62008TJ0406_EN
Parties
Grounds
Operative part
Parties
In Case T-406/08,
Industries chimiques du fluor (ICF), established in Tunis (Tunisia), represented initially by M. van der Woude and T. Hennen, then by P. Wytinck and D. Gillet, lawyers,
applicant,
v
European Commission, represented by É. Gippini Fournier, K. Mojzesowicz and N. von Lingen, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2008) 3043 of 25 June 2008 relating to a proceeding under Article 81[EC] and Article 53 of the EEA Agreement (COMP/39.180 — Aluminium fluoride), concerning a worldwide price-fixing and market-sharing cartel on the world aluminium fluoride market and, in the alternative, reduction of the fine imposed on the applicant,
THE GENERAL COURT (First Chamber),
composed of J. Azizi (Rapporteur), President, I. Labucka and S. Frimodt Nielsen, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 15 June 2012,
gives the following
Judgment
Grounds
Background to the dispute
I – Facts
1. Commission Decision C(2008) 3043 of 25 June 2008 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (COMP/39.180 — Aluminium fluoride) (‘the contested decision’) concerns a worldwide price-fixing and market-sharing cartel on the world aluminium fluoride market, in which the applicant, Industries chimiques du fluor (ICF), was found to have participated actively.
2. The applicant is a public limited company incorporated under Tunisian law which is listed on the Tunis (Tunisia) stock exchange and active in the production and sale of aluminium fluoride (recital 23 of the contested decision).
3. Boliden Odda A/S (‘Boliden’) is a company incorporated under Norwegian law and active in the production and sale of zinc and aluminium fluoride (recital 5 of the contested decision). On 23 March 2005, Boliden submitted to the Commission of the European Communities an application for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’). In April 2005, Boliden submitted further clarifications, additional information and oral statements. On 28 April 2005, the Commission granted Boliden conditional immunity from fines pursuant to point 8(a) of the Leniency Notice (recital 56 of the contested decision).
4. On 25 and 26 May 2005, the Commission carried out inspections, pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), at the premises of European suppliers of aluminium fluoride (recital 57 of the contested decision), in particular of Fluorsid SpA, a company incorporated under Italian law, Alufluor AB, Derivados del Fluor SA and C.E. Giulini & C. Srl.
5. On 23 and 31 August 2006, the Commission interviewed Mr O., the former commercial manager of ‘Noralf’, Boliden’s aluminium fluoride division, pursuant to Article 19 of Regulation No 1/2003 (recital 58 of the contested decision).
6. Between September 2006 and February 2007, the Commission sent a number of requests for information to the undertakings which were the subject of the administrative procedure at that stage, inter alia, to the applicant, Boliden, Alufluor, Derivados del Fluor, Fluorsid, C.E. Giulini & C., Minmet, a company established in Switzerland and Fluorsid’s main shareholder, and Industrial Quimica de Mexico (IQM), a company incorporated under Mexican law, pursuant to Article 18(2) of Regulation No 1/2003, to which those undertakings replied (recital 59 of the contested decision).
7. On 29 March 2007, during a meeting with the Commission, Fluorsid submitted certain written materials. On 22 April 2007, Fluorsid submitted ‘an application for immunity or a reduction of its fine’ under the Leniency Notice, which the Commission interpreted as an application for a reduction of the fine. On 27 May 2007, Fluorsid submitted an addendum to that application. On 13 July 2007, the Commission informed Fluorsid that it did not intend to grant it any reduction of fines under the Leniency Notice (recitals 60 and 248 to 249 of the contested decision).
8. On 24 April 2007, the Commission formally initiated proceedings against, inter alia, the applicant, Boliden, Fluorsid, Minmet and IQM and adopted a statement of objections which was sent to them on 25 April 2007 and notified to them between 26 and 30 April 2007. At the same time, they were granted access to the file by the Commission by means of a CD-ROM (recital 61 of the contested decision).
9. With the exception of Boliden, the addressees of the statement of objections submitted their observations on the objections raised against them (recital 62 of the contested decision).
10. On 13 September 2007, an oral hearing was held, in which all the addressees of the statement of objections took part (recital 63 of the contested decision).
11. On 11 and 14 April 2008, the Commission sent requests for information to all the addressees of the statement of objections, asking them to provide information about their overall turnover and their sales of aluminium fluoride as well as details about any forthcoming significant change to their businesses or owners (recital 64 of the contested decision).
II – The contested decision
A – Operative part of the contested decision
12. The operative part of the contested decision is worded as follows:
‘Article 1
The following undertakings have infringed Article 81 [EC] and Article 53 of the EEA Agreement by participating, from 12 July 2000 until 31 December 2000, in an agreement and/or concerted practice in the aluminium fluoride sector:
(a) Boliden ...
(b) Fluorsid ... and Minmet ...
(c) [ICF]
(d) [IQM] and QB Industrias SAB
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a) Boliden ...: EUR 0;
(b) Fluorsid ... and Minmet ..., jointly and severally: EUR 1 600 000;
(c) [ICF]: EUR 1 700 000;
(d) [IQM] and QB Industrias SAB, jointly and severally: EUR 1 670 000.
...’
B – Grounds of the contested decision
13. In the grounds of the contested decision, the Commission found, essentially, as follows.
1. The aluminium fluoride industry
14. The Commission states that aluminium fluoride is a chemical compound used for the production of aluminium, enabling the consumption of electricity required in the smelting process to be lowered during the production process of primary aluminium and thereby considerably contributing to the reduction of the production costs of aluminium. Aluminium producers are the main users of aluminium fluoride. Every year more than 20 million tons of aluminium is produced worldwide, some 30% of which in Europe (recitals 2 and 3 of the contested decision).
15. In 2000, the applicant’s sales of aluminium fluoride within the European Economic Area (EEA) amounted to EUR 8 146 129 and its total sales worldwide amounted to EUR 34 339 694. In 2007, its worldwide total turnover amounted to EUR 36 891 574 (recital 25 of the contested decision).
16. In 2000, the estimated total market value of aluminium fluoride sold on the open market in the EEA was approximately EUR 71 600 000. The market value of aluminium fluoride sold on the open worldwide market concerned by the cartel, in 2000, was approximately EUR 340 000 000. The estimated joint market share of the undertakings which are the subject of the contested decision is 33% on the EEA market and 35% on a worldwide basis (recital 33 of the contested decision).
17. Aluminium fluoride is traded on a worldwide basis. Sales have been made from the United States into the EEA and from the EEA to the United States, Africa, South America and Australia (recital 35 of the contested decision). The applicant sells considerable quantities of the product in the EEA (recital 36 of the contested decision). Since 1997, the aluminium fluoride industry association, the Inorganic Fluorine Producers Association (IFPA), has brought together producers from all around the world (recital 38 of the contested decision).
2. The Milan meeting and the implementation of the cartel
18. The Commission states that to some extent collusive activities already took place in the aluminium fluoride industry in the period between the creation of the IFPA in 1997 and the Milan (Italy) meeting of 12 July 2000, but that there is no convincing evidence in that regard (recital 73 of the contested decision). The Commission pointed out that, at the Milan meeting, representatives of Fluorsid, the applicant and IQM were present, whilst a representative of Boliden’s ‘Noralf’ division took part in the meeting over the telephone. During that meeting, those undertakings agreed on an objective of increasing prices by 20%. They examined various regions worldwide, including Europe, to establish a general price level and in some cases a market division. According to their agreement, the overall aim was to obtain a higher price level and to discourage deep price discounting. The participants also exchanged commercially sensitive information. In that connection, the Commission relied on the report on the Milan meeting by Mr R., representing Fluorsid, the notes taken by Mr O., representing Boliden’s ‘Noralf’ division, and Mr O.’s statement (recitals 77 to 91 of the contested decision).
19. Following the Milan meeting, the undertakings concerned remained in contact with each other (recital 93 of the contested decision).
20. On 25 October 2000, Mr T. of Boliden’s ‘Noralf’ division and Mr A. of IQM exchanged over the telephone information on their respective offers to a customer in Australia, including information about the price level, contract period and volume offered. The content of that telephone call was recorded in a contemporaneous handwritten note from Mr T. to Mr O., also of Boliden’s ‘Noralf’ division (recital 94 of the contested decision).
21. On 8 November 2000, Mr C., Managing Director of Minmet, sent a note to Fluorsid concerning a telephone conversation which he had with Mr G. of the applicant on the same day concerning the sales prices of aluminium fluoride (recital 95 of the contested decision).
22. On 9 November 2000, Minmet sent another report to Fluorsid, this time on a meeting with the applicant in Lausanne, Switzerland, concerning the customers and prices on certain markets, in particular Brazil and Venezuela (recital 96 of the contested decision).
3. The application of Article 81(1) EC and Article 53(1) of the EEA Agreement
23. The Commission concluded that the Milan meeting and the resulting conduct aimed at giving effect to it presented all the characteristics of agreements and/or concerted practices within the meaning of Article 81 EC and Article 53 of the EEA Agreement (recitals 115 to 122 of the contested decision) and that that cartel constituted a single and continuous infringement (recitals 123 to 129 of the contested decision).
24. That infringement had the object of restricting competition in the Community and the EEA (recitals 130 to 135 of the contested decision), but its geographic scope was worldwide, covering the regions mentioned in the report on the Milan meeting, in particular, Europe, Turkey, Australia, South America, South Africa and North America (recital 136 of the contested decision).
25. In the Commission’s view, the cartel was capable of having an appreciable effect upon trade between the Member States ‘and/or’ the Contracting Parties of the EEA Agreement (recitals 137 to 142 of the contested decision).
4. Duration of the infringement
26. Whilst there are indications that collusion may already have occurred between the aluminium fluoride producers in the second half of the 1990s, and notably following a meeting in Greece in 1999, the Commission took the view that it had convincing evidence that there was a cartel from ‘at least’ 12 July 2000, the date of the Milan meeting (recital 144 of the contested decision).
27. Aluminium fluoride industry supply contracts are negotiated in advance during a period starting sometime in the second half of each calendar year and ending at the end of that calendar year or in the very first months of the next calendar year. That also applies to multi-year contracts. Some of the multi-year contracts still provided either for an annual price negotiation by the end of each calendar year or for half-yearly revision of prices at the end of each six months. The report on the Milan meeting confirms that the practice of the industry was to determine prices in advance for the following business year. The Commission inferred from this that the result of the collusive contacts in July 2000 applied to the negotiations carried out in the second half of 2000 (recital 146 of the contested decision).
28. The Commission thereby concluded that the cartel was in force and continued to produce its anti-competitive effects, from the cartel members’ conduct, until ‘at least’ 31 December 2000 (recital 147 of the contested decision).
5. Determination of the amount of the fine
29. The Commission set the basic amount of the fine to be imposed on the applicant at EUR 1 700 000 (recital 243 of the contested decision), stating that, in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines’), ‘the basic amount of the fine to be imposed should be related to a proportion of the value of sales, depending on the degree of gravity of the infringement multiplied by the number of years of infringement’ (recital 234 of the contested decision).
30. In the present case, the infringement consisted in, inter alia, a horizontal price-fixing agreement which, by its very nature, was among the most harmful restrictions of competition. That aspect had to be reflected in the proportion of the value of sales taken into account (recital 236 of the contested decision). The combined market share of the undertakings participating in that infringement, estimated in 2000, was not more than 35% in the EEA (recital 237 of the contested decision). The geographic scope of the cartel was worldwide (recital 238 of the contested decision). The Commission ‘[also took into account t]he degree to which the agreement was implemented (recitals (134) to (135), (154) to (156), (172) and (185) of the contested decision) … in setting the proportion of the value of sales to take into account’ (recital 239 of the contested decision).
31. The Commission concluded that, taking into account the factors referred to above concerning the nature of the infringement and its geographic scope, the proportion of the value of sales of each undertaking to be used to establish the basic amount of the fines to be imposed was 17% (recital 240 of the contested decision).
