JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
12 July 2018 (*)
(Competition — Agreements — European market for power cables — Single and continuous infringement — Sufficient proof — Contribution to the single objective of the infringement — Knowledge of key elements of the infringement — Calculation of the amount of the fine — Basic amount — Paragraph 18 of the Guidelines — Gravity of the infringement — Proportionality — Mitigating circumstances — Unlimited jurisdiction)
In Case T‑439/14,
LS Cable & System Ltd, established in Anyang-si (South Korea), represented by S. Kinsella and S. Spinks, Solicitors,
applicant,
v
European Commission, represented initially by C. Giolito, A. Biolan and N. Khan, and subsequently by N. Khan and H. van Vliet, acting as Agents, and by B. Rayment, Barrister,
defendant,
APPLICATION under Article 263 TFEU seeking the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicant and, in the alternative, a reduction of the fine imposed on the applicant.
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,
Registrar: C. Heeren, Administrator,
having regard to the written part of the procedure and further to the hearing on 7 June 2017,
gives the following
Judgment
I.      Background to the dispute
A.      The applicant and sector concerned
1        The applicant, LS Cable & System Ltd, formerly LG Cable Ltd until March 2005, is a South Korean company that is currently active in the production and supply sector for high voltage underground and submarine power cables. Since July 2008, the applicant has been a wholly-owned subsidiary of LS Corp.
2        Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. High voltage and extra high voltage power cables are sold throughout the world to large national grid operators and to other electricity companies, principally through competitive public tender procedures.
B.      Administrative procedure
3        By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were produced in support of an application for immunity submitted in accordance with the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’).
4        From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl, and of the French companies Nexans SA and Nexans France SAS.
5        On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of the amount thereof, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.
6        During the course of the investigation the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector, pursuant to 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 [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.
7        On 30 June 2011, the Commission initiated proceedings and adopted a statement of objections against the following legal entities: Nexans France, Nexans, Prysmian, Prysmian Cavi e Sistemi Energia, Pirelli & C. SpA, The Goldman Sachs Group Inc, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa Electric Co. Ltd, Fujikura Ltd, Viscas Corp SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., Taihan Electric Wire Co. Ltd and the applicant.
8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of Furukawa Electric, took part in an administrative hearing before the Commission.
9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, EU:T:2012:597), the General Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France, and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.
10      On 2 April 2014, the Commission adopted its Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the [EEA] Agreement in (Case AT.39610 — Power cables) (‘the contested decision’).
C.      Contested decision
1.      The infringement at issue
11      Article 1 of the contested decision states that a number of undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cables sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition for(extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).
12      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole More specifically, according to the Commission, the cartel consisted of two aspects, namely:
–        the ‘A/R cartel configuration’, which included the European undertakings, which were generally referred to as ‘R members’, the Japanese undertakings, referred to as ‘A members’, and lastly the South Korean undertakings (including the applicant) referred to as ‘K members’. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to the ‘home territory’ under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time, this allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% were reserved for the Asian producers;
–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home territory’ or allocated to the European producers (see section 3.3 of the contested decision and in particular, recitals 73 and 74 of that decision).
13      The Commission found that the participants in the cartel had instituted obligations to exchange information, so as to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).
14      The Commission classed the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group to include the European undertakings Nexans France, the subsidiaries of Pirelli & C., formerly Pirelli SpA, having participated successively in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia, and the Japanese undertakings Furukawa Electric, Fujikura and their joint undertaking Viscas, as well as Sumitomo Electric Industries, Hitachi Cable and their joint undertaking J-Power Systems (recitals 545 to 561 of the contested decision). Next, the Commission identified a group of undertakings which had not been part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission took the view that Mitsubishi Cable Industries, SWCC Showa Holdings, Taihan Electric Wire, nkt cables and the applicant were fringe players in the cartel (recitals 576 to 594 of that decision).
2.      The applicant’s liability
15      The applicant was found liable on the basis of its direct participation in the cartel from 15 November 2002 to 26 August 2005, in so far as extra high voltage underground power cables were concerned (recitals 905 and 1008 of the contested decision).
3.      The fine imposed
16      Article 2(t) of the contested decision imposed a fine of EUR 11 349 000 on the applicant.
17      In calculating the amount of the fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to [that provision] (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on setting fines’).
18      In the first place, as regards the basic amounts of the fines, after establishing the appropriate value of sales in accordance with point 18 of the 2006 Guidelines on setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement in accordance with points 22 and 23 of those guidelines. In that regard, it considered that the infringement, by its very nature, was among the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the territory of the European Economic Area (EEA). In addition, it considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had allocated power cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of that decision).
19      In so far as concerns the multiplier to reflect the duration of the infringement, the Commission used, for the applicant, a multiplier of 2.75, which reflected the period from 15 November 2002 to 26 August 2005. For the applicant, the Commission also included in the basic amount of the fine an additional amount, namely the entry fee, of 17% of the value of sales. That basic amount thus calculated came to EUR 12 752 000 (recitals 1011 to 1016 of the contested decision).
20      In the second place, the Commission found no aggravating circumstances that might affect the basic amounts of the fines of the cartel participants, with the exception of ABB. On the other hand, in so far as mitigating circumstances are concerned, it decided to reflect in the fines the degree of involvement in the implementation of the cartel of each of the various undertakings. Accordingly, it reduced the basic amounts of the fines to be imposed in respect of the fringe cartel participants by 10%, and the basic amounts of the fines to be imposed in respect of the undertakings whose involvement had been moderate by 5%. It also granted Mitsubishi Cable Industries and SWCC Showa Holdings, in respect of the period preceding the creation of Exsym, as well as Taihan Electric Wire and the applicant an additional reduction of 1% on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. On the other hand, no reduction in the basic amounts of the fines was granted to the undertakings belonging to the core group (recitals 1017 to 1020 and 1033 of the contested decision). Applying the 2006 Guidelines on setting fines, the Commission also granted Mitsubishi Cable Industries an additional reduction of 3% on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).
II.    Procedure and forms of order sought
21      By application lodged at the Registry of the General Court on 16 June 2014, the applicant brought the present action.
22      By way of measures of organisation of procedure under Article 89 of its Rules of Procedure, the General Court (Eighth Chamber, former composition) requested the Commission to produce certain documents.
23      The Commission produced the majority of the documents requested and applied for the adoption of a measure of inquiry with a view to producing one of those documents, namely a transcript of the oral statement provided by J-Power Systems, in the context of a joint application for immunity with Sumitomo Electric Industries and Hitachi Cable.
24      As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has, consequently, been assigned.
25      By order of 6 March 2017, the General Court adopted, on the basis of Article 91(b) of the Rules of Procedure, a measure of inquiry requiring the Commission to produce, within one month of the notification of the order to be adopted, the transcript of the oral statement referred to above, as well as other documents that the General Court considered it necessary to provide. The Commission complied with that measure of inquiry on 17 March 2017.
26      In the context of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the General Court (Eighth Chamber) further requested the Commission to produce additional documents.
27      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 7 June 2017.
28      The applicant claims that the Court should:
–        annul Article 1(11) and Article 2(t) of the contested decision;
–        in the alternative, reduce the amount of the fine imposed on the applicant;
–        order the Commission to pay the costs.
29      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
III. Law
30      In the context of the appeal, the applicant seeks the partial annulment of the contested decision as well as the reduction of the amount of the fine imposed on it.
A.      The claim for annulment
31      In support of its claim for annulment the applicant submits four pleas in law, alleging, first, lack of evidence to the requisite legal standard of its participation in the single and continuous infringement of Article 101(1) TFEU; second, breach of the 2006 Guidelines on setting fines and of the principles of proportionality, equal treatment and legitimate expectations; third, breach of Article 23 of Regulation 1/2003, of point 20 of the 2006 Guidelines on setting fines and of the principle of proportionality; and fourth, breach of the principles of proportionality and equal treatment.
1.      The first plea in law, alleging lack of proof to the requisite legal standard of the applicant’s participation in the single and continuous infringement of Article 101(1) TFEU
32      By its first plea, the applicant maintains that the Commission, in breach of Article 101(1) TFEU, does not adduce sufficient proof of the applicant’s participation in the single and continuous infringement found in the contested decision. Essentially, the applicant argues that the Commission did not properly assess the evidence in its possession and that the doubts which, in the applicant’s submission, exist regarding that evidence, should have been resolved in its favour, in accordance with the presumption of innocence.
33      As a preliminary point, it should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see judgment of 26 January 2017, Villeroy and Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).
34      An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 26 January 2017, Villeroy and Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 48 and the case-law cited).
35      An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, an undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 26 January 2017, Villeroy and Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 49 and the case-law cited).
36      Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. By contrast, the condition relating to a ‘single objective’ requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see judgment of 26 January 2017, Villeroy and Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 50 and the case-law cited).
37      The present plea is divided into three parts, namely (i) that the applicant was unaware of the main elements of the single and continuous infringement, (ii) that it did not contribute to the single objective of the infringement, in particular to its ‘A/R cartel configuration’, and (iii) that its liability cannot be incurred by it having been revealed that a cartel existed and that the applicant participated in some meetings. First of all, it is necessary to examine the second part, followed by the first and lastly the third part.
(a)    The second part of the first plea in law, alleging that the applicant did not contribute to the single objective of the infringement, in particular to its ‘A/R cartel configuration’
38      The applicant contests, essentially, the assessments in recitals 584 to 590 and 926 of the contested decision that the applicant had, by its conduct, contributed to the single and continuous infringement from 15 November 2002 to 26 August 2005, in consenting to participate, in particular, in the ‘A/R cartel configuration’. It submits six complaints in that regard.
(1)    The first complaint: the applicant had never agreed to join the cartel during the meetings in which it participated
39      The applicant argues that it participated only in a small number of meetings during the period of infringement and that the contested decision never stated that, during those meetings, there were allocations of projects within the EEA. More specifically, the applicant argues that the Commission misinterpreted the notes of the two meetings in which it participated, namely that on 15 November 2002 in Tokyo (Japan), and that on 17 October 2003 in Seoul (South Korea). The applicant adds that it never intended to join the cartel during those meetings and that its participation in those meetings was due to the fact that it was dependent on the other producers of power cables to supply it with accessories.
40      The Commission disputes those arguments.
41      Regarding the argument relating to the alleged limited number of cartel meetings that the applicant attended, it should be noted that according to the case-law of the Court, the number, frequency, and form of meetings between competitors needed to concert their market conduct depend on both the object of that concerted action and the particular market conditions (see, to that effect, judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 60).
42      It is also apparent from the case-law of the General Court that, in order to make a finding that an undertaking participated in an anticompetitive agreement, what matters is not so much the number of meetings in which it took part as whether the meeting or meetings which took place afforded the undertakings involved the opportunity to knowingly substitute practical cooperation between them for the risks of competition (judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 448).
