Case T-191/06

FMC Foret, SA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of the infringement – Presumption of innocence – Rights of the defence – Fines – Attenuating circumstances)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market – Included

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Disclosure of information in preparation for an anti‑competitive agreement – Sufficient

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible

(Art. 81(1) EC)

4. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements submitted in the context of the Leniency Notice by other undertakings which participated in the infringement – Whether permissible – Conditions

(Art. 81 EC; Commission Notice 2002/C 45/03)

5. Competition – Agreements, decisions and concerted practices – Proof – Single piece of evidence – Whether permissible – Conditions

(Art 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in meetings having an anti-competitive object

(Art 81(1) EC)

7. Competition – Agreements, decisions and concerted practices – Proof – Statements made under oath and evidence taken at hearings

(Art. 81 EC)

8. Competition – Administrative procedure – Article 6 of the European Convention on Human Rights not applicable – Applicability of general principles of European Union law

(Council Regulation No 1/2003, Art. 19(1))

9. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient

(Art. 81(1) EC)

10. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Failure to communicate a document – Consequences

(Council Regulation No 1/2003, Art. 27(2))

11. Competition – Administrative procedure – Observance of the rights of the defence – Communication of replies to a statement of objections – Conditions – Limits

(Council Regulation No 1/2003, Art. 27(2))

12. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Determination by the Commission alone of the documents of use in the defence – Not permissible – Exclusion from the procedural file of exculpatory documents – Unlawfulness of the Commission’s decision – Conditions

(Council Regulation No 1/2003, Art. 27(2))

13. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration

(Council Regulation No 1/2003, Art. 23(2), second para.)

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

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3)

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

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3, first indent)

16. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3)

1. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.

An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation.

(see paras 97-98)

2. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them.

In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct of an actual or potential competitor on the market or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition.

The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC.

(see paras 99-101)

3. The concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves.

In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC.

The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type.

(see paras 102-104)

4. Statements made by undertakings in the context of their applications for leniency must be assessed with caution and, in general, cannot be accepted without corroboration. A statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings which have been similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

In order to examine the probative value of statements of undertakings which have made an application for leniency, the General Court takes into account inter alia the weight of consistent indicia supporting those statements and the absence of indicia that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings.

(see paras 119-121)

5. There is no principle of European Union law which precludes the Commission from relying on a single item of documentary evidence in order to conclude that there has been an infringement of the rules on competition, provided that its probative value is undoubted and that the item in question itself definitely attests to the existence of the infringement in question.

It is true that that assumption does not apply, as a general rule, to mere statements by an accused undertaking, which, in so far as they are contested by other undertakings concerned, must be corroborated by additional and independent evidence.

However, that rule can be qualified in a case where the statement from the undertaking which cooperates is particularly reliable, since, in those circumstances, a lesser degree of corroboration is required, both in terms of precision and depth.

If a body of consistent evidence makes it possible to corroborate the existence and certain specific aspects of the collusion referred to in the statement made in the context of cooperation, that statement may in itself be sufficient to evidence other aspects of the contested decision. In those circumstances, the Commission may rely exclusively on that statement, provided that the veracity of what has been claimed is not susceptible of doubts and the information in it is not vague.

Moreover, even if the statement of an undertaking is not corroborated in terms of the specific facts to which it attests, it may have a certain probative value in corroborating the existence of the infringement, as part of a body of consistent evidence used by the Commission. In so far as a document contains specific information corresponding to that contained in other documents, it must be considered that those items of evidence reinforce each other.

(see paras 122-126)

6. In competition matters, the Commission must be able to apply conclusions drawn from periods where the evidence is fairly solid to other periods where the gap between the various pieces of evidence is perhaps larger. There will therefore need to be a particularly good explanation in order to convince a court of law that in a particular phase of a series of meetings things occurred which were completely different from what had transpired at earlier and subsequent meetings when those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose.

Moreover, where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed to have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended to take part in that meeting in a spirit that was different from theirs.

Where the Commission shows that an undertaking participated in such unlawful meetings, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention.

(see paras 127, 159-160, 204, 236)

7. Evidence given under oath in a court or, possibly, in connection with an investigation before a public prosecutor may have high probative value in view of the adverse consequences which might arise under criminal law for a person who perjured himself in an investigation, which renders such a deposition more reliable than a mere statement. However, that is not applicable to written statements by an undertaking’s employees submitted to the Commission during the administrative procedure in competition matters or to their testimony given during the hearing before the Commission. Accordingly, the view cannot be taken that, in so far as such statements have been made under oath, they have high probative value and that, therefore, the Commission is required, where relevant, to show that the witnesses ‘perjured’ themselves.

(see paras 132-133)

8. In the administrative procedure in competition matters, the Commission does not have the power to compel persons to give evidence under oath.

In addition, the Commission is required to hear natural or legal persons who have a sufficient interest only in so far as such persons actually apply to be heard. The Commission therefore has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the investigation. The guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient.

It is true that even though the Commission is not a tribunal within the meaning of Article 6 of the European Convention on Human Rights and even though the fines imposed by the Commission are not of a criminal law nature, the Commission must nevertheless observe the general principles of European Union law during the administrative procedure.

However, the fact that the provisions of competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles. Although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement. As the procedure before the Commission is purely an administrative procedure, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness and to analyse his statements at the investigation stage. It is sufficient that the statements used by the Commission were provided in the file sent to the applicant, who is able to challenge them before the judicature of the European Union.

(see paras 135, 137-139)

9. There is no need to consider the effects of an agreement or a concerted practice where its anti‑competitive object is established. The liability of a particular undertaking in respect of the infringement is properly established where it participated in meetings with knowledge of their anti‑competitive object, even if it did not proceed to implement any of the measures agreed at those meetings.

(see paras 252-253)

10. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means, in an administrative procedure for applying the rules on competition, that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence.

Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence.

By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, by showing in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision.

(see paras 262-265)

11. In an administrative procedure in competition matters, the replies given by undertakings to the statement of objections are not part of the investigation file proper. Accordingly, since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other undertakings concerned only if it transpires that they contain new incriminating or exculpatory evidence.

With respect, in particular, to exculpatory documents, the Commission is not required to make available, of its own initiative, documents which are not in its investigation file and which it does not intend to use against the parties concerned in the final decision. Since the Commission is not, as a general rule, required to divulge such documents of its own initiative, an undertaking cannot, in principle, reasonably invoke failure to communicate alleged exculpatory evidence contained in the replies to the statement of objections, where it did not request access to those replies during the administrative procedure.

Where the applicant undertaking’s arguments seek to establish that the Commission ought to have established the presence of exculpatory evidence in the replies concerned and, therefore, communicated them of its own initiative, it is for that undertaking, in putting forward such arguments, to provide prima facie evidence as to how the replies are relevant for its defence. That undertaking must in particular indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case.

Moreover, whilst the Commission is required to disclose to the undertakings concerned the passages of the reply to the statement of objections containing any relevant information with respect to an item of incriminating evidence, the Commission is not obliged to extend that disclosure to the other passages of that reply having no connection with the evidence relied on.

(see paras 266-267, 290, 292, 296-297)

12. In order to respect the rights of the defence, the file compiled by the Commission in an administrative procedure in competition matters must include all the relevant documents obtained during the investigation. In particular, whilst it is, admittedly, permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking concerned.

The Commission fails to fulfil those requirements where it excludes from the file a document containing a transcript of the oral statement given by an undertaking relating to an element of the infringement, whereas the written statement given by that undertaking in respect of that element is used as an item of evidence relevant to the investigation.