32. Since the duration of the infringement corresponded ‘at least’ to the period from 12 July 2000 to 31 December 2000, the multiplying factor to be applied to the basic amount was 0.5 (recital 241 of the contested decision). The additional amount in order to deter undertakings from entering into horizontal price-fixing agreements such as the one at issue was 17% of the value of sales (recital 242 of the contested decision).
33. The Commission determined the basic amounts of the fines to be imposed on the participants in the cartel as follows:
– Boliden: EUR 1 000 000;
– Fluorsid and Minmet: EUR 1 600 000;
– ICF: EUR 1 700 000;
– IQM, QB Industrias SAB: EUR 1 670 000.
34. In accordance with the Leniency Notice, the Commission ultimately granted Boliden immunity from any fines.
6. Mitigating circumstances
35. The Commission took the view that the evidence put forward by the applicant did not show that its actual conduct on the market ‘was capable of prevailing over the anti-competitive effects of the infringement found or that it always acted independently on the market during the period of the infringement’. On the contrary, the evidence in the Commission’s file showed that the applicant maintained bilateral contacts with its competitors even after the Milan meeting (recitals 245 to 247 of the contested decision). The Commission did not find any mitigating circumstances in favour of the applicant which could result in a reduction of the fine.
36. The Commission concluded that the amount of the fine to be imposed on the applicant under Article 23(2) of Regulation No 1/2003 should be EUR 1 700 000 (recital 276 of the contested decision).
Procedure and forms of order sought by the parties
37. The applicant brought the present action by email and by telefax, lodged at the Registry of the Court on 19 and 20 September 2008 respectively. The Registry received the paper version of the application on 24 September 2008. A cover letter was sent in each instance.
38. On 27 October 2008, at the request of the Court, the applicant submitted its observations on the original character of the paper version of the application received on 24 September 2008.
39. The applicant claims that the Court should:
– annul the contested decision;
– in the alternative, reduce substantially the amount of the fine imposed on it;
– order the Commission to pay the costs.
40. The Commission contends that the Court should:
– dismiss the action as inadmissible or, in the alternative, as unfounded;
– order the applicant to pay the costs.
41. On hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
42. As a member of the Chamber was unable to sit, the President of the Court designated another Judge to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure of the Court.
43. In the context of measures of organisation of procedure under Article 64 of the Rules of Procedure, the Court called upon the Commission to produce certain documents and to answer questions in writing. The Commission complied with those measures of organisation of procedure within the prescribed period.
44. The parties presented oral argument and replied to the oral questions of the Court at the hearing on 14 June 2012.
Law
I – Admissibility of the action
45. The Commission claims that the present action is inadmissible.
46. The contested decision of 25 June 2008 was notified to the applicant on 10 July 2008. The period of time allowed for bringing an action for annulment against the contested decision, extended on account of distance by a period of ten days, expired on 22 September 2008. A copy of the application was received by the Registry of the Court by email on 19 September 2008 and by telefax on 20 September 2008, whilst it did not receive the paper version until 24 September 2008. In so far as the paper version was not the original of the application, but a photocopy of the original, Article 43(6) of the Rules of Procedure is not applicable and the action, brought out of time, is inadmissible. The signature on the copy of the application is not a handwritten signature, but a copy of that signature. The requirement of a handwritten signature under Article 43(1) of the Rules of Procedure must be regarded as an essential procedural rule and be applied strictly, so that failure to comply with it leads to the inadmissibility of the action. The Commission defers to the Court’s assessment of the admissibility of the action.
47. According to the applicant, the ‘administrative handling error’ in question does not infringe the principle of legal certainty or Article 43 of the Rules of Procedure. On 19 September 2008, the applicant’s counsel sent by telefax the application initiating the proceedings signed by M. van der Woude and T. Hennen. The fax cover letter was signed by Mr Hennen and P. Wytinck, associates of Mr van der Woude. On the same date, Mr Hennen sent the application, the cover letter, and the acknowledgment of receipt of the fax by email to Registry of the Court of Justice and Mr van der Woude redirected that email to the Registry of the General Court on 20 September 2008. On 23 September 2008, Mr Hennen sent seven copies of the application, by UPS, to the Registry of the General Court, one copy of which was submitted as the original and six as certified copies. The cover letter was signed by Mr Hennen. The seven copies sent on 23 September 2008 were identical to the text sent by telefax and email and were all signed by Mr Hennen. The version of the application submitted as being the original, but the original version of which had not been sent because of a ‘handling error’, bore a non-handwritten signature.
48. The applicant claims that the paper version of the application sent to the Registry was an ‘original’. Even though the signature is not handwritten in this case, the principle of legal certainty was respected. First, all the versions of the application lodged at the Registry are substantively identical. Second, it is clear from the cover letter of 23 September 2008, signed by hand by Mr Hennen, that the applicant’s intention was to send an original. The signature on the letter is identical to the signature reproduced on the document submitted as the original of the application and to the signatures on all the other documents sent to the Registry of the General Court. Third, the version submitted as the original of the application is identical to the one scanned and sent by email. Fourth, since Mr Hennen signed all the documents sent to the Registry of the General Court, there is no doubt that those documents are the work of the authorised lawyer. The applicant concludes that there can be no doubt as to the author of the application submitted as the original.
49. Article 43(1) of the Rules of Procedure provides that the original of every pleading must be signed by the party’s agent or lawyer.
50. Under Article 43(6) of the Rules of Procedure, if a pleading has first been sent to the Registry by fax or other technical means of communication available to the General Court before the expiry of the time-limit for taking steps in proceedings, that time-limit is deemed to have been complied with, provided that the signed original of the pleading is lodged at the Registry no later than ten days thereafter.
51. In this case, the paper version of the application was lodged at the Registry within the time-limit of ten days after the transmission of the telefax and email versions.
52. As has been recognised by case-law, the requirement of a handwritten signature for the purposes of the first subparagraph of Article 43(1) is designed, for reasons of legal certainty, to ensure the authenticity of the application and to eliminate the risk that that document is not in fact the work of the author authorised for that purpose. That requirement must therefore be regarded as an essential procedural rule and be applied strictly, so that failure to comply with it leads to the inadmissibility of the action (Case T-223/06 P Parliament
v Eistrup [2007] ECR II-1581, paragraph 51).
53. Article 43 of the Rules of Procedure seeks to ensure the respect of the principle of legal certainty and, to that end, requires the application to be authentic and the work of a lawyer duly authorised by his client.
54. In the present case, according to the document of 8 September 2008 annexed to the application, Mr Hennen was duly authorised by the applicant.
55. Although the application itself, sent on 23 September 2008, did not bear an original signature of the representing lawyer, but only a photocopy of the signature, it is annexed to an accompanying letter which includes an original handwritten signature of the same representing lawyer, Mr Hennen, also corresponding to the signature on the letter accompanying the telefax. It is therefore clear that the signature on the accompanying letter, the signature on the paper version of the application sent on 23 September 2008 and the signature on the version of the application sent by telefax originate from the same lawyer, Mr Hennen. Consequently, there is no doubt as to the identity of the author of the application submitted as the original. In addition, a cover letter or a transmission sheet, signed by the applicant’s representative, and an unsigned written pleading must be regarded as constituting a single, duly signed pleading where they are part of the same postal mailing, as in the present case.
56. Accordingly, the transmission of the application, by email and telefax, was duly authenticated in good time in accordance with Article 43(5) of the Rules of Procedure and the action is therefore admissible.
II – Substance
A – Summary of the grounds for annulment
57. In support of its action, the applicant essentially relies on four pleas in law, some of which are subdivided into several parts.
58. The first plea in law alleges, principally, an infringement of the rights of the defence and of Article 27 of Regulation No 1/2003. The contested decision penalised a different infringement from that described in the statement of objections and, after the statement of objections had been sent, the Commission relied on new documents in the contested decision. The applicant was not able to identify the actual objections raised by the Commission, which thus breached the rights of the defence of the applicant.
59. The second plea in law alleges an infringement of Article 81 EC. The first part of the second plea in law alleges that the facts alleged against the applicant do not constitute an infringement of Article 81 EC. The evidence relied on in the contested decision does not establish either a price-fixing agreement or a concerted practice within the meaning of Article 81 EC. The second part of the second plea in law, raised in the alternative, alleges that the facts alleged against the applicant cannot be classified as a single and continuous infringement.
60. The third plea in law, raised in the alternative, alleges an infringement of Article 23 of Regulation No 1/2003 and of the principle of protection of legitimate expectations. The first part alleges a misapplication of point 18 of the 2006 Guidelines. The second part alleges the incorrect determination of the basic amount and of the additional amount of the fine.
61. The fourth plea in law alleges an infringement of Article 36 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (OJ 1998 L 97, p. 2; ‘the Euro-Mediterranean Agreement’), the duty of care and the principle of international comity.
62. The General Court considers that the second plea in law should be examined first.
B – The second plea in law alleging an infringement of Article 81 EC
1. The first part alleging that the facts alleged against the applicant do not constitute an infringement of Article 81 EC
a) Preliminary remarks
63. The applicant disputes an infringement of Article 81 EC and the existence of a cartel and the anti-competitive object or effect of any exchange of information. The applicant also claims that the Commission erred in law in stating that the existence of an anti-competitive object is sufficient to establish the existence of a restriction of competition.
64. The evidence identified in the contested decision demonstrates at the very most the existence of contacts in the course of which the participants reviewed the different markets on which they operated. The applicant did not reach an understanding with its competitors on prices by means of either an agreement or a concerted practice. At most, the facts found in the contested decision constitute an exchange of information whose anti-competitive object or effect was established. The Commission did not show that the undertakings concerned had agreed on a 20% increase in aluminium fluoride prices or objectives of increasing prices. The report on the Milan meeting revealed only a rise in production costs, market data known to everyone, and the participants’ ‘wish ’ for a corresponding price increase for their product. However, the participants doubted that the market could take such a price increase. The applicant claims that the discussion had been ‘hypothetical’ and that there had not been a consensus on a 20% increase in aluminium fluoride prices. It was an analytical document and not an agreement. The notes taken by Mr O. at the Milan meeting are also analytical, and do not show a price agreement. The notes by Mr O. of Boliden’s ‘Noralf’ division, which are dated 25 October 2000 and relate to Australia, do not mention an agreement or the Milan meeting. Similarly, the notes by Fluorsid, dated 8 November 2000, and by Mr R. of Fluorsid, dated 9 November 2000, are not evidence of a price agreement and make no reference to the purported Milan agreement. The applicant claims that the idea that four producers were able to agree a worldwide price increase is ‘economically absurd’. Lastly, the Commission has not proved either the object of the exchange of information or its anti-competitive effect.
65. The Commission contends that this plea in law should be rejected.
66. As a preliminary point, it is necessary to bear in mind the settled case-law which recognised, first, that it was for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing to the requisite legal standard the facts constituting an infringement, and, secondly, it was for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence were satisfied, so that the authority would then have to resort to other evidence (Case C-185/95 P Baustahlgewebe
v Commission
[1998] ECR I-8417, paragraph 58; Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others
v Commission
[2004] ECR I-123, paragraph 78; and Case T-120/04 Peróxidos Orgánicos
v Commission
[2006] ECR II-4441, paragraph 50).
67. The Court observes, as regards proof of an infringement of Article 81(1) EC, that the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink
v Commission
[1984] ECR 1679, paragraph 20). Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (Case T-38/02 Groupe Danone
v Commission
[2005] ECR II-4407, paragraph 215).
68. It has also consistently been held that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others
v Commission
[2004] ECR II-2501, paragraph 180 and the case-law cited).
