Case T-348/08

Aragonesas Industrias y Energía, SAU

v

European Commission

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Action for annulment – Market-sharing – Price-fixing – Body of evidence – Date of the evidence – Statements of competitors – Acknowledgment – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances)

Summary of the Judgment

1. Competition – Administrative procedure – Commission decision finding an infringement – Judicial review – Limits

(Arts 81(1) EC and 230 EC; EEA Agreement, Art. 53(1))

2. Community law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 6(2) EU; Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 47; EEA Agreement, Art. 53(1))

3. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

4. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Lack of documentary evidence – Effect

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

5. Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Commission Notice 2002/C 45/03)

6. Competition – Administrative procedure – Commission decision finding an infringement – Judicial review – Identification of the evidence relied on by the Commission

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Council Regulation No 1/2003)

7. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Assessment of the probative value of various items of evidence – Acknowledgement by an undertaking of its participation in the unlawful meetings

(Art. 81(1) EC)

8. Competition – Fines – Amount – Determination – Method of calculation laid down by the guidelines drawn up by the Commission – Calculation of the basic amount of the fine – Account taken of the characteristics of the infringement as a whole

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, Section 22)

9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

10. Competition – Fines – Amount – Determination – Criteria – Commission's margin of discretion – Raising of the general level of fines – Lawfulness

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(3))

12. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Finding of an illegality – Need for the Court to exercise its unlimited jurisdiction and give judgment on the alteration of the decision

(Art. 261 TFEU)

1. In relation to adducing evidence of an infringement of Article 81(1) EC, it should be pointed out that the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement.

Moreover, in proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure.

Thus, the role of a Court hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement.

(see paras 90-92)

2. Where there is doubt, the benefit of that doubt must be given to the undertakings to which a Commission decision finding an infringement of the competition rules is addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine.

In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention of Human Rights which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 93-94)

3. In competition matters, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.

However, it is important to emphasise 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 Commission, viewed as a whole, meets that requirement.

Moreover, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may thus 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.

(see paras 95-97)

4. In so far as concerns the types of evidence which may be relied on to establish an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA Agreement), the prevailing principle of European Union law is the unfettered evaluation of evidence.

Consequently, an absence of documentary evidence is relevant only in the overall assessment of the body of evidence relied on by the Commission. It does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting a different version of the facts. That may be done only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

In addition, no provision or general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings, even if only gathered in the context of a leniency application seeking to obtain immunity from, or a reduction of, fines in cartel cases. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 53 of the EEA Agreement, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions.

However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, although the degree of corroboration required may be lesser in view of the reliability of the statements at issue. Such a requirement for corroboration of statements of an undertaking is also to be met where such a statement is contested by an undertaking similarly accused.

(see paras 98-101, 206)

5. In competition matters, particularly great probative value may also be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection.

Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, given the possibility that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine in cartel cases does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice. In that regard, the potential consequences of the submission of distorted evidence to the Commission are even more serious since a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings accused of participating in the infringement of detecting the inaccurate nature of those statements is increased.

(see paras 104-106)

6. The administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up until the notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned.

When assessing the evidence and other items relied on by the Commission to establish the existence of an infringement of the competition rules, the identification by the Court of those items of evidence can only relate to the part of the grounds of the Commission’s decision in which the Commission describes the inter partes stage of the administrative procedure. It is only after having received, at that stage, the observations of the undertaking concerned on the Commission’s initial position on conclusion of the preliminary investigation stage, as set out in the statement of objections, that the Commission may decide whether or not to maintain its initial position and thus reach its final decision on the alleged infringement.

Where, after having received the observations of an undertaking on the statement of objections, the Commission itself calls the probative value of that evidence into question in its assessment of the evidence which it had at its disposal at the end of the preliminary investigation stage in order to determine whether that undertaking participated in an infringement, the Court cannot but take account of that assessment on the part of the Commission.

(see paras 109-110, 113)

7. In relation to the acknowledgment by an undertaking of its participation in a meeting contrary to the competition rules, an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded.

Consequently, for such an acknowledgement to be able to constitute reliable evidence, it is necessary, when assessing whether an action is well founded, to consider whether the terms of that acknowledgment complement other items of evidence gathered by the Commission.

(see paras 217-218)

8. Whilst the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature, the cumulative market share of all the undertakings involved, the geographical scope of the infringement and whether it was implemented, that assessment is subsequently adjusted to take account of aggravating and mitigating circumstances specific to each of the undertakings which participated in the infringement.

Thus, the first stage of the Commission’s methodology for setting a fine aims to determine the basic amount of the fine to be imposed on each undertaking concerned, by applying to the value of the sales of the goods and services concerned on the relevant geographical market of each of the undertakings an initial multiplier reflecting the gravity of the infringement, and a second multiplier aimed at deterring them from undertaking unlawful conduct in the future. As is apparent from the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, each of those multipliers is determined in the light of factors which reflect the characteristics of the infringement as a whole, that is to say inasmuch as it combines all of the anti-competitive conduct of all of the participants.

Therefore, in determining the amount of those two multipliers, it is not necessary to take account of the specific characteristics of the infringement committed by each of the participants taken individually. In addition, that finding is supported by the very purpose of the second stage of the method for setting fines, the precise aim of which is to take account of the aggravating or attenuating circumstances which characterise the individual anti-competitive conduct of each of the participants to the infringement at issue.

Consequently, the factors listed in Section 22 of the Guidelines to determine both the multiplier for ‘gravity of the infringement’ (Section 21 of the Guidelines) and the multiplier for the ‘entry fee’ (Section 25 of the Guidelines), all aim to evaluate the infringement of the competition rules of the European Union, taken as a whole. In particular, it is not apparent from the Guidelines that the Commission is required, during the first stage of the method for setting fines, to take account of such specific factors relating to a participant in an infringement of the competition rules, such as less frequent participation by one undertaking in anti-competitive contacts or the non-implementation of the agreements concluded. The Commission does not take account of such factors until the second stage of that method and does so by taking account of aggravating or mitigating circumstances specific to each of the undertakings which participated in the infringement.

(see paras 264-267, 273)

9. Sections 28 and 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 provide for the basic amount of fines to be varied in accordance with certain aggravating and mitigating circumstances particular to each undertaking concerned. In particular, Section 29 of the Guidelines establishes a non-exhaustive list of mitigating circumstances which, under certain conditions, may lead to a reduction in the basic amount of a fine. It is true that that list no longer refers, among the mitigating circumstances which may be taken into account, to the passive role of an undertaking. However, in so far as the list set out in Section 29 of the Guidelines is not exhaustive, such a situation cannot, in principle, be excluded from the circumstances which might lead to a reduction in the basic amount of a fine.

The passive role of an undertaking in committing an infringement implies that the undertaking adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anti-competitive agreements.

Among the factors likely to demonstrate an undertaking’s passive role in a cartel, a significantly more sporadic participation in meetings than that of the other ordinary members of the cartel can be taken into account as well as its late entry on the market which is the subject of the infringement, independently of the duration of the undertaking’s participation, or even the existence of statements dealing specifically with that point from other representatives of undertakings which participated in the infringement.

(see paras 279-281, 284-285)

10. The Commission has a margin of discretion when fixing the amount of fines in order that it may channel the conduct of undertakings towards observance of the competition rules. The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringements does not mean that it is prevented from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of competition policy. On the contrary, the proper application of the European Union competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

(see para. 293)

11. When the amount of a fine to be imposed is being determined, the fact that an undertaking proven to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with those competitors is not necessarily a matter which must be taken into account as a mitigating circumstance. An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit.

(see para. 297)

12. The fact that the examination of the pleas challenging the lawfulness of a Commission decision imposing a fine for infringement of the competition rules of the European Union has revealed an illegality does not dispense the Court from examining whether, in the light of the consequences of that illegality and in exercising its unlimited jurisdiction, it is required to amend the contested decision.