43      In the present case, first, it should be noted that the cooperation found by the contested decision between the applicant and the other producers of power cables, in the context of the ‘A/R cartel configuration’ consisted, essentially, of the reciprocal commitment not to enter into the market reserved for each respective group of producers, namely, the European, Japanese, and South Korean producers, in accordance with the ‘home territory’ principle (see paragraph 12 above). That type of commitment is based on a simple concept which can be implemented easily, without requiring, in principle, constant interactions or meetings between the undertakings concerned, which allows them, moreover, to reduce the likelihood of that commitment being discovered (see, to that effect, judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraph 123).
44      Next, it is apparent from recital 94 of the contested decision that, in the present case, the cartel participants adopted a series of organisational measures that designated coordinators, whose function was to transmit information between the members of that cartel and to act as a point of contact, which clearly rendered it less necessary to hold meetings.
45      Finally, as is noted in recital 585 of the contested decision, the applicant’s participation in the ‘A/R cartel configuration’ not only manifested itself, according to the Commission, through the meetings with the undertakings involved, but also by means of other contact in particular through emails and telephone calls, which are described essentially in recital 279(e), and at recitals 331, 343 and 352 of the contested decision.
46      It follows that, contrary to what the applicant claims, the small number of meetings in which it participated in the context of the cartel is not in itself sufficient to exclude its participation in that cartel.
47      Regarding the argument that the applicant had not agreed to join the cartel at any of the meetings which it attended and that, in particular, it had not acceded to the ‘A/R cartel configuration’, it should be borne in mind that, according to settled case-law, in order to prove the participation of an undertaking in a cartel, it is sufficient to show that the undertaking concerned participated in meetings during which agreements of an anticompetitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to submit evidence to establish that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see judgment of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraph 119 and the case-law cited).
48      In the present case, it is apparent from the combined reading of recitals 227 to 229 and 926 of the contested decision that the Commission based the starting date of the applicant’s participation in the cartel on the notes of the meeting on 15 November 2002 in Tokyo, which were found during the inspection carried out at the premises of the Nexans group, as well as on the notes provided by J-Power Systems and Exsym, written by their employees.
49      First, as the Commission notes in the abovementioned recitals of the contested decision, those notes, the contemporaneous nature of which the applicant cannot call into question, show the applicant’s presence, through its representative Mr L., at a meeting where the South Korean producers of power cables were questioned about whether they were able to cooperate in the cartel, to which question the producers, including the applicant, responded that they were ready to do so. Although the notes reveal that it was a matter of willingness to cooperate on a ‘project by project’ basis, as the applicant underlined, the South Korean producers also confirmed that they ‘would participate in the Scheme in the long term’. In addition, two out of those three notes leave no doubt as to the perception which the undertakings that were present at that meeting had of the willingness of the two South Korean undertakings, including the applicant, to participate in the cartel.
50      Second, the aforementioned notes also show that, during the meeting in Tokyo, the ‘home territory’ principle, which was the basis for the ‘A/R cartel configuration’, was revealed to the applicant’s representative. In that regard, the ‘home territories’ of the different groups of producers were defined as comprising three territories, namely those of Europe (in the wide sense) and Argentina for the Europeans, Japan and Taiwan for the Japanese, and South Korea for the South Koreans. Moreover, the applicant’s representative was able to become aware of the fact that, as well as the undertakings present at the meeting, other producers in the sector, such as ABB, Brugg Kabel, Sagem and nkt cables, were also involved in the cartel. The applicant was also made aware of the roles of Mr J., an employee of Nexans France, and of Mr O., an employee of J-Power Systems, as points of contact and coordinators for the respective sides, the European side on the one hand, and the Japanese and South Korean side on the other. Finally, it should be borne in mind that the allocation of individual projects outside of the ‘home territories’ was the subject of discussions.
51      Third, although the applicant claims that it never expressly agreed to participate in the cartel during the meeting in Tokyo, it must be stated that, as well as the fact that this is contradicted by the contents of the aforementioned notes, the applicant has not adduced any evidence to establish, in accordance with the case-law cited at paragraph 47 above, that its participation in those meetings was without any anticompetitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.
52      It follows that, contrary to what the applicant claims, the Commission did not err in finding that the applicant had decided to join the cartel in question during the meeting in Tokyo and that the date of that meeting, namely 15 November 2002, determines the starting date of its participation in the infringement. Moreover, since that finding by the Commission is not vitiated by error, there is no need to examine the arguments submitted by the applicant, in the context of the present complaint, that it had not joined that cartel either during the meeting held in Seoul on 17 October 2003.
53      For the remainder, it suffices to note that the applicant has not adduced any evidence capable of supporting its claim that its participation in the meetings organised in the context of the cartel was motivated by its dependence on the other producers for the procurement of the accessories necessary for its activity in producing power cables. In any event, it should be borne in mind that, according to settled case-law, undertakings cannot justify infringement of the rules on competition by claiming that they were forced into it by the conduct of other traders (see, to that effect, judgment of 15 March 2000, Cimenteries CBR and Others v Commission, 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, EU:T:2000:77, paragraph 2557 and the case-law cited).In the present case, as the Commission stated at recital 589 of the contested decision even if pressure was exerted on the applicant to force it to participate because of that state of dependence, the applicant could have reported this to the competent authorities, rather than attend a meeting where, as was noted at paragraph 49 above, it indicated its willingness to cooperate in a cartel, and where it did not indicate in any way to the other participants that it was attending the meeting because of its state of dependence mentioned above. The applicant cannot therefore invoke the conduct of its competitors to exculpate itself in the present case.
54      The first complaint must therefore be rejected.
(2)    The second complaint: the applicant was not involved in the application of the ‘home territory’ agreement within the EEA market
55      The applicant maintains that it was not involved in the application of the ‘home territory’ principle within the EEA. Essentially, it claims that such involvement cannot be inferred from the evidence cited by the Commission in the contested decision.
56      The Commission disputes those arguments.
57      As a preliminary point, it should be noted that, at recital 585 of the contested decision, the Commission established that the applicant had involved itself ‘explicitly’ in the application of the ‘home territory’ principle in the EEA, given that, first, it had sent the cartel’s European coordinator an inquiry on behalf of a client regarding a project in Finland and, second, it had received guidance from Nexans France on the minimum price levels for a project in Spain.
58      Regarding, first, the notification of the inquiry on the project in Finland, the applicant claims that such an action does not constitute evidence of its involvement in the implementation of the ‘home territory’ principle, but rather of an attempt to mitigate the consequences of refusal to cooperate in the cartel and to maintain an open dialogue with the other producers of power cables, on the grounds of its dependence for the supply of accessories necessary for its own activity in producing power cables.
59      However, it must be stated that, as the Commission explained at recital 279(e) of the contested decision, the applicant shared with the coordinator for the ‘A’ and ‘K’ cartel members, by means of an email on 22 October 2003, an inquiry that it had received beforehand from a client located in Finland, and, therefore, within the European ‘home territory’. It must be emphasised that, in this notification, the applicant expressly requested that it be informed of the instructions to follow from Pirelli. Lastly, on 23 October 2003, both the Finnish client’s inquiry and the request for guidance submitted by the applicant were sent to the coordinator for the ‘R members’ of the cartel and to the other European participants, including Pirelli.
60      Consequently, the applicant’s action, rather than demonstrating an attempt at dialogue with the other producers of power cables, as the applicant claims, highlights its willingness to cooperate in the implementation of the ‘home territory’ principle in the EEA. It should be added that this willingness was also perceived as such by the other members of the cartel, as the email on 23 October 2003 demonstrates, in which the coordinator of the ‘A’ and ‘K’ cartel members remarked in particular to the coordinator for the ‘R’ cartel members on the applicant’s intention to cooperate concerning the protection of home markets. Finally, although the applicant claims that the project in Finland, given its size and its geographical position, did not present it with any economic opportunity, it must be stated that such a fact cannot be inferred from the wording of the exchanges between the applicant and the other members of the cartel.
61      Regarding, second, the guidance received by the applicant concerning the project in Spain, such a fact also proves the applicant’s involvement in the application of the ‘home territory’ principle in the EEA. In that regard, it suffices to note that, as is apparent from recital 331 of the contested decision, on 19 January 2005, Nexans France sent the applicant, following a prior telephone conversation between them, a guide containing instructions on the price levels to be observed in the context of supply relating to that project. The evidence cited in that recital demonstrates, moreover, that the applicant confirmed to Nexans France, by email on 24 January 2005, that it had submitted its offer in compliance with the instructions received. Even assuming, as the applicant argues, that in the end it did not observe those instructions, it must be stated, sharing the view of the Commission, that the confirmation sent by the applicant can only be understood as willingness, at least, to give the impression to the other participants of its readiness to participate in the application of the collusive plan and to thus use the means of the cartel for its own benefit (see, to that effect, judgment of 25 October 2011, Aragoneses v Commission, T‑348/08, EU:T:2011:621, paragraph 297 and the case-law cited).
62      It is apparent from the above that the applicant has not demonstrated any error on the Commission’s part in stating that it was involved in the application of the ‘home territory’ principle in the EEA.
63      The second complaint must therefore be rejected.
(3)    The third complaint: the applicant’s objections to an affiliate of another cartel participant in South Korea served as a pretext for not joining the cartel
64      The applicant claims that the Commission manifestly erred in finding that the objections which it had submitted on the subject of the activities of an affiliate of Pirelli in South Korea highlighted its participation in the ‘A/R cartel configuration’. The applicant argues that, as the notes from the meeting in Seoul on 17 October 2003 corroborate, those objections served, in reality, as a pretext for it to deflect the pressure that the European and Japanese producers of power cables exerted on it and for it not to subscribe to the cartel. The applicant adds that it had no economic incentive to commit to not competing for projects located in the EEA for the purpose of ensuring that the European producers would cease their sales of cables in South Korea.
65      The Commission disputes those arguments.
66      At recital 585 of the contested decision, the Commission explains that, during the cartel period, the South Korean undertakings involved in the cartel, including the applicant, objected on several occasions to various infringements of their ‘home territory’, which proves, in the Commission’s view, their participation in the cartel.
67      It should be stated that, contrary to what the applicant claims, the notes concerning the meeting in Seoul on 17 October 2003 confirm the Commission’s assessment.
68      It is apparent from those notes, reproduced in particular at recital 272 of the contested decision, that, during that meeting, the South Korean companies, including the applicant, expressed their desire to begin, as the first subject of their meeting, with domestic protection in their ‘home territory’. Those notes also confirm that, after having complained of a certain number of infringements by Pirelli, the South Korean companies claimed that the intrusions on their home territory had the consequence of affecting the overall price on the home market. In that context, according also to the aforementioned notes, it was decided by the participants in the meeting that the South Korean companies would present a list of attacks that they suffered and that a specific meeting would take place in order to stop those actions on their territory.
69      Accordingly, the notes from the meeting in Seoul on 17 October 2003 prove that, by its objections to the activities of the affiliate of Pirelli in South Korea, the applicant was seeking to protect its ‘home territory’, in accordance with the cartel agreements, and that, in doing so, it participated in the ‘A/R cartel configuration’.