69. Furthermore, it is normal for the activities which anti-competitive practices and agreements entail to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as reports on meetings, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others
v Commission, paragraph 66 above, paragraphs 55 to 57, and Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel
v Commission
[2007] ECR I-729, paragraph 51).
b) Outline of the contested decision
70. It must be noted that, in the contested decision, the Commission relied essentially on the following documents in order to find that there had been an infringement of Article 81 EC: the report on the Milan meeting (recitals 77 and 81 to 88 of the contested decision), the notes taken by Mr O. from Boliden’s ‘Noralf’ division at that meeting (recital 89 of the contested decision), Mr O.’s statement to the Commission on 23 and 31 August 2006 concerning that report (recital 90 of the contested decision), Mr O.’s notes of 25 October 2000 concerning the telephone conversation between Boliden’s ‘Noralf’ division and IQM (recital 94 of the contested decision), and the notes of Mr C. of Minmet of 8 and 9 November 2000 (recitals 95 and 96 of the contested decision). The Commission deduced from those documents that a meeting had taken place between representatives of Fluorsid, the applicant and IQM, that is between Mr R., Mr G. and Mr A., respectively, on 12 July 2000 in Milan, Italy, in which the representative of Boliden’s ‘Noralf’ division, Mr O., took part by telephone. The report on the Milan meeting was drawn up by Mr R. of Fluorsid. According to the Commission, the content and object of that meeting were anti-competitive (recitals 115 to 122 of the contested decision).
71. The technical terms used in the abovementioned documents are as follows:
– ‘US$/T or US$/MT’, which means that the prices are stated in US dollars (USD) per ton or per metric ton;
– ‘INCOTERMS’, which means international commercial terms;
– ‘C & F Filo’, which means cost and freight and free in/liner out;
– ‘CFR’, which means cost and freight;
– ‘FCA’, which means free carrier;
– ‘FOB’, which means free on board;
– ‘LME’, which means the London Metal Exchange, which is a trading exchange for listed metals. The LME price determines the price of aluminium. In the documents referred to, the abbreviation ‘LME’ indicates the price of aluminium;
– ‘AlF 3 ’ is the abbreviation for aluminium fluoride. It must also be pointed out that the price of aluminium fluoride may be calculated as a percentage of LME. According to the parties, the AlF 3
price is normally between 45% and 55% of LME, that is normally between USD 650 and USD 900.
72. It must also be noted that the documents relied on by the Commission in the contested decision were produced either by Boliden or by the other cartel members, in particular the applicant. The applicant has not challenged the authenticity, credibility or the probative value of those documents, and there is nothing in the file which gives grounds to assume that their evidential value must be called in question. The applicant does not challenge the content of that evidence as such, but simply tests the conclusions drawn from it by the Commission in order to prove the existence of a cartel.
c) Proof of the infringement
73. In the contested decision, the Commission found that the participants in the Milan meeting concluded an agreement on a 20% price increase for the sale of aluminium fluoride. They also established a general price level in various regions worldwide, including Europe, and, in some cases, divided markets and exchanged commercially sensitive information. It is therefore necessary to assess the evidence on which the Commission relied in the contested decision in support of its conclusions.
74. First of all, the report on the Milan meeting refers to an increase in total costs of 20% between June 1999 and June 2000, which made necessary a 20% increase in aluminium fluoride costs in 2001. In that connection, it is then stated as follows (recital 81 of the contested decision):
‘As our price of [aluminium fluoride] for sale in 2000 was determined in mid-year 1999 and our costs at mid-year 2000 are 20% higher than 1999, our prices of [aluminium fluoride] in 2001 should be 20% higher than those of 2000. All three parties [Fluorsid, the applicant, IQM] agreed this was reasonable from the producer standpoint. However will the market supply/demand permit such an increase [?].’ (p. 1 of the report on the Milan meeting)
75. It is therefore clear from the report on the Milan meeting that the representatives taking part in that meeting, including the applicant’s representative, agreed on a 20% increase in their prices for the sale of aluminium fluoride in 2001.
76. In addition, as regards the European market, the report on the Milan meeting refers to an agreement between those representatives for 2001 on a price of USD 775 FCA, that is, USD 800 FOB, per ton of aluminium fluoride (recital 85 of the contested decision):
‘For year 2001 [ICF] wants to raise price to 800 US$/T FCA Mordijk and 775 US$/T FOB Gabes. European producer price therefore 775/800 US$/T FCA/FOB European producer’ (p. 6 of the Milan report).
77. It is apparent from all those documents that that price constituted a minimum price below which the cartel members had not to make offers on the markets affected.
78. Those conclusions are confirmed by the notes of Mr O. of Boliden’s ‘Noralf’ division, taken at the Milan meeting, in which he had participated by telephone, and by the oral statements he made before the Commission on 23 and 31 August 2006 (recitals 77, 89 and 90 of the contested decision). Consequently, it is apparent from those notes and statements that the participants at that meeting asserted that they needed a 20% price increase and, after taking stock of costs, concluded that the prices for 2001 had to be increased by 20% and set at USD 800 per ton, that is 50% LME.
79. In addition, several documents subsequent to the Milan meeting show that the participants thereto observed the terms of that agreement, maintained bilateral contacts in that regard and exchanged sensitive commercial data, in particular for the purposes of monitoring each other’s respective price policies. Thus, the note of Mr T. of Boliden’s ‘Noralf’ division to Mr O., also of that division, concerning a telephone conversation of 25 October 2000 between Mr T. and IQM’s Mr AR., indicates that Mr T. and Mr AR. exchanged information on their price offers to a customer in Australia. Those price offers corresponded to a minimum price of USD 800 per ton agreed at the Milan meeting. It is apparent from the note that IQM offered that Australian customer a price level of USD ’850 — 875 — 900’, whereas Boliden’s ‘Noralf’ division stated that it had offered a price of approximately USD 800, but had not yet concluded any agreement with the Australian customer (recital 94 of the contested decision).
80. In addition, it is apparent from the note of Mr C. of Minmet concerning his telephone conversation of 8 November 2000 with Mr G. of the applicant that the applicant had complained about the ‘low’ prices offered by Minmet in an Egyptian public tender — ‘US$725 per ton FOB/US$745 per ton CFR’ — and asked how Minmet could expect to raise the price to USD 875 in Venezuela as the Venezuelans would have access to the tender in Egypt. The same note states that Mr C. of Minmet replied that the situation was difficult to control because of the lack of trust and Mr G. confirmed that the prices offered to Albras, an aluminium-producing customer in Brazil, exceeded USD 800 per ton. It is also clear from that note that, after the Milan meeting, the applicant was in contact with another participant at that meeting, Minmet, regarding the agreement which had been concluded, in order to check the prices charged by Minmet and to provide information about the prices it offered to Albras (see also recital 95 of the contested decision).
81. In addition, according to the report of 9 November 2000, drawn up by Mr C. of Minmet and sent to Fluorsid, concerning a meeting with Mr G. and Mr T., of the applicant, the applicant indicated that it had charged the customer Albras a price of USD 845 ‘CFR’ for 3 000 metric tons and an option of 1 000 metric tons and ‘US$ 740 “FOB + 65 freight”’ and Derivados del Fluor had charged Albras a price of USD 803 per ton CFR. In that report Minmet states that the applicant claims to have charged USD 845 per ton ‘FOB’ to the customer Egyptalum and to have rejected Egyptalum’s request to reduce the price to USD 750 per ton. According to that report, the applicant complained about the low price charged by Minmet. The report also mentions an exchange of information concerning IQM’s commercial behaviour in Australia, North America and Brazil and concerning the Venezuelan market. As far as the Venezuelan market is concerned, it is stated that the applicant confirmed that it wished to cap its supply at 6 000 metric tons, whilst Minmet insisted that prices exceeded USD 800 per ton ‘CFR’ (see also recital 96 of the contested decision).
82. It is thus apparent from the documents relating to the contacts of 25 October and 8 and 9 November 2000 that the undertakings concerned monitored each other’s price levels. In addition, as the Commission correctly stated in the contested decision, the prices corresponded to the results of the negotiations at the Milan meeting. In that connection, it must also be noted that the documents of 25 October and of 8 and 9 November 2000 describe contacts after the Milan meeting between participants in it, in particular between Fluorsid, Minmet and the applicant, which were clearly linked to the agreement on prices agreed upon at that meeting, since they refer to key aspects of that agreement.
83. That price agreement related, first, to the European markets. In that connection, the report of the Milan meeting states the production and sales volumes for aluminium fluoride in 2000, in particular for Norway, Sweden, Spain and Italy (p. 2 of the Milan report), and sales forecasts for 2001 for Romania, Italy, Norway, Germany and the Netherlands (pp. 2 and 3 of the Milan report). In addition, the report on the Milan meeting mentions an exchange of information concerning the participants’ sales in the cartel in Europe, in particular in Italy, Romania, Spain, Scandinavia, Germany, the Benelux countries and the United Kingdom. In that context, the applicant stated that it wished to raise the price to USD 800 per ton ‘FCA Mordijk’ and to USD 775 per ton ‘FOB Gabes’ in 2001, with the result that the European producer price would be USD 775/800 per ton ‘FCA/FOB’ (p. 6 of the Milan report; see also recital 85 of the contested decision and paragraph 76 above).
84. Secondly, the Commission established that that agreement also applied to various regions in the world. Thus, according to the report on the Milan meeting, with regard to Australia, the ‘price idea’ for 2001 was USD 800 per ton ‘FOB Europe’, that is ‘50% LME FOB’, whereas the European price could be higher than the Chinese price and was to be USD 875 per ton. As regards South America, the report contains prices for 2000 and minimum prices for 2001. For Venezuela, it contains the price of USD 850 per metric ton ‘C & F Filo’ and the absolute minimum price of USD 890 per metric ton. For Brazil, all producers agree that the price has to be about ‘50% LME FOB’ and USD 875 per ton CFR. As regards North America, Alcoa’s price for 2000 is USD 775 per metric ton ‘ex Point Comfort’ and for 2001 USD 800/825 per metric ton ‘ex Point Comfort’. Suppliers that do not supply Alcoa should obtain a price of USD 825 per ton, as an ‘ex-warehouse’ price, and USD 825 per ton supplied. The participants in the Milan meeting indicated their interest in supplying certain regions in the world. With regard to India, the report on the Milan meeting states that there is an interest in selling 3 000 tons, but that the price should be USD 900 per metric ton supplied. For Turkey, the price of USD 800 per ton ‘FOB’ is shown (pp. 6 and 7 of the report on the Milan meeting; see also recitals 86 and 87 of the contested decision).
85. In his oral statements to the Commission on 23 and 31 August 2006, Mr O. of Boliden’s ‘Noralf’ division stated, in addition, that the participants in the Milan meeting had agreed on each other’s customers and the price level which should be maintained inside and outside Europe. The aim of the Milan meeting was thus to achieve a common explanation as to how the new price levels should be introduced. The participants in the Milan meeting agreed on the quantities for the different customers. There was an implicit agreement to respect their respective customers and supplies to those customers (see recital 90 of the contested decision).
86. Similarly, it is apparent from the note of the telephone call of 25 October 2000 that Mr A. of IQM wanted to ‘keep in touch’ with Mr T. of Boliden’s ‘Noralf’ division and agreed, as regards Australia, that Boliden’s ‘Noralf’ division would supply 3 000 tons, indicating that it had supplied 7 000 tons in 1999 and wished to maintain that level. In addition, according to that note, on that occasion Mr T. pointed out the price of USD 800, which corresponded to the price adopted for Australia at the Milan meeting. Thus, that note provides evidence of contacts between Boliden’s ‘Noralf’ division and IQM after the Milan meeting regarding the price and the quantities of aluminium fluoride supplied or offered in Australia, the content of which corresponds to that which had been agreed at the Milan meeting (see also recital 94 of the contested decision).
