62006TJ0370
JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
27 September 2012 (
*1
)
‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Fines — Cooperation during the administrative procedure — Significant added value — Equal treatment — Rights of the defence’
In Case T-370/06,
Kuwait Petroleum Corp., established in Shuwaikh (Kuwait),
Kuwait Petroleum International Ltd, established in Woking (United Kingdom),
Kuwait Petroleum (Nederland) BV, established in Rotterdam (Netherlands),
represented by D. Hull, Solicitor, and G. Berrisch, lawyer,
applicants,
v
European Commission, represented by F. Castillo de la Torre, acting as Agent, and by L. Gyselen, lawyer,
defendant,
APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), and, in the alternative, for reduction of the fine imposed on the applicants by that decision,
THE GENERAL COURT (Sixth Chamber),
composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 15 June 2011,
gives the following
Judgment
Facts
1
Kuwait Petroleum Corp. (‘KPC’), the state-owned oil company of Kuwait and parent company of the Kuwait Petroleum group, markets its products in Europe through its subsidiary Kuwait Petroleum International Ltd (‘KPI’), established in London. Two subsidiaries of KPC operate in the Netherlands, Kuwait Petroleum Europoort BV being responsible for the production of bitumen from the Rotterdam refinery and Kuwait Petroleum (Nederland) BV (‘KPN’) for the sale of bitumen in the Netherlands. KPI and KPN are owned, directly or indirectly, by KPC Holdings AEC, based in Aruba, which itself is owned 100% by KPC. KPC Holdings owns all of the subsidiaries in the Kuwait Petroleum group located outside Kuwait and responsible for the activities of oil refining and marketing.
2
By letter of 20 June 2002, the undertaking British Petroleum (‘BP’) informed the Commission of the European Communities of the presumed existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’).
3
On 1 and 2 October 2002, the Commission carried out surprise inspections, in particular at the premises of KPN. The Commission sent requests for information to several companies, including KPN, on 30 June 2003 and 5 April 2004. KPN replied on 16 September 2003 and 30 April 2004.
4
On 12 September 2003 KPN submitted an application under the Leniency Notice, to which a corporate statement was attached. It also requested that part of the information that it supplied on 16 September 2003 be considered within the framework of its application for leniency. On 18 September 2003, in a meeting with the Commission, KPN proposed that three former employees be heard who could provide information additional to the statements provided, which was done on 1 and 9 October 2003.
5
On 14 October 2004, in accordance with the provisions of point 26 of the 2002 Leniency Notice, the Commission informed KPN that it intended to grant it a reduction of 30% to 50% of its fine, as it had come to the provisional conclusion that the evidence which it had provided constituted significant added value.
6
On 18 October 2004, the Commission initiated a proceeding and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including the applicants, KPC, KPI and KPN. Following a request from KPC and KPI, the Commission confirmed to them, by letter of 2 December 2004, that they would also benefit from the reduction of the fine granted to KPN under the 2002 Leniency Notice.
7
Following the hearing of the companies concerned on 15 and 16 June 2005, KPN clarified its statements concerning ExxonMobil, a bitumen supplier which was not penalised by the contested decision, which had been used in the statement of objections and had been contested by other participants in the hearing. Those clarifications were made accessible to all the participants in the hearing, giving rise to several reactions. The Commission refused the applicants access to those reactions.
8
On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands); ‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40) and which was notified to the applicants on 22 September 2006.
9
The Commission stated, in the contested decision, that the companies to which it was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods indicated, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for participating road builders and a smaller maximum rebate on the gross price for other road builders.
10
The applicants were found guilty of that infringement, for the period from 1 April 1994 to 15 April 2002, and a fine of EUR 16.632 million was imposed on them jointly and severally.
11
As regards the calculation of the amount of the fines, the Commission described the infringement as very serious, given its nature, even though the relevant geographic market was limited (recital 316 of the contested decision).
12
In order to take account of the specific weight of the unlawful conduct of each of the undertakings involved in the cartel and of its real impact on competition, the Commission made a distinction between the undertakings concerned according to their relative importance on the market concerned, measured by their market share, and grouped them into six categories.
13
On this basis, the Commission applied a starting amount of EUR 12 million for the applicants (recital 322 of the contested decision), to which it applied a multiplier of 1.1, intended to ensure the deterrent effect of the fine, taking account of the group’s size and turnover (recital 323 of the contested decision).
14
As regards the duration of the infringement, the Commission took the view that the applicants had committed an infringement of long duration, namely an infringement of more than five years, and took as a basis a total period of eight years, from 1 April 1994 to 15 April 2002, thus increasing the starting amount by 80% (recital 326 of the contested decision). The basic amount of the fine, determined according to the gravity and duration of the infringement, was therefore fixed at EUR 23.76 million (recital 335 of the contested decision).