70      Moreover, it should be noted, again, in accordance with the case-law cited at paragraph 47 above, that the applicant has not proved that, during the meeting in Seoul on 17 October 2003, where subjects linked to the ‘A/R cartel configuration’ were discussed, it used the presence of the affiliate of Pirelli on the South Korean market as a pretext for refusing to participate in the cartel, and therefore communicated to the rest of the participants in that meeting that it was not participating in that meeting in the same anticompetitive spirit.
71      Furthermore, the applicant has failed to support its argument that it had no economic incentive to refrain from entering the EEA market as compensation for the inaction of the affiliate of Pirelli on the South Korean market. In that regard, it must be stated that, in accordance with the notes from the meeting in Seoul on 17 October 2003, the South Korean companies expressed their dissatisfaction that the European incursions had affected the overall price on the South Korean market, which highlights their economic interest in seeing their ‘home territory’ protected. In addition, having regard to the email sent by the applicant itself to the representative of Nexans France on 24 January 2005, in which it expressly asked that Pirelli no longer sell on the South Korean market, the applicant’s claim cannot be upheld. Finally, it suffices to note that the applicant’s claim is contradicted both by the statements which arise from the report concerning the meeting on 29 January 2002 between Nexans France and the South Korean companies, transcribed at recital 204 of the contested decision, where those companies expressed a problem of overcapacity within the South Korean market, and by the statements of the other South Korean producer of power cables, described in recital 654 of the contested decision, that there was fierce foreign competition on the South Korean market, capable of resulting in significant losses for domestic companies.
72      In light of the above, it should be concluded that the Commission did not err in finding that the applicant’s objections to the affiliate of Pirelli constituted an element demonstrating its participation in the cartel, and not as a pretext for not joining it.
73      The third complaint must therefore be rejected.
(4)    The fourth complaint: the applicant did not participate in the allocation of projects for underground power cables in the ‘export territories’
74      The applicant disputes the conclusion at recital 585 of the contested decision that it participated in the allocation of projects for underground power cables in the ‘export territories’. First, the applicant argues that the allocation of projects located outside the EEA in which it participated falls outside the Commission’s jurisdiction. In that regard, it highlights that the projects in the ‘export territories’ that the Commission refers to at recital 468 of the contested decision, asserting its jurisdiction to sanction the infringement at issue, do not concern the applicant. Next, even if the Commission had jurisdiction over the matter of the allocation of projects in the ‘export territories’, the examples provided by the Commission in the contested decision cannot be accepted as establishing the applicant’s liability for the infringement in so far as the majority of those examples were prior to the date when the applicant is alleged to have joined the cartel. Finally, regarding the meeting on 4 March 2003 in Seoul, referred to by the Commission in the contested decision, the evidence is insufficient to demonstrate that the projects in the ‘export territories’ were the subject of anticompetitive cooperation.
75      The Commission disputes those arguments.
76      In the first place, regarding the argument relating to the Commission’s lack of jurisdiction to apply Article 101 TFEU to allocations of projects outside the EEA in which the applicant participated, it must be noted, first, that as is apparent, inter alia, from recitals 524 to 526 of the contested decision, the agreement relating to the ‘export territories’ was considered to be an element of the overall plan which formed the basis for the single and continuous infringement found by the Commission, of which the objective was to restrict competition for projects of underground and submarine power cables in specific territories, by dividing the markets and the customers and distorting the normal pattern of competition in the internal market.
77      Moreover, it should be noted that, as was stated in particular in recital 466 of the contested decision, the Commission’s jurisdiction is limited to the implementation or to the effects of the cartel in the EEA, a statement that, moreover, the applicant does not call into question. The Commission also explained, at recital 468 of the contested decision, that the parties to the cartel considered a part of the EEA market as ‘export territories’, in that the projects located in Greece formed part of the ‘60/40 quota’ allocation. Moreover, according to recitals 81 and 82 of the contested decision, the ‘export territories’ included projects on the periphery of the EEA. Finally, according to the Commission, the projects in the ‘export territories’ were given as compensation for the protection of the European ‘home territory’.
78      The applicant does not dispute that the evidence cited by the Commission in recital 468 of the contested decision is capable of demonstrating the Commission’s jurisdiction to penalise the agreement on the ‘export territories’ and the rest of the elements of the single and continuous infringement found by the Commission. The applicant argues, instead, that the particular examples provided by the Commission in that recital fall outside its jurisdiction.
79      However, the fact that the particular examples in recital 468 of the contested decision, including those indicated in the footnotes of that recital, do not refer to projects in which the applicant had participated does not mean that the Commission could not hold it liable for that part of the cartel, as a constituent element of the single and continuous infringement established in the contested decision. First, it must be held that that recital of the contested decision did not aim to give a complete overall view of the nature and the extent of that infringement and the involvement of each addressee of the contested decision in it. Second, it must be pointed out, in the light of the case-law cited at paragraph 36 above, that the applicant was involved, for example, in situations where projects in the ‘export territories’ were offered or requested in a context where observance of the protection of the ‘home territory’ of the various cartel participants, including the territory belonging to the European producers, had been the subject matter of a reminder and could be regarded as ensured by each of those participants. Thus, it is apparent, for example, from the notes relating to the meeting in Seoul on 17 October 2003 of the ‘A’, ‘R’ and ‘K’ members of the cartel, referred to in recitals 268 to 273 of the contested decision and annexed to the Commission’s pleadings, that after the reminder by one of the participants at the meeting of the necessity to observe the ‘home territories’ of each of the cartel members and after, in particular, those participants having been reassured on that matter, the participants in that meeting, including the applicant, had in that context expressed their interest for a certain number of projects in the ‘export territories’ and had addressed the issue of their allocation. The applicant cannot validly maintain that the agreement on the ‘export territories’ did not bear any relation to the other elements of the single and continuous infringement found by the Commission and that its involvement in that agreement did not form part of an overall plan to distort competition in the internal market.
80      The applicant’s argument that the allocations of projects located outside the EEA in which it participated do not fall within the Commission’s jurisdiction in that those allocations were not cited at recital 468 of the contested decision, must therefore be rejected.
81      In the second place, regarding the applicant’s argument that relates to the absence of participation in the allocation of projects in the ‘export territories’, it argues, in particular, that the examples given in recitals 157, 159, 167 and 169 of the contested decision, to support its involvement in that allocation, precede the date on which it is supposed formally to have joined the cartel, namely on 15 November 2002, the date of the meeting in Tokyo. However, in that regard, it must be observed, in sharing the view of the Commission, that, even if that is in fact the case, those examples are a part of the context of the cartel, which allows an understanding of the scope of the cooperation to which, in accordance with the findings made in paragraph 52 above, the applicant committed itself during the meeting in Tokyo. In particular, the meetings reported in those recitals highlight, and the applicant does not dispute this, that there were contacts and discussions between the European, Japanese and South Korean producers of power cables in the ‘export territories’ even before the applicant formally joined the other elements comprising the cartel’s overall plan.
82      In any event, it must be stated that the examples cited in recitals 157, 159, 167 and 169 of the contested decision do not constitute the only evidence presented by the Commission in the contested decision for the purposes of establishing the applicant’s participation in the allocation of projects in the ‘export territories’.
83      Thus, first, at recital 244 of the contested decision, the Commission states that several undertakings involved in the cartel, as well as the applicant, participated in a meeting including the ‘A/R/K’ members of the cartel in Seoul on 4 March 2003, in order to discuss the allocation of projects in the ‘export territories’. In that regard, it should be noted, first, that the applicant confirms the anticompetitive content of that meeting, in that it recognises itself in the appeal that the European, Japanese and South Korean producers discussed projects located in the Middle East. The applicant’s participation in that meeting highlights, again, that it attended a meeting of an anticompetitive nature and it did not succeed in demonstrating that it had indicated that it had participated in a spirit that was different from that of the other participants, in accordance with the case-law cited at paragraph 47 above.
84      Moreover, it should be observed, as the Commission has done, that this meeting took place in the context of the cooperation in the ‘export territories’ in which the applicant had participated beforehand and relates to the commitment to cooperation expressed by the applicant during the meeting in Tokyo on 15 November 2002. Therefore, even if, as the applicant argues, it refused to cooperate on that occasion and that it made independent offers concerning the projects in question, such a claim, which has limited probative value in itself (see, to that effect, judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 150 and the case-law cited), is incapable of demonstrating a distancing from or a renunciation of participation in the cartel, but rather a disagreement as to the collusion to submit fixed prices for those projects. In that regard, it should be borne in mind, in accordance with the settled case-law of the Court of Justice, that the fact that an undertaking does not act on the outcome of a meeting having an anticompetitive object is not such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see judgment of 26 January 2017, Duravitand Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 136 and the case-law cited).
85      Second, it must be stated that the applicant presents no evidence capable of supporting the ‘aggressive’ offers which it made in the Middle East, in Asia, and in South America, as it argues. On the contrary, the contemporaneous notes from the ‘A/R meetings’ referring to the applicant’s situation within the cartel, in particular that in Tokyo on 11 September 2003, described in recital 255 of the contested decision, highlight that the South Korean undertakings requested the allocation of projects in the ‘export territories’. In addition, as it was held at paragraph 79 above, it is apparent from the notes relating to the meeting in Seoul on the 17 October 2003 that after having been reassured in relation to the protection of its own ‘home territory’, the applicant expressed its interest in a certain number of projects in the ‘export territories’. Contrary to what the applicant claims, the fact that an agreement was not reached for each of the projects discussed concerning the ‘export territories’ cannot call the existence of the cooperation agreement between the participating undertakings into question.
86      Third, it must be noted that recital 320 of the contested decision refers to an email on 27 December 2004, sent by Mr R., of Nexans France, to Mr L., the applicant’s representative.That email, which suggests that a previous meeting had been held between those two companies on 17 December 2004, mentions the thanks of the European company’s representative to the applicant for its cooperation in the allocation of a project in the ‘export territories’, in particular an order received from Dubai. It must, therefore, be stated that this email constitutes additional evidence of the applicant’s participation in the allocation of projects in the export territories.
87      Finally, it must be noted that, through the email on 24 January 2005, the applicant showed itself to be ready to cooperate in the allocation of a project in the ‘export territories’ just after requesting again that Pirelli put an end to its operations on the South Korean market.In that regard, it must be held that the fact of addressing the question of its own participation in one aspect of the cartel in conjunction with the observance by the participating undertakings of another element of the cartel, also proves the applicant’s involvement in the implementation of a system of allocating projects in the ‘export territories’.
88      It is apparent from all of the above that, contrary to what the applicant argues, the Commission did not err in finding that the applicant had participated in the allocation of projects for underground power cables in the ‘export territories’.
89      The fourth complaint must therefore be rejected.
(5)    The fifth complaint: the applicant was considered an ‘outsider’ by the other cartel participants
90      The applicant claims that the other cartel participants perceived it as never having joined the cartel, even as an ‘outsider’, even following the meeting in Tokyo on 15 November 2002.It contests, moreover, the conclusion in recital 585 of the contested decision that it had ‘at least given the impression’ that it was cooperating in the cartel. It lists a series of elements which serve to demonstrate that it was seen by the other undertakings involved as not taking part in the cartel.