87. Lastly, it is also apparent from the report on the Milan meeting that, subsequently, the participants in that meeting, namely Fluorsid, the applicant and IQM, exchanged information on production and sales volumes in 2000 and on forecasts for 2001 concerning various countries in the world with references to precise quantities, and information according to producers and customers. As regards ‘the individual markets’, the report states as follows (recital 84 of the contested decision):
‘We examined each market to establish a general price level and in some cases a market division. However we all agreed regardless of who obtains business we must obtain a higher price level. Therefore we should discourage deep price discounting.’ (p. 5 of the report on the Milan meeting)
88. It follows that the participants in the Milan meeting exchanged sensitive commercial information, such as that concerning production volumes, the amounts which they sold or intended to sell, their customers both in Europe and worldwide, the determination of their prices and the sharing of the markets between themselves, in order to agree upon those competition parameters.
89. It is therefore apparent from all that evidence, whose content is not disputed by the applicant as such, that the Commission has proved to the requisite legal standard the existence of a price-fixing agreement for the purposes of Article 81 EC and Article 53 of the EEA Agreement, concluded at the Milan meeting in which the applicant participated.
90. Consequently, in the contested decision, the Commission established that the Milan meeting had an anti-competitive object and that there was an agreement which infringed Article 81(1) EC, and there was no need to prove that that agreement produced effects (Case C-49/92 P Commission
v Anic Partecipazioni
[1999] ECR I-4125, paragraph 123, and JFE Engineering and Others
v Commission, paragraph 68 above, paragraph 181). In that connection, it must be borne in mind that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. According to settled case-law, the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. However, it is not necessary to examine the effects of an agreement once its anti-competitive object has been established (see, to that effect, Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services and Others
v Commission and Others
[2009] ECR I-9291, paragraph 55, and Joined Cases C-403/08 and C-429/08 Football Association Premier League and Others
[2011] ECR I-9083, paragraph 135).
91. In those circumstances, there is no need to consider whether the criteria laid down in the case-law governing the concept of a concerted practice (see Commission
v Anic Partecipazioni, paragraph 90 above, paragraphs 111 to 114, 131 and 132, and Case T-9/99 HFB and Others
v Commission [2002] ECR II-1487, paragraphs 187 and 190) are also met in the present case. Since the criterion for constituting an ‘agreement’, necessary for the prohibition in Article 81 EC to apply, has been met in the present case, the Court would merely be classifying an alternative characterisation of the same cartel, which does not affect the remainder of its analysis.
92. It follows from all the foregoing considerations that the complaint alleging an infringement of Article 81 EC must be rejected as unfounded.
2. The second part, raised in the alternative, alleging that the facts alleged against the applicant cannot be classified as a single and continuous infringement
a) Preliminary remarks
93. The applicant challenges the contested decision in so far as the Commission classified the infringement as being single and continuous. The statement of objections did not make any link between the different contacts that took place between the participants in the cartel. In addition, the Commission appeared not to have evidence of the cartel after the Milan meeting. The bilateral contacts between Boliden’s ‘Noralf’ division and IQM, on the one hand, and Fluorsid and the applicant, on the other, do not allow the conclusion that all the participants in the Milan meeting kept in touch. Lastly, the documents relating to the contacts in October and November 2000 make no reference to the Milan meeting.
94. The Commission disputes the applicant’s arguments and contends that the second plea in law should be rejected.
b) The single and continuous infringement
95. Regard should be had, first of all, to the concept of a single and continuous infringement.
96. It has been ruled that that it would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement which progressively manifested itself in both agreements and concerted practices ( Commission
v Anic Partecipazioni, paragraph 90 above, paragraph 81, and Case T-211/08 Putters International
v Commission [2011] ECR II-3729, paragraph 31).
97. Accordingly, an undertaking that has taken part in an infringement through conduct of its own which fell within the scope of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also responsible, throughout the entire period of its participation in that infringement, for conduct of other undertakings in the context of the same infringement ( Commission
v Anic Partecipazioni, paragraph 90 above, paragraph 83, and Putters International
v Commission, paragraph 96 above, paragraph 32).
98. It follows from that case-law that in order to establish that there has been a single and continuous infringement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission
v Anic Partecipazioni, paragraph 90 above, paragraph 87, and Putters International
v Commission, paragraph 96 above, paragraph 33).
99. Restrictive practices can be regarded as constituent elements of a single anti-competitive agreement only if it is established that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation in them constitute the expression of its accession to that agreement (see Putters International
v Commission, paragraph 96 above, paragraph 34 and the case-law cited).
100. It is apparent from the case-law cited in paragraphs 96 to 99 above that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking to that plan, and its awareness of the offending conduct of the other participants ( Putters International
v Commission, paragraph 96 above, paragraph 35).
101. Thus, the notion of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object) (Case T-385/06 Aalberts Industries and Others
v Commission [2011] ECR II-1223, paragraph 86; Case T-446/05 Amann & Söhne and Cousin Filterie
v Commission [2010] ECR II-1255, paragraph 89; and Case T-53/03 BPB
v Commission [2008] ECR II-1333, paragraph 257). That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 81 EC ( Aalberts Industries and Others
v Commission, paragraph 86, and BPB
v Commission, paragraph 252).
102. In addition, as has been recognised in settled case-law, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings (see, to this effect, Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others
v Commission [1999] ECR II-931, paragraphs 696 to 698; HFB and Others
v Commission, paragraph 91 above, paragraph 186; Joined Cases T-101/05 and T-111/05 BASF and UCB
v Commission [2007] ECR II-4949, paragraph 159; and Amann & Söhne and Cousin Filterie
v Commission, paragraph 101 above, paragraph 91).
103. When the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others
v Commission, paragraph 66 above, paragraph 258; Case C-113/04 P Technische Unie
v Commission [2006] ECR I-8831, paragraph 178; Amann & Söhne and Cousin Filterie
v Commission, paragraph 101 above, paragraph 90; and Aalberts Industries and Others
v Commission, paragraph 101 above, paragraph 87). The different manifestations of the unlawful conduct must be seen in an overall context which explains their raison d’être. In this regard, in the taking of evidence, the probative value of the different facts is increased or corroborated by the other existing facts which, together, give a coherent and full picture of a single infringement (Case T-54/03 Lafarge
v Commission, not published in the ECR, paragraph 271).
104. It must also be made clear that the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element inherent in any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they are complementary, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that complementary link, such as the period of implementation, the content (including the methods used) and, correlatively, the objective of the various actions in question (see, to this effect, BASF and UCB
v Commission, paragraph 102 above, paragraphs 179 to 181; Amann & Söhne and Cousin Filterie
v Commission, paragraph 101 above, paragraph 92; and Aalberts Industries and Others
v Commission, paragraph 101 above, paragraph 88).
105. In the contested decision in this case, the Commission considered that the Milan meeting, the telephone call between Boliden’s ‘Noralf’ division and IQM on 25 October 2000 and the contacts in November 2000 form a single and continuous infringement guided by the joint intention of the participants, including the applicant, to behave on the aluminium fluoride market in a certain way. According to the contested decision, the participants in that meeting arranged, by an agreement ‘and/or’ by a concerted practice, to align their conduct on the market, thereby limiting their respective autonomy in terms of commercial strategy. That conduct forms part of an overall plan in pursuit of a single, common anti-competitive objective, namely to distort the normal movement of aluminium fluoride prices (recitals 125 to 128 of the contested decision).
106. As the Commission found, it is apparent from the evidence on which the contested decision was based and which was analysed in paragraphs 73 to 89 above, that the participants in the Milan meeting, including the applicant, exchanged information on the prices charged or to be charged and agreed on price increases. They also exchanged sensitive commercial information on sales forecasts and their conduct in various geographic regions, and kept each other up-to-date with their actions, offers and prices on the market following the Milan meeting. All the conduct of the undertakings involved had a single object, namely to increase the price of aluminium fluoride and to coordinate the conduct of the participants in the cartel on the market. It is clear from the documents proving the contacts between them after the Milan meeting that the participants in that meeting kept in touch, continued to exchange commercial information on the object of the Milan meeting, the prices offered to various customers in different regions of the world, and ensured that they corresponded to what had been agreed at the Milan meeting. In this regard, the fact that the documents relating to the contacts in October and November 2000 do not refer to the Milan meeting is not crucial and an explicit reference to the Milan meeting is not necessary. As is clear from those documents, the prices set out therein are fully consistent with those agreed at the Milan meeting. Consequently, the Commission had to conclude that cartel members monitored conduct on the market as regards the initially agreed price of aluminium fluoride.
107. The fact that the different contacts, both at the Milan meeting and subsequent contacts, occurred in a relatively short space of time does not affect the Commission’s finding of the existence of a single and continuous infringement. A minimum duration or a minimum number of documents or meetings is not required to constitute a single and continuous infringement, but greater duration and frequency can corroborate the finding of the existence of such an infringement. It is crucial that the different elements form part of an overall plan, as the Commission showed in the contested decision. The conduct had the same object, namely the agreement on the price of aluminium fluoride and compliance with that agreement by the participants in the cartel.
108. Consequently, the Court considers that the Commission was fully entitled to find the existence of a single and continuous infringement in the present case.
109. The second plea in law must therefore be rejected.
C – The first plea in law alleging an infringement of the rights of the defence and of Article 27 of Regulation No 1/2003
1. Preliminary remarks
110. The applicant takes the view that in adopting the contested decision the Commission failed to comply with Article 27 of Regulation No 1/2003 and the fundamental principle of respect of the rights of the defence. The contested decision penalised different facts and circumstances from those found against the applicant in the statement of objections. Those discrepancies impaired the applicant’s right to put its case properly in the administrative procedure. There were significant differences with regard to the participants in and the duration of the infringement. The geographic scope of the cartel declared unlawful by the contested decision is much wider than the scope of the restrictive practices described in the statement of objections. The logic, structure and objective of the infringement described in the contested decision are not consistent with the description of the infringement in the statement of objections. According to the statement of objections, the applicant participated in a complex infringement of long duration characterised by a preparatory phase of bilateral meetings and a final phase following the conclusion of an agreement in Greece on 29 July 1999, during which prices had been agreed for 2000. The Milan meeting was, with the Greece meeting, the culmination of the cartel and allowed the undertakings concerned to fix prices for 2001. The Commission did not find evidence of any other meeting of the cartel in the years following the Milan meeting. The subsequent contacts were limited to bilateral exchanges of information. By contrast, the contested decision disregards the preparatory phase and the Greece meeting, describes the Milan meeting as marking the beginning of another infringement, following a series of previous events, and finds that the contacts subsequent to the Milan meeting allowed the participants to monitor the implementation of their alleged agreement. In addition, in the contested decision the Commission relied on documents which were not mentioned in the statement of objections. The applicant concludes that the discrepancies between the infringement to which the statement of objections related and the infringement penalised by the contested decision are such that it was only on reading the decision that the applicant was able to identify the actual objections raised by the Commission. In the administrative procedure, the applicant did not have an opportunity to state its views on the crucial role played by the Milan meeting or on the subsequent contacts which were purported to implement it. The statement of objections is also a source of confusion for the applicant as regards the geographic dimension of the cartel. The applicant was not able to put forward its views on the new information which led the Commission to adopt the classification of a single and continuous infringement for a different infringement, based on contacts on which it did not have an opportunity to comment. The Commission thus infringed the applicant’s rights of defence. The infringement of the rights of the defence was all the more serious since if the parties had been able to state their cases, the outcome of the procedure evidently might have been different.
111. The Commission disputes the applicant’s arguments. In this regard, the Commission points out the principles governing the statement of objections in the context of respect of the rights of the defence. In particular, the statement of objections should set out the objections sufficiently clearly to enable the parties concerned properly to identify the conduct complained of by the Commission. However, the Commission’s final decision does not necessarily have to be an exact replica of the statement of objections, since the Commission should be able to take account of the replies from the undertakings concerned in the decision.