15
The Commission did not find any aggravating circumstances with regard to the applicants. It agreed, rather, that they should benefit from the 2002 Leniency Notice and granted them a reduction of 30% in the amount of their fine. It considered that the information provided on 12 and 16 September 2003 and on 1 and 9 October 2003 had strengthened, by its level of detail, the Commission’s ability to establish the existence of the infringement. The Commission considered, however, that it had to take account of the fact that the application for leniency was not submitted until 11 months after the unannounced visits had been carried out and after its request for information had been sent, that it already had certain evidence provided by other companies, and that KPN had revised some of its statements concerning ExxonMobil (recitals 382 to 388 of the contested decision).
Procedure and forms of order sought
16
By application lodged at the Registry of the General Court on 1 December 2006, the applicants brought the present action.
17
Acting upon a report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, put written questions to the parties. The parties replied to those questions within the prescribed period.
18
The parties presented oral argument and replied to the Court’s oral questions at the hearing on 15 June 2011.
19
As a member of the Sixth Chamber was unable to sit, the President of the General Court designated himself to complete the Chamber, pursuant to Article 32(3) of the Rules of Procedure.
20
By order of 18 November 2011, the General Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.
21
By letters of 25 and 28 November 2011 respectively, the Commission and the applicants informed the General Court that they were waiving their right to be heard afresh.
22
Consequently, the President of the General Court decided to close the oral procedure.
23
The applicants claim that the Court should:
—
annul the contested decision in so far as it concerns them;
—
in the alternative, reduce the amount of the fine imposed pursuant to Article 2(j) of the contested decision;
—
order the Commission to pay the costs.
24
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicants to pay the costs.
25
In reply to a written question put by the Court relating to the consequences to be drawn from the judgments in Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237 and in Case C-90/09 P General Química and Others v Commission [2011] ECR I-1, the applicants stated on 24 March 2011 that they were withdrawing the plea alleging manifest errors of assessment and of law made by the Commission in holding KPC and KPI liable for the infringement committed by their subsidiary KPN. The Court took formal note of that statement.
Law
26
In support of their application, the applicants adduce two pleas, alleging, first, infringement of the provisions of the last paragraph of point 23(b) of the 2002 Leniency Notice and, second, errors by the Commission in setting the percentage reduction in their fine.
1. Infringement of the last paragraph of point 23(b) of the 2002 Leniency Notice
Arguments of the parties
27
The applicants submit that the Commission infringed the terms of the last paragraph of point 23(b) of the 2002 Leniency Notice by imposing a fine on them on the basis of facts which could have been established only by relying on information provided by KPN. That evidence alone enabled the Commission to demonstrate the existence of the infringement, its gravity and its duration, as the other evidence mentioned in the contested decision was circumstantial, inconclusive or speculative. They state that, in this way, only the information provided by KPN could have enabled the Commission to establish the existence of the infringement throughout the period from 1 April 1994 to15 April 2002, as the notes seized at the premises of Koninklijke Volker Wessel Stevin NV, a company penalised by the contested decision, related only to 1997 and the evidence produced by BP was valid only for the period after 1999.
28
The Commission’s highly restrictive interpretation of the provisions of the last paragraph of point 23(b) of the 2002 Leniency Notice, which amounts to limiting its scope solely to cases where it has no knowledge of the facts, is, in the applicants’ submission, contrary to its purpose, which is to encourage undertakings seeking to benefit from leniency to provide as much evidence as possible. That interpretation is, moreover, contrary to the principle of legitimate expectations, which is none the less explicitly recognised in point 29 of the 2002 Leniency Notice.
29
The Commission rejects all the applicants’ arguments.
Findings of the Court
30
The last paragraph of point 23(b) of the 2002 Leniency Notice provides that ‘… if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence’.
31
It is, first of all, necessary for the Court to determine whether the Commission erred in law in limiting the scope of that provision solely to cases where a company provides it with information enabling it to establish facts of which it had absolutely no knowledge and by thus excluding the case in which a company provided evidence enabling it to corroborate facts which were previously known.
32
It should be borne in mind that, in the present case, the Commission decided to grant KPN a reduction of 30% in its fine, since it had provided the Commission with evidence which ’strengthened by its very nature the Commission’s ability to prove the facts in question, and therefore represented added value with respect to the evidence in the Commission’s possession at that time’, since ‘[t]his added value was significant because it corroborated the existing information and, together with the information already in the Commission’s possession, enabled the Commission to prove the infringement’ as ‘[KPN] was the first to give direct evidence [of the existence of the bitumen consultation meetings, a] central element of the cartel’s functioning’, and because, at the time when KPN provided its evidence, that is to say, before the replies to the requests for information (inter alia those of the undertakings Shell, Total and Nynas), ‘it was unclear [to the Commission] if and to what extent the contemporaneous documents in [its] file, in combination with the information provided by BP, were in themselves sufficient to prove the infringement’ (recital 383 of the contested decision).