91      The Commission disputes those arguments.
92      First, the applicant’s argument that it was not perceived as taking part in the cartel following the meeting in Tokyo on 15 November 2002 must be rejected. As is apparent from the examination carried out at paragraphs 47 to 52 above, the Commission did not err in stating that the applicant had expressed its willingness to cooperate in the cartel during that meeting, so that the date of that meeting determines the starting date of its participation in the infringement.
93      Next, regarding the applicant’s argument that the term ‘outsider’ was used expressly to refer to it in the email exchange between the coordinators of the ‘A’ and ‘R’ members of the cartel on 24 February 2003, it must be noted that the third indent of recital 141(b) of the contested decision, relating to the ‘A/R meeting’ organised in London (United Kingdom) on 26 July 1999 establishes that the term ‘“[o]utsiders” refers to those companies not involved in the cartel’.
94      However, it is apparent from reading recital 243 of the contested decision, and the evidence cited there, that the reference to the applicant as an ‘outsider’ in the email of 24 February 2003 was used concerning projects which were the subject matter of that email, in that they had not yet been discussed with the South Korean companies. This does not support, as the applicant claims, that it was perceived as an ‘outsider’ in the general context of the cartel.
95      In any event, the response provided by the applicant to the request for cooperation submitted by the coordinator for the ‘A members’ of the cartel with regard to those projects, namely that it had not submitted any offer, constitutes evidence that the applicant was cooperating in the cartel and that it was applying the ‘home territory’ principle in not submitting tenders for projects located in the European territory. It must be noted, in addition, that, as was stated at paragraph 83 above, on 4 March 2003, a few days after the abovementioned exchange of emails, the applicant participated in a meeting in Seoul with the ‘A/R/K’ members of the cartel in order to discuss the allocation of other projects in the ‘export territories’.
96      Moreover, concerning the document on 16 September 2003, referred to in recitals 258 to 260 of the contested decision, it is certainly true that, as the applicant notes, it includes a table indicating, according to the Commission, the principal characteristics of the cartel and referring, in particular, to the South Korean territory as ‘pending’, and the participation of the South Korean companies as ‘under discussion’. Nevertheless, such references cannot show that the applicant was not seen as a participant in the cartel when, as is explained in the preceding paragraph, it had already expressed its willingness at that stage to cooperate within the ‘A/R cartel configuration’ and had also adopted measures to the same effect.
97      Concerning the other evidence in the case file listed by the applicant to support its claim as an ‘outsider’, first, it must be noted that it cannot call into question the Commission’s findings, confirmed by the Court at paragraphs 52, 62 and 88 above, that, first, the applicant decided to join the cartel during the meeting in Tokyo on 15 November 2002, second, that it was involved in the application of the ‘home territory’ principle within the EEA, and third, that it participated in the allocation of projects for underground power cables in the ‘export territories’.
98      Second, it must be stated that several references made by the applicant are linked with tensions that appeared between the South Korean companies, including the applicant, and the affiliate of Pirelli on the subject of observing the ‘home territory’ principle. However, it was already held at paragraph 72 above that the applicant’s objections to that affiliate constituted an element which rather highlights its participation in the cartel, and not an element capable of demonstrating that the applicant was perceived as an ‘outsider’ that had not acceded to the cartel.
99      Moreover, if, in the notes that relate to the meeting in Milan (Italy) on 13 June 2003, relied on by the applicant, reference is made to the South Korean undertakings’ intention to ‘prepare an attack targeting Europe’, it must be borne in mind that less than 3 months after, during the meeting in Tokyo on 11 September 2003, the South Korean undertakings requested the allocation of projects in the ‘export territories’ as compensation for the protection of a European consortium.
100    Finally, the applicant cannot argue that the Commission erred in finding that it had at least given the impression to the other participants that it intended to cooperate in the application of the agreements. In that regard, it suffices to note that such a claim is contradicted, in particular, by the statements made at paragraphs 61 and 83 above, that the applicant never indicated to its competitors that it was participating in the anticompetitive meetings in a spirit that was different from theirs.
101    In light of the above, it must be stated that the applicant has not succeeded in demonstrating that it was perceived by the other cartel participants as an ‘outsider’ that had never acceded to the agreements.
102    The fifth complaint must therefore be rejected.
(6)    The sixth complaint: the applicant made efforts to penetrate the EEA market
103    The applicant argues that, in recital 586 of the contested decision, the Commission recognised that it had deployed ‘real efforts to compete for projects in the EEA’, going against the ‘home territory’ principle. Essentially, it complains that the Commission did not take those efforts into account to conclude that the applicant had never joined the cartel. In support of this argument, it relies on a table that presents the high number of tenders in which it participated within the EEA market between 2002 and 2012.
104    The Commission disputes those arguments.
105    In accordance with settled case-law, cited at paragraph 84 above, the fact that an undertaking does not act on the outcome of a meeting having an anticompetitive object is not such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see judgment of 26 January 2017, Duravitand Others v Commission, C‑609/13 P, EU:C:2017:46, paragraph 136 and the case-law cited).
106    In the present case, even if, as the Commission recognises, the applicant deployed efforts to compete for projects in the EEA in violation of the ‘home territory’ principle of the ‘A/R cartel configuration’, it has not explained at any stage in detail that it publicly distanced itself from the cartel agreements. Furthermore, such distancing cannot be found, to the extent that, as has been demonstrated for the complaints examined in the context of the present part, there is ample evidence of the applicant’s active participation in the cartel’s overall plan during the infringement period.
107    Moreover, the table relied on by the applicant in support of its arguments, which presents a graph of the bids for European calls for tenders that the applicant carried out between 2002 and 2012, highlights that the number of bids during the period of participation in the cartel, namely 15 November 2002 to 26 August 2005, is significantly lower than that outside the period of infringement. More specifically, that figure brings to light that the increase in South Korean bids on the European market was precisely outside of the period for which the undertaking incurs liability. Thus, besides the fact that the data contained in that table is not supported by concrete evidence, it cannot be ruled out that the European calls for tenders in which the applicant participated during the years 2002 to 2005 constitute, in reality, isolated infringements of the cartel agreements already described in the context of the present part.
108    In those circumstances, the Commission cannot be criticised for having found that the cases in which the applicant had not observed the allocation agreements constituted mere examples of ad hoc non-participation in the implementation of the cartel, and not evidence of the fact that the applicant had never joined the cartel.
109    The sixth plea must therefore be rejected.
110    In view of all of the foregoing, it must be concluded that, contrary to what the applicant argues, the Commission correctly found that the applicant had, by its conduct, contributed to the single and continuous infringement, in consenting to participate, in particular, in the ‘A/R cartel configuration’.
111    The second part of the first plea must therefore be rejected.
(b)    The first part of the first plea in law: the applicant was not aware of the main elements of the infringement
112    The applicant argues that the Commission has not succeeded in demonstrating the applicant’s knowledge of the main elements of the infringement found in the contested decision. In particular, it submits three complaints, by which it criticises the Commission for having found, at recitals 615 and 616 of that decision, that it was aware, or should have been aware, first, of the ‘European cartel configuration’, next, of the agreement on the ‘60/40 quota’ for allocating projects in the ‘export territories’ and, finally, of the ‘contractor rule’, applied by the ‘R’ and ‘A’ cartel members under the ‘home territory’ principle.
(1)    The first complaint, relating to the awareness of the ‘European cartel configuration’
113    The applicant maintains that, contrary to what is apparent from recitals 227 to 229 and 271 of the contested decision, the evidence adduced by the Commission does not demonstrate that it had been made aware of the ‘European cartel configuration’ during the meeting in Tokyo on 15 November 2002 or during the meeting in Seoul on 17 October 2003. It states that it was only aware of the European producers’ wish to keep the Japanese and South Korean producers outside the EEA through the application of the ‘home territory’ principle.
114    The Commission disputes the applicant’s claims.
115    As a preliminary point, it must be stated that, under Article 1(11) of the contested decision, the applicant was held responsible for a single and continuous infringement in the (extra) high voltage underground power cable sector. According to recital 525 of the contested decision, the existence of such a single and continuous infringement was based, in particular, on the finding that there was an overall plan with the single aim of restricting competition for projects in that sector in specific territories, by allocating markets and customers and distorting the normal competitive process in the internal market.
116    Moreover, it should be observed that the ‘European cartel configuration’ was, according to recitals 73 and 74 of the contested decision, along with the ‘A/R cartel configuration’, one of the two main cartel configurations, consisting of the allocation of territories and customers by the European producers for projects located within the European ‘home territory’. The Commission also explains, in those recitals, that the two cartel configurations were not separate, but formed a composite whole. Recital 534 of the contested decision specifies, in addition, that ‘the European cartel configuration (as well as the allocation among the Asian companies) was subordinate to the almost global arrangement and gave effect to it’ and that, ‘the European cartel configuration formed therefore an integral part of the overall plan’.
117    Therefore, it must be stated that, contrary to what the Commission argues in its defence, the ‘European cartel configuration’ was one of the key elements of the single and continuous infringement attributed to the applicant, as defined in the contested decision. In those circumstances, in accordance with the case-law cited at paragraph 35 above, the Commission was required to demonstrate that the applicant was aware of that configuration, or could reasonably have foreseen it, and was ready to take the risk. It should be added that such a conclusion is also supported by recital 595 of the contested decision, which introduces the part of the contested decision that relates to the awareness that the parties to the cartel had of the conduct of the other undertakings in pursuit of the cartel’s single objective and which indicates that the analysis was carried out for the cartel’s specific circumstances presented in recital 526 of that same decision, namely, in particular, that the cartel comprised two principal configurations — the ‘A/R cartel configuration’ and the ‘European cartel configuration’ — and that it comprised several methods of allocation — concerning the ‘home territories’ and the ‘export territories’.
118    In the present case, it is apparent from the notes that relate, first, to the meeting in Tokyo on 15 November 2002, examined at paragraph 50 above, and, second, to the meeting in Seoul on 17 October 2003, examined at paragraph 68 above, that, during those meetings, the applicant was made aware, not only of the ‘A/R cartel configuration’, but also of the ‘home territories’ of the various groups of producers, specifically that of the European companies, which was defined as Europe ‘in the wide sense’ and Argentina. During the meeting in Seoul, it was specified, in addition, that Argentina was a part of the traditional market of Pirelli, and, in that regard, of its home market. Moreover, the applicant’s representative was made aware during the meeting in Tokyo of the role of Mr J., employed by Nexans France, as a point of contact and as the coordinator for all of the European companies participating in the cartel and became aware of the fact that, as well the European undertakings present during those meetings, namely, Nexans France, Pirelli and Exsym, other European producers in the sector, such as ABB, Brugg Kabel, Sagem and nkt cables, were also involved in the cartel and were ‘cooperating more and more’.
119    In those circumstances, if the applicant claims that it could not at least foresee, following the meetings in Tokyo and Seoul, the allocation of markets within the EEA between European companies participating in the cartel, or even the identity of the undertakings involved, that argument does not appear credible.