However, such irregularity is capable of calling into question the legality of the Commission’s decision only if it might have influenced the course of the proceedings and the content of that decision to the disadvantage of the undertaking concerned, which is required to show that it would have been able to use the exculpatory document for its defence, and in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on the assessments in the Commission’s decision.

(see paras 306-308)

13. The maximum amount of 10% of turnover laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the economic entity responsible for the infringement being punished. By contrast, if that economic entity has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it.

(see para. 324)

14. Where an undertaking submits that the Commission ought to have granted it the benefit of an attenuating circumstance on the basis of its passive role in an infringement of the rules on competition, the fact that that undertaking did not expressly plead its passive role during the administrative procedure is not relevant to the admissibility of its complaint.

Undertakings to which a statement of objections has been addressed are not required to make a specific request to benefit from attenuating circumstances. Moreover, where an infringement has been committed by several undertakings, the Commission is required to examine the relative gravity of the participation of each of them in order to determine whether there are any aggravating or attenuating circumstances relating to them, in particular where it is an attenuating circumstance expressly referred to in the non‑exhaustive list set out in Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

(see paras 329-330)

15. In accordance with the first indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, an ‘exclusively passive or follow-my-leader’ role in an infringement of the rules on competition may, where it is established, constitute an attenuating circumstance. A passive role implies that the undertaking adopts a low profile, that is to say, not actively participate in the creation of any anti‑competitive agreements.

The factors which may indicate that an undertaking has played a passive role in a cartel include where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel, where it enters the market affected by the infringement at a late stage, regardless of the length of its involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect. In any event, it is necessary to take account of all the relevant circumstances in each particular case.

The Commission has a discretion as regards the application of attenuating circumstances.

In that respect, where the Commission establishes to the requisite legal standard that an undertaking was represented or kept informed, as regards the majority of the collusive meetings referred to in the Commission’s decision, the fact that that undertaking did not physically participate in certain meetings but was informed of them by telephone is consistent with the clandestine nature of the way in which they were conducted and does not in any way demonstrate that the undertaking had an exclusively passive or follow‑my‑leader role.

(see paras 331-333, 337)

16. According to the second indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, non‑implementation in practice of the offending agreements or practices may amount to an attenuating circumstance, in so far as the undertaking concerned shows that, during the period in which it was party to the agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.

Moreover, the mere fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors and followed a more or less independent policy in the market does not necessarily have to be taken into account as an attenuating circumstance. It cannot be ruled out that that undertaking was merely trying to exploit the cartel for its own benefit.

(see paras 345-346)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

16 June 2011( )

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of the infringement – Presumption of innocence – Rights of the defence – Fines – Attenuating circumstances)

In Case T‑191/06,

FMC Foret, SA, established in Barcelona (Spain), represented by M. Seimetz, lawyer, and C. Stanbrook QC,

applicant,

v

European Commission, represented initially by F. Arbault, and subsequently by V. Di Bucci and V. Bottka, acting as Agents, and by M. Gray, Barrister,

defendant,

APPLICATION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) and, in the alternative, a reduction of the fine imposed on the applicant,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of V. Vadapalas (Rapporteur), acting for the President, A. Dittrich and L. Truchot, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 4 March 2010,

gives the following

Judgment

Background to the dispute

1 The applicant, FMC Foret, SA, is an undertaking incorporated under Spanish law which at the material time marketed inter alia hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).

2 It is wholly owned by FMC Chemicals Netherlands BV and forms part of the group controlled by the American undertaking FMC Corp.

3 In November 2002 Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).

4 Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of three undertakings.

5 Following those investigations, several undertakings, including EKA Chemicals AB, Atofina SA (now Arkema SA) and Solvay SA, requested the application of the Leniency Notice and sent to the Commission evidence relating to the cartel.

6 On 26 January 2005 the Commission sent a statement of objections to the applicant and to the other undertakings concerned.

7 After the hearing of the undertakings concerned, which took place on 28 and 29 June 2005, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals, Degussa, Edison, FMC, the applicant, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, Solvay, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.

The contested decision

8 The Commission stated in the contested decision that the addressees thereof participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision).

9 The infringement, which covered the period between 31 January 1994 and 31 December 2000, consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.

10 The applicant was held liable for the infringement ‘jointly and severally’ with FMC (recitals 389 to 395 of the contested decision).

11 To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).

12 The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital 452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).

13 As part of a differentiating approach, the applicant was placed in the third of four categories, in respect of which the starting amount was EUR 20 million (recitals 460 to 462 of the contested decision).

14 Since, according to the Commission the applicant participated in the infringement from 29 May 1997 to 13 December 1999, namely a period of two years and seven months, the starting amount of its fine was increased by 25% (recital 467 of the contested decision).

15 No aggravating or attenuating circumstance was found to apply in the applicant’s case.

16 Article 1(g) of the contested decision states that the applicant infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement concerned from 29 May 1997 until 13 December 1999.

17 In Article 2(d) of the contested decision, the Commission imposed on the applicant, ‘jointly and severally’ with FMC, a fine of EUR 25 million.

Procedure and forms of order sought

18 By application lodged at the Registry of the Court on 18 July 2006, the applicant brought the present action.

19 The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was assigned to the Sixth Chamber, and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).

20 By way of measures of organisation of procedure of 6 January 2010, the Court put to the parties written questions, to which the parties replied by written pleadings of 29 January 2010.

21 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 4 March 2010.

22 In accordance with Article 32 of the Rules of Procedure of the General Court, since two members of the chamber were prevented from attending the deliberations, the deliberations of the General Court were conducted by the three Judges who signed this judgment.

23 The applicant claims that the Court should:

– annul the contested decision, in so far as the Commission imposed on it a fine;

– in the alternative, reduce the amount of the fine;

– order the Commission to pay the costs.

24 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

25 In the reply, and at the hearing, the applicant stated that the first head of claim of the application should be understood as meaning that it seeks the annulment of the contested decision, in so far as that decision relates to it, which includes the finding of its participation in the infringement in question.

Law

26 In support of the action for annulment of the contested decision or, in the alternative, for a reduction in the fine, the applicant raises three pleas in law alleging, first, an incorrect appraisal of the evidence of its participation in the infringement, second, infringement of the rights of the defence in connection with access to the file and, thirdly, the excessive level of the fine.

The first plea: alleged incorrect appraisal of the evidence of the applicant’s participation in the infringement

Arguments of the parties

27 The applicant maintains that the Commission failed to adduce sufficiently precise and consistent evidence of its participation in the cartel.

28 First, the Commission’s decision was based largely on vague and uncorroborated allegations in leniency applications, which were hastily prepared, not properly reasoned and, therefore, of limited probative value. Second, it did not take account of the contrary evidence adduced by the applicant, in particular the testimony of its employees allegedly involved in the infringements.

29 The Commission did not rebut the evidence adduced by the applicant in its reply to the statement of objections and at the administrative hearing, in particular, the testimony of its employees. Also, it failed to take account of the information provided by the applicant regarding its competitive activities in the marketplace.

30 At the administrative hearing, the Hearing Officer acknowledged that there was insufficient evidence to support a charge against the applicant. He suggested a meeting between the parties and a cross-examination of the new contrary evidence adduced by the applicant. The Commission did not respond to those suggestions.