(see para. 306)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

25 October 2011 ( )

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Action for annulment – Market-sharing – Price-fixing – Body of evidence – Date of the evidence – Statements of competitors – Acknowledgment – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances)

In Case T‑348/08,

Aragonesas Industrias y Energía, SAU, established in Barcelona (Spain), represented by I.S. Forrester QC, and K. Struckmann, P. Lindfelt and J. Garcia-Nieto Esteva, lawyers,

applicant,

v

European Commission, represented by A. Biolan, J. Bourke and R. Sauer, acting as Agents,

defendant,

APPLICATION, primarily, for the annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.695 – Sodium chlorate) to the extent to which it concerns Aragonesas Industrias y Energía and, in the alternative, for the annulment or a substantial reduction of the fine imposed on it in that decision,

THE GENERAL COURT (Second Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 10 September 2010,

gives the following

Judgment

Background to the dispute

1 The applicant, Aragonesas Industrias y Energía, SAU, is a company established under Spanish law. When formed in 1992 it belonged to the Chemical Division of the Uralita group, which was active in the sodium chlorate sector and was headed by Uralita, SA (‘Uralita’). Until 1994, the applicant was a 100% subsidiary of Uralita. In December 1994, Uralita created a holding company called Energía e Industrias Aragonesas EIA, SA (‘EIA’), to which the entire chemical business was transferred. The applicant thus became a 100% subsidiary of EIA. Initially, Uralita held 98.84% of the shares in EIA, then, as of 1 January 1995 and until 31 December 2000, Uralita’s shareholding in EIA ranged between 49.44% and 50.71%.

2 Sodium chlorate is a strong oxidising agent manufactured by the electrolysis of a sodium chloride water solution in a diaphragm-less cell. Sodium chlorate can be produced as a crystal product or as a solution product. Its largest application is for the manufacture of chlorine dioxide, which is used in the pulp and paper industry for the bleaching of chemical pulp. Other applications include, to a lesser degree, drinking water purification, textile bleaching, herbicides and uranium refining (recital 2 of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.695 – Sodium chlorate) (‘the contested decision’).

3 On 28 March 2003, representatives of EKA Chemicals AB (‘EKA’), a company established in Sweden, made an application for immunity from fines or, alternatively, reduction of fines, under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’) with regard to the existence of a cartel in the sodium chlorate industry. On 31 March 2003, EKA’s application was supported by documentary evidence which it furnished and by oral statements from its representatives (‘EKA’s 2003 statements’).

4 On 30 September 2003, the Commission of the European Communities (now ‘the European Commission’) adopted a decision granting EKA conditional immunity from fines in accordance with point 15 of the Leniency Notice.

5 On 10 September 2004, the Commission sent requests for information pursuant to Article 18(2) 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) to Finnish Chemicals Oy (‘FC’), a company established in Finland, Arkema France SA, a company established in France and referred to, in the contested decision, under the trade name ‘Atochem’ (‘Arkema France’), and, lastly, the applicant.

6 On 24 September 2004, Mr L., an employee of Arkema France (‘Mr L. (Arkema France’)) was heard by the Commission (‘Arkema France’s statements’).

7 On 18 October 2004, in its response to the Commission’s request for information, Arkema France applied for immunity from fines or a reduction thereof under the Leniency Notice.

8 On 29 October 2004, at a meeting at the Commission’s premises, FC applied to the Commission for reduction of fines under the Leniency Notice and provided the Commission with oral information concerning the sodium chlorate investigation. By letter of 2 November 2004, FC confirmed its application for a reduction of fines and at the same time provided documentary evidence concerning its involvement in the infringement alleged by the Commission.

9 On 4 November 2004, a meeting was held between the Commission and EKA’s representatives. On 11 November 2004, EKA sent the Commission additional information concerning recent developments on the sodium chlorate market.

10 On 3 and 9 December 2004, the applicant responded to the Commission’s requests for information of 10 September 2004.

11 On 6 July 2006, EKA made a new oral statement for the Commission’s attention, which was followed by interviews with two of the company’s employees on 19 and 20 July 2006. On 29 August 2006, EKA made further oral statements in the course of a meeting at the Commission’s premises (‘EKA’s 2006 statements’).

12 Between 13 November 2006 and 11 April 2008, the Commission sent requests for information pursuant to Article 18(2) of Regulation No 1/2003 to a number of companies and in particular to the applicant on 13 November 2006, 8 February 2007, 12 March 2007 and 11 April 2008.

13 On 27 July 2007, the Commission adopted a statement of objections, addressed in particular to EKA, FC, Arkema France, the applicant and Uralita.

14 Within the prescribed deadline, the applicant communicated to the Commission its observations on the statement of objections. The applicant was granted access, first, to the Commission’s file in the form of a DVD sent by the Commission and containing public documents and, second, to the transcript of oral statements of leniency applicants gathered by the Commission in the course of the investigation.

15 On 20 November 2007, several of the companies concerned, including Uralita but not the applicant, exercised their right to be heard orally by the Commission.

16 On 11 June 2008, the Commission adopted the contested decision and on 16 June 2008 notified it to the applicant.

17 In recital 69 of the contested decision, the Commission finds, in substance, that EKA, FC, Arkema France and the applicant participated in meetings and had contacts aimed at sharing markets by allocating their sales volumes and fixing the prices of sodium chlorate on the market of the European Economic Area (‘EEA’). On that basis, the Commission drew up a list of 72 anti-competitive contacts, taking the form either of meetings or telephone calls (‘the 72 anti-competitive contacts’). That list is attached in Annex I to the contested decision. Annex II to the contested decision contains a list of the persons cited in that decision. Among the names cited are those of Mr S. and Mr W., employees of EKA (‘Mr S. (EKA)’ and ‘Mr W. (EKA)’), Mr A. and Mr S. (‘Mr S. (FC)’), employees of FC, Mr L. (Arkema France) and Mr A., an employee of the applicant (‘Mr A. (FC) (Aragonesas)’). Also in recital 69 of the contested decision, the Commission states that the anti-competitive practices took place from 21 September 1994 for EKA and FC, from 17 May 1995 for Arkema France and from 16 December 1996 for the applicant. They lasted until 9 February 2000 at least for EKA, FC, Arkema France and the applicant.

18 In recitals 70 and 71 of the contested decision, the Commission stated that compliance with decisions taken within the cartel was monitored primarily in bilateral meetings and telephone conversations during which the parties exchanged commercially sensitive information on the negotiations with customers, in particular, on contracted sales volumes and prices. It added that the participants to the cartel pursued a strategy of stabilising the sodium chlorate market, the ultimate aim of which was to allocate the sodium chlorate sales volumes among themselves, to coordinate the pricing policy towards the customers and thereby to maximise their margins.

19 In addition, in recitals 73 to 78 of the contested decision, the Commission described the fundamental principles and functioning of the cartel. In that regard, it noted that numerous contacts had taken place between the main sodium chlorate producers with the main aim of negotiating among themselves in order to distribute their sales volumes on the geographic markets concerned and to set the prices they intended to charge in contracts concluded with customers. According to the Commission, the exchange of commercially sensitive information formed a significant aspect of the collusive behaviour, since the participants were then able to foresee their competitors’ market behaviour. As regards the functioning of the cartel, the Commission affirms that the sodium chlorate producers maintained frequent contacts in the form of bilateral and multilateral meetings and telephone calls, yet without following a fixed scheme. However, it states that, at the top management level, discussions took place during multilateral meetings, often at the fringes of the meetings of the working group on sodium chlorate of the European Council of the Chemical Industry (‘the CEFIC’). Finally, according to the Commission, in respect of the calendar of negotiations, the contacts among competitors were usually intensified towards the end of each year (between October and December) to reflect the annual negotiations of contracts between sodium chlorate producers and their customers for the year to come. However, the Commission reports that, in the period under investigation, those negotiations were often carried out following the start of the following year, and in particular in January and February.

