255, 262 and 263 of the contested decision);
– the fact that neither Alstom, nor the Areva group companies, nor the VA Tech group openly disputed the existence of the common understanding (see recitals 124, 127 and 253 of the contested decision);
– the GQ Agreement and Appendix 2 thereto, as notified by ABB, in that they originally contained a list of excluded countries, consisting of, among others, Japan and most of the countries of Western Europe, which was then extended to the ‘Europe’ market, which allowed those areas to be treated according to specific allocation rules, in the spirit of the common understanding (recital 126 and footnote No 62 of the contested decision);
– the documentary evidence dating from the period of the infringement, notified by ABB or by the Hitachi group companies or JAEPS, which prove (i) that the allocation to Japanese undertakings of GIS projects in Iceland, Liechtenstein and, for a long time, Eastern Europe was not excluded, (ii) that, when the cartel was adjusted in 2002, discussions took place between Japanese and European undertakings on whether Central and Eastern Europe was a market of the Europeans and (iii) that the European undertakings allocated among themselves the relevant GIS projects in Europe, including, from 2002 onwards, GIS projects in Eastern Europe (recitals 127, 128 and 256 of the contested decision);
– The FEH and FES reply to the statement of objections, the submissions by the Hitachi group companies or JAEPS [footnotes Nos 85 and 86 of the contested decision] and a variety of documentary evidence dating from the period of the infringement, notified by ABB, which prove that the Japanese undertakings were also aware of the existence of arrangements at the European level (without necessarily knowing the details or the concrete procedures) regarding GIS projects and that they were also aware of GIS projects, including certain GIS projects in Europe, allocated among the European undertakings; they were also given prior notification of certain GIS projects in Europe, not only in Iceland, but also in some of the countries excluded in Appendix 2 to the GQ Agreement, in accordance with the possibility of notification provided for in Appendix 2 to the EQ Agreement, sent by ABB (recitals 119 and 129 to 132 of the contested decision).
244. The applicant claims that the FEH and FES submissions on the existence of the common understanding from 1988 and its reciprocity, as mentioned in recital 255 of the contested decision, have significant added value for the Commission, since those submissions enabled the Commission to prove the existence and scope of the common understanding to the requisite legal standard, taking into account what is required by the case-law and the credible alternative explanation that there were substantial barriers to entering the European GIS projects market which deterred the Japanese suppl iers of those products, an explanation put forward or supported by the Hitachi group companies or JAEPS, Toshiba, Melco, FEH and FES themselves, the Areva group companies and the VA Tech group.
245. It is undisputed that during the administrative proceedings FEH and FES first acknowledged the existence of the common understanding in their reply to the statement of objections, by stating the following:
‘Although Fuji was aware of the common understanding that the Japanese manufacturers would not attempt to enter the European market, this was not the principal reason for its lack of GIS sales in the EEA. Fuji was not a credible significant supplier of GIS products to Europe for the following reasons …’
246. Without even needing to refer to the later submissions of FEH and FES, the Court can hold that, as stated in recitals 125 and 255 of the contested decision, FEH and FES thereby effectively corroborated, albeit in relatively vague terms, the existence of the common understanding and an essential part of its content, namely that the Japanese manufacturers undertook not to enter the European market. Further, again in the reply to the statement of objections, FEH and FES stated, in a footnote, that ‘the Japanese suppliers were not party to [the EQ Agreement]’, that ‘[a]s such, the representatives from Fuji did not know whether or not [the EQ Agreement] was ever concluded in Vienna’, that ‘[n]either did such representatives know the content of [the EQ Agreement]’ and that ‘[f]urthermore, … information regarding the allocation of [GIS] projects in the European countries excluded by Appendix II to the GQ-Agreement was not systematically provided to the Japanese suppliers’. That submission can be regarded as confirmation that the Japanese undertakings were aware of the GIS projects allocated among the European undertakings, including those in certain countries excluded by Appendix II to the GQ Agreement. However, contrary to what was stated by the Commission in recital 129 of the contested decision, it cannot be held, in the light of that evidence, that the Japanese undertakings were also aware of the existence of arrangements at the European level.
247. However, it is apparent from the recitals of the contested decision referred to in paragraph 243 above, read together with recitals 88, 91 and 95, that, when the Commission was acquainted with those submissions, presented for the first time in the FEH and FES reply to the statement of objections dated 30 June 2006, the Commission had in its possession the evidence described in paragraph 243 above, namely the documentary evidence provided by ABB and by the Hitachi group companies or JAEPS, as well as the explicit statements from the Areva group companies, ABB and the Hitachi group companies or JAEPS from which, according to the Commission, the existence of a ‘common understanding’, as described in recital 125 of the contested decision, could logically be inferred.