31 In the statement of objections, the Commission charged the applicant with having participated in the infringement from January 1994 to June 2001, but subsequently reduced the scope of that charge considerably. In the contested decision, it merely referred to the period between 29 May 1997, the date of the bi‑annual assembly of the European Chemical Industry Council (CEFIC) held by the applicant in Seville, and 13 December 1999, the date of the Freiburg meeting, which was attended by an employee of the applicant.

32 In order to establish the facts of the infringement, the Commission relied on uncorroborated evidence from a single source, Degussa, Solvay or Atofina, respectively, contrary to the case-law according to which a statement made by a single undertaking does not constitute adequate proof of an infringement (Case T‑337/94 Enso-Gutzeit v Commission [1998] ECR II‑1571, paragraph 91).

33 As regards the information supplied by Degussa, the Commission wrongly stated that it was corroborated by evidence obtained from other parties to the cartel. It is apparent from recital 86 of the contested decision that, in practice, the Commission considered that, since some undertakings had admitted the allegations made against them by Degussa, the allegations it made against the applicant required no corroboration. Therefore, the Commission made no attempt to corroborate information supplied by Degussa implicating the applicant.

34 With regard to other evidence from a single undertaking, the Commission stated that it was obtained from direct witnesses of unlawful contacts, was supplied to it ‘after mature reflection’ and was credible in the light of the existence of a body of consistent evidence (recital 86 of the contested decision).

35 However, those contentions are not all true. The information from Solvay is imprecise and states, for example, that an unidentified source at Solvay claimed that an unidentified Solvay employee had contacted the applicant’s employees on four unspecified occasions. The same is true of Solvay’s allegation that the applicant compensated Atofina for closure of its production plant. Moreover, the Commission failed to challenge that information with the contrary testimony of the applicant’s employees.

36 As regards information from an Atofina employee, namely notes taken during cartel meetings, the Commission failed to take account of the fact that the same notes had been produced as evidence of multiple meetings. Also, with respect to the applicant, those notes often contain question marks.

37 The Commission therefore wrongly relied on evidence against the applicant from a single undertaking, evidence which was uncorroborated and refuted by the testimony of the applicant’s employees.

38 The applicant then criticises the Commission’s findings regarding specific meetings.

– Telephone calls received by the applicant

39 The applicant claims that the Commission wrongly based its finding that the applicant was informed by telephone of the outcome of certain cartel meetings on information provided by Solvay and Atofina.

40 Solvay’s information concerned four ‘high‑level’ meetings, between Degussa, Solvay and Kemira (recitals 171 to 174, 211, 215 to 217 and 239 to 242 of the contested decision). In respect of those meetings, the Commission relied on Solvay’s statement that ‘other players in the market were informed of the outcome of the meetings’, ‘Solvay for example [having] informed Foret (in Spain) and Ausimont (in Italy) about the concrete outcome of the discussions’. According to the Commission, that statement was corroborated by Atofina (recital 172 of the contested decision).

41 That statement by Solvay does not justify the finding that Solvay alleged that it kept the applicant ‘completely informed ... generally by phone’ (recital 172 of the contested decision). It does not say ‘who called whom’ or what was said. It does not specify which meetings it is referring to other than the one that occurred in August 1997. The Commission itself supplied that detail. Solvay’s statement could not have been corroborated by Atofina, which was not at the meetings. Atofina is referring to calls from Solvay in connection with different meetings, namely those of ‘Group B’ which were held from the end of 1995 to the beginning of 1997. The evidence provided by Solvay and that provided by Atofina therefore do not corroborate each other.

42 Also, Solvay itself denied having participated in one of the four meetings in question, namely the one held in Frankfurt am Main in April 1998 (recital 217 of the contested decision). As regards the meeting in Brussels in September 1998, Solvay made no mention of having contacted the applicant.

43 At the administrative hearing, the Commission tried to obtain more specific information from Solvay, but to no avail. Without more specific details, Solvay’s statement regarding the telephone calls has no probative value. In any event, it is refuted by the testimony of the applicant’s employees, who deny having received phone calls from Solvay.

44 As regards Atofina’s evidence, the Commission wrongly relies on the statement of an Atofina employee that, on four occasions, the applicant participated in meetings by telephone (recitals 180 to 192 and 247 to 253 of the contested decision). That statement was not corroborated by any other participant of the meetings in question.

45 Other documents in the case call in question the credibility of the evidence given by the Atofina employee concerned. In particular, in the statement of objections, the Commission relied on that employee’s statement that a representative of the applicant attended a meeting in Paris on 12 February 1996 (points 137 and 138 of the statement of objections). That statement was shown by the applicant to be untrue, since the passport of the person alleged to have attended the meeting confirmed that he was in the United States during that week. The Commission makes no mention of this error in the contested decision. Also, the Atofina witness frequently submitted the same page of his notes as evidence of several meetings. The notes in question often have question marks as regards information about the applicant and its attendance at meetings. The Commission ignored these facts when analysing the credibility of Atofina’s evidence.

46 For the first meeting in question, in Paris in September 1997, Atofina’s original information does not make it possible to identify the applicant’s employee allegedly participating by telephone. The applicant’s employee, identified in a chart prepared subsequently by Atofina, swore an affidavit in which he denied receiving the call. The denial was not considered by the Commission.

47 The Commission considered that the fact that the applicant had been contacted was plausible, because it had been contacted before and took part in two subsequent meetings by telephone (recital 186 of the contested decision). However, with regard to the alleged previous contacts, the contested decision refers only to a single phone call received one month earlier (recital 172 of the contested decision), based on uncorroborated information given by Solvay. The applicant’s alleged participation, by phone, in two subsequent meetings is based on the same uncorroborated evidence from Atofina.

48 For the second meeting in question, in Frankfurt am Main on 17 November 1997 (recitals 188 to 192 of the contested decision), the Atofina employee identified – in the process contradicting himself – first one employee, then two employees of the applicant who had allegedly been contacted. The Commission makes no mention of that contradiction and itself makes a mistake with regard to the name of the person identified (footnote 204 of the contested decision). The information in question is uncorroborated and is disputed by the applicant’s employees who were identified.

49 Contrary to what the Commission states, the information supplied by Atofina is not corroborated by documentary evidence. The evidence in question was submitted by the same Atofina employee and cannot substantiate his own statements. Also, it consists of a table prepared during the meeting concerned showing the prices per client and per producer (recital 192 of the contested decision), and containing, with reference to the applicant, four question marks. Furthermore, that evidence was not necessarily provided by the applicant, but could have been obtained from other sources, inter alia from the applicant’s clients.

50 Nor was the call allegedly received by an employee of the applicant confirmed by Degussa in its reply to the statement of objections. In actual fact, Degussa simply summarised the content of the statement of objections, which included Atofina’s claim that a number of other companies, including the applicant, had been informed of the meeting, and then confirmed its participation in the meeting. Degussa’s confession is merely proof against itself, and does not implicate the applicant in any way.

51 For the third meeting in question, in Paris on 21 November 1997 (recitals 193 to 197 of the contested decision), none of the other cartel members, with the exception of Atofina, mentions participation by the applicant. The Commission wrongly took as its basis Atofina’s statement, which was uncorroborated and contradicted by the testimony of the applicant’s employee concerned.

52 The Commission also wrongly based its argument on the fact that the prices charged by the applicant were stated in the notes made during the meeting in question (recital 197 of the contested decision). Most of the chart contained simply asterisks. The few prices included are target prices estimated by Atofina’s employee, and did not stem from information provided by the applicant. Moreover, the chart contains information about two other producers which are not alleged by the Commission to have participated in that meeting. The Commission itself understood that target prices could be inserted for a producer without the producer’s knowledge. The chart in question therefore does not corroborate Atofina’s information.

