JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

15 July 2015 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European prestressing steel market — Price fixing, market sharing and exchanging of sensitive commercial information — Decision finding an infringement of Article 101 TFEU — Single, complex and continuous infringement — Limitation — 2006 Guidelines on the method of setting fines — Imputation of liability for the infringement to the parent company — Proportionality — Principle that penalties must be specific to the individual and to the offence — Unlimited jurisdiction’

In Cases T‑389/10 and T‑419/10,

Siderurgica Latina Martin SpA (SLM), established in Ceprano (Italy), represented by G. Belotti and F. Covone, lawyers,

applicant in Case T‑389/10,

Ori Martin SA, established in Luxembourg (Luxembourg), represented by P. Ziotti, lawyer,

applicant in Case T‑419/10,

v

European Commission, represented, in Case T‑389/10, initially by B. Gencarelli, V. Bottka and P. Rossi, and subsequently by V. Bottka, P. Rossi et G. Conte, acting as Agents, and, in Case T‑419/10, initially by B. Gencarelli, V. Bottka and G. Rossi, and subsequently by V. Bottka, P. Rossi and G. Conte, acting as Agents,

defendant,

APPLICATION for annulment and alteration of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel), amended by Commission Decision C(2010) 6676 final of 30 September 2010, and by Commission Decision C(2011) 2269 final of 4 April 2011,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearings on 30 June 2014,

gives the following

Judgment ( 1 )

...

Procedure and forms of order sought

44 By application lodged at the Registry of the Court on 13 September 2010, SLM brought its action in Case T‑389/10.

45 By application lodged at the Court Registry on 14 September 2010, Ori Martin brought its action in Case T‑419/10.

46 By decision of 29 October 2010, the Court (First Chamber) informed the applicants that they could adapt their pleas and the form of order sought in order to take account of the amendments made by the first amending decision. SLM and Ori Martin did not make use of that possibility.

47 By decision of 6 June 2011, the Court requested the Commission to supply it with the second amending decision.

48 On 22 June 2011, the Commission notified the second amending decision.

49 By decision of 30 June 2011, the Court (First Chamber) informed the applicants that they could adapt their pleas and the form of order sought in order to take account of the amendments made by the second amending decision.

50 SLM and Ori Martin submitted their observations on the second amending decision, which was addressed to them, in their replies lodged on 13 April 2011.

51 On 20 October 2011, the Commission lodged the original of its rejoinders in the language of the case, as well as its comments on the observations submitted by SLM and by Ori Martin on the second amending decision, and the written procedure was therefore closed.

52 The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present cases were therefore assigned.

53 The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 8 November 2013.

54 In Case T‑389/10, by decision of 17 December 2013, the Court asked the parties to respond to a series of measures of organisation of procedure.

55 By letters of 28 January and 28 February 2014, respectively, SLM and the Commission responded to those measures. However, the Commission stated in its response that it could not entirely comply with some of the requests for the production of documents because the documents requested had been sent to it in the context of dealing with leniency applications. SLM submitted its observations on that remark by the Commission.

56 On 16 May 2014, in the context of measures of inquiry adopted pursuant to Article 65 of its Rules of Procedure of 2 May 1991, the Court ordered the Commission to produce the documents which it had refused to produce in response to the measures of organisation of procedure adopted on 17 December 2013.

57 On the same day, by way of a measure of organisation of procedure, the General Court asked the Commission to produce certain documents relating to the investigation or proceedings in respect of the infringement during the administrative procedure.

58 On 27 May and 6 June 2014, respectively, the Commission produced the requested documents.

59 In Case T‑419/10, by decision of 17 December 2013, the Court asked the parties to respond to a series of measures of organisation of procedure.

60 By letters of 28 and 30 January 2014, respectively, Ori Martin and the Commission responded to those measures.

61 The parties presented oral argument and answered the written and oral questions put by the Court at the hearings on 30 June 2014. In addition, the parties were asked to submit their observations on a possible joinder of the present cases T‑389/10 and T‑419/10 for the purpose of the judgment, in accordance with Article 50(1) of the Rules of Procedure of 2 May 1991.