33
The Court takes the view that it is necessary to adopt a restrictive interpretation of the last paragraph of point 23(b) of the 2002 Leniency Notice, by limiting it to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement.
34
First of all, the Court points out that, since the leniency procedure constitutes an exception to the rule that an undertaking must be punished for any infringement of the rules of competition law, the relevant rules must for that reason be interpreted strictly.
35
Moreover, the effectiveness of leniency programmes would be undermined if undertakings were to lose the incentive to be the first to submit information revealing the existence of a cartel to the Commission.
36
The interpretation advocated by the applicants, however, would deprive of all effect the distinction made by the Commission in the 2002 Leniency Notice between the sole undertaking which may benefit from immunity from a fine (Section A of the 2002 Leniency Notice) and those undertakings which may qualify only for a reduction of a fine (Section B of the 2002 Leniency Notice), since that interpretation would amount to also granting those undertakings total immunity from a fine. The 2002 Leniency Notice thus draws a distinction between an undertaking which is the first to submit evidence which may enable the Commission to find an infringement or to adopt a decision to carry out an investigation, which is eligible for total immunity, and other undertakings, which do not meet those conditions and which are eligible only for a maximum reduction of the fine of 50%.
37
The Commission did not therefore err in law in taking the view that, when setting KPN’s fine, it was entitled to take account of facts that KPN had merely contributed to corroborating by providing certain items of evidence, but of the existence of which the Commission was aware.
38
The applicants, moreover, submit that such an interpretation is contrary to the principle of legitimate expectations, which is none the less explicitly recognised in point 29 of the 2002 Leniency Notice. It is true that the right to rely on the principle of the protection of legitimate expectations, which is a general principle of European Union law, extends to any individual who is in a situation in which the European Union authorities, by giving him precise assurances, have caused him to entertain legitimate expectations (Case 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155, paragraph 44, and Case T-220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 33). None the less, in the present case, it must be stated that the Commission did not at any point give precise assurances to KPN as to the possibility of its being granted immunity from a fine. In general, in leniency matters, applicants submit information to the Commission without knowing what information the Commission already has in its possession and they cannot therefore entertain any type of legitimate expectation as to the amount of the reduction from which they might benefit.
39
In the present case, it is necessary, lastly, to examine whether or not the Commission manifestly exceeded its discretion in finding that KPN met the conditions of the last paragraph of point 23(b) of the 2002 Leniency Notice, as that provision has been interpreted in paragraph 33 above.
40
It is apparent from the contested decision that, although the information provided by KPN enabled the Commission to corroborate and confirm the evidence which it already held concerning the existence of meetings between bitumen suppliers (‘the suppliers’) and road builders participating in the cartel, the Commission was already aware of those facts, for the entire duration of the period of the infringement, by reason of information provided by BP and documents seized during the on-site inspections (in particular, notes by Hollandsche Beton Groep (‘HBG’) from March and July 1994). Thus, KPN did not provide any evidence relating to facts previously unknown to the Commission which might have had a direct bearing on the gravity or duration of the infringement.
41
The first plea must therefore be rejected in its entirety.
2. The amount of the reduction of the fine
Arguments of the parties
42
The applicants submit that the Commission made a manifest error of assessment in reducing the amount of their fine by only 30% on the grounds that the leniency application was submitted 11 months after the surprise inspections and after the first request for information had been sent, that the added value of the evidence provided was diluted by the information supplied by other undertakings and that KPN reformulated a number of its statements. It is, they contend, for the General Court to exercise its full powers of review of the reasoning behind the decision as regards the amount of the reduction of the fine granted to KPN, and the Courts of the European Union have never accorded the Commission a significant margin for discretion in the context of the 2002 Leniency Notice.
43
In the first place, the applicants submit that a period of 11 months is not unreasonable for the submission of a leniency application, particularly in the light of the total 28-month duration of the Commission’s investigation, that they required that period in order to assemble all the evidence provided to the Commission and that the 2002 Leniency Notice does not lay down any specific time-limit. In that regard, the Commission cannot rely on the judgment in Case T-322/01 Roquette Frères v Commission [2006] ECR II-3137, since, in that case, the only leniency application from the undertaking was its reply to the Commission’s questionnaire, whereas, in the present case, KPN submitted its leniency application before it replied to the questionnaire and provided responses which went well beyond the scope of the questions put to it.
44
In the second place, the applicants submit that the Commission made a manifest error of assessment in limiting the reduction in the amount of their fine on the ground that the value of the evidence provided on 16 September and on 1 and 9 October 2003 had been diluted by the statements previously made by Nynas and Total. However, the Commission acknowledged in the contested decision that the evidence provided by KPN on 12 September 2003 and in its additional statements had enabled it to obtain direct and critical evidence of the infringement, whereas the information provided by Nynas and Total offered no significant added value, their leniency application, moreover, having been rejected.