53 For the fourth meeting in question, in Düsseldorf on 12 October 1998, the notes made by the Atofina employee do not reflect attendees and the subsequent explanation by that employee states ‘FMC absent’. Only a chart prepared for the leniency application lodged by Atofina states that the applicant was ‘not present but contacted by phone and represented by Solvay’. No other attendee, including Solvay, confirmed that the applicant had attended the meeting. On the contrary, Degussa, when questioned on the matter, stated that a ‘fourth enterprise did not participate to the extent of [its] ... knowledge’. In that regard, the Commission simply stated, wrongly, that ‘three other companies have confirmed that this meeting has taken place’ (recital 253 of the contested decision), disregarding the fact that none of those companies had confirmed Atofina’s information implicating the applicant. Also, when it states that Atofina’s statements were ‘credible in the framework of the evidence in the Commission’s possession’ (recital 253 of the contested decision), the Commission merely referred back to the other uncorroborated allegations made by Atofina. Its rationale is therefore circular.

54 To conclude, the Atofina employee’s allegation that he contacted the applicant’s employees by telephone is uncorroborated. On the other hand, the testimony of the applicant’s employees that they did not receive the calls is corroborated both by the silence of other cartel members on the subject and by the question marks in the notes of the meeting submitted by Atofina. The information in those notes concerning the applicant’s prices could have come from other sources. The weight of the evidence is therefore that the applicant did not participate in the meetings in question.

– Contacts surrounding CEFIC assemblies

55 The applicant maintains that the Commission wrongly contended that it participated in six cartel meetings surrounding CEFIC assemblies between May 1997 and November 1999. The applicant states that its employees attended the CEFIC assemblies in question. However, each of those employees submitted a declaration stating that he did not participate in cartel activities surrounding those assemblies. The Commission, without explanation, rejected the testimony of the applicant’s employees.

56 Mere presence at a cartel meeting is not proof of participation in the cartel. An undertaking can inter alia establish that it did not participate in cartel activities by proving that it indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

57 In that regard, concerning the meetings in Seville in May 1997, the applicant’s employee who had attended that meeting indicated to the Commission that he had expressly stated that, first, his company was ‘growing in Germany’ and was ‘not interested’ in any limitations on prices and that, second, it had refused to discuss them. That testimony was confirmed by the fact that, following that statement, Degussa’s representative left the room at one of those meetings slamming the door behind him (recital 162 of the contested decision). Consequently, the applicant’s representative was not invited to the dinner the next day at the restaurant (recital 163 of the contested decision).

58 According to the testimony of the same employee of the applicant, the May 1998 CEFIC assembly in Évian-les-Bains reached the same conclusion. Small producers, among them the applicant, refused to reach anti-competitive agreements because they wanted to continue to compete.

59 The applicant’s employees likewise did not participate in cartel discussions during the four meetings surrounding the CEFIC assemblies (recitals 198 to 207, 254 to 258, 264 and 265 and 273 to 275 of the contested decision). Those meetings took place in restaurants, bars or hotel lobbies. It is difficult to imagine multilateral cartel discussions in such public venues; the conversations must have been held in a bilateral manner, or after the applicant’s employees had left the restaurant.

60 The Commission does not address the fact that the applicant denied having taken part in those discussions. It states that the applicant has not established that its employees distanced themselves from the anti-competitive talks (recital 207 of the contested decision), although it acknowledges, with regard to one of the meetings, that ‘it is not unreasonable to assume that various discussions were held more on a bilateral basis’ (recital 167 of the contested decision). The applicant submits that, since the conversations were bilateral, its employees were unaware of them and could not distance themselves from them.

61 With regard to the dinner on the fringes of the CEFIC assembly in Brussels, on 26 November 1997, it is stated in recital 199 of the contested decision that ‘Degussa, EKA, Solvay and Atofina stated that [the applicant and Kemira] were present, were absolutely aware of the illicit nature of the discussions and took indeed part in the discussions’. However, EKA Chemicals made no mention of the applicant at all. Solvay drew up a list of the participants, which did not include the applicant’s employees, and then added that ‘probably all other participants’ in the assembly were represented.

62 The information from Atofina and Degussa simply lists the persons who attended the dinner, including the applicant’s representatives, without making any allegations about whether they took part in anti-competitive discussions.

63 As regards the November 1999 meeting on the fringe of the CEFIC assembly (recitals 273 to 275 of the contested decision), the Commission omitted to mention that that meeting occurred in a public place, a hotel lobby, on the occasion of an official dinner. The discussions must have been bilateral in nature, and there is no sufficiently precise and consistent evidence of the applicant’s participation in those discussions.

– The meeting of 13 July 1998 in Königswinter

64 The applicant maintains that the Commission wrongly concluded that its Managing Director participated in a meeting with Solvay and Degussa in Königswinter in July 1998 concerning the closure of an Atochem production plant (recital 233 of the contested decision). The employee concerned denied attending the meeting and produced a taxi receipt, on which his name appeared, proving that he was in Barcelona that day.

65 The Commission failed to rebut this evidence, and merely suggested that the applicant’s employee could have attended the meeting in Königswinter and taken a taxi ride in Barcelona later the same day. For other meetings, Degussa produced restaurant receipts showing the list of participants. However, for the meeting in question, the Commission failed to obtain further evidence from Degussa or Solvay. Solvay did not confirm the applicant’s presence at that meeting.

66 The fact that the applicant did not take part in discussions concerning the closure of an Atochem plant is corroborated by its absence from subsequent meetings on the matter. The Commission wrongly found that Solvay confirmed the applicant’s participation in the agreement with Atochem (recital 244 of the contested decision). Solvay does not specify the details of that alleged participation, and Degussa made no mention of it. It is possible that Solvay mistakenly referred to a lawful supply agreement concluded between the applicant and Atochem at the time.

67 At recital 234 of the contested decision, the Commission does not state that the applicant agreed to compensate Atochem. The lack of substance of Solvay’s statement to that effect is underscored by subsequent events, in particular by the applicant’s absence at the subsequent meeting of October 1998 between Solvay, Degussa and Atofina. It is apparent from recital 245 of the contested decision that, at this meeting, Degussa and Solvay persuaded Atochem to close its plant in exchange for compensation from Degussa and Solvay.

– The meeting with Degussa on 28 September 1998 in Brussels

68 The applicant claims that the Commission incorrectly appraised Degussa’s information concerning the bilateral meeting of September 1998. According to recital 241 of the contested decision, the purpose of that meeting was to inform the applicant of the outcome of the meeting of the same morning. In fact, Degussa stated only that ‘the subject-matter of the meeting was a discussion, which was kept general, about the development of the European market for hydrogen peroxide, in particular in regard to the realised relatively high price level and the likelihood of its perpetuation’. Degussa made no mention of any price fixing or market share agreement, and noted that the conversation was ‘kept general’.

– The meetings concerning PBS

69 The applicant states that its employee recalls attending two of the four PBS meetings referred to in the contested decision (recitals 237 and 238, 259 to 263, 267 to 270 and 276 to 279 of the contested decision), namely those held in early 1999 in Milan and December 1999 in Freiburg.