62 In Case T‑389/10, SLM claims that the Court should: — annul [Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel) (‘the initial decision’), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 (‘the first amending decision’), and by Commission Decision C(2011) 2269 final of 4 April 2011 (‘the second amending decision’), (‘the contested decision’)]; — redetermine, in the light of the second amending decision, the amount of the fine that was imposed on it jointly and severally with Ori Martin; — by way of measures of inquiry, order, in accordance with Article 65(c) and Article 68 et seq. of the Rules of Procedure of 2 May 1991, the questioning or oral testimony of the representatives of Redaelli and ITC on the following question: ‘Is it true that SLM did not participate in the meetings concerning the cartel at issue before the end of 1999?’, and request the Commission to provide a list indicating the number of officials, including directors and heads of unit, who dealt with the file between the beginning of 2002 and June 2010; — order the Commission to reimburse the interest due on the sum already paid; — order the Commission to pay the costs.

63 The Commission contends that the Court should: — dismiss the action and the applications for measures of inquiry; — order SLM to pay the costs.

64 In Case T‑419/10, Ori Martin claims that the Court should: — annul the contested decision, in so far as it attributes liability for the conduct penalised to Ori Martin; — cancel or reduce the amount of the fine imposed on it; — order the Commission to pay the costs.

65 The Commission contends that the Court should: — dismiss the action; — order Ori Martin to pay the costs.

Law

66 After hearing the parties in that regard (paragraph 61 above), the Court decided to join the present cases for the purposes of the judgment, pursuant to Article 50 of the Rules of Procedure of 2 May 1991.

67 In support of its action, SLM puts forward several pleas in law.

68 The first two pleas in law are aimed at the annulment of the contested decision in so far as it relates to SLM and concern, first, the infringement of the reasonable time principle and, secondly, the infringement of the principle of sound administration.

69 The other pleas in law raised are aimed at the reduction of the amount of the fine at issue. Those pleas in law concern (i) the erroneous application of the [Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines’)] instead 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 (OJ 1998 C 9, p. 3, ‘the 1998 Guidelines’); (ii) breach of the legal limit of 10% of turnover and of the obligation to state reasons in that respect; (iii) infringement of the obligation to state reasons as regards the determination of the gravity of the infringement and the determination of the increase for deterrence; (iv) infringement of the principle of proportionality; (v) erroneous assessment of the duration of SLM’s participation in the cartel; (vi) failure to take into consideration the mitigating circumstances as regards SLM; (vii) failure to take into consideration SLM’s statements; (viii) failure to take into consideration SLM’s inability to pay and (ix) the allegation that the limitation period in respect of the infringement had expired.

70 Following the second amending decision, SLM adapted its pleas in law in order to invoke a new aspect of the case, relating to the calculation errors allegedly committed by the Commission in determining the part of the fine for which SLM would be solely liable and the part for which SLM and Ori Martin would be jointly and severally liable.

71 It appears from SLM’s response to the measures of organisation of procedure that it is no longer necessary to rule on the pleas in law initially put forward concerning, first, the breach of the legal limit of 10% of turnover and of the obligation to state reasons in that respect — except in order to determine the consequences that the arguments put forward in that respect may have on the allocation of costs in SLM’s favour — and, secondly, the failure to take into consideration SLM’s inability to pay. Formal note of this was taken at the hearing.

72 Ori Martin puts forward three pleas in law in support of its action. The first plea in law alleges that the limitation period in respect of the infringement had expired. The second plea in law concerns the breach of several rules applicable to the attribution of liability for an infringement to Ori Martin as the almost exclusive owner of SLM. The third plea in law criticises certain aspects of the calculation of the fine and expresses doubts as to the possibility of applying the 2006 Guidelines instead of the 1998 Guidelines.

73 The arguments of SLM and Ori Martin overlap as regards the allegation that the limitation period in respect of the infringement had expired, the possibility of applying the 2006 Guidelines instead of the 1998 Guidelines, and certain aspects regarding the calculation of the fine. Those arguments will be examined together.

A – Whether the limitation period in respect of the infringement had expired

1. Arguments of the parties

74 SLM and Ori Martin submit that the Commission’s power to impose fines is time barred in the present case. The limitation period started running on 19 September 2002, the date on which the infringement ceased, and expired on 19 September 2007. None of the activities carried out by the Commission after that date and before the notification of the statement of objections — namely the requests concerning undertakings’ turnover, its positions taken on the leniency applications and an inspection carried out on 7 and 8 June 2006 on the premises of a chartered accountant — were necessary for the investigation of the case or the proceedings in respect of the infringement. The notification of the statement of objections, on 30 September 2008, therefore occurred after the end of the period of five years from the day on which the infringement ceases laid down in Article 25 of Regulation No 1/2003.