248. In recitals 258 and 261 of the contested decision, the Commission argued, in essence, that the existence of a ‘common understanding’, as described in recital 125 of the contested decision, could be inferred from the submissions by cartel members and other documentary evidence in the file since, in the light of that evidence, it constituted a coherent explanation which was consistent with the logic of the cartel. Thus, as stated by the Commission in recitals 258 to 260, the existence of a ‘common understanding’, as described in recital 125 of the contested decision, offered a coherent explanation of the following:
– why the sales in some EEA countries (those which were not considered as ‘home countries’) were counted in the cartel quotas and monitored by the parties to those agreements while, in contrast, the sales in Japan and in other EEA countries (the ‘home countries’) were not ‘loaded’ (recital 258 of the contested decision);
– why the worldwide quotas included sales in most of Europe and why the difference in treatment of sales within the EEA was not reflected in the texts as such, since all the EEA countries were simply listed as excluded territory in the GQ Agreement (recital 258 of the contested decision), and
– why the Japanese undertakings did not bid more often in Europe and apparently had not even considered entering the European market for 16 years by means similar to the ones used in other markets in the rest of the world (recitals 259 and 260 of the contested decision).
249. The applicant however claims that the statements by cartel members and the other documentary evidence used to support the Commission’s explanation based on the existence of a ‘common understanding’ were of no relevance, since they were worded ambiguously and were not sufficient to discount the credible alternative explanation, provided by a number of the undertakings which were cartel members, that it was because there were substantial barriers to entry that it was commercially unattractive for Japanese GIS project suppliers to introduce their products into the European market.
250. It must however be observed that the alternative explanation referred to by the applicant is not compatible with the statements by cartel members and the other documentary evidence particularly referred to in paragraph 243, from which it is apparent that, when the cartel was adjusted in 2002, discussions took place between the Japanese and European undertakings on whether the Central and Eastern European markets were reserved to the European undertakings, that the Japanese undertakings were also informed, as part of the cartel, of the allocation of certain GIS projects in Europe, even though all EEA countries were, in principle, listed as excluded territories in the GQ Agreement, so that they should, a priori, not have been counted in the joint European quota, and that the Japanese undertakings were also given prior notice of certain GIS projects in Europe, not only in Iceland, but also in certain countries which were excluded in Appendix II to the GQ Agreement. As correctly stated by the Commission in recitals 256 and 257 of the contested decision, that there were such discussions is, on the other hand, compatible with (i) the fact that the Japanese undertakings were perceived by their European counterparts to be credible potential competitors in the European markets, (ii) the fact that prior to 2002 the Japanese undertakings responded to calls for tenders in Central and Eastern Europe or sold GIS projects intended for use in that area and (iii) the fact that the European undertakings accepted, as part of a cartel aimed at maintaining its members’ historic market shares, the ‘sacrifice’ of GIS projects outside Europe, by counting European GIS projects (outside the ‘home countries’) in their global quota under the GQ Agreement, in exchange for being able to control their own price level in Europe.
251. Further, it must be held that the Commission already had in its possession ABB’s submissions, referred to in paragraph 243 above, which confirmed its conclusions on the existence and content of the common understanding, which could ‘be objectively deducted [sic] from the global cartel mechanism’, in the words used by the Commission in recital 262 of the contested decision, and indeed on the basis of the submissions of cartel members and other documentary evidence mentioned in paragraph 243 above. Moreover, it is apparent from the documents produced by the Commission, at the Court’s request (see paragraph 37 above), that on 30 June 2006 and at the time when FEH and FES replied to the statement of objections the Commission had in its possession the reply from the Hitachi group companies or JAEPS to the statement of objections, which confirmed that certain GIS projects in Europe (outside the ‘home countries’) were counted in the global European quota under the GQ Agreement.
252. Accordingly, although, as part of the ‘coherent body of inculpatory evidence’ on which the Commission relied in the contested decision, the submissions of FEH and FES were useful to a degree, they did no more than confirm, less precisely and explicitly than the earlier submissions from ABB, the existence and content of a common understanding, which could already be deduced from the submissions of cartel members and other documentary evidence supplied to the Commission and referred to in paragraph 243 above.