120    First, it must be stated that those meetings included the simultaneous presence of the representatives of the two European companies forming the core of the cartel, namely Nexans France and Pirelli, and that the former company’s representative was still responsible, at that point, as the coordinator for the ‘R members’ of the cartel, for receiving all calls for tenders received by the Japanese and South Korean groups and to forward to those groups the instructions received from the European side of the cartel on how to respond to them. Next, the reference to Argentina as a traditional territory of Pirelli and as a part of the European domestic market highlights the fact that the European companies enjoyed their own territories within that domestic market. Finally, the reference to the fact that the European companies were ‘cooperating more and more’, far from being understood as technical cooperation, as the applicant claims, was of such a nature as to allow it to reasonably foresee that there was also cooperation in the allocation of markets at a European level.
121    Moreover, it should be noted that the fact that the applicant was made aware of market allocation at a European level can also be inferred from the email on 22 October 2003, examined at paragraph 59 above, by which the applicant shared with the coordinator for the ‘A members’ of the cartel, employed by Nexans France, an inquiry that it had received from a client located in Finland. In that regard, it must be underlined that, in that email, the applicant expressly requested to be made aware of the instructions that Pirelli requested it to follow, which shows that was aware of the fact that the projects received from that country, within the EEA market, were part of that company’s traditional market.
122    Furthermore, as it is established in paragraph 61 above, on 19 January 2005, Nexans France sent the applicant a guide containing instructions on the price levels to be observed in the context of supply relating to a project in Spain. It must be held, as the Commission has done, that the fact that an employee of one of the European companies had given information on prices that the applicant had to observe also allowed the applicant to foresee a market allocation within the EEA.
123    Finally, recitals 263 and 343 of the contested decision mention exchanges concerning the applicant’s presence on Pirelli’s home market. The fact that the applicant participated in discussions and in meetings on the subject of its activities in that company’s home market, and the fact that Nexans France acted as a coordinator during those discussions constitutes evidence of market allocation on the European side of the cartel that the applicant could, at least, have foreseen.
124    Consequently, with regard to the foregoing, although the applicant did not participate in the ‘European cartel configuration’, in allocating with the other producers projects relating to the market concerned, it was aware of that configuration or was, in any event, capable of reasonably foreseeing it.
125    The first complaint must therefore be rejected.
(2)    The second and third complaints, relating to awareness of the ‘60/40 quota’ and the ‘contractor rule’
126    The applicant argues that it was never made aware of either the rule that the ‘export territories’ were allocated between the European and Asian producers in accordance with the ‘60/40 quota’ nor of the so-called ‘contractor rule’, even though both rules were essential elements of the cartel that it would have had to be aware of in order to be held liable for it. Regarding, first, the ‘60/40 quota’, the applicant claims that the Commission incorrectly interpreted the email that Nexans France addressed to the applicant on 27 December 2004. In addition, it is apparent from a preparatory note of the meeting in Seoul on 17 October 2003 that the other cartel participants deliberately concealed from the applicant that there was a 60/40 quota. Regarding, second, the contractor rule, the applicant argues, essentially, that the Commission has not adduced any evidence that the applicant was aware of that rule.
127    The Commission disputes those arguments.
128    As is apparent from recitals 87 and 214 of the contested decision respectively, the Commission stated that the cartel participants had applied, in the context of the ‘A/R cartel configuration’, both the rule known essentially as the ‘60/40 quota’ and the rule called ‘the contractor rule’. Specifically, pursuant to the first rule, the projects concerning the ‘export territories’ had to be allocated according to an allocation in terms of value, 60% to the European producers and 40% to the Japanese and South Korean producers. Moreover, in applying the ‘contractor rule’, the projects in the ‘export territories’ had to be allocated based on the origin of the undertaking offering the project. That rule also entailed that when a project was initiated by a European undertaking in a territory belonging to the ‘A members’ of the cartel, the project had to be allocated to a member of the ‘A group’. Similarly, when a project was initiated by a Japanese undertaking in a territory belonging to the ‘R members’ of the cartel, the project had to be allocated to an ‘R member’.
129    First, it must be observed that neither the ‘60/40 quota’ nor the ‘contractor rule’ constituted essential constituent elements of the single and continuous infringement that, unlike the statement made at paragraph 117 above, the applicant would have had to be aware of or reasonably foresee, for that infringement to be attributable to it.
130    Indeed, while the Commission had to prove that the applicant had participated in the elements constituting the single and continuous infringement or was aware of them or could reasonably have foreseen them, as, for example, concerning the ‘European cartel configuration’, it cannot be held that it was bound by such an obligation in regard to the non-essential characteristics of that infringement (see, to that effect, judgments of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 193, and of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 67), namely, in particular, the specific means by which the elements constituting the single and continuous infringement were implemented. Specifically, such an obligation was not related to the concrete rules of allocation of the ‘export territories’, since, as the Commission confirms, first, those rules were not applied permanently within the cartel and second, their evolution did not affect the overall plan.
131    Thus, regarding, specifically, the ‘60/40 quota’ rule and the so-called ‘contractor rule’, it must be stated that, according to the contested decision, the former was only applied during a certain period, which the applicant does not dispute, and the latter was introduced as an additional rule of the ‘A/R cartel configuration’ in 2002. In addition, even to accept, as the applicant argues, that, only in the absence of those two rules, the agreements arising from the ‘A/R cartel configuration’ would have been weakened, such absence was not of such a nature as to substantially affect the overall plan, as defined by the Commission. Finally, it must be stated that, as the Commission notes, essentially, those rules were not of such a nature as to define the general scope of the cartel within the meaning of the judgment of 10 October 2014, Soliver v Commission (T‑68/09, EU:T:2014:867, paragraph 64).
132    In addition, the claim that the essential nature of the so-called ‘contractor rule’ was established by the exchange of emails reported in recitals 353 and 354 of the contested decision must be rejected. In that regard, it suffices to note that, even if, as the applicant underlines, Nexans France confirmed, during that exchange, that that rule had to be applied ‘unconditionally’ within the ‘A/R cartel configuration’, it is apparent from those emails that there was a clear disagreement concerning the concrete terms of its application, but that did not prevent the pursuit of the cartel agreements, in particular of the ‘A/R cartel configuration’.
133    Consequently, even if the applicant was unaware of the fact that the ‘export territories’ were distributed amongst the European and Japanese producers in accordance with the ‘60/40 quota’, or in accordance with the so-called ‘contractor rule’, that cannot lead to the conclusion that the Commission could not impute liability to the applicant for the single and continuous infringement found in the contested decision, concerning underground power cables.
134    In any event, the Court finds that the evidence in the file allows for the conclusion that the applicant was aware of the ‘60/40 quota’, or, at least, was able to reasonably foresee it.
135    Thus, first, it must be stated that, at recital 64 of the contested decision, the Commission indicated that the ‘60/40 quota’ had already been applied, in the 1970s and up until December 1997, in the context of the Super Tension Cables Export Agreement (the ‘STEA agreement’), in which the applicant participated. It is apparent, moreover, from recital 65 of the contested decision, without being contradicted by the applicant, that the rules implementing the cartel at issue in the present case were based on the rules applied in the context of the STEA agreement, including the ‘60/40 quota’.
136    Second, the rule that the producers of the ‘R’ group had to share 60% of the projects in the ‘export territory’, whereas Japan and South Korea would be allocated 40% of those projects, is expressly mentioned in the email that Nexans France sent to the applicant on 27 December 2004. The claim that this allocation quota only concerned one particular project is not at all convincing.
137    Accordingly, neither the indication of the ‘60/40 quota’ in the email referred to nor the fact that it is a rule which had been applied in the context of the STEA agreement leave any doubt as to the possibility that the applicant had to foresee the application of that rule as a means of allocating projects in the ‘export territories’ within the ‘A/R cartel configuration’.
138    Admittedly, as the applicant notes, the Commission cannot base the applicant’s awareness or foresight of the ‘60/40 quota’ on a fact which occurred before the starting date of its participation in the cartel (see, to that effect, judgment of 10 October 2014, Soliver v Commission, T‑68/09, EU:T:2014:867, paragraph 70). Nevertheless, it must be stated that, in the present case, unlike in the case that gave rise to the aforementioned judgment, such a fact is not used on its own by the Commission to found its conclusion, but constitutes a relevant element that relates to the awareness that the applicant had of the functioning of the cartel’s rules of implementation, including the plausibility that the applicant was aware, or could reasonably have foreseen, the application of the ‘60/40 quota’. In that regard, it should be added that, as is apparent from the annexes to the appeal, Mr L., the applicant’s representative within the cartel, had been its employee since 1987, which is capable of demonstrating the extent to which the applicant was aware of the context of the STEA agreement.
139    Moreover, the above conclusion cannot be called into question by the applicant’s claim that the note reported at recital 266 of the contested decision, written by Nexans France before the meeting in Seoul on 17 October 2003, expressly indicated that the other cartel members had concealed the allocation quotas. It should be stated that this note followed a meeting on 17 October 2003 whilst the email on which the contested decision based its evidence of awareness of the ‘60/40 quota’ at recital 616 of the contested decision is dated 27 December 2004. Consequently, while it is possible to find that the other parties to the cartel wished to keep a potential allocation of projects according to quotas secret from it, it is not possible to doubt that the applicant was aware of the quota applied between the ‘R’ and ‘A’ members of the cartel for the allocation of projects in the ‘export territories’, following the receipt of the email on 27 December 2004.
140    The second and third pleas must therefore be rejected.
141    In view of all of the foregoing, it must be concluded that the Commission did not err in stating that the applicant was aware of the cartel’s overall plan and of its key elements, or, at least, could reasonably have foreseen them.
142    The first part of the first plea in law must therefore be dismissed.
(c)    The third part of the first plea in law, that the applicant’s liability cannot be incurred by it having been revealed that a cartel existed and the applicant’s participation in some meetings
143    The applicant raises, essentially, five complaints that should, according to it, lead the Court to find that the Commission erred in its assessment, at recitals 590, 905 and 906 of the contested decision, that it was liable for acts committed by the other participants in the infringements, that it had participated directly in that infringement and that it consequently had to be an addressee of the contested decision.
144    The Commission disputes those arguments.
145    Regarding the first and second complaints, the applicant submits that the mere fact of having been informed about certain aspects of the infringement during the meetings in Tokyo on 15 November 2002, and in Seoul on 17 October 2003, does not suffice, by itself, for it to incur liability for the cartel. It reiterates that there was no meeting of minds on the subject of the ‘A/R cartel configuration’.
146    Nevertheless, it is apparent from the analysis carried out at paragraphs 47 to 53 above that, during the first of those meetings, the applicant was not only informed of certain aspects of the infringement, as it claims. Thus, the Commission did not err in finding that the applicant had decided to join the cartel in question during the meeting in Tokyo and that the date of that meeting, namely 15 November 2002, determined the starting date of its participation in the infringement. Accordingly, the first and second pleas in law must be rejected.