20 As regards the applicant’s unlawful conduct, it is apparent from recitals 350 and 356 of the contested decision that, to assess its participation in the unlawful agreements, the Commission based its decision, first, on the applications for immunity from, or reduction of, fines, second, on the contemporaneous documents which, in the Commission’s view, establish that the applicant colluded with other parties to the cartel and, finally, on the applicant’s acknowledgement that it participated in an unlawful meeting at the fringes of an official meeting of the CEFIC of 28 January 1998 in Brussels (‘the unlawful meeting of 28 January 1998’).

21 As regards, more specifically, the contemporaneous evidence of the infringement, the Commission notes the following in recitals 349 and 350 of the contested decision:

‘349 On three occasions, [the] notes of [Mr S. (FC)] refer to a telephone conversation with [the applicant]. First, on 16 December 1996, Mr [S. (FC)] confirmed in a conversation with Mr [S. (EKA)] that [FC] would abide by the agreed prices for Spain and Portugal. At the same time, he referred to discussions with [the applicant]: [CONFIDENTIAL] ( ) … (emphasis added, see recital (130)). The quote [CONFIDENTIAL] shows that Mr [S. (FC)] previously had had a personal discussion with [the applicant] on prices, which was part of the overall arrangement among the cartel participants. Second, [the] notes [of Mr S. (FC)] refer to a telephone conversation [with Mr S. (EKA)]: [CONFIDENTIAL] (emphasis added, see recital (219)). The quote shows that [Arkema France] had directly discussed prices with [the applicant] and that this formed again part of the overall coordination on prices. Finally, concerning a phone call on 9 December 1999, [the notes of] Mr [S. (FC)] …state: [CONFIDENTIAL] … This quote shows that Mr S. (FC) made notes of either what Mr L. [(Arkema France)] reported to him over the phone or that he reported his own conversation with [the applicant] to Mr [L.]. It is not relevant [which one of them] actually spoke to [the applicant] since it transpires from the content of the notes that the discussion with [the applicant] was unlawful in nature.

350 These references clearly indicate that direct telephone contacts with [the applicant] took place and that thereby [the applicant] contributed directly to the overall arrangements on prices. Moreover, [the applicant] confirmed that it participated in [the unlawful meeting of 28 January 1998], where illegal discussions among competitors took place (see recitals (182) – (184)). The Commission therefore concludes, on the basis of the oral statements received in this case and contemporaneous evidence clearly suggesting anti-competitive behaviour on its side, that [the applicant] participated in the overall infringement. In such circumstances, it is for [the applicant] to produce evidence that explains its conduct in a way that is consistent with competitive behaviour.’

22 In recital 352 of the contested decision, the Commission stated the following:

‘As regards the other instances in [the contested decision] where reference is made to [the applicant], the Commission accepts [its] argument that the information may have come from third parties and not from [the applicant] itself. The Commission does not have sufficient evidence in its file to show conclusively that, in these instances, the information came directly from [the applicant]. That will be reflected in the duration of the infringement for which [the applicant] is held liable.’

23 As regards the duration of the infringement, and in particular the dates on which the applicant started and ended its participation therein, the Commission stated and concluded the following in recitals 487 to 489 of the contested decision:

‘487 EKA and [FC] participated in the anti-competitive arrangements … as of … and [the applicant] at least as of 16 December 1996 (see recital 130) …

488 As to the end of the infringement, to the Commission’s knowledge the last anticompetitive meeting – in which EKA, Atochem and [the applicant] participated – was held on 9 February 2000. In this meeting, EKA distanced itself publicly from the cartel by announcing its refusal to participate in any further discussions with the competitors. This was a clear communication of one of the participants not to continue its involvement in the cartel and was, to the Commission’s knowledge, the last relevant contact among the [sodium chlorate] producers (see also recital 283). While EKA, Atochem and [the applicant] directly participated in the meeting of 9 February 2000, there is no evidence in the Commission’s file that [FC] would have openly distanced itself from the cartel before that date (nor was such a distancing claimed by any of the parties). Consequently, the Commission considers 9 February 2000 to be the end date of the cartel for all undertakings involved, that is to say, for EKA, [FC], Atochem and [the applicant].

489 If follows that the total duration of the infringement, as described in [the contested decision], is … 3 years and 1 month for [the applicant] and Uralita.’

24 In recitals 444 and 455 to 468 of the contested decision, the Commission takes the view, first, that Uralita exercised a decisive influence over the applicant’s strategic orientation and general trading policy and that, following EIA’s absorption by Uralita, EIA’s liability for the infringement, as the applicant’s sole shareholder, was transferred to Uralita. Consequently, in recitals 469 and 487 to 489 of the contested decision, the Commission holds the applicant and Uralita jointly and severally liable for the infringement committed by the former between 16 December 1996 and 9 February 2000 (‘the infringement at issue’), that is to say for a total duration of three years and one month.

25 As regards the calculation of the fines to be imposed, it is apparent from recital 498 of the contested decision that the Commission took as its basis 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’). In addition, in the present case, it is apparent from recital 509 of that contested decision that, in calculating sales volumes, the Commission took account of the sales of sodium chlorate made by each undertaking in the EEA during the business year corresponding to the last full business year of the infringement, which ended on 31 December 1999.

26 In so far as concerns the calculation of the basic amount of the fine, it is apparent from recitals 509 to 524 of the contested decision that the Commission found, in relation to the gravity of the infringement at issue, first, that the infringement was particularly serious in that it was based on market-sharing and price-fixing agreements (recital 512 of the contested decision), second, that the combined market share of the undertakings participating in the infringement was more than 90% within the EEA in 1999 (recital 513 of the contested decision), and that that infringement produced its effects in a substantial part of the territory of the EEA (recital 514 of the contested decision) and, finally, that the agreements were generally implemented although not always successfully (recital 515 of the contested decision). Consequently, the Commission determined the proportion of the sales volumes of each undertaking involved, which was used to establish the basic amount, at 19%.

27 Second, on the basis of point 24 of the 2006 Guidelines, the Commission fixed at 3.5 the multiplier for the duration of the infringement committed by the applicant.

28 Third, in recital 523 of the contested decision, the Commission decided, on the basis of point 25 of the 2006 Guidelines and in order to deter the undertakings at issue from entering into horizontal price-fixing agreements such as the agreements dealt with in the contested decision, to increase the basic amount of the fine by an additional fixed amount of 19%, taking account of the factors examined in recitals 512 to 515 of the contested decision.

29 The Commission concluded, in Article 1(g) and (h) of the contested decision, that the applicant and Uralita infringed Article 81 EC and Article 53 of the EEA Agreement by participating, from 16 December 1996 to 9 February 2000, in a complex of agreements and concerted practices with a view to allocating sales volumes, fixing prices, exchanging commercially sensitive information on prices and sales volumes and monitoring the execution of the anti-competitive arrangements for sodium chlorate in the EEA market.

30 In Article 2(f) of the contested decision, the Commission imposed a fine of EUR 9 900 000 on the applicant and Uralita, jointly and severally.

31 In Article 3 of the contested decision, the Commission ordered the undertakings listed in Article 1 of the decision to bring to an end the infringement found, insofar as they had not already done so, and to refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.

32 Article 4 of the contested decision lists the addressees, among which the applicant.

Procedure and forms of order sought by the parties

33 By application lodged at the Court Registry on 26 August 2008, the applicant brought the present action.

34 On hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. The Court also put a number of questions to the parties and asked the Commission to provide it with certain documents. The parties replied to those questions and complied with the requests within the time allocated.

35 By letter of 3 September 2010, the Commission lodged its observations on the report for the hearing in Case T‑348/08.

36 At the hearing, the Court provided the parties with a copy of pages 1159 and 1160 of the Commission’s file. They confirmed that, aside from the handwritten numbering by the Court of the indents on those two pages, the copies were strictly identical to the originals in the Commission’s file.

37 The oral procedure was closed on 10 September 2010.

38 The applicant claims that the Court should:

– principally, annul the contested decision in so far as it relates to it;

– in the alternative, amend Articles 1 and 2 of the contested decision to annul or substantially to reduce the fine imposed on it;

– order the Commission to pay the costs.