253. In those circumstances, it must be held that the relatively vague submissions of FEH and FES, although they had some probative value, did not represent significant added value compared with the evidence then held by the Commission and did not justify a reduction in the fine being granted to them by the Commission, under points 21, 22 and 23 of the Leniency Notice.
254. As regards the applicant’s argument that the cooperation of FEH and FES nevertheless justifies a reduction in the fine pursuant to the sixth indent of section 3 of the Guidelines, it must be recalled that, to the extent that that provision defines as an attenuating circumstance the ‘effective cooperation by the undertaking in the proceedings, outside the scope of [the Leniency Notice]’, that necessarily refers, at least as regards the horizontal cartels to which the Leniency Notice relates, to cooperation which is insufficient to justify a reduction under the Leniency Notice (see, to that effect and by analogy, Mannesmannröhren-Werke
v Commission, paragraph 88 above, paragraph 307).
255. However, it should also be borne in mind that, in order to justify a reduction in a fine on grounds of cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the Community competition law (see by analogy, Mannesmannröhren-Werke
v Commission, paragraph 88 above, paragraph 308 and case-law cited). In those circumstances, it must be held that the hypothesis envisaged by the sixth indent of section 3 of the Guidelines is an exceptional situation as regards the horizontal agreements referred to by the Guidelines, since there must have been ‘effective’ cooperation which facilitated the Commission’s task but which was not covered by the Leniency Notice (see, by analogy, Mannesmannröhren-Werke
v Commission, paragraph 88 above, paragraph 308).
256. In the present case, the submissions of FEH and FES cannot be regarded as having facilitated the Commission’s task of finding and putting an end to infringements, since, as stated in paragraph 252 above, they do no more than confirm, secondarily and less precisely and explicitly than the earlier submissions of ABB, the existence and content of a common understanding, which could already be deduced from the submissions of cartel members and other documentary evidence supplied to the Commission and, in particular, the material referred to in paragraph 243 above.
257. Accordingly, it must be held that the submissions of FEH and FES did not justify their being granted a reduction in the fines imposed on them, on the ground that they had effectively cooperated in the proceedings, within the meaning of the sixth indent of section 3 of the Guidelines. It is therefore not appropriate that the Court, in the exercise of its unlimited jurisdiction, should vary Article 2(d) of the contested decision on that basis.
258. Consequently, the applicant’s claims in that regard must be rejected in their entirety.
– Analysis of the various documents, in particular arrangement sheets, contemporaneous with the facts and relating to 13 GIS projects of various kinds subject to the cartel arrangements
259. The applicant further maintains that the various documents, in particular arrangement sheets, contemporaneous with the facts and relating to 13 GIS projects of various kinds subject to the cartel arrangements, which they supplied to the Commission during the administrative procedure had significant added value for the Commission by strengthening its ability to prove that the cartel had not ended after the meeting which took place in [ confidential ] in [ confidential ].
260. The documents referred to by the applicant were not referred to in the statement of objections and were mentioned, for the first time, in recital 198 of the contested decision.
261. It is apparent, moreover, from the contested decision, and from material in the file, that the data on GIS projects with reference numbers [ confidential ] has its origin in the arrangement sheets and specific other documents mentioned in Annex 2 to the submission of FEH and FES pursuant to the Leniency Notice. Although the Commission has not specified the origin of the data relating to the GIS project with reference number [ confidential ], it is apparent from the file that FEH and FES also supplied the arrangement sheet relating to that project in Annex 2 to their submission pursuant to the Leniency Notice.
262. It is true that in recital 198 of the contested decision the Commission states that some data relating to the abovementioned GIS projects was provided by ABB and it is apparent from the Commission’s reply to the Court’s questions and request for production of documents (see paragraph 37 above) that ABB provided that information on 7 May 2004 (see paragraph 10 above) in the form of a list of GIS projects. However, the list produced by the Commission, at the Court’s request, contains only some of the data relating to the GIS projects with reference numbers [ confidential ] and [ confidential ] and that data does not at all correspond to the data reproduced in recital 198 of the contested decision. It must therefore be held that the relevant data on those GIS projects is solely that which was provided by FEH and FES in Annex 2 to their submission pursuant to the Leniency Notice.
263. It must be observed that the data relating to the GIS projects with reference numbers [ confidential ], sent by the applicant, and in particular the data relating to the agreement on the GIS project with reference number [ confidential ], in which the first undertaking concerned was involved and the validity period of which extended from [ confidential ] to [ confidential ], had a direct effect on the presumed duration of the cartel with regard to FEH and FES, by enabling the Commission to prove that the first undertaking concerned had continued to participate in the infringement from September 2000 until 1 October 2002.