45
In the third place, the Commission wrongly considered that the amount of the reduction of their fine should be limited because of the alleged reformulation of KPN’s statements concerning ExxonMobil. Thus, first of all, the Commission made an error of fact in taking the view that, during the hearings, KPN employees had revised their statements, whereas they confined themselves to clarifying them by stating that they had merely circumstantial evidence of ExxonMobil’s participation in the infringement and that, in any event, they had never suggested that they had direct evidence of that participation. The Commission also erred in taking the view that the added value of the evidence provided by KPN was diminished because it had failed to produce evidence demonstrating ExxonMobil’s participation in the cartel. The applicants thus submit that the value of the evidence provided should be assessed solely in relation to the infringements established by the Commission in its decision. Moreover, in penalising them because of their statements concerning ExxonMobil, the Commission infringed the principle of equal treatment, because BP also claimed, in its leniency application, that ExxonMobil was involved in the cartel.
46
In the fourth place, the applicants submit that, in refusing KPN access to the comments made by the other undertakings concerning the additional statements which they had made during the hearings, the Commission infringed KPN’s rights of access to the file during the administrative procedure. Those comments, some of which were made after the administrative hearing, were none the less used by the Commission for the purpose of setting the amount of their fine.
47
The Commission rejects all of the applicants’ arguments.
Findings of the Court
The errors of law
48
The applicants submit, first of all, that the Commission was mistaken as to the extent of its discretion with regard to the value of the information voluntarily provided by an undertaking when setting the amount of the reduction of its fine. They submit, inter alia, that the case-law to which the Commission refers in support of its contention that it has a margin of discretion in the matter and that judicial review is limited to ascertaining whether there has been a manifest error of assessment is applicable only to the provisions of the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’) and not to those of the 2002 Leniency Notice.
49
It is apparent from settled case-law concerning the 1996 Leniency Notice that cooperation in an investigation which does not go beyond that which undertakings are already obliged to provide under Article 11(4) and (5) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-1962, p. 87) does not warrant a reduction in the fine (Case T-308/94 Cascades v Commission [1998] ECR II-925, paragraph 260, and Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraphs 341 and 342). On the other hand, such a reduction is warranted where the undertaking has provided information well in excess of that which the Commission may require under Article 11 of Regulation No 17 (Cascades v Commission, paragraphs 261 and 262, and Case T-230/00 Daesang and Sewon Europe v Commission [2003] ECR II-2733, paragraph 137). In order to justify reduction of a fine on grounds of cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the European Union competition rules and reveal a true spirit of cooperation. Therefore, the Court must first consider whether the Commission disregarded the extent to which the cooperation of the undertakings in question exceeded what was required under Article 11 of Regulation No 17. In that connection, the Court undertakes a comprehensive review concerning, in particular, the extent to which the undertakings’ rights of defence limit their obligation to reply to requests for information. Second, the Court should verify, as in the present case, whether the Commission correctly appraised, in the light of the 1996 Leniency Notice, the extent to which the cooperation provided helped to establish the infringement. Within the limits laid down by that notice, the Commission has a discretion in assessing whether the information or documents voluntarily provided by the undertakings have facilitated its task and whether it is appropriate to grant a reduction to an undertaking under that notice. That assessment is the subject of limited review by the Court (Case C-511/06 P Archer Daniels Midland v Commission [2009] ECR I-5843, paragraph 152; 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 529 to 532, confirmed in 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 249).
50
The applicants do not put forward any argument setting out the reasons why the Commission’s discretion should be reduced under the 2002 Leniency Notice. In any event, it is settled case-law that, in the framework of that notice, the Commission has a discretion in assessing whether the information or documents voluntarily provided by undertakings have facilitated its task and whether it is appropriate to grant a reduction to an undertaking under that notice, that assessment being the subject of limited review by the Court (judgment of 18 December 2008 in Case T-85/06 General Química and Others v Commission, not published in the ECR, paragraph 150).
51
Moreover, it has already been held that, whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under the 1996 Leniency Notice constitutes a contribution which does or does not justify a reduction of the fine, it is incumbent, by contrast, on undertakings wishing to contest the Commission’s decision in that regard to show that, in the absence of such information provided voluntarily by those undertakings, the Commission would not have been in a position to prove the essential elements of the infringement and therefore adopt a decision imposing fines (Erste Group Bank and Others v Commission, paragraph 49 above, paragraph 297).