39 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

A – The application for annulment of the contested decision

40 In support of its action, the applicant raises two pleas in law. The first plea alleges errors of law and assessment in that the Commission failed to establish to the requisite legal standard that the applicant participated in the infringement at issue. The second plea alleges errors of law and assessment committed by the Commission when setting the amount of the fine imposed on the applicant.

1. The first plea, alleging errors of law and assessment in that the Commission found the applicant to have participated in the infringement from 16 December 1996 to 9 February 2000

41 Under the first plea raised, the applicant submits that the evidence relied on by the Commission in the contested decision does not establish to the requisite legal standard that it participated in the infringement at issue. That first plea is divided into two parts. First, the Commission failed to show that the applicant directly participated in the infringement at issue from 16 December 1996 to 9 February 2000 and, second, that it participated in a single and continuous infringement covering the whole of the EEA.

a) Arguments of the parties

42 According to the applicant, the body of evidence invoked by the Commission to impute liability for the infringement to it relies on the following three types of evidence. The first resides in the fact that the applicant acknowledged having participated in the unlawful meeting of 28 January 1998 with EKA, FC and Arkema France. The second is based on handwritten notes of Mr S. (FC) (‘the notes of Mr S. (FC)’). The third is based on EKA’s 2003 and 2006 statements. However, none of those three items of evidence, taken individually or collectively, establishes beyond reasonable doubt that it participated in an unlawful cartel.

43 In the first place, with regard to the unlawful meeting of 28 January 1998, the applicant does not deny having participated therein. According to the applicant, it was a very informal gathering, in the corridors of a hotel. The applicant points out, however, that, as is apparent from the notes of Mr S. (FC), such as they appear on page 1159 of the Commission’s file, the cartel’s ringleaders asked the applicant’s employee to leave shortly after the group had gathered. Thus, the applicant submits that attendance at part of one single meeting out of the 72 anti-competitive contacts identified by the Commission between the members of the cartel is not sufficient to show liability for participation in the very complex and frequent arrangements of the other addressees of the contested decision.

44 In the second place, the contemporaneous evidence drawn from the notes of Mr S. (FC) consists of only three indirect references to the applicant, made in recital 349 of the contested decision. It follows both from that recital and from recital 352 of the decision that those three references drawn from the notes of Mr S. (FC) are the only contemporaneous evidence of the facts used as evidence against the applicant. Moreover, it follows from the wording of recital 352 of that decision that the Commission itself took the view that it was not possible to show conclusively that the other information in the notes of Mr S. (FC) concerning the applicant came directly from the latter.

45 The applicant adds that the other statements which appear in the applications for leniency, to which the Commission, in its pleadings, attempts to give precedence over the three references cited in recital 349 of the contested decision, may be interpreted differently from the Commission’s suggestion and do not lead to the conclusion that the applicant participated in a single and continuous infringement. Finally, the Commission also relies on other items of evidence which were not referred to in the contested decision and do not demonstrate the applicant’s guilt, which explains why it was omitted from that decision. More specifically, the applicant submits that the Commission claims, in the defence, that the decision was based not only on the three references in recital 349 of the contested decision but also on other references to the applicant extracted from the notes of Mr S. (FC). The applicant considers that that amounts to taking the view that each reference to it must be interpreted as a direct allegation against it. Although the Commission invokes the ‘plain terms of the [contested] decision’ with regard to those other references drawn from the notes of Mr S. (FC) to make its case against the applicant, the latter considers, on the contrary, either that they are evidence which exonerates it or that they do not prove that it participated in the infringement in question.

46 Finally, the applicant takes the view that, contrary to what is stated in recital 352 of the contested decision, namely that the information in the notes of Mr S. (FC) may have come from third parties and not from the applicant itself ‘will be reflected in the duration of the infringement for which [the applicant] is held liable’, the Commission has not altered its calculation of the duration of the applicant’s participation in the infringement at issue from that set out in the statement of objections. It infers from this that the duration determined in the contested decision does not accurately reflect the extent of its alleged participation in the infringement at issue and that it has not been subject to any adaptation or concession on the part of the Commission to fit the trivial nature of the items of evidence.

47 The first reference to the applicant, made in recital 349 of the contested decision, relates to a telephone conversation on 16 December 1996 between Mr S. (FC) and Mr S. (EKA), in the course of which the former mentioned a conversation which he had had with the applicant on prices in Spain. The applicant argues that that initial reference does not show beyond any reasonable doubt that it was part of a cartel. First, the employee concerned denied having had any contact with Mr S. (FC) other than during official CEFIC general assemblies. Second, that reference only reports the subject of a conversation with EKA about the applicant. Finally, the other evidence does not suggest that the applicant was involved in an agreement about prices during the negotiation period for the signature of sodium chlorate contracts for the first quarter of 1997. If the applicant had been involved in an agreement at that time, it would have been mentioned more frequently and also not only indirectly in the notes of Mr S. (FC).

48 The second reference to the applicant relates to a telephone conversation on 4 December 1998 between Mr S. (FC) and Mr S. (EKA), in the course of which the latter mentioned a conversation which he had had with Arkema France on prices in Portugal. It appears from that conversation that Arkema France indicated to Mr S. (EKA) that it had spoken to an employee of the applicant. The applicant takes the view that that extract does not show that it was part of the cartel and, to the contrary, it could suggest that the applicant was asked not to cut its prices. Moreover, the applicant observes that the leniency application by Arkema France (made at the hearing of Mr L. (Arkema France) on 24 September 2004) does not mention the applicant’s name at all in the context of the discussions that took place from mid-1998 to May 2000. Furthermore, that extract reports a statement made by Arkema France, a direct competitor of FC. The applicant therefore suggests that, when Arkema France spoke to Mr S. (EKA), it could have had an interest, as an aggressive competitor of FC, in making him believe that the price would not decrease and that FC had to respect the level of the previous year. Finally, the applicant states that, in 1998, it reduced its selling price for sodium chlorate in Portugal. Therefore, not only does the second reference not prove that the applicant was involved in discussions during the period concerned, but also it is an exculpatory element as it suggests that the applicant did not coordinate its conduct with the members of the cartel.

49 The third reference to the applicant relates to a telephone conversation on 9 December 1999 between Mr S. (FC) and Mr L. (Arkema France), in the course of which one of them said that he had spoken to the applicant. The applicant submits that the fact that someone spoke to it does not in itself imply illicit conduct. In fact, if it was perceived as a company which was not willing to cooperate, possibly the other cartel members needed to speak to it to try ‘to get it in line’. Moreover, the applicant again points out that that third reference is contradicted by the statements gathered during the hearing of Mr L. (Arkema France), in which he no longer includes the applicant as a party to the agreement for the period between mid-1998 and May 2000.

50 In the third place, with regard to EKA’s 2003 and 2006 statements, the applicant states that, according to the Commission, they explain ‘[the applicant’s] involvement regarding customers in Spain, France and Portugal’. However, FC and Arkema France make no such accusation.

51 First, with regard to EKA’s 2003 statements, it is apparent from them that the main participants to the cartel were EKA, FC and Arkema France. The applicant was involved in the agreements to a lesser extent. Moreover, in recital 358 of the contested decision and related footnote 391, the Commission refers specifically to EKA’s 2003 statements. On that basis, the applicant reproduces and comments on three excerpts from those statements on Spain, France and Portugal. Those three excerpts are sample excerpts from EKA’s statement explaining the latter’s allegation that the applicant participated in the cartel according to its market position and market interest with regard to Spanish, French and Portuguese customers.

52 With regard to the first excerpt, concerning Spain, EKA stated in particular that [CONFIDENTIAL]. In that regard, the applicant argues that, if it were to lose market share in Spain, it would only be natural that it would try to find customers in neighbouring markets, such as France or Portugal. This is consistent with normal market behaviour with functioning competition. There is therefore an alternative interpretation to that adopted by the Commission, one which is in line with ordinary market behaviour.