264. Further, it is apparent in particular from recital 290 of the contested decision and paragraphs 79, 93 and 96 to 100 above, that the agreements entered into by the cartel members in relation to the eight GIS projects with reference numbers [ confidential ] were of use to the Commission in order to prove that the first undertaking concerned and other undertakings had continued to participate in the cartel in the 2000-2001 period. Of all the documents in the Commission’s possession, only the agreements entered into by the cartel members in relation to those eight GIS projects made it possible to prove that, at least until September or October 2001, the cartel members concerned were still bound by the agreements entered into within the cartel, which strengthened the Commission’s ability to prove the continuation of the cartel in that period.
265. Since it has been established that FEH and FES supplied all the essential data relating to those agreements, which were previously unknown to the Commission, the basic amount of the fine imposed on them should have been reduced, in accordance with point 23 of the Leniency Notice, in order not to take that data into account when setting the fines imposed on them in Article 2(d) of the contested decision.
266. It follows that the Commission ought to have reduced the amount of the fine which it imposed on FEH and FES in order not to take into account their participation in the infringement in the period from September 2000 to 30 September 2002. In those circumstances, it serves no purpose to consider, as claimed by the applicant, whether FEH and FES should be granted a reduction in their fines on the ground that, by supplying the list of agreements, they effectively cooperated in the proceedings, within the meaning of the sixth indent of section 3 of the Guidelines.
267. In accordance with the method adopted in the contested decision (see paragraph 220 above), the calculation of the amount of the fines imposed on FEH and FES must be varied to take account of the fact that an increase in the starting amount of the fines cannot be applied to either FEH or FES on the ground that the first undertaking concerned participated in the infringement for the entire period from the end of September 2000 until 30 September 2002. In accordance with the principles stated in recital 492 of the contested decision, an increase of 10% of the starting amount of the fine cannot be applied to FES on the ground that the first undertaking concerned participated in the infringement for the period from 1 July 2001 to 30 September 2002, as noted in paragraph 221 above, and in the case of FEH only an infringement with a duration of 12 years and three months, justifying an increase of 120% of the starting amount of the fine, can be taken into account and, consequently, a sum of EUR 2 200 000 must be fixed as the fine payable by FEH because of the participation of the first undertaking concerned in the infringement for the period from 15 April 1988 until 30 September 2002.
268. In the light of the foregoing considerations, the amount of the fine of EUR 2 400 000, as calculated in recitals 522 and 552 of the contested decision (footnotes Nos 457 and 465 of the contested decision), payable by FEH must ultimately be reduced to a sum of EUR 2 200 000, EUR 1 000 000 of that amount being payable jointly and severally by FEH and FES.
269. However, account must be taken, in the operative part of this judgment, of the fact that, as stated in paragraph 43 above, since 1 April 2011 Fuji Electric Co. Ltd (formerly named FEH) has been the legal successor of FES and has assumed the rights of FES, the interests of FEH and FES now having come together in the person of Fuji Electric Co. Ltd. Consequently Article 2(d) of the contested decision must be varied so that the fine imposed on the applicant, formerly named FEH and the successor in title to FES, is fixed at EUR 2 200 000.
Costs
270. Under Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared or that each party bear its own costs where each party succeeds on some and fails on other heads.
271. As the action has been partially successful, the Court considers it fair in the circumstances of the case to order the Commission to pay one quarter of the costs incurred by the applicant and to bear one quarter of its own costs. The applicant shall bear three quarters of their own costs and pay three quarters of the costs incurred by the Commission.
(1) .
(1)
Confidential information omitted.
Operative part
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1. Annuls Article 1(h) and Article 2(d) of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) to the extent that they find or rely on the finding that Fuji Electric Systems Co. Ltd, the successor in title to which is Fuji Electric Co. Ltd, can be held personally liable for the infringement from September 2000 until 30 June 2001;
2. Sets the amount of the fine imposed on Fuji Electric, formerly named Fuji Electric Holdings Co. Ltd and the successor in title to Fuji Electric Systems, in Article 2(d) of Decision C (2006) 6762 final at EUR 2 200 000;
3. Orders the European Commission to pay one quarter of the costs incurred by Fuji Electric and to bear one quarter of its own costs;
4. Orders Fuji Electric to bear three quarters of its own costs and three quarters of the costs incurred by the Commission.