70 The purpose of those two meetings was to discuss ways in which the industry could allay concerns with regard to the health effects of one of the ingredients of PBS. In view of those concerns, the applicant had already begun plans to develop an ‘alternative product’, sodium percarbonate (‘PCS’). Unfortunately, during the course of the meetings in question, other producers engaged in illicit talks. The applicant was not interested in them because it had already decided to move away from PBS to PCS. Its representative therefore did not take part in unlawful discussions. That explanation is corroborated by Degussa, which confirms that the meetings in question took place ‘by chance’ on the occasion of legitimate discussions.

71 With regard to two other meetings concerning PBS, in Lyon in September 1998 and the summer of 1999 in Basel, the alleged participation of the applicant is based only on the uncorroborated information of Solvay. The Commission ignored the testimony of the applicant’s employee in question, who does not recall having participated in those meetings.

– Arguments put forward in the reply

72 In the reply, the applicant maintains that the Commission disregarded the principle of the presumption of innocence, since it did not have precise and consistent evidence of the applicant’s participation in cartel activities.

73 In the first place, the Commission omitted to take into account the evidence supporting the applicant’s position and it distorted other evidence to support its conclusion. The applicant maintains that the Commission ignored the fact that the best evidence was the live testimony of its employees, applied unwarranted assumptions to its detriment, distorted evidence favourable to it, equated its attendance at CEFIC assemblies – which are legitimate – with cartel activity and ‘embellished’ evidence to its detriment.

74 The Commission did not take into consideration the evidence objectively and as a whole. It failed to take account of evidence demonstrating that the applicant aggressively pursued market share, that competitors that lost share to the applicant complained about it, and that two attempted cartel meetings terminated when the applicant refused to participate. It did not obtain further evidence of uncorroborated allegations against the applicant.

75 In the second place, the applicant criticises the fact that the Commission did not conduct a cross-examination to test the veracity of the testimony of its employees. The applicant was the only company to present witnesses at the oral hearing before the Commission. None of the three companies which had testified against the applicant presented witnesses at the hearing. Much of the evidence submitted by Degussa and Solvay was essentially from anonymous sources. The Commission avoided the affidavits of the applicant’s employees, on the ground that they had not been sworn.

76 In the third place, the applicant maintains that the Commission inaccurately presented the evidence obtained after the hearing.

77 At the administrative hearing, the Hearing Officer made it clear that certain items of evidence relied upon by the Commission, particularly the allegations from anonymous sources submitted by Solvay about phone calls to the applicant, were not credible. However, after the hearing, the Commission did not obtain further evidence.

78 In particular, in the context of the May 1997 meetings in Seville, the Commission incorrectly contends, in the defence, that it received confirmation of certain factual aspects from other undertakings subsequent to the administrative hearing and gave the applicant the opportunity to respond. There were no further submissions relating to those meetings, after the administrative hearing.

79 Contrary to what the Commission maintains, the further evidence forwarded to the applicant had nothing to do with the alleged Solvay phone calls. In their post-hearing submissions, Solvay and Degussa simply described the content of the statement of objections on given points (as regards Degussa, the November 1997 Frankfurt am Main meeting and, as regards Solvay, the July 1998 Königswinter meeting) and confirmed that their employees had participated. Neither company mentioned the applicant’s participation in these meetings initially. The Commission itself acknowledged that Solvay’s response was ‘indirect’ and that Degussa had not implicated the applicant ‘explicit[ly]’.

80 In the fourth place, the Commission made contradictory statements. With regard to Kemira, it considered that it was not unreasonable to assume that various discussions on the fringe of the CEFIC assemblies were held more on a bilateral basis (recital 167 of the contested decision). However, with regard to the applicant, the Commission wrongly states that it is not possible that the applicant’s representatives attended those meetings without being aware of the collusion.

81 In the fifth place, the Commission distorted certain exculpatory evidence. This was evidence, first, that the applicant was one of the ‘bad guys’ because it wanted to increase overall capacity in Europe to the detriment of prices. The Commission wrongly rejected that evidence, merely stating, in the defence, that it was evidence of the applicant’s attempt to exploit the cartel for its own benefit.

82 Second, as regards the meetings in Seville surrounding the CEFIC assemblies, the applicant’s employee stated that he refused to participate in any cartel discussions and that, as a result, the representatives of Solvay and Degussa left the meeting room. The Commission refused to allow that testimony and relied on its own, unfounded, interpretation of the reasons why Solvay and Degussa had left the meeting room – because the small producers, including the applicant, were discontented with the proposal made, most likely given the share of the market that would be given them. There is no evidence to support the Commission’s argument. On the contrary, the applicant maintains that the abrupt conclusion of the Seville meetings, coupled with competitors complaining about the applicant’s decreasing prices and increasing market share, proves that the applicant indicated to its competitors that it was participating in a spirit that was different from theirs.

83 In the sixth place, the Commission distorted documentary evidence.

84 First, with respect to the stamp on the passport of the applicant’s employee, showing entry into the United States on 10 February 1996, the Commission wrongly stated that this evidence does not necessarily prove that the employee in question could not be in Paris two days later. The applicant argues that there is no possibility that the employee in question flew to the United States on 10 February, spent 24 hours there, made a return transatlantic flight the following night, went directly to a cartel meeting on 12 February and then returned to the United States. If he had done this, his passport would have had another entry stamp. Atofina’s employee was therefore wrong when he claimed that the applicant’s representative was in Paris on 12 February 1996. If one adds the fact that on a number of occasions Atofina was the only party which maintained that the applicant attended cartel meetings, and that some of its information contained question marks, the credibility of Atofina’s information is called in question.

85 Second, as regards the taxi receipt issued in Barcelona on 13 July 1998 bearing the name of the applicant’s employee alleged to have attended the meeting in Königswinter on the same day, the Commission, with absolutely no foundation, questions that evidence, stating that the receipt might have been issued at another moment in the day (recital 236 of the contested decision). The presumption of innocence should prevail over such speculation.

86 Third, the notes of meetings submitted by Atofina, containing the question marks in the column for the applicant’s prices, reflect the fact that Atofina had no information on the applicant’s prices because the applicant was not at the meeting. The Commission wrongly suggests, in the defence, that the question marks reflect ‘prudence’ on the part of Atofina’s employee. The Commission did not consider the applicant’s alternative explanation that the information at issue ‘could have come from anywhere’. Therefore, with regard to that meeting, the Commission distorted the clear testimony of the applicant’s employees, which was based on documentary evidence.

87 Fourth, the Commission stated that a note made by Atofina’s employee relating to the meeting in Düsseldorf in October 1998 mentioned the applicant several times. According to the applicant, the note in question is unclear, but it is apparent from Atofina’s after-the-fact explanation that it refers to a subsequent meeting which was to be held on 9 November, at which a definitive model was to be adopted, and that it mentions a ‘comment on how to make [the applicant] accept its market share, by putting pressure through Solvay’. In October 1998, the applicant was still refusing to participate in cartel activities. However, the Commission, without analysing the content of the note, wrongly relied only on the fact that the applicant’s name is mentioned.

88 In the seventh place, the Commission ‘embellished’ the evidence, adding detail that does not exist or exaggerating the established facts.

89 First, with regard to the bilateral meeting with Degussa in Brussels in September 1998, which the applicant disputes, the Commission stated that it was a ‘debriefing’ of the morning meeting (recital 241 of the contested decision). However, Degussa’s information says nothing about any ‘debriefing’ and does not mention any discussion of PBS or freezing of market shares for HP. As to HP, Degussa expressly stated that the discussions were kept ‘general’. The Commission’s conclusions are unfounded.