75 The Commission disputes those arguments.

2. Assessment of the Court

76 Article 25 of Regulation No 1/2003 provides that the Commission’s power to impose fines is subject to a five-year limitation period in respect of infringements of Article 101 TFEU. That limitation period begins to run on the day on which the infringement is committed.

77 However, any action taken by the Commission for the purpose of the investigation or proceedings in respect of the infringement interrupts that limitation period. Written requests for information by the Commission and written authorisations to conduct inspections issued to its officials by the Commission are listed, by way of examples, among the actions which interrupt the running of the limitation period.

78 In that respect, Article 25 of Regulation No 1/2003 clearly states that the limitation period is to be interrupted with effect from the date on which the action is notified to at least one undertaking or association of undertakings which has participated in the infringement, and that that interruption is to apply for all the undertakings or associations of undertakings which have participated in the infringement.

79 In the present case, it must be noted that, in the period of five years from 19 September 2002, the date on which the infringement ceased, the Commission notified several requests for information for the purpose of the investigation or proceedings in respect of the infringement to various undertakings that had participated in the infringement.

80 By way of examples mentioned by the Commission in its response to the Court’s questions on this point, it can be seen from the file that, on 19 April 2006, it sent a request for information to ITC relating, inter alia, to an Italian chartered accountant’s role in the cartel. Likewise, it is not disputed that, on 7 and 8 June 2006, the Commission carried out an inspection, during which it seised numerous documents, listed in Annex 5 to the contested decision, which allowed it to corroborate important evidence relating to Club Italia.

81 In doing so, the Commission validly interrupted the limitation period before 19 September 2007 as regards all the undertakings that had participated in the infringement. Accordingly, the Commission’s power to impose fines was not time barred when it adopted the statement of objections, on 30 September 2008, or when it adopted the initial decision, on 30 June 2010.

82 The pleas in law relating to the limitation period must therefore be rejected as unfounded.

B – The application of the 2006 Guidelines instead of the 1998 Guidelines

1. Arguments of the parties

83 SLM and Ori Martin take issue with the Commission for having applied the 2006 Guidelines in order to penalise acts committed prior to the publication of those guidelines. In particular, SLM submits that the retroactive application of an unfavourable criminal law infringes the principle that penalties must be provided for by law and the principle of the non-retroactivity of criminal law. The Commission cannot, inter alia, rely, as against third parties, on the rule set out in point 38 of the 2006 Guidelines concerning the temporal scope of those guidelines, since that new guidance was not adopted with the involvement of other institutions or of Member States. The application of the 2006 Guidelines to SLM’s situation is also characterised by unequal treatment, since most undertakings penalised under the 2006 Guidelines for acts similar to those which SLM is alleged to have committed received a more limited fine, amounting to 1 to 5% of their turnover. The amount of the fine should be reviewed by the Court in the light of the 1998 Guidelines in force at the material time and at the initiation of the administrative procedure.

84 The Commission disputes those arguments.

2. Assessment of the Court

85 Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, entitled ‘No punishment without law’, provides: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

86 There is a similar provision in the Charter of Fundamental Rights of the European Union, Article 49(1) of which provides: ‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.’

87 In that respect, Article 53 of the Charter of Fundamental Rights provides that the abovementioned provision is not to be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, inter alia, by international agreements to which the European Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms.

88 In that context, it must be recalled that Article 15(2) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87) provided: ‘2. The Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR] 1000 to [EUR] 1000000, or a sum in excess thereof but not exceeding 10% of turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently: (a) they infringe Article [101(1) TFEU] or Article [102 TFEU] … In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

89 That provision was repealed with effect from 1 May 2004, pursuant to Article 43 of Regulation No 1/2003, and replaced by Article 23(2) and (3) of that regulation, which provides: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101 TFEU] or Article [102 TFEU]... For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

90 Subsequently, on 1 September 2006, the Commission published the 2006 Guidelines in the Official Journal. That document sets out the method which the Commission intends to follow when it sets the amount of a fine imposed on undertakings that have committed infringements of the provisions of Article 81 EC (now Article 101 TFEU). Point 38 of the 2006 Guidelines is worded as follows: ‘[The 2006 Guidelines] will be applied in all cases where a statement of objections is notified after their date of publication in the Official Journal, regardless of whether the fine is imposed pursuant to Article 23(2) of Regulation No 1/2003 or Article 15(2) of Regulation 17/62.’