112. As regards the duration of and the number of participants in the infringement, the Commission claims that it should be able to modify its assessment of the duration and of the participants in the infringement, in particular where it reduces the purport of the objections set out. The Commission accepted the period from 12 July to 31 December 2000 in the contested decision rather than the period from 30 June 1997 to 31 December 2001. There is no infringement of the applicant’s rights of defence by reason of these differences. As regards the geographic scope of the cartel, the Commission points out the global dimension of the cartel, which had been established in the statement of objections and which was clear from the report on the Milan meeting. The applicant was aware of the global dimension of the cartel and had the opportunity to state its view on this during the administrative procedure. The Commission rejects the applicant’s arguments relating to the logic and the structure of the cartel. As far as the nature of the infringement is concerned, the Commission points out that the statement of objections and the contested decision both find that the anti-competitive activities described have characteristics of agreements ‘and/or’ concerted practices within the meaning of Article 81 EC and that that conduct constitutes a single and continuous infringement. In addition, the facts established in support of the infringement were known to the applicant, which had an opportunity to state its case during the administrative procedure. Contrary to the claims made by the applicant, the contested decision does not disregard the preparatory phase or the Greece meeting, and the Milan meeting was not the beginning of an infringement conceiv ed ‘ ab nihilo ’. However, the evidence for the period preceding the Milan meeting was not sufficient. Furthermore, the applicant had an opportunity to state its view on the crucial role played by the Milan meeting and on the bilateral contacts following the Milan meeting.
113. With regard to the documents relating to the contacts on 8 and 9 November 2000 between Minmet and the applicant, the Commission submits that those documents were included in the file sent to the applicant with the statement of objections and were used by the Commission in the contested decision in response to the applicant’s arguments denying the existence of an agreement. Furthermore, the Commission stated in the statement of objections that, following the Milan meeting, the companies involved in the agreement continued to exchange information on the market through bilateral contacts. In any event, the Commission takes the view that the evidence relating to the Milan meeting demonstrates to the requisite legal standard that the applicant participated in the infringement described in the statement of objections and in the contested decision and that the applicant has not shown that it distanced itself from the agreement reached at that meeting.
114. The first plea in law alleging an infringement of the rights of the defence should therefore be rejected as unfounded.
2. Assessment of the Court
a) General points
115. It should be recalled that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the European Courts ensure (see Case C-534/07 P Prym and Prym Consumer
v Commission
[2009] ECR I-7415, paragraph 26 and the case-law cited).
116. According to settled case-law, observance of the rights of the defence thus requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see Joined Cases 100/80 to 103/80 Musique Diffusion française and Others
v Commission
[1983] ECR 1825, paragraph 10; Case C-310/93 P BPB Industries and British Gypsum
v Commission
[1995] ECR I-865, paragraph 21; and Case C-511/06 P Archer Daniels Midland
v Commission
[2009] ECR I-5843, paragraph 88 and the case-law cited).
117. Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure (see, to that effect, Aalborg Portland and Others
v Commission, paragraph 66 above, paragraph 67), in order to enable the parties concerned properly to identify the conduct complained of by the Commission and the evidence which it has at its disposal (see, to that effect, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others
v Commission
[2002] ECR I-8375, paragraphs 315 and 316, and Aalborg Portland and Others
v Commission, paragraph 66 above, paragraphs 66 and 67) and to defend themselves properly before the Commission adopts a final decision (see, to that effect, Archer Daniels Midland
v Commission, paragraph 116 above, paragraphs 85 and 86). That obligation is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and only takes into consideration facts on which the persons concerned have had the opportunity of making known their views (see, to that effect, Case T-213/00 CMA CGM and Others
v Commission
[2003] ECR II-913, paragraph 109 and the case-law cited).
118. However, the essential facts on which the Commission is relying in the statement of objections may be set out summarily and the final decision is not necessarily required to replicate the statement of objections ( Musique Diffusion française and Others
v Commission, paragraph 116 above, paragraph 14), since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see, to that effect, Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries
v Commission
[1987] ECR 4487, paragraph 70). Thus, it is permissible to supplement the statement of objections in the light of the parties’ response, whose arguments show that they have actually been able to exercise their rights of defence. The Commission may also, in the light of the administrative procedure, revise or supplement its arguments of fact or law in support of its objections (see, to that effect, Case T-86/95 Compagnie générale maritime and Others
v Commission
[2002] ECR II-1011, paragraph 448, and Case T-310/01 Schneider Electric
v Commission
[2002] ECR II-4071, paragraph 438). Consequently, until a final decision has been adopted, the Commission may, in view, in particular, of the written or oral observations of the parties, abandon some or even all of the objections initially made against them and thus alter its position in their favour or decide to add new complaints, provided that it affords the undertakings concerned the opportunity of making known their views in that respect (see Joined Cases T-191/98, T-212/98 to T-214/98 Atlantic Container Line and Others
v Commission
[2003] ECR II-3275, paragraph 115 and the case-law cited).
119. In addition, as recognised by the case-law, the rights of the defence are breached where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such a breach where it adequately demonstrates not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no procedural error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see, to that effect, Case C-194/99 P Thyssen Stahl
v Commission
[2003] ECR I-10821, paragraph 31 and the case-law cited, and Case C-407/08 P Knauf Gips
v Commission
[2010] ECR I-6375, paragraph 28; see also, by analogy, Case C-141/08 P Foshan Shunde Yongjian Housewares & Hardware
v Council
[2009] ECR I-9147, paragraph 94).
120. As regards specifically the right of access to the file, it is settled case-law that, where access has been refused to a document, it is sufficient for the undertaking to show that it would have been able to use the document in its defence (see Case C-110/10 P Solvay
v Commission
[2011] ECR I-10329, paragraph 57 and the case-law cited, and the Opinion of Advocate General Kokott in that case, point 171 and the case-law cited; Aalborg Portland and Others
v Commission, paragraph 66 above, paragraphs 74 and 75; Knauf Gips
v Commission, paragraph 119 above, paragraph 23; and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 117 above, paragraphs 318 and 324). That undertaking does not have to show that that error did influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision, but only that it was able to influence the course of the proceedings and the content of the Commission’s decision (see, to that effect, the Opinion of Advocate General Kokott in Solvay
v Commission, points 179 and 181, and the judgments in Case C-51/92 P Hercules Chemicals
v Commission
[1999] ECR I-4235, paragraph 81; Case C-199/99 P Corus UK
v Commission
[2003] ECR I-11177, paragraph 128; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others
v Commission, paragraph 117 above, paragraph 318; and Aalborg Portland and Others v Commission, paragraph 66 above, paragraph 74). Where documents are not disclosed, the undertaking concerned does not have to show that disclosure of the documents would have altered the outcome of the administrative procedure (Opinion of Advocate General Kokott in Solvay
v Commission, point 181, and Knauf Gips
v Commission, paragraph 119 above, paragraph 28). The undertaking concerned need show only that there was even a small chance that the documents which were not disclosed in the administrative procedure could have been useful for its defence (see the Opinion of Advocate General Kokott in Solvay
v Commission, point 181, and Aalborg Portland and Others v Commission, paragraph 66 above, paragraph 131).
b) Assessment of the present case
Introduction
121. In the present case, the applicant claims that the Commission found different incriminating facts and circumstances in the contested decision from those found in the statement of objections. These differences related to, first, the participants and the duration and, second, the geographic scope and the description of the infringement. In addition, in the contested decision, the Commission relied on documents which were not mentioned in the statement of objections. The applicant alleges that it was not able to state its views on these points.
The complaint concerning the participants and the duration of the cartel
122. As regards the applicant’s allegation of a difference in the participants in the infringement, it should be noted that in the contested decision the Commission reduced the number of participants in the infringement compared with those specified in the statement of objections. As was stated in paragraphs 117 and 118 above, in the course of the administrative procedure, the Commission is able to adjust or indeed alter its assessment, in particular in the light of the responses to the statement of objections. The fact that a third undertaking other than the applicant was the addressee of the statement of objections, but not of the contested decision, does not infringe the applicant’s rights of defence. The Commission has not therefore infringed the applicant’s rights of defence by reducing the number of addressees of the contested decision. Moreover, the Court finds that the applicant does not put forward any arguments in support of that view.
123. As regards the duration of the infringement, it should be noted that the duration found in the contested decision, for the period from 12 July to 31 December 2000, is shorter than the duration specified in the statement of objections, for the period from 30 June 1997 to 31 December 2001. In the contested decision, the Commission held that certain information indicated that there were already some collusive practices in the aluminium fluoride industry before the Milan agreement of 12 July 2000, but that there was no conclusive proof for this prior period (recital 73 of the contested decision). It is clear that, in the course of the administrative procedure, the Commission reduced the duration of the infringement in the light of the probative value attributed to the evidence, stating that it had manifest evidence of collusion from 12 July 2000, with the Milan meeting and the evidence of that meeting and of its content (recitals 73 to 76 and 144 of the contested decision). Thus, the fact that the contested decision finds the Milan meeting as evidence of the beginning of the infringement, and not the Greece meeting of 29 July 2009, as found in the statement of objections, constitutes a restriction of the duration of the infringement alleged by the Commission. That restriction does not constitute an additional objection and has certainly not harmed the applicant’s interests. On the contrary, the reduction of the duration of the infringement found in the statement of objections compared with that found in the contested decision is favourable to the applicant and cannot therefore, in principle, harm its interests ( JFE Engineering and Others
v Commission, paragraph 68 above, paragraph 435). This amounts to a partial and admissible abandonment of an objection by the Commission in favour of the applicant (see, by analogy, Atlantic Container Line and Others
v Commission, paragraph 118 above, paragraph 115).
124. It must be also stated that the applicant had an opportunity to submit its observations on the statement of objections, including on the information relating to a longer duration of the infringement than the shorter period ultimately found in the contested decision. In the administrative procedure, the applicant only argued that ‘the duration had to be limited to the date of the actual exchanges of information, i.e. 12 July 2000’ (recital 168 of the contested decision, with reference to recital 245 of that decision).
125. Consequently, there is also no infringement by the Commission of the applicant’s rights of defence in relation to the duration of the infringement in the contested decision.
The complaint concerning the geographic scope of the cartel
126. With regard to the complaint concerning the geographic scope of the cartel, it need only be noted that the Commission established the global scope of the cartel both in the statement of objections and in the contested decision. The geographic dimension of the infringement is described as global both in paragraph 163 of the statement of objections and in recital 136 of the contested decision.
127. It follows that, contrary to the claims made by the applicant, there is no difference as regards the geographic scope between the statement of objections and the contested decision. In addition, the applicant had the opportunity to state its views concerning the finding contained in the statement of objections regarding the global geographic scope of the cartel. It must therefore be concluded that the applicant’s rights of defence have not been infringed in this regard.
The complaint concerning the logic and the structure of the cartel and the documents relating to the contacts of 8 and 9 November 2000
(i) Introduction
128. The applicant claims that the infringement described in the contested decision does not correspond to the infringement described in the statement of objections, in particular as regards its ‘scheme’, its ‘structure’ and its ‘objective’.
129. The main facts ascertained by the Commission in the contested decision in support of the finding of the infringement correspond to those raised in the statement of objections. Accordingly, those facts were known to the applicant and it had an opportunity to comment on them during the administrative procedure (see paragraphs 62 to 70 of the applicant’s reply to the statement of objections). Thus, the Milan meeting and its important role were already made sufficiently clear in the statement of objections (see paragraphs 103 to 116, 151, 163 to 165 and 200 of the statement of objections). In paragraph 16 of the application, the applicant itself cites the statement of objections to the effect that the Milan meeting, with the Greece meeting, constituted the ‘culmination of the cartel’.