52
When applying the 1996 Leniency Notice, the Courts of the European Union have held that the grant of a reduction in the amount of the fine under that notice requires, in particular, that the undertaking concerned has been the first to provide decisive evidence of the cartel’s existence and that, although that evidence need not necessarily be sufficient in itself to establish the cartel’s existence, it must none the less be decisive for that purpose. It must therefore not be simply an indication as to the direction which the Commission’s investigation should take but must constitute material which may be used directly as principal evidence supporting a decision finding an infringement (Case T-15/02 BASF v Commission [2006] ECR II-497, paragraphs 492, 493, 517, 518, 521, 522, 526 and 568, and Case T-26/02 Daiichi Pharmaceutical v Commission [2006] ECR II-713, paragraphs 150, 156, 157 and 162).
53
As regards the 2002 Leniency Notice, it is apparent from the terms of points 7, 21 and 22 thereof that the Commission must assess each undertaking’s actual contribution, in terms of quality and timing, to the establishment of the infringement (point 7) and that the concept of ’significant added value’ refers to the extent to which the evidence provided strengthens, by its nature and its level of detail, the Commission’s ability to prove the facts constituting the infringement. The Commission therefore ascribes particular value to evidence which might enable it, together with other evidence already in its possession, to establish the existence of a cartel or to evidence that enables it to corroborate evidence that exists already, or to evidence that has direct consequences on the gravity or duration of the cartel.
54
The applicants submit, lastly, that the Commission was not entitled to penalise them on the basis of its view that KPN had revised its statements relating to ExxonMobil’s participation in the cartel. In its decision, the Commission mentioned that the reformulation of certain important statements relating to ExxonMobil’s participation in the cartel had diminished the value of the evidence provided by KPN, as the initial statements had apparently been unsubstantiated. It should be borne in mind that, under the terms of point 27 of the 2002 Leniency Notice, ‘[t]he Commission will evaluate the final position of each undertaking which filed an application for a reduction of a fine at the end of the administrative procedure in any decision adopted’. The Commission must therefore assess the value of the information provided by an undertaking at the end of the administrative procedure, and it cannot therefore be criticised for taking the view in the present case that it could not reward KPN for statements which had appeared to be decisive at one point in the procedure, but which turned out to be unusable at a later stage in the administrative procedure.
55
It follows from all of the foregoing that the Commission did not make the errors of law alleged by the applicants in this part of the plea when fixing the amount of the reduction of the fine granted to KPN.
The duty to state reasons
56
According to the case-law, the duty to state reasons must, first, be such as to enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded and, second, enable the Courts of the European Union to exercise their power to review legality. The requirement of a statement of reasons must be considered in the light of the circumstances of the case, in particular the content of the measure in question, the nature of the reasons relied on and the context in which the measure was adopted (Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 129).
57
In the present case, it is apparent from the contested decision that the Commission set out in a sufficiently clear and precise manner the reasons for its decision to grant KPN a reduction of the fine limited to 30%. The Commission stated that KPN had been the second undertaking to approach it, that the evidence provided by KPN had enabled the Commission to strengthen its ability to prove the infringement, that KPN had terminated its participation in the infringement no later than the time at which it submitted that information, but that KPN’s leniency application had been made more than 11 months after the Commission had conducted on-site inspections, that certain evidence submitted even later by KPN had already been submitted to the Commission by other undertakings, and that KPN had revised statements initially made regarding ExxonMobil’s participation in the infringement (recitals 382 to 385 of the contested decision). In the light of the context in which the contested decision was adopted, the Court takes the view that the Commission has enabled it to exercise its power of review of legality and enabled the applicants to ascertain the matters relied upon to justify the measure adopted so that, if necessary, they could defend their rights and verify whether the decision was well founded.
58
This argument must therefore be rejected as unfounded.
The manifest errors of assessment
59
As a preliminary point, it should be recalled that, according to the second paragraph of point 23(b) of the 2002 Leniency Notice, ‘[i]n order to determine the level of reduction within each of these bands [from 0 to 50%], the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value’. That provision specifies that the Commission ‘may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’. Point 7 of that notice also states that ‘[a]ny reduction of a fine must reflect an undertaking’s actual contribution, in terms of quality and timing, to the Commission’s establishment of the infringement’.
60
It is necessary to assess whether or not, by granting KPN a reduction of the fine limited to 30% pursuant to those provisions, the Commission committed a manifest error of assessment. The Commission stated that it took into account, on the one hand, the facts that KPN had been the second undertaking to approach it, that the evidence provided by it had enabled the Commission to strengthen its ability to prove the infringement, and that KPN had terminated its participation in the infringement no later than the time at which it submitted that information, but also, on the other hand, the facts that that leniency application had been made more than 11 months after the Commission had conducted on-site inspections and after its first request for information had been sent, that certain evidence submitted even later by KPN had already been submitted to the Commission by other undertakings, and that KPN had revised statements initially made regarding ExxonMobil’s participation in the infringement (recitals 382 to 385 of the contested decision).