147    Regarding the third and fourth complaints, the applicant argues, essentially, that it did not engage in any conduct of its own that infringed the EU or EEA Agreement rules on competition and that it had no intention to help bring about the ‘A/R agreements’. However, those complaints must be rejected in light of the examination carried out in the context of the second and fourth complaints of the second part of the present plea in law, in so far as it should be held that the applicant participated in the implementation of the ‘A/R cartel configuration’, in particular concerning the ‘home territory’ agreement, and the agreement on the ‘export territories’.
148    Regarding the fifth complaint, while the applicant states that there was no identity of object or single purpose as between, on the one hand, the cartel’s ‘R’ and ‘A agreements’ and, on the other hand, the contacts in which it participated, it does not provide any explanation in the context of that complaint to help understand its arguments. Therefore, that complaint must be rejected as inadmissible in light of the provisions of Article 76(d) of the Rules of Procedure.
149    The third part of the first plea in law must therefore be rejected, as must the first plea in law in its entirety.
2.      The second plea in law, alleging a breach of the 2006 Guidelines on setting fines and of the principles of proportionality, legitimate expectations and equal treatment, in applying point 18 of those guidelines
150    By its second plea, that applicant criticises the method used by the Commission for calculating its relative weight in the infringement and the value of its sales within the EEA. This plea is divided into three parts, alleging a breach of the 2006 Guidelines on setting fines, a breach of the principle of equal treatment, and a breach of the principle of proportionality.
(a)    The first part of the second plea in law, alleging a breach of the 2006 Guidelines on setting fines
151    The applicant submits that the Commission failed in its obligation, in accordance with the settled case-law, to follow its own guidelines on setting fines when determining the applicant’s total sales within the EEA. It raises two complaints in that regard.
152    First, the applicant maintains that, in treating underground and submarine power cables separately for the calculation of the total value of the cartel participants’ worldwide sales, and in determining the applicant’s role in those sales, the Commission incorrectly applied point 18 of the 2006 Guidelines on setting fines. Essentially, the applicant submits that the Commission should have carried out that calculation by including underground and submarine power cables, on the basis, first, that the single and continuous infringement mentioned in the contested decision comprised both those types of cables and that, second, point 18 of the 2006 Guidelines on setting fines expressly requires the taking into account of the total value of sales ‘to which the infringement relates’. The applicant underlines that, if The Commission were to use such a method, its part in the participants’ worldwide sales would have been reduced by approximately 7.05% and, consequently, the value of its sales within the EEA would also have been reduced.
153    Second, the applicant claims that the Commission did not properly reflect its relative weight in the infringement, contrary to what is required by point 18 of the 2006 Guidelines on setting fines, in particular with reference to the cartel participants who were producing underground and submarine power cables at the same time. In that regard, it states that the method set out in the contested decision is unprecedented in the Commission’s practice. The applicant also alleges that neither the 10% reduction granted to it due to mitigating circumstances because of its substantially limited involvement in the infringement, nor the additional 1% reduction which it received because of its lack of awareness of certain aspects of the cartel, are sufficient to compensate it for the damage created by the method of calculation used by the Commission.
154    The Commission disputes those arguments.
155    Point 18 of the 2006 Guidelines on setting fines establishes the following:
‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.
In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’
156    In accordance with settled case-law, point 18 of the 2006 Guidelines on setting fines, where it derogates from the delimitation of the geographic sector in point 13 of those guidelines, pursues the objective of reflecting in the most appropriate way possible the weight and economic power of the undertaking at issue in the infringement, in order to ensure that the fine has sufficient deterrent effect (see, to that effect, judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14, P, EU:C:2016:26, paragraph 86 and the case-law cited).
157    In the present case, it is apparent from recitals 989 to 994 of the contested decision that the Commission resorted, in applying point 18 of the 2006 Guidelines on setting fines, to the worldwide shares of sales of the parties to the cartel, excluding sales carried out in the United States, in order to properly reflect the relative weight of each undertaking in the infringement and to correctly evaluate each undertaking’s capacity to distort free competition in the EEA. More specifically, starting on the basis that not all of the undertakings were producing submarine power cables, the Commission calculated the total value of worldwide sales in distinguishing between, first, the sector for underground power cables and, second, the sector for submarine power cables. The Commission also established the respective share of each participant in the total value of worldwide sales by considering those two sectors separately. Thus, concerning the applicant, the share of worldwide sales for the first sector was set at 9.69%, while, for the second, that share was set at 0%. Next, the Commission proceeded to calculate the value of aggregate sales within the EEA market, and applied to this value, each participant’s shares of worldwide sales in order to calculate the individual value of their sales in that market. In so far as the applicant’s share of worldwide sales for submarine power cables was zero, the estimated value of its sales within the EEA equated solely to its sales of underground power cables.
158    First, regarding the applicant’s argument that the wording of point 18 of the 2006 Guidelines on setting fines requires, in the present case, that the total value of worldwide sales carried out by all of the cartel participants, as well as the applicant’s share in that value, be calculated by considering the relevant sales for underground and submarine power cables in their entirety, it should be borne in mind that, as was already indicated at paragraph 115 above, according to Article 1(11) of the contested decision, the applicant was held liable for the single and continuous infringement in the (extra) high voltage underground power cable sector. As is apparent from recital 615 of the contested decision, the applicant’s liability was expressly excluded concerning (extra) high voltage submarine power cables.
159    To the extent that, in accordance with the second subparagraph of point 18 of the 2006 Guidelines on setting fines, the sum of the total value of worldwide sales must be carried out while taking account of the total value of sales of goods or services ‘to which the infringement relates’, it must be held that the Commission was rightly able to separate the sales carried out by the applicant in regard to each of the sectors concerned. More specifically, the applicant should not criticise the Commission for having taken the applicant’s worldwide sales carried out in the underground power cables sector into consideration and for having assessed those sales as zero in the submarine power cables sector, for which it had no liability.
160    Next, it must be stated that, since, as the Commission revealed at recital 989 of the contested decision, not all the parties to the cartel were producing submarine cables and were not held liable for that part of the cartel, the Commission correctly found that it would be inappropriate to apply a method such as the one favoured by the applicant, in so far as that method was liable to distort the relevant weight of the undertakings that were part of the cartel, contrary to the objective of point 18 of the 2006 Guidelines on setting fines.
161    It must be stated that the method suggested by the applicant, that consists of combining the underground and submarine cables for the purposes of calculating the shares of the cartel participants in the worldwide sales, causes the proportion of an undertaking’s sales for underground cables on a worldwide level to affect the value of its sales of submarine power cables in the EEA, and vice versa. However, the method applied by the Commission means, for each party to the cartel, that only the share of sales of underground cables on a worldwide level is taken into account for the determination of the value of sales of underground cables in the EEA, and that only the share of sales of submarine cables on a worldwide level is taken into account for the determination of the value of sales of submarine cables in the EEA.
162    In addition, as the Commission has pointed out, if the share of worldwide sales combining the sales of underground and submarine cables carried out by a part of the cartel were applied to calculate the value of sales within the EEA, the value in question would not take account of the substantial difference which, according to the contested decision, exists between the EEA and the rest of the world concerning the share of the demand represented by underground and submarine cables. It is apparent from recitals 991 and 994 of the contested decision, without being disputed by the applicant, that if, on an EEA level, underground power cables represent approximately 92% of the demand, compared to approximately 8% for submarine power cables, that proportion on a worldwide level is only 73% for underground power cables and 27% for submarine power cables.
163    Consequently, contrary to what the applicant claims, it must be held that the calculation method used by the Commission, which consisted of differentiating between the total value of worldwide sales for underground cables and those of submarine cables, ensures, in accordance with the objective of point 18 of the 2006 Guidelines on setting fines, that the fine imposed reflects the applicant’s weight in the infringement imputed to it, namely participation in the single and continuous infringement in the underground power cables sector, and avoids diluting that weight because of the activity of the other participants in the submarine cables sector.
164    Moreover, in so far as the applicant argues that that method has no precedent in the Commission’s decisional practice, that argument must be rejected as ineffective, since, according to settled case-law, the Commission’s practice in previous decisions does not constitute a legal framework for the fines imposed in competition matters. That assertion applies both to the determination of the amount of individual fines and to the Commission’s interpretation of its own guidelines on setting fines, thus whether in relation to the general level of fines or to the methodology employed in calculating them (see judgment of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 50 and the case-law cited).
165    Finally, although the applicant considers that the reductions that the Commission granted to it on account of mitigating circumstances are insufficient to compensate, at the stage of determining the basic amount of the fine, for the fact that it did not participate in the part of the cartel relevant to the agreements concerning submarine power cables, it must be stated that it is by the determination of 0% of its share of sales concerning those cables that such circumstances were taken into account. In addition, in so far as the applicant’s arguments should be understood as contesting how sufficient the reduction established on account of mitigating circumstances was, it suffices to note that the applicant does not support that claim with concrete arguments. It must thus be rejected as inadmissible, without prejudice to the examination to be carried out in the context of the fourth plea, alleging a breach of the principles of proportionality and of equal treatment since the Commission refused to grant the applicant a reduction higher than 11% on account of those circumstances.
166    It is apparent from the above that, in treating underground power cables and submarine power cables separately for the purposes of calculating the applicant’s sales in the EEA, the Commission has not breached point 18 of the 2006 Guidelines on setting fines.
167     The first part of the second plea must therefore be rejected.
(b)    The second part of the second plea, alleging infringement of the principle of equal treatment
168    The applicant submits that the application of point 18 of the 2006 Guidelines on setting fines infringed the principle of equal treatment, in that, as a consequence of the method used for calculating the total value of sales worldwide, the contested decision disadvantaged the producers of underground power cables, despite the lesser extent of their participation in the cartel.
169    The Commission disputes those arguments.
170    According to settled case-law, the principle of equal treatment, a general principle of EU law, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (see judgment of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 237 and the case-law cited).
171    In addition, the case-law recognised that, in adopting rules of conduct such as the 2006 Guidelines on setting fines, and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposed a limit on the exercise of its discretion from which it cannot depart without running the risk of suffering the consequences of being in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see, by analogy, judgment of 28 June 2005, Dansk Rorindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 211).
172    In the present case, it must be noted that, as was established at paragraph 163 above, with regard to the requirements of point 18 of the 2006 Guidelines on setting fines, the Commission correctly proceeded to calculate the worldwide sales of all of the undertakings involved in the cartel by separating their sales in each of the sectors concerned.
173    In so far as, first, paragraph 18 of the 2006 Guidelines on setting fines was applied correctly, the Commission having respected the purpose of that paragraph which is to reflect the relevant weight of each cartel participant, and, second, the Commission having applied the same calculation method for all addressees of the contested decision, there is no infringement of the principle of equal treatment.
174    In addition, the applicant’s argument that the method used by the Commission led to penalising more severely the undertakings who only produced underground cables, and, inversely, to mitigating the penalty on the undertakings who produced underground and submarine cables, cannot be upheld. It must be stated that, as the Commission points out in its defence and as the applicant admits itself in the reply, the method used in the contested decision did not systematically favour the undertakings that produced both types of cables.