53 With regard to the second excerpt, concerning France, EKA stated in particular that [CONFIDENTIAL]. The applicant submits that the Commission relies on that statement to suggest that in France there were bilateral dealings between Arkema France and producers other than EKA about volumes. The applicant then argues that EKA’s statement relies solely on hearsay as it claims that the applicant took part in arrangements to which EKA itself was not a party. The information contained in that statement could therefore have been obtained only from third parties such as Arkema France. The applicant points out that, in its leniency application, Arkema France makes no reference to separate arrangements with the applicant. A statement by a third party in which it alleges that an agreement existed which was ‘apparently’ concluded by other producers does not prove that such an agreement existed. Therefore, that excerpt from EKA’s statement does not meet the requisite standard of clarity to implicate the applicant in the infringement at issue.

54 With regard to the third excerpt, concerning Portugal, it appears from it that EKA stated in particular that [CONFIDENTIAL]. The applicant states that it does not understand how that statement can constitute evidence against it when it implicates only EKA, Arkema France and FC with regard to an agreement about volumes.

55 Second, with regard to EKA’s 2006 statements, they were made in response to a request from the Commission. The applicant states and, notwithstanding the Commission’s arguments in defence, maintains that those statements correct certain errors, and contradict certain assertions, contained in EKA’s previous statements, in particular those of 2003. Thus, in its 2006 statements, EKA indicated that the applicant had attended only one meeting and not five. EKA also no longer states that the applicant and Arkema France had organised their market shares in a separate agreement. Moreover, the applicant points out that, with regard to the Spanish market, the new statement by EKA confirms the applicant’s opinion that the conduct observed by the Commission is quite natural. Similarly, EKA’s 2006 statements do not contain any further specific reference to the applicant with regard to the Spanish, Portuguese and French markets. The applicant submits that, although EKA states that the applicant was part of the arrangements, it does not produce any specific reference to its participation. In fact it notes that, while EKA’s statements wrongly implicate the applicant as having taken part in five meetings, the Commission wisely does not refer to them in the contested decision. The only mention of its name is an exculpatory factor for the applicant as it indicates that EKA and FC had decided not to increase their prices if the applicant, Arkema France and [CONFIDENTIAL] did not follow suit.

56 The applicant concludes from this that the differences between EKA’s 2003 and 2006 statements put their accuracy and evidential value in doubt. Thus they cannot provide evidence beyond reasonable doubt for the Court of an infringement committed by the applicant. Moreover, those statements contain no references to meetings or telephone contact with the applicant. They are therefore insufficient to attribute to the applicant liability for an infringement of Article 81 EC.

57 Moreover and in the fourth place, the applicant submits that the Commission erred in indicating 9 February 2000 as the ending date of its alleged participation in the cartel. In fact, the evidence produced in the contested decision demonstrates only that the applicant attended the official CEFIC assembly on 9 February 2000, which it does not dispute. By contrast, the Commission has not proven that the applicant participated in a meeting at the fringes of the CEFIC assembly of 9 February 2000 (‘the unlawful meeting of 9 February 2000’). Thus, first, the applicant takes the view that the statement by Mr S. (EKA) at the unlawful meeting of 9 February 2000 concerning EKA’s refusal to participate in any new discussion with the competitors is insufficient to establish the applicant’s participation in that meeting. Second, the applicant argues, on the one hand, that neither Arkema France nor FC mentioned such a statement and, on the other hand, that its employee confirmed that he did not hear that statement. Third, the discussions on 20, 21 and 24 January 2000 to which the Commission refers in recital 283 of the contested decision cannot be considered to be evidence against the applicant or as capable of proving that it participated in the unlawful meeting of 9 February 2000. Fourth, the applicant observes that it follows from Annex I to the contested decision that it was not identified as having participated in the unlawful meeting of 9 February 2000 and that that lack of identification cannot result from a mere clerical error.

58 To conclude the first part of the first plea, the applicant argues that the evidence relied on against it in the contested decision is not sufficiently precise and coherent to prove beyond reasonable doubt that it participated in the infringement at issue.

59 In those circumstances, first, in the light of the principle of the presumption of innocence, as there is doubt in the present case as regards the applicant’s participation in the infringement at issue, the Commission should have refrained from holding it liable for that infringement.

60 Second, the applicant points out that the Commission’s ability to establish the existence of infringements of Article 81 EC is now greater, in that Regulation No 1/2003 confers new and strengthened powers on it. Moreover, the new leniency programmes mean that it now receives substantial documentary evidence. Similarly, progress in information technology also enables the Commission to carry out sophisticated electronic searches. Finally, the applicant points out that, in the present case, the Commission did not consider it necessary to extend its investigation and, for that purpose, to make arrangements to search its premises or those of the other companies addressed by the contested decision.

61 In relation to those strengthened powers, the Commission should be held to a high evidential standard. In the present case, having failed to satisfy such an evidential standard, the Commission should, as it did in the case of other small producers whose situation was similar to that of the applicant, have given it the benefit of the doubt. Accordingly, the Commission should not have accused it of participation in the infringement referred to in the contested decision or imposed a fine on it. In any event, the applicant submits that, while the level of information exchanged by the three main producers concerning [CONFIDENTIAL] was similar to that exchanged on the applicant, the Commission decided to impose a fine only on it. The applicant therefore argues that the Commission infringed the principle of equal treatment.

62 The Commission disputes the merits of the arguments set out by the applicant.

63 It maintains that the evidence set out in the contested decision shows that the applicant participated in the infringement at issue. It points out that that evidence is of three types, namely, first, statements made by the members of the cartel incriminating the applicant, second, copious contemporaneous notes taken by Mr S. (FC) and, finally, the applicant’s acknowledgment that it attended the unlawful meeting of 28 January 1998, which is supported by further evidence of that meeting.

64 In the first place, with regard to the statements made by the members of the cartel, the Commission observes that they were provided shortly after the termination of the cartel and there is a high level of consistency between them and with the contemporaneous notes of Mr S. (FC). It adds that, contrary to the applicant’s submission, the companies which have applied for leniency do not necessarily have an incentive to distort the evidence relating to the other participants in the alleged cartel.

65 In the second place, with regard to the contemporaneous notes taken by Mr S. (FC), the Commission disputes the applicant’s claim, in the light of recital 349 of the contested decision, that only three excerpts from the notes of Mr S. (FC) were used to make the case against the applicant such that all other references could be ignored. The Commission points out that, apart from the three excerpts which the applicant focuses on, it repeatedly relies on other references to the applicant in the notes of Mr S. (FC) and cites for example recitals 150, 220, 229, 256, 305, 319 and 347 of the contested decision. The Commission points out in the reply that the applicant was content to limit its attack, with regard to those items of evidence, to the excerpt from the notes of Mr S. (FC) invoked in recital 150, both truncating the quote and taking it out of context. With regard to the other six recitals, the applicant admits that they are directly incriminatory, but claims that the contested decision does not refer to it in its findings of fact with respect to 1997. The latter claim is inaccurate and the Commission was entitled to conclude, in the defence, that the applicant’s regular telephone contacts with the members of the cartel were ongoing in 1997.

66 Recital 349 of the contested decision rebuts the applicant’s arguments about its lack of involvement in the cartel and should not be confused with recitals, such as recitals 305 and 319, where the Commission sets out in full its case against the applicant. Moreover, the Commission focuses on those three extracts referred to in recital 349 because, first, they are particularly convincing, and therefore essential, evidence against the applicant showing that it participated in a single and continuous infringement, which was European in scope, second, the applicant did not challenge those statements and, finally, the contemporaneous evidence is particularly strong in inculpating the applicant, without, however, being the only evidence gathered by the Commission.

67 In the third place, with regard to recital 352 of the contested decision, the Commission states that it expressly drew a distinction between the different excerpts from the notes of Mr S. (FC), on the basis of their probative value, specifically with a view to delimiting the duration of the applicant’s participation in the infringement at issue. In recital 352, it indicated that, if it had limited itself only to the references to the applicant other than those set out in recital 349, it would have found it more difficult to conclusively prove cartel behaviour. It therefore decided not to rely on them to extend the duration of the applicant’s participation in the cartel. None the less, although those other references to the applicant are not conclusive in themselves, at the very least they form part of a set of coincidences and indicia upon which the Commission was entitled to base its analysis of the applicant’s participation in the cartel.