91 The 2006 Guidelines therefore replace the 1998 Guidelines.

92 In that regard, it is settled case-law that although internal rules of conduct intended to produce legal effects vis-à-vis third parties, such as traders liable to commit infringements of Article 101 TFEU, may not be regarded as rules of law which the administration is always bound to observe by reason of their intrinsic nature, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (judgment of 28 June 2005 in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraphs 209 and 210).

93 It follows that the 2006 Guidelines, which constitute such rules of conduct, fall within the scope of the concept of ‘law’ for the purposes of Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 49(1) of the Charter of Fundamental Rights (see, to that effect and by analogy, judgments in Dansk Rørindustri and Others v Commission, cited in paragraph 92 above, EU:C:2005:408, paragraph 216, and of 18 May 2006 in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, ECR, EU:C:2006:328, paragraph 20).

94 Although those provisions cannot be interpreted as prohibiting the gradual clarification of the rules of criminal liability, they may however preclude the retroactive application of a new interpretation of a rule establishing an offence (see, to that effect and by analogy, judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 92 above, EU:C:2005:408, paragraph 217, and the case-law of the European Court of Human Rights cited in paragraph 215 of that judgment).

95 It follows that, contrary to the Commission’s contention, the fact that the 2006 Guidelines maintain the maximum of 10% of the turnover of the penalised undertakings laid down in Article 15(2) of Regulation No 17, applicable as regards the facts that gave rise to the present dispute, is not enough to establish that the application of the 2006 Guidelines does not breach the principle of non-retroactivity in criminal law.

96 That principle could be breached by the application of a judicial interpretation which was not reasonably foreseeable at the time when the offence was committed (judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 92 above, EU:C:2005:408, paragraph 218).

97 It follows from the foregoing that the guidelines must be regarded as an interpretation, issued by the Commission, relating to the conduct which it intends to adopt when it imposes fines and it is apparent from the case-law that the amendments made by the Commission to such interpretations are compatible with the principle of non-retroactivity in criminal law and the principle of legal certainty provided that those amendments may be regarded as reasonably foreseeable.

98 It can also be seen from the case-law that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. That is particularly true in relation to professionals used to having to proceed with a high degree of caution when pursuing their occupation, who can be expected to take special care in assessing the risks that their infringing actions entail (see, to that effect, judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 92 above, EU:C:2005:408, paragraph 219 and the case-law cited).

99 However, the proper application of the competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines (see judgment in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, cited in paragraph 93 above, EU:C:2006:328, paragraphs 21 and 22 and the case-law cited).

100 Consequently, in the present case, the undertakings concerned must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the guidelines (see judgment in Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, cited in paragraph 93 above, EU:C:2006:328, paragraphs 23 and 24 and the case-law cited).

101 Those undertakings are therefore not justified in arguing that, after having adopted the 1998 Guidelines, the Commission could in no case apply the new guidance to ongoing procedures without breaching the legitimate expectations of the undertakings in question. It must be examined, however, whether the circumstances in which the 2006 Guidelines were applied in the present case meet the requirements of legal certainty and of foreseeability laid down in the case-law.

102 In that respect, it must be recalled that, under Article 38 thereof, the 2006 Guidelines are applicable in all cases where a statement of objections is notified after their date of publication in the Official Journal. Since that publication occurred on 1 September 2006 and the statement of objections in the present case was notified on 30 September 2008 at the earliest, the amount of the fine imposed was therefore calculated in accordance with the methodology laid down in the 2006 Guidelines.

103 First, it is necessary to reject the argument raised by SLM alleging that the Commission was not competent to adopt, and rely upon vis-à-vis third parties, the rule on temporal scope set out in point 38 of those guidelines. The enforceability of that rule vis-à-vis third parties, which contributes to the respect for the principle of legal certainty by stating, clearly and objectively, the temporal scope of the 2006 Guidelines, derives from the power, which the Commission is recognised as having by the case-law, to impose a limit on itself by specifying the criteria which it intends to apply in the exercise of the discretion granted to it by Regulation No 1/2003, which constitutes the legal basis for the contested decision (see, to that effect, judgments in Dansk Rørindustri and Others v Commission, cited in paragraph 92 above, EU:C:2005:408, paragraphs 211 and 213, and of 2 February 2012 in Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, EU:T:2012:48, paragraph 108).

104 Secondly, it must be examined whether the adoption of the 2006 Guidelines was sufficiently foreseeable for the purpose of the case-law cited in paragraphs 96 to 100 above.