175    It is apparent from the above that, contrary to what the applicant claims, the Commission did not infringe the principle of equal treatment when applying point 18 of the 2006 Guidelines on setting fines.
176    The second part of the second plea must therefore be dismissed.
(c)    The third part of the second plea in law, alleging breach of the principle of proportionality
177    The applicant claims a breach of the principle of proportionality in the determination of its sales within the EEA. According to the applicant, the value of sales that were attributed to it on that market, in accordance with the application of point 18 of the 2006 Guidelines on setting fines, are unrealistic and disproportionate. In particular, the applicant notes that that value is significantly higher than the actual average of its sales within the EEA after the infringement period, between 2006 and 2012.
178    The Commission disputes those arguments.
179    It should first be noted that the principle of proportionality requires that the measures adopted by EU institutions must not exceed what is appropriate and necessary for attaining the objective pursued. In the context of calculating fines, that principle requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see, to that effect, judgment of 28 April 2010, Gütermann and Zwicky v Commission, T‑456/05 and T‑457/05, EU:T:2010:168, paragraph 264 and the case-law cited).
180    Moreover, in so far as the applicant alleges that the disproportionate determination of its sales within the EEA follows from the calculation of the value of worldwide sales of power cables and its share in those sales, it suffices to note that the Commission did not breach point 18 of the 2006 Guidelines on setting fines, neither during the calculation of the value of worldwide sales of power cables by the cartel participants, nor during the determination of the applicant’s share in respect of underground power cables.
181    In addition, the applicant maintains that, even if the calculation method used by the Commission, based on point 18 of the 2006 Guidelines on setting fines, were correct, the applicant’s sales within the EEA are disproportionate, since, even in the absence of the cartel, they would never have attained the level of sales established in the contested decision for the reference year.
182    However, first, it should be noted that, according to settled case-law, EU law contains no general principle that the penalty be proportionate to the undertaking’s turnover from the sale of the product in respect of which the infringement was committed (see, to that effect, judgment of 28 April 2010, Gütermann and Zwicky v Commission, T‑456/05 and T‑457/05, EU:T:2010:168, paragraph 264 and the case-law cited).
183    Second, it should be noted that, as the General Court has already held, in respect of a market-sharing agreement between undertakings which compete on a worldwide level, the worldwide market shares give the best adapted representation of the capacity of those undertakings to cause significant damage to other operators on the European market and give an indication of their contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel had they not participated. In addition, in so far as the applicant argues that, even in the absence of the cartel, it would never have been capable of achieving the sales which had been attributed to it, it must be held that, besides the fact that the argument is hypothetical, by participating in a market-sharing agreement which was aimed at restricting the access of Japanese producers to the EEA, the applicant itself contributed to circumstances in which its actual sales in the EEA cannot be used as a factor reflecting its relative weight in the infringement (see judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraphs 283 and 286 and the case-law cited)
184    It must therefore be held that the value of sales attributed to the applicant in the EEA does not breach the principle of proportionality.
185    The third part must therefore be rejected, as must the second plea in law in its entirety.
3.      The third plea in law, alleging a breach of Article 23 of Regulation No 1/2003, of point 20 of the 2006 Guidelines on setting fines and of the principle of proportionality
186    By its third plea, the applicant submits that the contested decision infringes Article 23 of Regulation No 1/2003, point 20 of the 2006 Guidelines on setting fines and infringes the principle of proportionality, in that it has not taken proper account of the gravity of the infringement in determining the amount of the fine. In particular, it submits that, if the Commission had properly taken account of the circumstances in the present case which concern the applicant, it would have set the percentage for the gravity of the infringement, and the additional amount at less than 17%.
187    This plea is divided into two parts, alleging that the contested decision does not take account of the applicant’s lack of knowledge of the part of the cartel relating to submarine power cables and of certain key elements of the part of the cartel relating to underground power cables, and that the contested decision does not take account of, amongst other factors, the fact that the applicant did not implement the cartel, that it competed aggressively within the EEA, and that it disrupted the part of the infringement relating to underground power cables.
(a)    The first part of the third plea in law, alleging that the contested decision does not take account of the applicant’s lack of knowledge of the part of the cartel relating to submarine power cables and of certain key elements of the part of the cartel relating to underground power cables
188    The applicant alleges that the contested decision does not properly take account of the fact that it was neither aware of certain key elements of the cartel, such as the cartel’s ‘European cartel configuration’, the ‘60/40 quota’ and the ‘contractor rule’, nor of the part of the infringement concerning submarine power cables. According to the applicant, such a lack of awareness means that its conduct was less intense than other addressees of the contested decision and that, therefore, both the gravity percentage and the percentage for the additional amount that concerned it should have been less than 17%.
189    The Commission disputes those arguments.
190    As a preliminary point, it should be borne in mind that, as is apparent from recitals 997 to 1010 of the contested decision, the Commission took account in particular, to determine the gravity of the infringement, the Commission took account in particular, of the very nature of that infringement, which consisted of sharing markets and customers in the area of power cables. According to the Commission, such conduct justified, in light of point 23 of the 2006 Guidelines on setting fines, a percentage of 15%. In addition, the Commission took account of the combined market share of the undertakings involved in the cartel and, in particular, the fact that the addressees of the contested decision taken as a whole represent almost all of the EEA market for high voltage underground and submarine power cables. The Commission also notes that the infringement had an almost worldwide geographical scope and that it included all of the EEA. In addition, the Commission took account of the extent to which the infringement was implemented in holding that the applicant incurred liability only for the parts of the cartel in which it participated or where it could not have been unaware that there was a cartel, which excluded the submarine part of the cartel which it was not aware of. Based on all those considerations, the Commission concluded that the proportion of the value of sales to be taken into account due to the gravity of the infringement had to be, for all the cartel participants, including the applicant, at least 17%. The additional amount was also established as 17%, as is explained at recital 1014 of the contested decision.
191    Regarding the applicant’s criticism that the Commission should have applied a lower gravity percentage and a lower additional amount to it than those applied to the other cartel participants, because of its lack of awareness of certain key elements of the part of the cartel relating to underground power cables, such as the cartel’s ‘European cartel configuration’, the ‘60/40 quota’, and the ‘contractor rule’, it should be borne in mind that it is apparent from the examination carried out in the context of the first part of the first plea, and in particular the findings set out at paragraphs 124, 133 and 134 above, first, that the Commission did not err in finding that the applicant was aware, or was capable of reasonably foreseeing, the cartel’s ‘European cartel configuration’, second, that the Commission did not have to prove that the applicant was aware of the ‘60/40 quota’ or of the ‘contractor rule’, or that it could not reasonably have been unaware of them, and third, that the applicant was, in any event, aware of the ‘60/40 quota’ or, at least, could have foreseen it. Therefore, it cannot be held that the applicant’s conduct concerning the part of the cartel relating to underground power cables had to be considered less serious than that of the other addressees of the contested decision.
192    Regarding the argument that the Commission should have applied a lower gravity percentage to the applicant than to the rest of the cartel participants due to its lack of awareness of the part of the cartel relating to submarine power cables, it should be noted that the Court of Justice has held that the taking into account of differences between undertakings that have participated in a single cartel, for the purpose of assessing the gravity of an infringement, need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of amount of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines on setting fines (see judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 71 and the case-law cited).
193    Moreover, as the Commission has also observed, such differences may also be reflected by means of the value of sales that is used to calculate the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 18 of the 2006 Guidelines on setting fines, under which it is possible to take, as a starting point for the calculation of the fines, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, by analogy, judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 72 and the case-law cited).
194    In the present case, it must be held that the basic amount of the fine imposed on the applicant was determined on account of the value of sales carried out solely in the underground power cables sector. It is apparent from tables 5 and 6 of the contested decision in particular, that the value of sales calculated for the applicant was zero in relation to the submarine power cables sector. Moreover, a 1% reduction in the basic amount was granted to the applicant, as a mitigating circumstance, because of its lack of awareness of the part of the cartel relating to submarine power cables and its lack of participation in that part of the cartel.
195    Second, it must be noted, as in recital 1001 of the contested decision, that the fact that the applicant was not held liable for the part of the cartel relating to submarine power cables does not prevent the finding that a 15% gravity percentage and additional amount was justified in the present case because of the nature of the infringement alone in which the applicant participated, namely the allocation of markets for underground power cables. Such an infringement is among the most harmful restrictions of competition for the purposes of point 23 of the 2006 Guidelines on setting fines and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines (see, to that effect, judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 65 and the case-law cited). In addition, regarding the additional rate of 2%, besides the fact that the applicant does not submit any concrete argument in order to call it into question, it must be stated that the Commission was able to correctly add it to the 15% since, as it explained, the whole group of addressees of the contested decision represented almost all of the EEA market for high voltage power cables, the infringement had an almost worldwide geographic scope, and it included all of the EEA.
196    Therefore, the Commission did not err in setting the rate at 17% for the relevant multiplier of the gravity of the infringement and the additional amount, even if, in the contested decision, the applicant’s liability was not established concerning the submarine power cables sector.
197    The first part of the third plea must therefore be dismissed.
(b)    The second part of the third plea, alleging that the contested decision fails to take account of the fact that it did not implement the cartel, that it competed aggressively within the EEA and that it disrupted the part of the infringement relating to underground power cables
198    The applicant reiterates that, for the purpose of determining the gravity percentage and the additional amount, the contested decision fails to take account of the fact that its participation in the infringement was less intense than that of the other competitors. Essentially, the applicant submits that this percentage should have been less than 17%, because it did not implement the ‘home territory principle’ in the EEA, because of its efforts, acknowledged in recital 586 of the contested decision, to compete for projects in the EEA, because it did not cooperate with regard to the ‘export territories’, because of numerous refusals to cooperate with the core of the cartel in the context of the agreements and because of the fact that its conduct had the effect of lowering prices on the market for underground power cables in the EEA.
199    The Commission disputes those arguments.
200    First, it should be noted that, as indicated at paragraph 195 above, the Commission cannot be considered to have erred in holding, for the multipliers relating to the gravity and the additional amount, a minimum percentage of 15%, having regard to the nature of the infringement, and an additional percentage of 2%, taking account of the geographic extent of the infringement, in conjunction with the combined market share of the participating undertakings.
201    Next, it should be noted that, according to the findings made in the context of the first plea, the Commission did not err when it found that the applicant was involved in the application of the ‘home territory principle’ within the EEA, and that it had participated in the allocation of projects for underground power cables in the ‘export territories’. Therefore, those two elements are, in any case, incapable of justifying a reduction in the amount of the gravity percentage and of the additional amount.
202    Finally, as for the argument that the Commission failed to take account of the applicant’s efforts to compete for projects within the EEA, or even the effect of lowering of prices that its conduct had on the market, it must be borne in mind, in accordance with the case-law cited at paragraph 192 above, that such elements can be taken into account when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines on setting fines. In the present case, it suffices to hold that, as is apparent from recital 1033 of the contested decision, the applicant was granted a 10% reduction of the fine for its substantially limited involvement in the infringement. In those circumstances, the applicant cannot allege that the Commission erred in failing to take account of both of those elements at the stage of determining the multipliers relevant to the gravity of the infringement and to the additional amount.