90 Second, with regard to the Seville meetings, contrary to the Commission’s claim, the applicant did distance itself from the anti‑competitive discussions by refusing to engage in cartel activities, which led to the ‘abrupt departure’ of the representatives of Degussa and Solvay and, accordingly, to the end of that series of meetings. Atofina stated that those meetings concluded with the departure of the representatives of Degussa and Solvay. The Commission distorted in this respect the evidence in the case.

91 Third, as regards the Commission’s argument that Atofina corroborated Solvay’s allegations regarding the telephone calls, the information of Solvay and that of Atofina clearly relate to different meetings. There was therefore no possible overlap either between the participants or the time period of those meetings.

92 In the eighth place, the applicant claims that Solvay and Atofina, having made their leniency applications simultaneously, were ‘competing to be the first’ to provide significant added value to the evidence already in the Commission’s possession, which calls in question the credibility of their statements.

93 The undertakings which made an application for leniency were unable to test their employees’ recollection or to provide clear and precise evidence. For example, the Commission cites recital 236 of the contested decision according to which Solvay gave a ‘voluntary confirmation’ of the July 1998 Königswinter meeting in its reply to the statement of objections, whereas, in the defence, it added parenthetically, ‘we’ll have to check whether this was really voluntary or at the request of the Commission’. Similarly, with respect to the October 1998 Düsseldorf meeting, Degussa ‘further interrogated’ its employees at the request of the Commission regarding attendees.

94 Lastly, the applicant states that it has never been found guilty of engaging in anti‑competitive activity. Its employees testified at the oral hearing and submitted affidavits contesting the allegations in the statement of objections. On the other side are recidivist undertakings seeking to garner leniency and, in the ‘rush’ to do this, they have submitted vague, uncorroborated and often anonymous allegations in letters from their lawyers or cryptic handwritten notes ‘riddled with question marks’. The Commission offered no explanation for favouring this evidence over the clear and uncontroverted evidence presented by the applicant.

95 The Commission contests the applicant’s arguments.

Findings of the Court

96 Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.

97 In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256, and Case T-9/99 HFB Holding and Others v Commission [2002] ECR II‑1487, paragraph 199).

98 An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, HFB Holding and Others v Commission, paragraph 97 above, paragraphs 151 to 157 and 206).

99 The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 115, and Case C-199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 158).

100 In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, paragraph 99 above, paragraphs 116 and 117).

101 The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 82, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 178).

102 According to settled case‑law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (Commission v Anic Partecipazioni, paragraph 99 above, paragraphs 131 and 132, and HFB Holding and Others v Commission, paragraph 97 above, paragraph 190).

103 In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission v Anic Partecipazioni, paragraph 99 above, paragraphs 111 to 114, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 696).

104 The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type (Hercules Chemicals v Commission, paragraph 97 above, paragraph 264, and HFB Holdings and Others v Commission, paragraph 97 above, paragraph 187).

105 In relation to adducing evidence of the infringement, it should be pointed out that it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 81(1) EC (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58).

106 The Commission must produce precise and consistent evidence in this respect (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited).

107 However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 180 and the case‑law cited).

108 The items of evidence on which the Commission relies in the Decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see BPB v Commission, paragraph 101 above, paragraph 185 and the case‑law cited).

109 It is also necessary to take account of the fact that anti‑competitive activities take place clandestinely, and accordingly, in most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (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).

110 As regards the scope of review by the Court, according to settled case‑law, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met (see Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 62 and the case-law cited).

111 Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of European Union law, 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 (Hüls v Commission, paragraph 99 above, paragraphs 149 and 150).

112 The question whether, in the present case, the Commission has established to the requisite legal standard that the applicant took part in the infringement in question must be examined in the light of those considerations.

– Preliminary observations

113 The applicant expresses a number of general criticisms relating to the adducing of evidence in the present case, alleging (i) the limited probative value of the evidence adduced by the undertakings which made an application for leniency, (ii) the use of uncorroborated evidence from a single source, (iii) the absence of any rebuttal of the contrary testimony of the applicant’s employees and (iv) the failure to respond to the proposals made by the Hearing Officer at the administrative hearing.

114 Although those criticisms overlap, to a large extent, with the complaints directed against the material evidence relied on by the Commission in the contested decision, they none the less warrant certain preliminary observations.

115 First, as regards the applicant’s arguments concerning the value of the evidence submitted in context of the applications for leniency, the Court would point out that the mere fact that the information was submitted by an undertaking which made an application for leniency does not call in question its probative value.

116 According to settled case‑law, no provision or any general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings (see Limburgse Vinyl Maatschappij and Others v Commission, paragraph 103 above, paragraph 512). Statements made for the purposes of the Leniency Notice cannot be considered to be devoid of probative value for that reason alone (see Case T‑54/03 Lafarge v Commission [2008], not published in the ECR, paragraphs 57 and 58).

117 Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. None the less, in view of the logic inherent in the procedure provided for in the Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70, and Lafarge v Commission, paragraph 116 above, paragraph 58).

118 In particular, it must be concluded that where a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see JFE Engineering and Others v Commission, paragraph 107 above, paragraphs 211 and 212; Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02 and T‑126/02, T‑128/02 and T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 166, and Lafarge v Commission, paragraph 116 above, paragraph 59).

119 Statements made by undertakings in the context of their applications for leniency must, none the less, be assessed with caution and, in general, cannot be accepted without corroboration.

120 According to settled case-law, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings which have been similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (JFE Engineering and Others v Commission, paragraph 107 above, paragraph 219; Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285; Bolloré and Others v Commission, paragraph 118 above, paragraph 167; and Lafarge v Commission, paragraph 116 above, paragraph 293; see also, to that effect, Enso-Gutzeit v Commission, paragraph 32 above, paragraph 91).

121 In order to examine the probative value of statements of undertakings which have made an application for leniency, the General Court takes into account inter alia (i) the weight of consistent indicia supporting those statements and (ii) the absence of indicia that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings (see, to that effect, Peróxidos Orgánicos v Commission, paragraph 117 above, paragraph 70, and Lafarge v Commission, paragraph 116 above, paragraphs 62 and 295).

122 Second, as regards the applicant’s criticism that, with respect to certain factual elements, the Commission relied on a single item of evidence, the Court would point out that there is no principle of European Union law which precludes the Commission from relying on a single item of documentary evidence in order to conclude that there has been an infringement, provided that its probative value is undoubted and that the item in question itself definitely attests to the existence of the infringement in question (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 1838).

123 It is true that, in view of the case‑law cited in paragraph 120 above, that assumption does not apply, as a general rule, to mere statements by an accused undertaking, which, in so far as they are contested by other undertakings concerned, must be corroborated by additional and independent evidence.

124 However, that rule can be qualified in a case where the statement from the undertaking which cooperates is particularly reliable, since, in those circumstances, a lesser degree of corroboration is required, both in terms of precision and depth.

125 If a body of consistent evidence makes it possible to corroborate the existence and certain specific aspects of the collusion referred to in the statement made in the context of cooperation, that statement may in itself be sufficient to evidence other aspects of the contested decision (see, to that effect, JFE Engineering and Others v Commission, paragraph 107 above, paragraphs 220 and 334). In those circumstances, the Commission may rely exclusively on that statement, provided that the veracity of what has been claimed is not susceptible of doubts and the information in it is not vague.

126 Moreover, even if the statement of an undertaking is not corroborated in terms of the specific facts to which it attests, it may have a certain probative value in corroborating the existence of the infringement, as part of a body of consistent evidence used by the Commission. In so far as a document contains specific information corresponding to that contained in other documents, it must be considered that those items of evidence reinforce each other (see, to that effect, JFE Engineering and Others v Commission, paragraph 107 above, paragraph 275).