68 In the rejoinder, still in relation to recital 352 of the contested decision, the Commission submits that the applicant ignores recitals 305 and 319 of the contested decision, which explicitly invoke the other excerpts from the notes of Mr S. (FC) as evidence against it. It also ignores recitals 357 and 358 of the contested decision, which make it clear that the Commission based its complaints against the applicant on the notes of Mr S. (FC), taken as a whole, and was not limiting itself to the three excerpts set out in recital 349 of the contested decision. According to the Commission, it is apparent from the case-law that the fact that information is reported indirectly or is circumstantial does not prevent its use as evidence. The contemporaneous evidence of the infringement which consists of the notes of Mr S. (FC) is consistent with the other evidence in the file against the applicant and has been widely accepted by the parties, including the applicant.

69 Finally, recital 352 of the contested decision in no way promises to alter the duration of the applicant’s participation in the infringement at issue by comparison with the duration in the statement of objections. Moreover, contrary to the applicant’s assertions, the evidence used in the contested decision is the same as that in the statement of objections.

70 In the fourth place, the Commission argues, as a first point, that the contested decision relies on general evidence provided by EKA, Arkema France and FC, which demonstrates categorically the applicant’s participation in the cartel and the characteristics of that cartel.

71 As a second point, the Commission lists a number of specific pieces of evidence showing the applicant’s contacts with the other members of the cartel.

72 First, it is apparent from the notes of Mr S. (FC) regarding his telephone call with Mr S. (EKA) on 16 December 1996 that he had had a previous conversation with the applicant. The Commission points out that the applicant did not contest that evidence in its reply to the statement of objections. Moreover, it challenges the arguments now raised by the applicant against that evidence.

73 Second, with regard to the evidence relating to the calendar year 1997, the Commission takes the view that the excerpts from the contemporaneous notes of Mr S. (FC) dated 10 and 14 January 1997 illustrate how the applicant was annoyed by FC’s attempts to take a larger market share in Spain and Portugal. Similarly, it is apparent from a note made by Mr S. (FC) on 14 October 1997 concerning a bilateral meeting between EKA and FC which took place in Turku (Finland) (‘the Turku meeting of 14 October 1997’) that FC and EKA were having difficulty making the applicant in particular understand that a price increase of 1.5% was necessary to compensate for inflation. Again in connection with the Turku meeting of 14 October 1997, it is apparent from a statement by EKA that, in view of FC’s increased sales in Spain, there was a risk of retaliation by the Spanish producers and that EKA and FC agreed not to increase their prices if the applicant, in particular, did not follow suit.

74 Third, with regard to the unlawful meeting of 28 January 1998, the Commission points out that the applicant admitted having attended that meeting. The notes of Mr S. (FC) show that the parties discussed the sodium chlorate markets in a number of countries, as well as market shares and prices. Initially, the Commission claimed, in its pleadings, that there was nothing in the file to suggest that the applicant’s attendance at that meeting was a new or exceptional development. However, subsequently, in its observations on the report for the hearing, the Commission expressly recognised that the applicant’s participation constituted a new development. However, the Commission considers that the applicant did not show that it participated in that meeting in a spirit different from that of the other cartel members or that it publicly distanced itself from the cartel. The applicant’s claim as to the informal nature of the meeting is contradicted by the fact that the meeting was planned some weeks in advance and by the detailed notes of Mr S. (FC). Contrary to the applicant’s misunderstanding, it is apparent from recital 183 of the contested decision that the parties discussed Belgium, Spain, France and Portugal exhaustively (and not exclusively). It does not appear from the notes of Mr S. (FC) that the cartel’s ringleaders asked the applicant to leave. On the contrary, those notes show that the examination of the Spanish, French and Portuguese markets was interspersed with discussions of other markets throughout most of the meeting, so it is likely that the applicant was in attendance throughout the meeting. Finally, the Commission states that Annex I to the contested decision is necessarily limited to only those contacts for which it knows the actual date; there were other contacts involving the applicant which are supported by the evidence, albeit without a precise date being known.

75 Fourth, in October and November 1998, Mr L. (Arkema France) and Mr S. (FC) had several phone calls during which the applicant’s market share in Portugal was discussed.

76 Fifth, with regard to the telephone contact on 4 December 1998 between Mr S. (FC) and Mr S. (EKA), the Commission takes the view that the applicant does not explain how such contacts could have taken place in the ordinary course of business and, in addition, it admits that it was asked not to cut its price, which is an anti-competitive request, to which the applicant acceded. Contrary to the applicant’s submission, it does not appear from the statement of Mr L. (Arkema France) that the applicant left the cartel at the end of the first period, which ran from October 1994 to mid-1998, or for an alleged second period which ran from mid-1998 to May 2000, particularly as that reading is contradicted by the copious evidence.

77 Sixth, the Commission points out that the applicant refers only to price decreases in Portugal in 1999 and 2000, omitting to mention that its prices increased between 1993 and 1997 and were sustained in 1998. It adds that the price decrease in 1999 can be explained by the price war which broke out in Portugal as a result of the conflict over a customer. Again, notwithstanding the cartel’s faltering in 1999, it remained active and, as is apparent from the notes of Mr S. (FC) on his telephone conversations with Mr L. (Arkema France) on 16 June, 6, 9 and 22 December 1999, the applicant continued to be involved in it. Those three sets of notes relate to the existence of direct contact with the applicant and, contrary to the applicant’s submission, there is nothing to indicate that the applicant was not cooperating and that the other participants were trying to get it in line.

78 Seventh, the Commission adds that it is apparent from the notes of Mr S. (FC) on his telephone call of 22 December 1999 with Mr L. (Arkema France) that the applicant was still engaged in illicit contacts with its competitors in late December 1999. Similarly, those notes on telephone conversations throughout January 2000, as summarised in the contested decision, show the members of the cartel continued to coordinate their positions.

79 Eighth, and finally, the Commission states that the fact that the applicant is not listed in Annex I to the contested decision as being among those who attended the unlawful meeting of 9 February 2000 results from a clerical error since, in recitals 283 and 488 of the contested decision, it concluded that the applicant was present at that meeting. It does not matter that the applicant did not hear a statement made by EKA, at the fringes of the official CEFIC assembly, concerning its refusal to participate in any further discussions with the competitors, since the cartel ended on that date. Moreover, the fact that it states that it did not hear that statement strongly suggests that it attended the unlawful meeting of 9 February 2000.

80 As a third point, the Commission disputes the merits of the arguments set out by the applicant concerning the oral statements made by EKA.

81 First, in recital 319 of the contested decision, the Commission referred to the statements made by EKA in 2003 as a whole and not to the three quotes ‘cherry-picked’ by the applicant in its application.

82 With regard to the first quote referred to by the applicant, concerning the Spanish market, the conduct described as being likely to be adopted by the applicant on the French market, if it were to lose some of its share of the Spanish market, is not equivalent to normal market behaviour but is a threat in the context of the cartel arrangements, which clearly presupposes a general agreement with respect to market shares. Moreover, the Commission points out that, according to the case-law, the fact that an undertaking at times does not abide by what is agreed within the auspices of the cartel is not such as to relieve it from responsibility if it has not publicly distanced itself from what was agreed and the fact that it is knowingly able to deceive the other cartel members does not absolve it from committing an infringement.

83 With regard to the second quote referred to by the applicant, concerning the French market, the applicant wrongly claims that EKA’s statement is based on hearsay from EKA. The excerpt used, taken as a whole, shows that EKA knew of the existence of a separate bilateral arrangement on the French market.

84 As for the third quote referred to by the applicant, concerning the Portuguese market, there is no mention of it in the contested decision and it neither inculpates nor exculpates the applicant.