130. The applicant argues that the Commission based the contested decision on documents which were not mentioned in the statement of objections, in particular the documents relating to the contacts of 8 and 9 November 2000. During the administrative procedure, the applicant did not have an opportunity to comment on the contacts subsequent to the Milan meeting.
(ii) The content of the statement of objections
131. In the statement of objections, the Commission took the view that there had been contacts from 1997 onwards (paragraph 76 et seq.) and refers to a meeting in Greece on 29 July 1999 (paragraph 85 et seq.), ‘further contacts’ (paragraph 92 et seq.) and the Milan meeting (paragraph 103 et seq.). In setting out the details of the cartel’s operation, the statement of objections refers to contacts between the cartel members, including contacts subsequent to the Milan meeting. The Commission took the view that ‘[following] the Milan meeting, the companies involved in the agreement reached there continued to exchange information concerning the aluminium fluoride market in bilateral contacts’ (paragraph 117). In that connection, the statement of objections refers expressly to contact on 25 October 2000, contact in the course of 2001, a conference of 17 to 21 February 2002, another conference in San Diego, California (United States) on 6 March 2003 and contact in January 2004 and on 21 January 2005 (paragraphs 118 to 123). In addition, the Commission states that the cartel had been put into effect, which it would take into account in its assessment of gravity (paragraph 227).
132. As regards the duration of the infringement, the Commission found, in the statement of objections, that the infringement had started as early as 30 June 1997, the date of the meeting in Sousse (Tunisia), that it was intensified as from the date of the meeting in Greece on 29 July 1999, ‘when the outright agreement to increase prices for sales in the year 2000 was concluded and entered into force’, and that a similar agreement was concluded on 12 July 2000 in Milan for sales prices for 2001. The Commission concluded from this that the infringement had continued, in the cases of Fluorsid, the applicant and IQM, ‘at least until 31 December 2001’, the end of the period of operation of the agreement, corresponding to the end of the period in which the sales to which the agreement applied were made (paragraph 216).
(iii) The content of the contested decision
133. In recitals 155 and 156 of the contested decision, the Commission refers to ‘bilateral contacts … in autumn 2000’, in particular those of 25 October 2000 and of 8 and 9 November 2000. Those contacts show that the agreement reached at the Milan meeting was monitored for the purposes of its application. In recital 239 of the contested decision, the Commission again refers to the documents relating to the contacts of 8 and 9 November 2000 concerning the implementation of the infringement, in the context of setting the basic amount of the fine. The Commission states in that recital that, in setting the proportion of the value of sales to take into account, it took into account the degree to which the infringement was implemented, and refers, inter alia, to recitals 154 to 156 of the contested decision.
134. As regards the duration of the infringement, the Commission takes the view, in the contested decision, that the agreement persisted at least from 12 July 2000 to 31 December 2000 (recitals 241 and 147 of the contested decision). Recital 146 of the contested decision states that ‘supply contracts are negotiated in advance during a period starting sometime in the second half of each calendar year and ending at the end of that calendar year or in the very first months of the next calendar year’. The Commission therefore took the view that, in accordance with the practice of the aluminium fluoride industry, prices are determined in advance for the following business year.
135. Lastly, it must be stated that the documents relating to contacts after the Milan meeting, including those of 8 and 9 November 2000, are not referred to in that part of the contested decision concerning the duration of the infringement.
(iv) Assessment
– Access to the documents in question during the administrative procedure
136. Even though the statement of objections had recourse to documents concerning contacts after the Milan meeting, such as those referred to in paragraph 131 above, the statement of objections does not refer expressly to the documents relating to the bilateral contacts of 8 and 9 November 2000, which are mentioned in the contested decision.
137. However, those documents relating to the contacts of 8 and 9 November 2000 were included in the administrative file of the Commission, which communicated them to the parties to the administrative procedure, and thus to the applicant, when the statement of objections was sent, so that the rights of defence and the right of access to the file could be exercised. The applicant therefore had access to all those documents. Consequently, the situation in the present case is very different to the case of refusal of access to the file or to specific documents, where the case-law has recognised the existence of an infringement of the rights of the defence. It is not disputed that, first, the applicant enjoyed full access to the file, including the documents relating to the contacts of 8 and 9 November 2000, and that, secondly, the contacts after the Milan meeting were expressly mentioned, admittedly in general terms, in the statement of objections.
– The importance of the documents in question for the assessment of the implementation of the infringement
138. Both the bilateral contacts of 8 and 9 November 2001 not referred to in the statement of objections and the bilateral contacts expressly referred to therein show that the applicant was involved in the cartel and its implementation after the Milan meeting. In that connection, it sufficed that, in the statement of objections, the Commission based its assessment regarding a single and continuous infringement and the implementation thereof on various factors, including the Milan meeting and bilateral and multilateral contacts after that meeting, in particular a contact of 25 October 2000. The evidence set out in the statement of objections alone was already sufficient to alert the applicant to the fact that the Commission could use it against it as incriminating evidence. In the light of the documents relating to contacts after the Milan meeting referred to in the statement of objections, the documents relating to the contacts of 8 and 9 November 2000 were not therefore essential to proving a continuous infringement and the implementation thereof. Thus, in recital 156 of the contested decision, in particular footnote 128, the Commission also refers to the contact of 25 October 2000, which had already been referred to in paragraph 118 of the statement of objections. Therefore, as such, the documents relating to the contacts of 8 and 9 November 2000 were not decisive for the conclusion reached by the Commission in the contested decision, given that a continuous infringement and its implementation beyond 31 December 2000 had already been found in the statement of objections on the basis of other evidence.
139. In this regard, it should be pointed out that, as has been confirmed by the case-law cited in paragraph 119 above, the rights of the defence are breached only where it is possible that, in the absence of the procedural error committed — in this case the failure to refer, in the statement of objections, to the documents relating to the contacts of 8 and 9 November 2000 — the outcome of the administrative procedure may have been different.
140. It is clear that that is not the case here.
141. As has been noted in paragraph 137 above, the applicant had access to documents relating to the contacts of 8 and 9 November 2000, without deducing any exculpatory evidence from them, either in the administrative procedure or in the present proceedings. In addition, at the stage of the administrative procedure, the applicant even declined to take a position on the contacts after the Milan meeting which were expressly referred to in the statement of objections (paragraphs 117 to 123 of the statement of objections). Similarly, during the present proceedings, the applicant has neither explained nor substantiated how the failure to refer expressly to those documents, in the statement of objections, compromised the effectiveness of its defence during the administrative procedure, and how it could have defended itself more effectively if it had been expressly informed, on that occasion, that the Commission intended to use the documents of 8 and 9 November 2000 as incriminating evidence, in the contested decision, of its participation in the infringement and its implementation. On the contrary, having regard to the content of those documents and the fact that the applicant was fully aware of it, it must be found that the applicant has not proved that it could have derived exculpatory evidence from them as regards the existence of an agreement and its implementation. In that connection, it must be pointed out that the Commission did not take into account — in assessing the gravity of the infringement for the purposes of calculating the fine — the effects of the infringement in question. Therefore, the applicant has not been able to establish that the fact that it was not informed, in the statement of objections, of the Commission’s intention to use the documents in question as incriminating evidence was capable of compromising the effectiveness of its defence and, thus, the conclusion reached by the Commission in the contested decision (see, to that effect and by analogy, Hercules Chemicals
v Commission, paragraph 120 above, paragraph 56 and the case-law cited, confirmed by Hercules Chemicals
v Commission, paragraph 120 above, paragraph 80).
– The importance of the documents in question for the assessment of the duration of the infringement
142. Neither in the statement of objections nor in the contested decision did the Commission base the duration of the infringement on the contacts of 8 and 9 November 2000 after the Milan meeting. With regard to the duration of the infringement after the Milan meeting, the contested decision does not differ from the statement of objections, which had established that the duration of the infringement extended beyond the Milan meeting, until 31 December 2001, with regard, inter alia, to the applicant. Consequently, the applicant was perfectly able to recognise the relevance of the evidence concerning contacts after the Milan meeting between the undertakings concerned, as contained in the statement of objections and the contested decision, for determining the duration of the infringement, which the Commission essentially inferred from the practice in the aluminium fluoride industry according to which prices are determined in advance for the following business year. Having regard to that practice, the Commission was justified, already on the basis of the evidence expressly referred to in the statement of objections, in finding that the whole of the sixth-month period concerned until 31 December 2001 was included in the duration of the infringement. In that connection, the additional reference, in the contested decision, to the documents relating to the contacts of 8 and 9 November 2000 is of no account.
143. It must be stated, in addition, that the duration determined by the Commission in the contested decision is the minimum duration of an infringement, since periods of less than six months are to be counted as half a year and the multiplying factor to be applied to the basic amount of the fine is only 0.5 in both cases. Thus, even if the duration of the infringement were limited to the Milan meeting alone, without taking into account the effects of the agreement decided there and the contacts after that agreement, the duration factor in assessing the fine would have been the same.
(v) Conclusion
144. In the light of all the foregoing considerations, it must be concluded that the applicant’s rights of defence have not been infringed. The first plea in law must therefore be rejected.
D – The third plea in law alleging an infringement of Article 23 of Regulation No 1/2003 and of the 2006 Guidelines with regard to the calculation of the fine
1. Preliminary remarks
145. First of all, it must be pointed out that the present case involves the application of the 2006 Guidelines.
146. This plea in law is divided, essentially, into three parts, namely, first, a breach of the principle of protection of legitimate expectations, secondly, a misapplication of the 2006 Guidelines in respect of the determination of the value of sales, and, thirdly, the incorrect determination of the basic amount of the fine and of the additional amount.
147. As a preliminary point, it is appropriate to recall the general principles governing the determination of the amount of fines.
148. Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine for infringements of Article 81(1) EC, regard is to be had both to the gravity and to the duration of the infringement.
149. It has consistently been held that the gravity of infringements of competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others
v Commission
[2005] ECR I-5425, paragraph 241; Prym and Prym Consumer
v Commission, paragraph 115 above, paragraph 54; and Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others
v Commission
[2009] ECR I-8681, paragraph 91).
150. It has been acknowledged in case-law that, in order to determine the amount of a fine, it was necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they had been able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type posed to the Community (see Case C-386/10 P Chalkor
v Commission
[2011] ECR I-13085, paragraph 56 and the case-law cited).
151. It has also been held that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order had to be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (see Chalkor
v Commission, paragraph 150 above, paragraph 57 and the case-law cited).
152. This large number of factors requires that the Commission carry out a thorough examination of the circumstances of the infringement ( Chalkor
v Commission, paragraph 150 above, paragraph 58).
153. In order to ensure the transparency and impartiality of its decisions setting fines for infringements of the competition rules, the Commission adopted guidelines on the method of setting fines (point 3 of the 2006 Guidelines). In those guidelines, the Commission indicates the basis on which it will take account of a particular aspect of the infringement and what this will imply as regards the amount of the fine ( Chalkor
v Commission, paragraph 150 above, paragraph 59).
154. The Guidelines, which, as the Court has ruled, form rules of practice from which the administration could not depart in an individual case without giving reasons compatible with the principle of equal treatment, and merely described the method used by the Commission to examine infringements and the criteria that the Commission undertook to take into account in setting the amount of a fine (see Chalkor
v Commission, paragraph 150 above, paragraph 60 and the case-law cited).
155. The Guidelines are an instrument designed to clarify, in compliance with superior rules of law, the criteria that the Commission intends applying when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. The Guidelines do not constitute the legal basis of a decision imposing fines — which is based on Regulation No 1/2003 — but determine, generally and abstractly, the method which the Commission has bound itself to use in setting the amount of fines imposed by the decision and, consequently, ensure legal certainty on the part of the undertakings ( Dansk Rørindustri and Others
v Commission, paragraph 149 above, paragraphs 209 to 213, and Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others
v Commission
[2006] ECR II-5169, paragraphs 219 and 223).
156. Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons, at the risk of infringing the principles of legal certainty and equal treatment ( Dansk Rørindustri and Others
v Commission, paragraph 149 above, paragraphs 209 and 210, and Case C-397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients
v Commission
[2006] ECR I-4429, paragraph 91).
157. Under point 5 of the 2006 Guidelines, as applicable to the present case, the Commission must refer to the value of the sales of goods or services to which the infringement relates as a basis for setting the amounts of fines. The duration of the infringement should also be taken into account as being an important factor. The combination of the value of sales to which the infringement relates and of the duration of the infringement reflects the economic importance of the infringement as well as the relative weight of each undertaking in the infringement. Point 6 of the 2006 Guidelines states that reference to those factors therefore provides a good indication of the order of magnitude of the amount of the fine, but should not be regarded as the basis for an ‘automatic and arithmetical calculation method’.
158. Under points 10 and 11 of the 2006 Guidelines, the Commission must determine, for the purposes of setting the fine, a basic amount for each undertaking, which it may adjust.
159. Pursuant to points 12 and 13 of the 2006 Guidelines, the basic amount must be set by reference to the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA, normally during the last full business year of its participation in the infringement. Point 15 of the 2006 Guidelines states that the Commission must use the ‘best available figures’.
160. Point 18 of the 2006 Guidelines provides as follows:
‘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.’
161. Pursuant to point 19 of the 2006 Guidelines, the basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. Point 20 of the 2006 Guidelines states that the assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. In accordance with point 21 of the 2006 Guidelines, as a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
2. The first part alleging a breach of the principle of protection of legitimate expectations
162. It should be noted that, in its third plea in law, the applicant also refers to a breach of the principle of protection of legitimate expectations in relation to the calculation of the fine, without developing or substantiating that aspect in the arguments raised in support of that plea in law.
163. Under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 44(1)(c) of the Rules of Procedure, all applications must indicate the subject-matter of the proceedings and include a brief statement of the pleas in law on which the application is based. Irrespective of any question of terminology, that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to exercise its power of judicial review. It is settled case-law that the Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself. It follows that, contrary to the appellant’s assertions, the failure to state such matters in the application cannot be compensated for by putting them forward at the hearing (Case C-214/05 P Rossi
v OHIM [2006] ECR I-7057, paragraph 37; order of 13 March 2007 in Case C-150/06 P Arizona Chemical and Others
v Commission, not published in the ECR, paragraph 45; and Case C-480/09 P AceaElectrabel
v Commission [2010] ECR I-13335, paragraph 28).
164. In particular, whilst the expression of the grounds of the action in terms of their substance, rather than of their legal classification, may be sufficient, the application must none the less set out the said grounds with sufficient clarity. Moreover, a mere abstract statement of the grounds does not alone satisfy the requirements set out above, since the application must specify the nature of the grounds relied upon. These minimum requirements are not satisfied where an application does not contain a statement, even in summary form, of the pleas in law or matters of law relied on, making it possible for the defendant to assess on what grounds the applicant bases its action or to understand how its form of order may be substantiated (Case T-224/95 Tremblay and Others
v Commission [1997] ECR II-2215, paragraph 79, and Case T-577/08 Proges
v Commission, not published in the ECR, paragraphs 19 to 21).
165. Consequently, as the applicant simply referred to a breach of the principle of protection of legitimate expectations without clarifying this part of the plea even briefly, it must be rejected as being inadmissible.
3. The second part alleging a misapplication of the 2006 Guidelines with regard to the determination of the value of sales
a) Preliminary remarks
166. In the present case, the applicant claims that the value of its sales was calculated in accordance with point 18 of the Guidelines on the method of setting fines, but that the Commission committed two errors in applying that point. First, recital 25 of the contested decision found a worldwide turnover of EUR 34 339 694 for 2000, which had been communicated by the applicant in its reply of 30 October 2006. The applicant considers that that figure does not represent the best available figure at the time the contested decision was adopted. On 25 April 2008, the applicant provided audited data at the express request of the Commission, according to which the applicant’s turnover for 2000 was EUR 32 368 925, which should have been used by the Commission in accordance with point 15 of the 2006 Guidelines. Second, the Commission did not correctly apply point 18 of the 2006 Guidelines. The Commission assessed the percentage sales of each undertaking in a geographic area wider than the EEA in relation to the sales of the participants in the cartel. That estimate should have been made in relation to the sales of all other undertakings active on the aluminium fluoride market. Lastly, the applicant takes the view that if the Commission had used the audited figures, which are lower than the figures used, and had correctly applied point 18, it would have resulted in a lower percentage than the 28.5% stated in the contested decision.
167. The Commission disputes the applicant’s arguments and contends that this part of the third plea in law should be rejected.
168. It should be noted that, in the present case, the applicant challenges the basic amount established by the Commission in the contested decision, disputing the value of sales established by the Commission and the gravity of the infringement. However, the applicant does not call into question the duration of the infringement or the adjustments to the basic amount.
169. This part is divided into two sub-parts, namely the use of incorrect sales figures for calculating the fines and the misapplication of point 18 of the 2006 Guidelines by failing to take into account the sales of other undertakings which did not participate in the cartel.
b) The turnover figures used by the Commission
170. The applicant argues that the Commission used inaccurate sales figures in calculating the fines.
171. As regards the basic amount, the 2006 Guidelines provide that it will be set by reference to the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA, normally during the last full business year of its participation in the infringement (points 12 and 13 of the 2006 Guidelines). To that end, the Commission must take the ‘best available figures’ (point 15 of the 2006 Guidelines).
172. Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), as in the present case, point 18 of the 2006 Guidelines states that the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement, which may be the case in particular with worldwide market-sharing arrangements. In such circumstances, the Commission may assess the total value of the sales 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.
173. In the present case, the applicant had provided turnover figures for 1997 to 2005 for its aluminium fluoride sales by letter of 30 October 2006, both worldwide and within the EEA, and by letter of 25 April 2008 for 1999, 2000 and 2001. The email of 25 April 2008 also stated the conversion rate for Tunisian dinar into euro for the years stated, including 2000.
174. In the contested decision, the Commission established as the applicant’s aluminium fluoride sales in 2000 within the EEA the sum of EUR 8 146 129 and, in the geographic area covered by the infringement, i.e. worldwide, the sum of EUR 34 339 694 (recital 25 of the contested decision). The Commission stated that it had used the figures provided by the applicant on 30 October 2006 and the emails from the applicant dated 25 April and 12 May 2008 and that it had applied the conversion rate provided by the applicant in its email of 25 April 2008 for the conversion of Tunisian dinar into euro.
175. As regards the turnover figures mentioned in the document of 25 April 2008, that document states that they are ‘FOB after deduction of commission’, i.e. after deduction of transportation costs and commission. However, it is the turnover figure which reflects most fully the actual amount of the transaction that is relevant in determining the value of sales with a view to calculating the basic amount of the fine. Thus, it is the turnover according to the undertaking’s accounts that must be taken into account. Furthermore, the Commission stated that it had sent the applicant a request for information regarding the figures submitted on 25 April 2008 to which the applicant had failed to give a full reply. In addition, regard should be had to point 16 of the 2006 Guidelines, which provides that where the figures made available by an undertaking are incomplete or not reliable, the Commission may determine the value of its sales on the basis of the partial figures it has obtained or any other information which it regards as relevant and appropriate.
176. Furthermore, as the Commission argues, the value of sales reflects the price as charged to the customer, without deductions for transportation costs or other charges. Regard should be had to the case-law according to which, in respect of transportation costs, where a producer delivers, at the request of the customer, the quantities sold, the transportation service forms an integral part of the sale of the product. The price charged for such a service, even where it represents the reimbursement of the sums owed by the seller to the independent carrier to which it had recourse for that service, is therefore a component of the overall sales price (see, to this effect, Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others
v Commission [2000] ECR II-491, paragraph 5030).
177. Thus, the Commission was entitled to take the view that the figures provided on 30 October 2006 were the best available figures within the meaning of point 15 of the 2006 Guidelines. Consequently, this first sub-part of the first part of the plea in law alleging a misapplication of the 2006 Guidelines with regard to the determination of the value of sales must be rejected.
178. It should be borne in mind that, in recital 229 of the contested decision, the Commission states that, pursuant to point 18 of the 2006 Guidelines, the value of sales calculated within the EEA for the applicant is EUR 6 739 601. In this regard, the Commission refers to the figures provided by the applicant on 30 October 2006, according to which the value of its sales in 2000 was EUR 8 146 129 within the EEA and EUR 34 339 694 in the geographic area covered by the infringement, i.e. worldwide (recital 25 of the contested decision).
c) Sales and market share
179. As regards of the second sub-part of this part of the plea in law, it should be pointed out that, in the contested decision, the Commission stated that, pursuant to point 18 of the 2006 Guidelines, the relative strength of each undertaking in question corresponded to the percentage of its sales to which the infringement relates in the geographic area covered by the cartel in relation to the aggregate sales in that area of all the undertakings concerned. That percentage then had to be applied to those undertakings’ aggregate sales to which the infringement relates within the EEA (recital 232 of the contested decision). Accordingly, the Commission made clear that the question whether the captive sales of other undertakings should be taken into account and the question of the precise way in which the geographic market is defined were irrelevant to the calculation of the value of sales and of the definitive fine (recital 233 of the contested decision).
180. In addition, according to recital 32 of the contested decision, certain ‘major producers of aluminium, and therefore major consumers of aluminium fluoride, have a substantial “captive” production of aluminium fluoride, which means that they produce (mainly) for their own use, even though they also purchased aluminium fluoride from other producers during the period of the infringement’.
181. The applicant contests the lawfulness of recital 232 et seq. of the contested decision on the ground that the Commission misapplied point 18 of the 2006 Guidelines. According to the applicant, the Commission failed to take into account the sales made by other undertakings which did not participate in the cartel, including undertakings with a captive production. In addition, the Commission went against its own previous decision-making practice.
182. In the light of these complaints, it should be noted that, under point 18 of the 2006 Guidelines, 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.
183. It is apparent from the broad logic and the wording of point 18 of the 2006 Guidelines that the expression ‘the total value of the sales of goods or services to which the infringement relates’ must be understood to mean the total value of the sales of the undertakings participating in the infringement and not the total value of the sales of all undertakings active on the market in which the undertakings committed the infringement. The sales of undertakings not participating in the infringement are not sales ‘to which the infringement relates’.
184. In addition, this textual interpretation is consistent with the broad logic of point 18 of the 2006 Guidelines which seeks to reflect both the aggregate size of the relevant sales and the relative weight of each undertaking in the infringement. The latter objective implies that only the value of sales of the undertakings participating in the infringement is taken into account.
185. Lastly, the above interpretation is in keeping with the context and the broad logic of the 2006 Guidelines as a whole, which seek to take as a basis for calculating the fine the value of sales affected by the infringement. As the Commission states, the value of sales taken into account pursuant to points 13 and 14 of the 2006 Guidelines, which come under the same title as point 18, corresponds to the sales made by the undertakings by reason of the infringement.
186. This interpretation is not called into question by the reference to the ‘market’ in point 18 of the 2006 Guidelines. That ‘market’ refers only to the geographic market wider than the EEA affected by the sales of the undertakings participating in the infringement.
187. Consequently, the applicant is wrong to claim that compliance with the Guidelines would have led the Commission to take into account sales of other undertakings and also the captive production of operators such as Alcan and Alcoa.
188. Contrary to the claims made by the applicant, that interpretation of the 2006 Guidelines is not refuted by the Commission’s previous decision-making practice as illustrated by Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36 604 — Citric acid) (OJ 2002 L 239, p. 18), which was to adjust fines according to the relative weight of the parties in cartels extending beyond the Union.