127 Furthermore, the Commission must be able to apply conclusions drawn from periods where the evidence is fairly solid to other periods where the gap between the various pieces of evidence is perhaps larger. There will therefore need to be a particularly good explanation in order to convince a court of law that in a particular phase of a series of meetings things occurred which were completely different from what had transpired at earlier and subsequent meetings when those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose (Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, II‑885, joint Opinion in the ‘Polypropylene’ judgments, ECR II‑954).

128 Third, the applicant claims that, in the appraisal of the evidence, the Commission failed to hear its employees and take into account their testimony.

129 The applicant claims, inter alia, that the finding of the infringement is based, to a large extent, on Solvay’s statements and those of an Atofina employee, testifying that some of its employees, although absent from a number of meetings, were contacted or informed by telephone. The applicant states that those of its employees who are identified in those statements submitted to the Commission statements to the contrary, which, it alleges, were not taken into account.

130 The Court observes, in this respect, that it is common ground that the Commission had at its disposal the written statements of the applicant’s employees concerned and that those employees were present at the administrative hearing.

131 In those circumstances, the question whether those statements were properly taken into account in the contested decision overlaps with the assessment of the applicant’s complaints regarding the specific factual elements at issue.

132 None the less, the Court would point out at this stage that the applicant is wrong to submit that, in so far as the statements in question were made under oath, they have high probative value and that, therefore, the Commission was required to show that its witnesses ‘perjured’ themselves.

133 Although evidence given under oath in a court or, possibly, in connection with an investigation before a public prosecutor may have high probative value in view of the adverse consequences which might arise under criminal law for a person who perjured himself in an investigation, which renders such a deposition more reliable than a mere statement (see, to that effect, JFE Engineering and Others v Commission, paragraph 107 above, paragraph 312), those considerations are not applicable to the circumstances of this case, since this case concerns written statements by the applicant’s employees submitted to the Commission during the administrative procedure and their testimony given during the hearing before the Commission.

134 Furthermore, the applicant is wrong to submit that the Commission was required to challenge the testimony incriminating it, submitted by Atofina and Solvay, with the contrary testimony of the applicant’s own employees, in a cross-examination at the administrative hearing.

135 In this respect, the Court would point out that, in the administrative procedure the Commission does not have the power to compel persons to give evidence under oath.

136 According to Article 19(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1), the Commission may interview any natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject-matter of an investigation. Moreover, according to recital 3 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), before taking oral statements from natural or legal persons who consent to be interviewed, the Commission should inform those persons of the legal basis of the interview and its voluntary nature.

137 In addition, the Commission is required to hear natural or legal persons who have a sufficient interest only in so far as such persons actually apply to be heard. The Commission therefore has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the investigation. The guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient (see, to that effect, HFB and Others v Commission, paragraph 97 above, paragraphs 382 and 383 and the case-law cited).

138 It is true that Article 6(3)(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, provides that ‘[e]veryone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’. In addition, even though the Commission is not a tribunal within the meaning of that article, and even though the fines imposed by the Commission are not of a criminal law nature, the Commission must nevertheless observe the general principles of European Union law during the administrative procedure.

139 However, according to settled case‑law, the fact that the provisions of European Union competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles. Although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement (HFB and Others v Commission, paragraph 97 above, paragraphs 389 to 392, and Bolloré and Others v Commission, paragraph 118 above, paragraphs 86 and 87). As the procedure before the Commission is purely an administrative procedure, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness and to analyse his statements at the investigation stage (Aalborg Portland and Others v Commission, paragraph 109 above, paragraph 200). It is sufficient that the statements used by the Commission were provided in the file sent to the applicant, who is able to challenge them before the judicature of the European Union (Lafarge v Commission, paragraph 116 above, paragraphs 147 to 149).

140 In the light of those considerations, the applicant cannot rely on a breach of its right to examine or have examined witnesses testifying against it.

141 In any event, nothing prevented the applicant from seeking to obtain the attendance and examination of witnesses on its behalf before the Court, by making an application for witnesses to be heard. However, the Court notes that the applicant did not make such an application. Moreover, the Court would consider the attendance of the witnesses in question necessary only if it were to transpire, following the examination below, that the evidence in the file and the explanations given during the oral procedure are insufficient to rule on the case.

142 Fourth and lastly, the applicant submits that at the administrative hearing, the Hearing Officer acknowledged that there was insufficient evidence to support a charge against the applicant. He suggested a cross‑examination of the new contrary evidence adduced by the applicant, namely the statements of its employees, a proposal to which the Commission did not respond.

143 The Court observes, in this respect, that the Hearing Officer’s report constitutes a purely internal Commission document, which is not intended to supplement or correct the undertakings’ arguments and which therefore does not constitute a decisive factor which the European Union judicature must take into account when exercising its power of review (see Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 176 and the case-law cited).

144 Those considerations apply a fortiori to the comments made by the Hearing Officer at the administrative hearing, such as those relied on by the applicant in the present case. In any event, in his final report of 20 April 2006, annexed to the defence, the Hearing Officer stated that the rules on the right to a fair hearing and on the rights of the defence had been complied with in the administrative procedure in question.

145 In the light of all those observations, the applicant’s criticisms with regard to the adducing of evidence by the Commission and to the conduct of the administrative hearing are, in part, unfounded and, in part, overlap with the complaints directed against the evidence of the infringement examined below.

– The evidence of the applicant’s participation in the infringement

146 As regards the essential features of the infringement, the Commission found that, as of 31 January 1994, competitors had exchanged and discussed confidential information about production volumes and a possible reduction in them by seeking to prevent new capacity being brought onto the market. According to the Commission, they also discussed the allocation of clients and market shares, and selling prices, and instituted a monitoring scheme, by which they regularly exchanged confidential market- and company‑relevant information and information on sales volumes and sale prices. In addition, it is alleged that the competitors engaged in reducing capacity and regularly reviewed market share developments at the multilateral meetings (recitals 100, 351 to 354 of the contested decision).

147 A large number of the multilateral meetings are alleged to have occurred on the fringes of the bi-annual assemblies of CEFIC, which is a legitimate association of the chemical industry.

148 In August 1997 in Brussels, as well as at three later meetings, in February, April and September 1998, it is alleged that the participants in those exchanges agreed on a coordinated HP price increase (recitals 171 and 172 of the contested decision). As regards PBS, during initial talks on this subject, it is alleged that market‑sensitive data was exchanged with the aim of achieving an anti‑competitive agreement, and that the ‘ground was prepared’ for an outright agreement at least as of 15 May 1998 (recitals 100, 214 and 229 of the contested decision). It is alleged that the last multilateral meeting in the context of that collusion took place on 18 May 2000, but that the agreement on maintaining HP price levels was maintained until the end of 2000 (recitals 281 and 282, 355 to 360 of the contested decision).

149 With respect to the applicant’s participation in the infringement, the Commission found that the applicant belonged to the ‘core’ of the cartel participants (recital 99 of the contested decision). The Commission noted that there was evidence of collusive contacts implicating the applicant from as early as 1991 (recital 106 of the contested decision). In particular, according to information from Atofina, the notes of meetings of July, October and November 1995, submitted by Atofina, contain data of the applicant’s and refer to the presentation of the applicant’s position (recitals 120, 127, 128, 129, 133 and 136 of the contested decision). Moreover, according to information from Degussa, at a bilateral meeting in the second half of 1996 or the first half of 1997, the applicant ‘agreed with the fundamental idea of a coordinated price level increase’ (recital 151 of the contested decision).