85 Second, contrary to what the applicant claims, EKA’s 2006 statements do not correct those made in 2003. The purpose of the first statements was to confirm in detail some of the statements that had previously been made. All of the statements were consistent with those made in 2003 which provided further details. The Commission states that it is apparent from EKA’s 2006 statements that EKA referred again to the applicant among the parties to the cartel, described in detail how those parties fixed target prices and divided up the market, suggested that the applicant was involved well before the starting date fixed by the contested decision and confirmed that it retaliated on the French market in response to FC’s conduct. EKA’s 2006 statements thus do not contain anything which might exculpate the applicant.

86 As a fourth point, the Commission disputes that, in imposing a fine on the applicant, it infringed the principle of equal treatment. The applicant was not in a similar situation to other small sodium chlorate producers. In particular, (i) it admits to its participation in a cartel meeting, (ii) unlike the other small producers, the other members of the cartel identified it as a cartel member and, (iii) the contemporaneous notes of Mr S. (FC) of the infringement provide evidence against it, which is not true of the other small undertakings. In any event, the case-law shows that the fact that a trader who is in a position similar to that of an applicant was not found by the Commission to have committed an infringement cannot constitute a ground for setting aside the finding that the applicant participated in the infringement of which it is accused, provided that that infringement was properly established.

87 The Commission considers that the body of the evidence relied on thus shows that the applicant participated in the infringement at issue and that the first part of the first plea must therefore be rejected.

b) Findings of the Court

88 It is apparent from their pleadings that the parties dispute (i) which items of evidence were relied on by the Commission in the contested decision to show that the applicant participated in the infringement at issue and (ii) the probative value of that evidence for concluding that the applicant participated in that infringement.

89 First, certain general considerations need to be set out in relation to the evidence, second, the evidence relied on in the contested decision in relation to the applicant’s participation in the infringement at issue needs to be identified, third, the probative value of that evidence needs to be assessed and, fourth, on the basis of that assessment, the Court must rule on whether the body of evidence relied on by the Commission to show that the applicant participated in the infringement at issue is precise and consistent.

General considerations regarding evidence

90 In relation to adducing evidence of an infringement of Article 81(1) EC, it should be pointed out that the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86).

91 Moreover, in proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure (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 174).

92 Thus, the role of a Court hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (see, to that effect, Joined Cases T‑305/94, T‑306/94, T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II‑931, paragraph 891).

93 Moreover, where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265). The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (JFE Engineering and Others v Commission, paragraph 91 above, paragraph 177).

94 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p 1), are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, in particular the judgments of the European Court of Human Rights of 21 February 1984 in Öztürk, Series A No 73, and of 25 August 1987 in Lutz, Series A No 123-A, and of the Court of Justice in Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 149 and 150, and Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 175 and 176).

95 Thus, 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 Compagnie Royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 20; Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 127; Joined Cases T‑68/89, T‑77/89 and T‑78/89 SIV and Others v Commission [1992] ECR II‑1403, paragraphs 193 to 195, 198 to 202, 205 to 210, 220 to 232, 249, 250 and 322 to 328; and Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraphs 43 and 72).

96 However, it is important to emphasise 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 Commission, viewed as a whole, meets that requirement (see, to that effect, PVC II, paragraph 92 above, paragraphs 768 to 778, and in particular paragraph 777, confirmed on the relevant point by the Court of Justice, on appeal, in its judgment in 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 Maatschaappij and Others v Commission [2002] ECR I‑8375, paragraphs 513 to 523).

97 Moreover, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may thus be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 64 and 65).

98 In so far as concerns the types of evidence which may be relied on to establish an infringement of Article 81 EC and Article 53 of the EEA Agreement, the prevailing principle of European Union law is the unfettered evaluation of evidence (see, by analogy, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72).

99 Consequently, an absence of documentary evidence is relevant only in the overall assessment of the body of evidence relied on by the Commission. It does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting a different version of the facts. The applicant may do so only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 74).

100 In addition, no provision or general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 53 of the EEA Agreement, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (see, by analogy, JFE Engineering and Others v Commission, paragraph 91 above, paragraph 192).

101 However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence, given that the degree of corroboration required may be lesser in view of the reliability of the statements at issue (JFE Engineering and Others v Commission, paragraph 91 above, paragraphs 219 and 220).

102 As regards the probative value of the various items of evidence, the sole criterion relevant in that evaluation is the reliability of the evidence (Dalmine v Commission, paragraph 98 above, paragraph 72).

103 According to the general rules relating to evidence, the credibility and, thus, the probative value, of a document depends on the person from whom it originates, the circumstances in which it came into being, the person to whom it was addressed and whether it appears sound and reliable (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, paragraphs 1053 and 1838).

104 As regards statements, particularly great probative value may also be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to that effect, JFE Engineering and Others v Commission, paragraph 91 above, paragraphs 205 to 210).

105 Moreover, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, considering the possibility, in this case, that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (see, to that effect, Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70).

106 The Court also notes, in that regard, that the potential consequences of the submission of distorted evidence to the Commission are even more serious since, as is apparent from paragraph 101 above, a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings accused of participating in the infringement of detecting the inaccurate nature of those statements is increased.

107 The case-law cited is applicable, by analogy, to Article 53(1) of the EEA Agreement.

Evidence relied on in the contested decision relating to the applicant’s participation in the infringement at issue

– Preliminary observations

108 In the light of the case-law set out in paragraph 92 above, the Court considers that, in so far as it is the Court’s task to assess whether the evidence and other factors referred to by the Commission in the contested decision are sufficient to establish the existence of an infringement of which the applicant is accused, it must, following a detailed examination of the grounds of the contested decision, also identify the evidence relied on by the Commission to show that the applicant participated in the infringement at issue.

109 The Court also notes, in that regard, that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up until the notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned (see, by analogy, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 96 above, paragraph 183, and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraph 38).

110 It is apparent from the case-law set out in paragraph 109 above that the identification by the Court of those items of evidence can only relate to the part of the grounds of the contested decision in which the Commission describes the inter partes stage of the administrative procedure. It is only after having received, at that stage, the applicant’s observations on the Commission’s initial position on conclusion of the preliminary investigation stage, as set out in the statement of objections, that the Commission may decide whether or not to maintain its initial position and thus reach its final decision on the alleged infringement.

111 It that regard, the Court notes that, in this case, point 5.4.1.1 of the contested decision, entitled ‘The Commission’s assessment and conclusion’ (recitals 347 to 360 of the contested decision), forms part of Title 5 ‘Application of Article 81 [EC] and Article 53 of the EEA Agreement’, subsection 5.3.2 of which, concerning the nature of the infringement, is followed by section 5.4 on ‘The parties’ arguments in response to the Statement of Objections as regards the facts and the Commission’s assessment’. Section 5.4 contains subsection 5.4.1 which sets out a summary of the ‘Arguments raised by [the applicant]’. That subsection itself contains just one point, namely point 5.4.1.1 entitled ‘The Commission’s assessment and conclusion’. That point is not followed by a point 5.4.1.2 but directly by a new subsection, namely 5.4.2 on the ‘Arguments raised by Uralita’.

112 Consequently, the Commission’s assessment in point 5.4.1.1 concerns exclusively the applicant’s observations in its response to the statement of objections. Moreover, the Court considers that the conclusions reached in point 5.4.1.1 constitute the Commission’s final conclusions, on completion of the inter partes stage of the administrative procedure, regarding the applicant’s participation in the infringement at issue.

113 It is apparent from the foregoing considerations and the case-law set out in paragraph 109 above that any direct or indirect reference in point 5.4.1.1 to recitals of the contested decision which precede those under that point, that is to say recitals 347 to 360, may enable the Commission to reuse, at that stage of stating the grounds of the contested decision, that is to say the inter partes stage, evidence referred to earlier in the decision. On the other hand, if there is no direct or indirect reference in point 5.4.1.1 to evidence referred to in recitals other than those which it contains, it must be found that, following the inter partes procedure which it carried out in relation to matters which might be attributable to the applicant, the Commission ultimately decided not to rely on them to show that the applicant participated in the infringement at issue. Finally, where, after having received the observations of an undertaking on the statement of objections, the Commission itself calls the probative value of that evidence into question in its assessment of the evidence which it had at its disposal at the end of the preliminary investigation stage in order to determine whether that undertaking participated in an infringement, the Court cannot but take account of that assessment on the part of the Commission.