189. As has been recognised in case-law, the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines (see, to this effect, Dansk Rørindustri and Others
v Commission, paragraph 149 above, paragraphs 227 and 230).
190. However, the previous practice to which the applicant refers was based on the information from the Commission of 14 January 1998 on Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’).
191. In addition, in points 3 to 5 of the 2006 Guidelines, the Commission stated that it wished to develop further and refine its policy on fines which sought to sanction infringements and deter other undertakings from engaging in, or continuing, behaviour that is contrary to Articles 81 EC and 82 EC. In order to achieve these objectives, the Commission considered that it was appropriate to take as the basis for setting the amounts of fines the value of the sales of goods or services to which the infringement relates. Thus, the Commission explained the reason why it had adopted a new method for calculating the amount of the fine, namely the need to ensure the more effective implementation of EU competition policy, and the applicant has not put forward any arguments to call into question the validity of this change in approach.
192. Accordingly, it was not necessary to interpret the provisions of the 2006 Guidelines in the light of the manner in which the 1998 Guidelines had been applied.
193. On the above grounds, the second sub-part of this second part should also be rejected.
4. The third part alleging the incorrect determination of the basic amount of the fine and the misapplication of the additional amount
194. The applicant argues that the Commission committed errors in assessing the gravity of the infringement, more specifically in the evaluation of its nature and in its analysis of the market share of the addressees of the contested decision. In addition, the Commission was wrong to take implementation as one of the factors for setting the basic amount of the fine.
195. The applicant thus claims a misclassification of the infringement by the Commission. The facts alleged against the applicant can at most be classified as occasional exchanges of information which do not constitute manifest infringements of competition law or horizontal price agreements within the meaning of points 23 and 24 of the Guidelines. The classification by the Commission as a horizontal price-fixing agreement and thus as a serious restriction of competition in the contested decision led the Commission to increase the basic amount by an additional amount in accordance with point 25 of the 2006 Guidelines. The applicant also claims that the infringement established cannot be classified as a single and continuous infringement. Against that background, the applicant reiterates the alleged infringement of the rights of the defence, which does not allow the Court to exercise its unlimited jurisdiction. The applicant therefore requests the Court to amend recitals 236 and 242 of the contested decision.
196. According to the applicant, the joint market share of 35% established in the contested decision attributed to the alleged cartel a disproportionate economic weight in so far as that percentage was calculated without regard to the captive production of the major aluminium producers. The Commission thus incorrectly analysed one of the main factors in the assessment of the gravity of the infringement at issue.
197. Lastly, the Commission took the view that the Milan agreement on an alleged price increase was monitored during the second half of 2000, and referred to the bilateral contacts between IQM and Boliden’s ‘Noralf’ division on 25 October 2000 and to the discussions between the applicant and Fluorsid in November 2000, whereas those bilateral contacts had no connection with the Milan meeting and cannot be held against the applicant, since they were not mentioned in the statement of objections. Consequently, no implementation of the cartel can be inferred in the absence of documents or other valid evidence after the date of the Milan meeting. It is therefore necessary to eliminate the additional amount completely and to reduce substantially the percentage of 17% applied to determine the basic amount.
198. The Commission disputes the applicant’s arguments and contends that this third part of the th ird plea in law should be rejected.
199. In the present case, it should be noted that, as regards the existence of an infringement of Article 81(1) EC, the Commission was entitled to take the view that there was a cartel, a horizontal price-fixing and market-sharing agreement between the participants, including the applicant (see paragraphs 66 to 92 above). This finding cannot be called into question at this stage by the applicant’s claims regarding the fine imposed by the Commission.
200. In addition, contrary to the claims made by the applicant, in accordance with point 23 of the 2006 Guidelines, in the contested decision the Commission was entitled to find that the infringement in the present case consisted in, inter alia, a horizontal price-fixing agreement, which, by its very nature, is among the most harmful restrictions of competition.
201. The Commission did not therefore err in applying point 25 of the 2006 Guidelines, which states that ‘irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into [inter alia] horizontal price-fixing [and] market-sharing … agreements’, having regard in particular to factors such as the nature of the infringement, the combined market share of all participants, the geographic scope of the infringement and whether or not the infringement has been implemented, as provided for in point 22 of the 2006 Guidelines.
202. In the contested decision, the Commission found that the combined market share of the cartel members in the EEA was not more than 35% in 2000 (recital 237 of the contested decision, with a reference to recital 33 of that decision) and that the geographic scope of the infringement was worldwide (recital 238 of the contested decision, with a reference to recital 136 of that decision). The Commission also stated that it had taken into account a market share of less than 35%, which led it not to increase the basic amount. These details concerning the gravity of the infringement were correctly established by the Commission, as outlined in paragraphs 199 to 201 above.
203. As far as the implementation of the cartel is concerned, the Commission rightly considered, in the contested decision, that the Milan agreement was monitored during the second half of 2000. In the contested decision, the Commission demonstrated the existence of an agreement between the addressees of the decision, including the applicant. The conclusion of an agreement at the Milan meeting was established, as well as bilateral contacts following that meeting, in particular on 25 October 2000. In the course of those bilateral contacts, as was found above in connection with the first plea in law concerning the existence of the infringement, the addressees of the contested decision, including the applicant, exercised mutual control of price levels. The prices indicated during those contacts after the Milan meeting correspond with the content of the agreement reached at that meeting. Consequently, the Commission was entitled to take the view that those contacts referred to the agreement from the Milan meeting and are therefore proof of the implementation of the cartel.
204. Since, as is explained in paragraphs 66 to 109, the applicant’s second plea in law is rejected and the contested decision establishing the existence of an agreement, its duration and its gravity is upheld, this part of the third plea in law alleging the incorrect determination of the basic amount of the fine must be rejected as unfounded.
205. Accordingly, the Commission was right to take the figure of 17% of the value of sales as the proportion for setting the basic amount of the fine to be imposed on the applicant.
206. Moreover, although the duration of the infringement was not called into question by the applicant, it should be noted that the Commission established that duration as being ‘at least’ from 12 July to 31 December 2000 in the contested decision, i.e. a period of less than six months. In accordance with point 24 of the 2006 Guidelines, the Commission applied the multiplying factor of 0.5. Point 24 of the 2006 Guidelines provides that in order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales is multiplied by the number of years of participation in the infringement, periods of less than six months being counted as half a year.
207. Consequently, the third plea in law must be rejected.
E – The fourth plea in law alleging an infringement of Article 36 of the Euro-Mediterranean Agreement, the duty of care and the principle of international comity
1. Preliminary remarks
208. The applicant claims that the competition rules of the Euro-Mediterranean Agreement are applicable in the present case, albeit alongside the European Union’s competition rules. However, the Commission excluded the application of Article 36(1) of the Euro-Mediterranean Agreement in favour of the exclusive application of the EU competition rules. In doing so, the Commission invoked the safeguard clause provided for in Article 36(6) of the Euro-Mediterranean Agreement. The adoption of a unilateral measure of this nature should have been preceded by consultation of the Association Committee. The applicant considers that the failure to observe the procedure laid down in the Euro-Mediterranean Agreement constitutes an infringement of an essential procedural requirement, compliance with which could have had a crucial influence on the outcome of the case. The Commission’s unilateral approach is contrary not only to Article 36 of the Euro-Mediterranean Agreement, but also to the principle of international comity and its duty of care.
209. The Commission disputes the applicant’s arguments and contends that the fourth plea in law should be rejected.
210. As has been recognised by case-law, EU competition law is applicable to a cartel which produces effects within the internal market irrespective of the fact that one of the undertakings participating in an agreement is located in a third country (see, to this effect, Case 22/71 Béguelin Import [1971] ECR 949, paragraphs 22 to 29; Joined Cases 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85 Ahlström Osakeyhtiö and Others
v Commission [1988] ECR 5193, paragraphs 11 to 23; and Atlantic Container Line and Others
v Commission, paragraph 118 above, paragraphs 69 to 93).
2. The Euro-Mediterranean Agreement
211. The Euro-Mediterranean Agreement between the Community and Tunisia is one of the Community’s Euro-Mediterranean Association Agreements with seven countries in the southern Mediterranean. Those agreements provide a framework for North-South political dialogue, serve as a basis for the gradual liberalisation of trade in the Mediterranean area and set out the conditions for economic, social and cultural cooperation between the Community and each partner country.
212. With regard to the Euro-Mediterranean Agreement, regardless of its legal nature and its effect in the Union legal order, it need only be stated that it does not prevail over the applicable EU law, in particular Article 81 EC, and does not exclude the application of that article. On the contrary, Article 36 of the Euro-Mediterranean Agreement relied on by the applicant requires the parties to apply competition law and expressly provides that any contrary practices must be assessed on the basis of criteria arising from the application of the rules of Articles 81 EC, 82 EC and 87 EC (Article 36(2) of the Euro-Mediterranean Agreement). Article 36(6) of the Euro-Mediterranean Agreement provides for the consultation of the Association Committee only subject to certain conditions, in particular if competition law is not able to resolve the problem.
213. The contested decision does not concern a practice specifically affecting trade between the European Union and Tunisia, but a practice with a global dimension which affects the European market. In the contested decision the Commission exercised its competence and applied Article 81 EC in relation to effects on competition within the EEA. On the other hand, the contested decision does not fall within the scope of the Euro-Mediterranean Agreement and, a fortiori, is not contrary to that Agreement. Consequently, there was no reason to apply the Euro-Mediterranean Agreement and its mechanisms.
214. These arguments are therefore unfounded and must be rejected.
3. International comity and the ‘duty of care’
215. As regards the applicant’s argument alleging failure to respect the principle of international comity ( comitas gentium ), the applicant has not clarified the principle invoked, established its impact or explained why it might call into question the lawfulness of the contested decision. It is not possible to see why it would follow that the Commission should have ‘contacted the Tunisian authorities before unilaterally applying the Community competition rules’.
216. In addition, in so far as the argument put forward by the applicant seeks to call into question the Community’s competence to apply its competition rules to conduct like that established in the present case ( Ahlström Osakeyhtiö and Others
v Commission, paragraph 210 above, paragraphs 31 and 32), it must be rejected in any event. The Commission is competent to take action against and penalise infringements of Article 81 EC in respect of the European market. Such an infringement has been established by the Commission in this case. Accordingly, the Commission’s competence to apply Community competition rules to such conduct is recognised in the light of public international law (see, to this effect, Ahlström Osakeyhtiö and Others
v Commission, paragraph 210 above, paragraph 18; see also, by analogy, Case T-102/96 Gencor
v Commission [1999] ECR II-753, paragraph 89 et seq.).
217. With regard to the purported ‘duty of care’ invoked by the applicant, to the effect that the Commission should have contacted the Tunisian authorities in particular, it is not substantiated or clarified. It is not therefore clear what the applicant is claiming. Furthermore, the applicant does not indicate how this general principle of international law might affect the lawfulness of the contested decision.
218. Under the first paragraph of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court, all applications must indicate the subject-matter of the proceedings and include a brief statement of the pleas in law on which the application is based. In this respect, regard should be had to the principles and the case-law mentioned in paragraphs 163 and 164 above.
219. As the applicant simply specified a failure to respect the principle of ‘international comity’ and claimed that there was a ‘duty of care’, without clarifying even briefly this line of argument, it must be rejected as being inadmissible.
220. Consequently, the fourth plea in law must be rejected.
221. In the light of the foregoing, the claims for annulment must be rejected in their entirety. In addition, as regards the application, submitted in the alternative, for alteration of the amount of the fine imposed on the applicant, in the light of the foregoing considerations in particular, there is no cause for the Court, in the exercise of its unlimited jurisdiction, to uphold that application.
222. Accordingly, the action must be dismissed in its entirety.
Costs
223. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Dismisses the action;
2. Orders Industries chimiques du fluor to bear its own costs and to pay those incurred by the European Commission.