61
In the first place, with respect to the argument relating to the limitation of the reduction of the amount of KPN’s fine on the ground that its leniency application had been made 11 months after the unannounced inspections and after the first request for information had been sent, it must be pointed out that, although the 2002 Leniency Notice does not lay down any specific time-limit for submitting a leniency application, it does, however, regard the date on which the evidence was provided as decisive for the level of reduction of the fine. Although a period of 11 months cannot constitute a ground for preventing the submission of such an application, that period may none the less be taken into account by the Commission when it sets the level of the reduction of the fine (General Química and Others v Commission, paragraph 50 above, paragraph 147). Furthermore, in the context of the 1996 Leniency Notice, which, under Section D thereof, did not, however, make any specific reference to taking account of the date on which information is submitted, the Courts of the European Union have taken the view that the Commission was entitled, for the purpose of fixing the percentage of the reduction in the amount of the fine, to take account of the fact that an undertaking had cooperated only in response to the request for information that the Commission had sent to it and, therefore, of the fact as to whether or not the submission of the leniency application was spontaneous in nature (Roquette Frères v Commission, paragraph 43 above, paragraph 266).
62
In the present case, KPN did not submit its leniency application until 12 September 2003, although the Commission had carried out its unannounced inspections on 1 and 2 October 2002, and had sent KPN its first request for information as early as 30 June 2003. The fact that, in Roquette Frères v Commission, paragraph 43 above, the undertaking’s leniency application was its only reply to the request for information, whereas, in the present case, KPN submitted a leniency application and then its reply to the request for information, which, moreover, it requested that the Commission take into account in respect of its leniency application, cannot preclude the application of that case-law. Lastly, KPN put forward no grounds to explain why it let 11 months pass before submitting its leniency application, such as, for example, difficulties encountered during the internal investigation.
63
In the second place, it is necessary to assess whether the Commission made a manifest error of assessment in limiting the amount of the reduction of KPN’s fine on the ground that the value of the evidence provided by KPN on 16 September and on 1 and 9 October 2003 had been diluted by the statements previously made by Nynas and Total.
64
It is apparent from the documents before the Court that KPN was the second undertaking to provide information to the Commission under the 2002 Leniency Notice, on 12 September 2003, and that that information represented significant added value. However, KPN waited until 16 September 2003 before providing additional information, and, even though the Commission had warned it on 19 September 2003 about the risk of postponing the interviews scheduled with the employees who were directly involved in the cartel, those interviews did not take place until 1 and 9 October 2003. However, during that period, Total, on 13 September 2003, and subsequently Nynas, on 2 October 2003, provided the Commission with a substantial amount of information by means of their replies to the first request for information.
65
The Courts of the European Union take the view, with respect to the reduction of the amount of a fine within the band selected, that it is not solely the degree of added value of the evidence submitted which is taken into account by the Commission, but also the time at which that evidence fulfilling the condition in point 21 of the 2002 Leniency Notice was submitted. The Commission must therefore take into account the fact that certain evidence was submitted after other addressees had submitted important items of evidence, thereby reducing its added value (General Química and Others v Commission, paragraph 50 above, paragraph 147).
66
In the present case, the Commission did not therefore make a manifest error of assessment in taking account of the fact that, although the evidence supplied by KPN in October 2003 was useful to the Commission for the purposes of describing the infringement, it did not provide it with decisive new information, in view of the information provided in the meantime by two other undertakings.
67
In the third place, it is necessary, lastly, to examine whether the Commission made a manifest error of assessment in taking the view that, during the hearings, KPN employees revised their statements when they confined themselves to clarifying those statements by stating that they had only circumstantial evidence of ExxonMobil’s participation in the infringement and that, in any event, they had never suggested that they had direct evidence of that participation.
68
It is apparent from the parties’ pleadings that, in its statement of 12 September 2003, KPN stated categorically that, ‘after these meetings had been held, [Exxonmobil] informed itself in bilateral contacts with other suppliers … about the outcome of the meetings’ and that, to its knowledge, ‘[Exxonmobil] subsequently implemented these agreements’. In his oral statement of 9 October 2003, a former KPN employee also stated that, although Exxonmobil no longer participated in the meetings after 1994 or 1995, it none the less continued to seek information about the outcome of those meetings and to behave in line with what had been decided during the meetings (see points 208 to 211 of the statement of objections). The Commission essentially relied on those statements (and on those of Nynas) when deciding to send the statement of objections to ExxonMobil. However, after other parties challenged that evidence at the administrative hearing held on 15 and 16 June 2005, KPN revised its statements on 28 June 2005, in particular by providing a statement by the same former employee indicating that he was only guessing as to ExxonMobil’s involvement and that he did not have any evidence.
69
It is apparent from those documents that the Commission did not make a manifest error of assessment in taking the view that KPN had changed its position on ExxonMobil’s participation in the infringement and that KPN was not merely clarifying its initial comments.
70
In conclusion, in view of all of the foregoing, the Court finds that the Commission did not make a manifest error of assessment by limiting to 30% the amount of the reduction of KPN’s fine.