150 As is apparent from the documents before the Court, that information on the initial period of the cartel was contested by the applicant and, in the absence of corroboration, was not used against the applicant.

151 Consequently, in the contested decision, the Commission substantially reduced the duration of the applicant’s participation in the infringement, as compared with the duration indicated in the statement of objections. As regards the beginning of the applicant’s participation in the infringement, the Commission considered that it had evidence of the applicant’s participation in the cartel meeting of 29 May 1997 and that that date should be used for determining the duration of the infringement in the applicant’s case (recital 352 of the contested decision). With respect to the end of the applicant’s participation in the infringement, the Commission stated that it was its firm conviction that the applicant took part in the infringement until 13 December 1999, the date of the last cartel meeting for which the Commission had evidence of the participation of the applicant’s employees (recital 365 of the contested decision).

152 The illicit contacts relied on against the applicant in the contested decision are as follows:

– three multilateral meetings held on 28 or 29 May 1997 in Seville, surrounding a CEFIC meeting (recitals 156 to 167 of the contested decision); the applicant admits that it participated in two of those meetings, but submits that it was opposed to the illegal discussions;

– four multilateral meetings which took place in August 1997 in Brussels, on 18 September 1997 in Paris, on 17 November 1997 in Frankfurt am Main and on 21 November 1997 in Paris, in which the applicant did not physically participate, but in respect of which it was allegedly informed by telephone by Atochem (recitals 171 to 197 of the contested decision), something which the applicant contests;

– multilateral meetings held on 26 and 27 November 1997 in Brussels, surrounding the CEFIC assembly (recitals 198 to 209 of the contested decision); the applicant admits that it attended that assembly, but submits that it was not aware of improper discussions;

– bilateral meetings between Degussa, Kemira and Solvay, between the end of 1997 and the beginning of 1998, the outcome of which the applicant was allegedly informed by telephone by Solvay (recital 210 of the contested decision), something which the applicant contests;

– multilateral meetings of 14 May 1998 in Évian-les-Bains, surrounding the CEFIC assembly (recitals 221 to 232 of the contested decision); the applicant admitted that it attended the CEFIC assembly, but submits that it was not aware of improper discussions;

– a meeting between Degussa, Solvay and the applicant, on 13 July 1998 in Königswinter, concerning the shutdown of an Atochem PBS factory (recitals 233 to 236 of the contested decision), which the applicant contests having attended;

– a ‘high-level’ meeting between Degussa and Solvay regarding HP and PBS, on 28 September 1998 in Brussels, after which it is alleged that Degussa met the applicant to inform it of the outcome (recitals 239 to 242 of the contested decision); the applicant does not deny having met Degussa, but submits that the subject of that contact was lawful;

– a multilateral meeting regarding HP, on 12 October 1998 in Düsseldorf, which, it is alleged, the applicant did not attend; however, according to Atofina, the applicant was connected by telephone to that meeting (recitals 247 to 253 of the contested decision), something which the applicant contests;

– multilateral meetings and bilateral contacts, surrounding the CEFIC assemblies, on 25 and 26 November 1998 in Brussels (recitals 254 to 258 of the contested decision), on 30 April 1999 in Estoril (Portugal) (recitals 264 to 265 of the contested decision) and on 16 November 1999 in Brussels (recitals 273 to 275 of the contested decision); the applicant admits that it attended those CEFIC assemblies, but submits that it was not aware of improper discussions;

– four multilateral meetings concerning exclusively PBS, which took place on 16 September 1998 in Lyon (recitals 237 and 238 of the contested decision), the beginning of 1999 in Milan (recitals 259 to 263 of the contested decision), summer 1999 in Basel (recitals 267 to 270 of the contested decision) and on 13 December 1999 in Freiburg (recitals 276 to 279 of the contested decision); the applicant contests its participation in the Lyon and Basel meetings and, whilst admitting its presence at the two other meetings, states that their object was perfectly legal, namely the choice of the conduct to adopt vis-à-vis the ‘anti-boron’ movement and that, although the discussions had also ‘veered’ onto ‘improper’ topics, it had paid ‘little attention’ to those discussions in view of its decision to convert from PBS to PCS for environmental reasons.

153 It follows from those findings that, apart from the two meetings relating to PBS, at the beginning of 1999 in Milan and on 13 December 1999 in Freiburg, the applicant contests its participation in the collusive contacts with respect to the remainder of the evidence used in the contested decision.

– The multilateral meetings of 28 or 29 May 1997 in Seville

154 As regards the three meetings which took place in Seville, it is common ground between the parties that the applicant was represented in the first two, regarding HP (the participants in the first meeting having been Atochem, Degussa, Solvay, Kemira and the applicant) and PBS (the participants in the second meeting having been Caffaro and the same participants as those in the first meeting) respectively. On the other hand, the applicant did not attend the dinner the following day in the restaurant (recitals 156, 162 and 163 of the contested decision).

155 For the two meetings at which it was present, the applicant does not contest the content of the discussions which gave rise to an exchange of information on market developments and related to proposals for an overall rise in prices and an agreement on the division of the HP market (recitals 157 to 161 of the contested decision), and to parallel attempts in relation to PBS (recital 162 of the contested decision).

156 The Commission found, without being contradicted by the applicant, that, ‘[d]ue to the lack of confidence and to the opposition of some small European producers no final agreement was reached on this occasion’ (recital 164 of the contested decision). In particular, attempts at discussions on PBS ended, according to Atofina’s statement, ‘in a terrible fit of anger on the part of the person in charge at Degussa … who, in the face of resistance by small producers that were refusing to accept the views of Solvay and Degussa, left the conference room and slammed the door’ (recital 162 of the contested decision).

157 As regards that evidence, the applicant argues however that, as a small producer, it had in fact been opposed to the unlawful conduct, which was demonstrated by its absence from the dinner at the restaurant on the following day.

158 The applicant relies inter alia on the statement of its Deputy General Manager at the time, annexed to the application, from which it is apparent, according to the applicant, that, with respect to the meeting on HP, its representative indicated to Degussa and Solvay that it was ‘growing in Germany’ and that it was ‘not interested’ in any limitations on prices. It therefore refused to discuss them, which caused the abrupt departure of the person in charge at Degussa.

159 In this respect, the Court would point out that, according to settled case-law, where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed to have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended to take part in that meeting in a spirit that was different from theirs (see Cimenteries CBR and Others v Commission, paragraph 122 above, paragraph 3199 and the case-law cited).

160 Since the applicant admitted that it was present at the unlawful discussions in question, it was therefore incumbent on it to show that its participation was without any anti-competitive intention.

161 However, the Court finds that the applicant’s opposition to the specific proposals made by Degussa, even if it were established, does not suffice, in the circumstances of the case, to show that the applicant had indicated to its competitors that it was participating in the meetings in question in a spirit that was different from theirs.

162 As regards specifically the applicant’s arguments relating to the meetings described in recitals 156 to 162 of the contested decision, the Commission observed that ‘Solvay and Degussa left the meeting room not because the small producers refused to agree on a price increase as such, but rather because the smaller producers were apparently discontent with the proposal made, most likely given the share of the market that would be attributed to them’, that ‘there [was] no indication that [the applicant] actually rejected the idea itself of an agreement with the competitors or that it distanced itself from the proposed agreement as such’ and that, moreover, confidential data was exchanged during the meeting in question (recital 166 of the contested decision).

163 First, the Court observes that