114 It is necessary to identify in the light of those preliminary observations the evidence which the Commission decided to use in this case, on conclusion of the inter partes proceedings, to show that the applicant participated in the infringement at issue and which, therefore, constitutes the body of evidence on which it relied.

115 In that regard, the Court notes that the parties agree that, in the contested decision, the body of evidence on which the Commission relied to show that the applicant had participated in the infringement at issue is made up of three types of evidence, namely:

– the applicant’s acknowledgment that it attended the unlawful meeting of 28 January 1998;

– the notes of Mr S. (FC); and

– the statements of the other members of the cartel.

116 However, the parties are not in agreement, in particular in the light of the wording of recital 352 of the contested decision, as to the probative value of that evidence for assessing whether the applicant participated in the infringement at issue.

– The evidence initially relied on by the Commission in the contested decision at the preliminary investigation stage of the administrative procedure

117 It is apparent from a detailed examination of the grounds for the contested decision set out in section 4.3 thereof, concerning the cartel history, in so far as it relates to the period of the applicant’s alleged participation in the cartel at issue, namely from 16 December 1996 to 9 February 2000, that the applicant’s name, or the name of one of its employees, is identified directly or indirectly in connection with 21 events reported by the Commission (‘the 21 events’).

118 In the light of the observations made in paragraph 110 above, it is necessary to examine which of those 21 events the Commission decided to use as evidence, in point 5.4.1.1, at the end of the inter partes stage of the administrative procedure, in order to show, by means of a body of evidence, that the applicant participated in the infringement at issue.

119 For that purpose, after identifying the evidence expressly relied on in point 5.4.1.1, it will be necessary to interpret the wording of recital 352 of the contested decision, in order to identify whether the Commission implicitly relied on other items of evidence in support of its conclusions relating to the applicant’s participation in the infringement at issue.

– The evidence expressly relied on by the Commission in the contested decision on conclusion of the inter partes stage of the administrative procedure

120 It is apparent from the grounds set out in point 5.4.1.1 of the contested decision, more precisely recitals 347 to 360 thereof, in which the Commission describes the assessments it made and the conclusions which it drew following the inter partes stage of the administrative procedure, that the Commission expressly relied, either directly or indirectly, on five of the 21 events initially used as evidence during the preliminary stage of the administrative procedure to show that the applicant participated in the infringement at issue, namely:

– in recital 349 of the contested decision, inter alia, by citing the notes of Mr S. (FC), the telephone conversation of 16 December 1996 between Mr S. (FC) and Mr S. (EKA), initially referred to in recital 130 of the contested decision;

– in recitals 350 and 356, by referring to the oral statements gathered, the Turku meeting of 14 October 1997, initially referred to in recitals 162 to 164 of the contested decision;

– in recitals 350 and 356, by referring, first, to the applicant’s acknowledgment and, second, by referring to recitals 182 and 184 of the contested decision, the notes of Mr S. (FC), and the unlawful meeting of 28 January 1998, initially referred to in recitals 182 to 186 of the contested decision;

– in recital 349, inter alia, by citing the notes of Mr S. (FC), and the telephone conversation of 4 December 1998, initially referred to in recital 219 of the contested decision;

– and, finally, in recitals 347 and 349, by citing the notes of Mr S. (FC), and the telephone conversation of 9 December 1999, initially referred to in recital 258 of the contested decision.

121 It needs to be determined whether, in point 5.4.1.1 of the contested decision, the Commission implicitly referred to other events capable of showing that the applicant participated in the infringement at issue and, to that end, to interpret the wording of recital 352 of the contested decision.

– Interpretation of recital 352 of the contested decision

122 As is apparent from the parties pleadings, the interpretation of recital 352 of the contested decision is decisive when it comes to identifying the items of evidence, other than those expressly referred to by the Commission in point 5.4.1.1 of the decision, which the Commission relied on to show that the applicant participated in the infringement at issue.

123 According to the applicant, in recital 352 of the contested decision, the Commission dismissed any reference to the notes of Mr S. (FC) other than the three references made in recital 349 of the decision. The Commission disputes that interpretation.

124 At the hearing, in response to the questions put by the Court regarding the interpretation to be given to the wording of recital 352 of the contested decision, the Commission stated in particular the following.

125 First, in that recital, it made a distinction between the three references to the notes of Mr S. (FC) expressly referred to in recital 349 of the contested decision, and the other items used as evidence against the applicant.

126 As regards the three references to the notes of Mr S. (FC) expressly referred to in recital 349 of the contested decision, which relate to the three events described in recitals 130, 219 and 258 of that decision, the Commission stressed that they constituted particularly probative evidence since they made it possible to establish direct contacts between the members of the cartel and the applicant.

127 It is true that the other items of evidence relied on against the applicant were not furnished directly by it. None the less, in the light of the case-law, that evidence was still not excluded from the body of evidence relied on by the Commission to show that the applicant participated in the infringement at issue.

128 Second, the Commission stated that the wording ‘[a]s regards the other instances in [the contested decision] where reference is made to [the applicant] …’, at the beginning of recital 352 of the contested decision, had to be interpreted as relating to the references made to the applicant in recitals 220, 256, 305 and 319 and to the other recitals referred to in recitals 305 and 319.

129 Third, as regards the scope of the second and third sentences of recital 352 of the contested decision, in so far as it is stated therein that the Commission does not have sufficient evidence in its file and that that will be reflected in the determination of the duration of the infringement, the Commission stated that, contrary to what the applicant claims, it had enough evidence to prove the duration of the applicant’s participation in the infringement at issue, namely from December 1996 to February 2000. It that regard, it stated that, although it had other evidence capable of establishing such participation in 1994, 1995 and early 1996, it decided to rely solely on the strongest evidence it had, that is to say the ‘three excerpts’ or ‘those three passages’, the first being ‘the telephone call of 16 December 1996’.

130 In so far as concerns the arguments of the parties in their pleadings and at the hearing, the Court notes, first of all, that, of the 21 events referred to in paragraph 117 above, 19 of them are based on the notes of Mr S. (FC).

131 Next, of the 19 events taken from the notes of Mr S. (FC), as stated in paragraph 120 above and noted by the Commission at the hearing, three of them are referred to expressly in recital 349 of the contested decision. As regards those three events, the parties agree that they do not form part of the ‘other instances [in the contested decision] where reference is made to [the applicant]’, within the meaning of recital 352 of that decision.

132 Finally, as is apparent from paragraph 120 above, the notes of Mr S. (FC), in so far as they concern the unlawful meeting of 28 January 1998, are referred to expressly, under point 5.4.1.1, in recitals 350 and 356 of the contested decision by reference to recitals 182 and 184 of that decision. Therefore, the fourth reference taken from the notes of Mr S. (FC) can also not form part of the ‘other instances [in the contested decision] where reference is made to [the applicant]’, within the meaning of recital 352 of that decision.

133 However, it should be noted that the 15 other events taken from the notes of Mr S. (FC) (‘the 15 other references to the applicant in the notes of Mr S. (FC)’) are not referred to expressly under point 5.4.1.1 of the contested decision.

134 In the first place, in so far as concerns the explanation given by the Commission that the wording ‘[a]s regards the other instances in [the contested decision] where reference is made to [the applicant]’, at the beginning of recital 352 of the contested decision, refers to recitals 220, 256, 305 and 319 of the contested decision and to the other recitals referred to in recitals 305 and 319 (namely recitals 130, 150, 184, 219, 229, 256 and 258), that interpretation is indeed plausible in so far as recitals 305 and 319 of the contested decision refer, inter alia, to four other recita