The principle of equal treatment
71
At the stage of the reply, the applicants introduced an additional argument by which they sought to establish that the Commission ought not to have penalised them for altering their statements concerning ExxonMobil. That argument is based on infringement of the principle of equality with BP.
72
However, it must be borne in mind that the principle of equal treatment is infringed only where comparable situations are treated differently or where different situations are treated in the same way (Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 49 above, paragraph 533), and that the Commission does not infringe that principle where a difference in treatment is capable of being ascribed to differences in the degrees of cooperation provided, particularly where different information was provided or where that information was supplied at different stages in the administrative procedure or in dissimilar circumstances (Case T-48/02 Brouwerij Haacht v Commission [2005] ECR II-5259, paragraphs 108 and 109).
73
In the present case, since BP was the first undertaking to provide evidence enabling the Commission to adopt a decision to carry out unannounced investigations, in accordance with point 8 of the 2002 Leniency Notice, it is not in any event in the same situation as KPN. The 2002 Leniency Notice provides that that first undertaking is to benefit from total exemption from fines and does not envisage the possibility of adjusting that immunity from fines. It is not therefore necessary to determine whether BP, like the applicants, in fact reformulated its statements concerning ExxonMobil.
The rights of the defence
74
It is apparent from the documents before the Court that, when the Commission heard all the companies concerned on 15 and 16 June 2005, several of them challenged the veracity of KPN’s statements concerning ExxonMobil and Wintershall. Since KPN was not in a position to react to those challenges at that hearing, the Hearing Officer requested that it confirm and clarify its position within eight days. KPN then sent the Commission new statements by its two employees, dated 28 and 30 June 2005, in which those employees made it clear, inter alia, that they did not have any direct evidence of ExxonMobil’s participation in the cartel, and that it was only a matter of conjecture. Those clarifications were made accessible to all the participants in the hearing, giving rise to several reactions.
75
On 8 February 2006, KPN requested the Commission to inform it in the event that certain of those reactions might undermine the credibility of its claims and, consequently, the amount of the reduction of its fine. On 23 March 2006, the Commission merely indicated to KPN that the decision on its leniency application would not be adopted until the conclusion of the administrative procedure. On 19 April 2006, KPN requested the Commission’s Hearing Officer to grant it access to the non-confidential versions of the other undertakings’ written observations which might call into question the credibility of the evidence that it had provided and adversely affect its eligibility to benefit from the relevant provisions of the 2002 Leniency Notice. On 26 April 2006, the Hearing Officer turned down that request, stating that he would grant an undertaking access to the documents submitted by other undertakings after the hearing only if the Commission decided to use them as incriminating evidence in its decision and that, in the present case, that was not the case with regard to the observations submitted by the other undertakings subsequent to the hearing, as those observations would have no bearing on the assessment of its cooperation. Lastly, on 12 May 2006, KPN made it clear to the Commission that it was requesting access to all the documents pertaining to the credibility of its statements, and not only to the documents subsequent to the hearing. The Commission did not accede to its request.
– General principles relating to access to documents subsequent to notification of the objections
76
In accordance with Article 27(1) 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), ‘[b]efore taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection’ and ‘[t]he Commission shall base its decisions only on objections on which the parties concerned have been able to comment’. Article 27(2) of that regulation states, moreover, that ‘[t]he rights of defence of the parties concerned shall be fully respected in the proceedings’, that ‘[t]hey shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets’ and that ‘[t]he right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States’. In its notice on the rules for access to the file in cases pursuant to Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7), the Commission defines in paragraph 8 the ‘Commission file’ as ‘all documents, which have been obtained, produced and/or assembled by the Commission Directorate General for Competition, during the investigation’. In paragraph 27 of that notice, the Commission states that ‘[a]ccess to the file will be granted upon request and, normally, on a single occasion, following the notification of the Commission’s objections to the parties, in order to ensure the principle of equality of arms and to protect their rights of defence’, that, [a]s a general rule, therefore, no access will be granted to other parties’ replies to the Commission’s objections’, that ‘[a] party will, however, be granted access to documents received after notification of the objections at later stages of the administrative procedure, where such documents may constitute new evidence – whether of an incriminating or of an exculpatory nature –, pertaining to the allegations concerning that party in the Commission’s statement of objections’ and that ‘[t]his is particularly the case where the Commission intends to rely on new evidence’.
77
According to Article 12 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), ‘[t]he Commission shall give the parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions’.
78
It is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of European Union law which must be complied with even if the proceedings in question are administrative in nature (Case 85/76 Hoffman-La Roche v Commission [1979] ECR 461, paragraph 9, and Case C-176/99 P ARBED v Commission [2003] ECR I-10687). To that effect, Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must set out clearly all the essential matters on which the Commission relies at that stage of the procedure. That statement of objections constitutes the procedural safeguard applying the fundamental principle of European Union law which requires observance of the rights of the defence in all proceedings (Joined Cases C-322/07 P, C-327/07 P and C-338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I-7191, paragraphs 34 and 35).