203    The second part of the third plea must therefore be rejected.
204    Having regard to the above, it must be concluded that the Commission infringed neither Article 23 of Regulation 1/2003, nor paragraph 20 of the 2006 Guidelines on setting fines, nor the principle of proportionality, in establishing a total of 17% for the multipliers relevant to the gravity and the additional amount for the calculation of the amount of the applicant’s fine.
205    The third plea in law must therefore be rejected.
4.      The fourth plea in law, alleging a breach of the principles of proportionality and equal treatment in that the Commission refused to grant the applicant a reduction greater than 11% on account of mitigating circumstances
206    By its fourth plea, the applicant maintains that the Commission should have granted a reduction on account of mitigating circumstances greater than 11%. In particular, it submits that the contested decision fails to take full account of the fact that it did not implement the cartel, competed aggressively within the EEA and disrupted the part of the arrangements relating to underground power cables. Next, it submits that the contested decision breaches the principle of equal treatment with regard, in particular, to the other operators such as Exsym and nkt cables. Moreover, the applicant argues that the contested decision fails to take account of its lack of knowledge of the key aspects of the part of the cartel relating to underground power cables. In addition, it maintains that the contested decision does not take account properly and proportionately of the applicant’s lack of knowledge of the part of the arrangements relating to submarine power cables. Finally, the applicant alleges that the contested decision fails to take account of the unfair treatment the applicant endured by means of collective and secret refusals to supply.
207    The Commission disputes the applicant’s arguments.
208    At recital 1020 et seq. of the contested decision, in so far as mitigating circumstances are concerned, the Commission decided to reflect in the fines the degree of involvement in the implementation of the cartel of the various undertakings. Thus, it reduced the fines to be imposed on the cartel’s ‘fringe players’ by 10%, including the applicant, because of their substantially limited involvement in the cartel. The Commission also granted the applicant an additional reduction of 1% on account of the fact that it had been unaware of certain aspects of the single and continuous infringement and was not liable for them.
209    First, regarding the claim that the 10% reduction in the basic amount of the fine on account of mitigating circumstances does not take into account that the applicant did not implement the cartel, that it competed aggressively on the market and disrupted the relevant agreements in the underground part of the cartel, it must be borne in mind that, in addition, apart from its generic wording, the applicant’s allegation does not explain to what extent the 10% reduction was insufficient or should have been higher. In any event, it is apparent from the case-law that the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 266 and the case-law cited). An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit. In addition contrary to what the applicant claims, it has not succeeded in demonstrating that it had been perceived by the other cartel participants as an ‘outsider’ who had never consented to their agreements (see judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 266 and the case-law cited).
210    Second, regarding the claimed breach of the principle of equal treatment in comparison to Exsym and to nkt cables, the applicant claims that, if the Commission had properly taken account of the factors revealed in the context of the second part of the third plea in law, it would have had to grant the applicant, on account of mitigating circumstances, a reduction in excess of that granted to those two undertakings, also considered as ‘fringe players’. However, in that regard, it must be stated that, in so far as the second part of the third plea in law was rejected, it cannot be held that there was any breach of the principle of equal treatment, in the way the applicant alleges. Furthermore, the applicant does not submit any concrete argument capable of establishing a sufficient difference between itself and the other cartel participants, as they are considered as fringe players.
211    Third, the applicant maintains that its lack of awareness, relied on in support of its first plea, of the key elements of the infringement, namely the ‘A/R cartel configuration’, the ‘contractor rule’ and the agreement on the ‘60/40 quota’, is such as to justify a reduction of the amount of the fine in excess of 10% on account of mitigating circumstances. However, it should be borne in mind that it is apparent from the examination carried out in the context of the first part of the first plea, and, in particular, the findings made at paragraphs 124, 133 and 134 above, first, that the Commission did not err in finding that the applicant was aware, or was capable of reasonably foreseeing, the cartel’s ‘European cartel configuration’, next, that the Commission should not have had to prove that the applicant was aware of the ‘60/40 quota’ or of the ‘contractor rule’, or that it could not reasonably have been unaware of it, and lastly, that the applicant was, in any event, aware of the ‘60/40 quota’ or, at least, it could have foreseen it. Therefore, the applicant cannot rely on those elements to justify a reduction in the amount of the fine in excess of 10% on account of mitigating circumstances.
212    Fourth, the applicant alleges that the conclusion in recital 1033 of the contested decision granting it an additional reduction of 1% on account of mitigating circumstance for its lack of awareness of certain aspects of the infringement, namely the part of the cartel relating to submarine power cables, breaches the principles of proportionality and equal treatment, because the calculation method used by the Commission to determine the estimated value of sales in the EEA was erroneous.
213    In that regard, first, it should be borne in mind that, in accordance with what is established at paragraph 166 above, the Commission did not breach point 18 of the 2006 Guidelines on setting fines in separating the underground power cables and the submarine power cables for the purposes of establishing the estimated value of sales for power cables in the EEA. Second, contrary to what the applicant argues, that calculation method reflects its own involvement in the infringement as a seller of underground power cables only.
214    Moreover, it must be held that the Commission correctly exercised its discretion in estimating that an additional reduction of 1% on account of mitigating circumstance was justified to reflect the applicant’s lack of knowledge of the part of the infringement relating to submarine power cables. In that regard, it should be noted that, as the Commission argues, certain addressees of the contested decision who did not produce submarine power cables, but who were aware of the submarine part of the infringement, were held liable for that part. Therefore, the reduction of 1% for the infringement in regard to the applicant seems appropriate to reflect that distinction.
215    Fifth, the applicant alleges that it was dependent on the other producers of power cables who were addressees of the contested decision to obtain the necessary accessories in order to be able to participate in tenders for projects in non-EEA countries. According to the applicant, that fact had to be taken into account to establish a greater reduction in the fine on account of mitigating circumstances.
216    It must be stated that, at recital 67 of the contested decision, the Commission states that the collective refusal of the cartel members to supply accessories or technical assistance to certain competitors was in fact a mechanism used in order to ensure the agreed allocations. However, as is stated at paragraph 53 above, the applicant does not submit any evidence capable of establishing its dependence on the other producers of power cables to obtain the accessories necessary for its activity of producing power cables.
217    In any event, recital 1044 of the contested decision correctly argues that, pursuant to the case-law, the pressure brought to bear by undertakings and designed to induce other undertakings to participate in an infringement of competition law does not, however great it may be, relieve the undertaking concerned of its responsibility for the infringement committed, does not in any way alter the gravity of the cartel and cannot constitute a mitigating circumstance for the purposes of the calculation of the amounts of the fines, since the undertaking concerned could have reported any pressure to the competent authorities and lodged a complaint against the undertakings concerned (see, to that effect, judgment of 5 December 2013, Caffaro v Commission, C‑447/11 P, not published, EU:T:2013:797, paragraphs 30 and 31 and the case-law cited).
218    Since it has not been established that the applicant was dependent on the other producers to obtain the relevant accessories for power cables, nor that it reported the pressure that it suffered to the competent authorities, it should be stated that the refusal to supply accessories alleged by the applicant is incapable of justifying a reduction in the fine on account of attenuating circumstances.
219    In light of the above, it must be concluded that the Commission did not err in refusing to grant the applicant a reduction in excess of 11% in the amount of the fine on account of mitigating circumstances.
220    The fourth plea must therefore be rejected.
221    In light of the foregoing, the applicant’s claims for annulment must be rejected.
B.      The claim for reduction of the fine imposed on the applicant
222    The applicant requests the Court to reduce the amount of the fine imposed on it in order to take account of the errors which it alleged the Commission made when calculating that amount.
223    However, since, first, in accordance with the conclusion reached at paragraph 219 above, the applicant’s claims for annulment must be rejected and, second, that no element would appear to justify a reduction in the amount of the fine, the claim for such a reduction must also be dismissed, as must the action in its entirety.
IV.    Costs
224    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
225    Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders LS Cable & System Ltd to pay the costs.
Collins
Kancheva
Barents
Delivered in open court in Luxembourg on 12 July 2018.
E. Coulon
A.M. Collins
Registrar
President
Table of contents
I. Background to the dispute
A. The applicant and sector concerned
B. Administrative procedure
C. Contested decision
1. The infringement at issue
2. The applicant’s liability
3. The fine imposed
II. Procedure and forms of order sought
III. Law
A. The claim for annulment
1. The first plea in law, alleging lack of proof to the requisite legal standard of the applicant’s participation in the single and continuous infringement of Article 101(1) TFEU
(a) The second part of the first plea in law, alleging that the applicant did not contribute to the single objective of the infringement, in particular to its ‘A/R cartel configuration’
(1) The first complaint: the applicant had never agreed to join the cartel during the meetings in which it participated
(2) The second complaint: the applicant was not involved in the application of the ‘home territory’ agreement within the EEA market
(3) The third complaint: the applicant’s objections to an affiliate of another cartel participant in South Korea served as a pretext for not joining the cartel
(4) The fourth complaint: the applicant did not participate in the allocation of projects for underground power cables in the ‘export territories’
(5) The fifth complaint: the applicant was considered an ‘outsider’ by the other cartel participants
(6) The sixth complaint: the applicant made efforts to penetrate the EEA market
(b) The first part of the first plea in law: the applicant was not aware of the main elements of the infringement
(1) The first complaint, relating to the awareness of the ‘European cartel configuration’
(2) The second and third complaints, relating to awareness of the ‘60/40 quota’ and the ‘contractor rule’
(c) The third part of the first plea in law, that the applicant’s liability cannot be incurred by it having been revealed that a cartel existed and the applicant’s participation in some meetings
2. The second plea in law, alleging a breach of the 2006 Guidelines on setting fines and of the principles of proportionality, legitimate expectations and equal treatment, in applying point 18 of those guidelines
(a) The first part of the second plea in law, alleging a breach of the 2006 Guidelines on setting fines
(b) The second part of the second plea, alleging infringement of the principle of equal treatment
(c) The third part of the second plea in law, alleging breach of the principle of proportionality
3. The third plea in law, alleging a breach of Article 23 of Regulation No 1/2003, of point 20 of the 2006 Guidelines on setting fines and of the principle of proportionality
(a) The first part of the third plea in law, alleging that the contested decision does not take account of the applicant’s lack of knowledge of the part of the cartel relating to submarine power cables and of certain key elements of the part of the cartel relating to underground power cables
(b) The second part of the third plea, alleging that the contested decision fails to take account of the fact that it did not implement the cartel, that it competed aggressively within the EEA and that it disrupted the part of the infringement relating to underground power cables
4. The fourth plea in law, alleging a breach of the principles of proportionality and equal treatment in that the Commission refused to grant the applicant a reduction greater than 11% on account of mitigating circumstances
B. The claim for reduction of the fine imposed on the applicant
IV. Costs
* Language of the case: English