79
It must be recalled that access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively (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 334 and the case-law cited). The right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file that might be relevant for its defence (see, to that effect, Case C-199/99 P Corus UK v Commission [2003] ECR I-11177, paragraph 125, and Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 81). Those documents comprise both incriminating and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (Hoffmann-La Roche v Commission, paragraph 78 above, paragraphs 9 and 11, and Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 68).
80
According to the case-law, it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure. Consequently, the other parties’ replies to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult (Case T-161/05 Hoechst v Commission [2009] ECR II-3555, paragraph 163). However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be placed in a position in which they can express their views on such evidence (Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491 (‘Cement’), paragraph 386, and Case T-314/01 Avebe v Commission [2006] ECR II-3085, paragraph 50 and the case-law cited).
81
Similarly, in order to ensure that the rights of the defence are observed throughout the administrative procedure, the view must be taken that, if the Commission seeks to rely on a document subsequent to notification of the statement of objections, and even subsequent to the hearing, where such a document is liable to affect the amount of the fine imposed on an undertaking in the final decision, that undertaking must be placed in a position in which it can express its views on such evidence. This may include a document which has an effect on the application to that undertaking of the 2002 Leniency Notice.
82
Moreover, according to the case-law relating to the administrative file prior to notification of the objections, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement (Case 322/81 Michelin v Commission [1983] ECR 3461, paragraphs 7 and 9, and Aalborg Portland and Others v Commission, paragraph 79 above, paragraph 71) and, second, that the objection could be proved only by reference to that document (Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraphs 24 to 30, and Aalborg Portland and Others v Commission, paragraph 79 above, paragraph 71; Solvay v Commission, paragraph 79 above, paragraph 58). In this respect, the Court of Justice has established a distinction between incriminating documents and exculpatory documents. In the case of an incriminating document, it is for the undertaking concerned to show that the result at which the Commission arrived would have been different if that document had been disallowed. By contrast, where an exculpatory document has not been communicated, the undertaking concerned need only establish that its non-disclosure may have influenced, to its disadvantage, the course of the proceedings and the content of the Commission’s decision (see, to that effect, Aalborg Portland and Others v Commission, paragraph 36 above, paragraphs 73 and 74). That distinction also applies in respect of documents subsequent to notification of the objections (Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraphs 351 to 359).
83
Similarly, with respect to a document capable of leading to an increase in the fine imposed by the Commission in its final decision, it is for the undertaking concerned to show that the result at which the Commission arrived would have been different if that document had not been taken into account.
– Application in the present case
84
In the present case, it is apparent from the documents before the Court that the applicants take the view that they ought to have been granted access to the comments made by the other undertakings concerning the credibility of the evidence provided by the KPN employees, and, in particular, concerning the additional statements made by those employees after the hearing.
85
However, the applicants merely submitted in a general and purely speculative manner that non-disclosure of the documents in question might have influenced the Commission’s decision in relation to the amount of its reduction of the fine and that the result at which the Commission arrived might have been different if those documents had not been taken into account. Thus, they did not provide any specific information that might have constituted prima facie evidence in support of this.
86
It must, moreover, be stated that, in any event, in order to set the amount of the reduction of the fine granted to the applicants, the Commission merely took account of the fact that KPN had reformulated some of its statements concerning ExxonMobil, and made no mention of any reaction by any other undertaking to the credibility of KPN’s statements (recital 385 of the contested decision).
87
It must therefore be concluded that the applicants have failed to show that the Commission relied on comments by undertakings concerning the credibility of the evidence provided by KPN for the purpose of setting the amount of the reduction of the fine granted under the 2002 Leniency Notice. Accordingly, the applicants cannot invoke failure to disclose the documents in question.
88
The argument alleging unlawful refusal of access to the case-file and infringement of the rights of the defence must therefore be rejected.
89
It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
90
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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1.
Dismisses the action;
2.
Orders Kuwait Petroleum Corp., Kuwait Petroleum International Ltd and Kuwait Petroleum (Nederland) BV to pay the costs.
Jaeger
Wahl
Soldevila Fragoso
Delivered in open court in Luxembourg on 27 September 2012.
[Signatures]
Table of contents
Facts
Procedure and forms of order sought
Law
1. Infringement of the last paragraph of point 23(b) of the 2002 Leniency Notice
Arguments of the parties
Findings of the Court
2. The amount of the reduction of the fine
Arguments of the parties
Findings of the Court
The errors of law
The duty to state reasons
The manifest errors of assessment
The principle of equal treatment
The rights of the defence
– General principles relating to access to documents subsequent to notification of the objections
– Application in the present case
Costs
(
*1
)	Language of the case: English.