105 In that regard, the main innovation in the 2006 Guidelines, as is apparent from points 5 to 7 thereof, consists in taking as a starting point for the calculation of the fine a basic amount, determined according to the value of the sales of goods or services to which the infringement relates and the duration and gravity of that infringement, and including a specific amount in order to deter companies from entering into illegal practices. It must therefore be found that the 2006 Guidelines are based on the criteria of gravity and duration defined in Regulation No 17 and reiterated in Regulation No 1/2003, which were already taken into account in the 1998 Guidelines (see, to that effect, judgment in Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 103 above, EU:T:2012:48, paragraph 114).

106 Moreover, the possibility that a prudent trader may not know in advance the precise level of the fines which the Commission will impose in each individual case is not in itself contrary to the requirement of foreseeability inherent to the principle of the non-retroactivity of criminal law. The objectives of punishment and deterrence pursued by competition policy may justify preventing undertakings from being in a position to assess precisely the advantages and disadvantages which they would derive from their participation in an infringement. It is sufficient that those undertakings are able, if need be by taking legal advice, to foresee in a sufficiently precise manner the criteria and the order of magnitude of the fines which they incur. As the Court noted above, the criteria taken into account in the 2006 Guidelines are based on the criteria referred to in Regulation No 17, which were already taken into account in the 1998 Guidelines (see, to that effect, judgments of 22 May 2008 in Evonik Degussa v Commission, C‑266/06 P, EU:C:2008:295, paragraph 55, and Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 103 above, EU:T:2012:48, paragraph 118).

107 It must therefore be concluded that the 2006 Guidelines and the new method of calculating fines embodied therein, even though it may have had an aggravating effect regarding the level of the fines imposed, was reasonably foreseeable for undertakings such as SLM at the time when the infringement in question was committed. Accordingly, by applying the 2006 Guidelines in the contested decision to calculate the fine to be imposed in respect of an infringement committed before those guidelines were adopted, the Commission did not infringe the principle of non-retroactivity (see, to that effect, judgment in Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 103 above, EU:T:2012:48, paragraphs 117 and 124).

108 It follows that the plea in law relating to the application of the 2006 Guidelines instead of the 1998 Guidelines must be rejected, without it being necessary to rule on whether SLM is justified in submitting that the application of the 2006 Guidelines gave rise to a larger fine than would have been imposed if it had been calculated in accordance with the 1998 Guidelines.

109 As noted in paragraphs 99 and 100 above, the principles invoked by SLM do not preclude the application of guidelines which, ex hypothesi, have the effect of increasing the level of the fines imposed for infringements, on condition that the policy which they implement was reasonably foreseeable at the time when the infringements concerned were committed (see judgments of 12 December 2007 in BASF and UCB v Commission, T‑101/05 and T‑111/05, ECR, EU:T:2007:380, paragraphs 233 and 234 and the case-law cited, and Denki Kagaku Kogyo and Denka Chemicals v Commission, cited in paragraph 103 above, EU:T:2012:48, paragraph 126 and the case-law cited).

110 In any event, it must be observed that, by merely summarising the factors taken into account by the Commission in its calculation in the contested decision, SLM failed to establish that the amount of the fine that might have been imposed on it in accordance with the methodology set out in the 1998 Guidelines would necessarily have been lower. In the present case, SLM merely pointed to certain differences between the 2006 Guidelines and the 1998 Guidelines (the additional amount, the method of taking into account the duration of the infringement, the nature of the mitigating circumstances) without indicating what result the Commission might have arrived at by applying the 1998 Guidelines, in which the starting point for the calculation also differs from that used in the 2006 Guidelines.

111 Likewise, as regards SLM’s argument challenging the rigorous application of the 2006 Guidelines to which it claims it was subject, submitting that that application infringed the principle of equal treatment, it suffices to note that that question is irrelevant to the conformity of the application of the 2006 Guidelines with the principle of non-retroactivity. The arguments raised by SLM in that regard will be examined subsequently in relation to its arguments submitted as regards the factors taken into consideration by the Commission in using those guidelines to determine the amount of the fine at issue.

112 The plea in law relating to the erroneous application of the 2006 Guidelines instead of the 1998 Guidelines must therefore be rejected as unfounded.

C – The factors taken into account in calculating the amount of the fine and the treatment of evidence adduced before the Commission

113 Several pleas put forward by SLM concern the factors taken into account by the Commission in order to determine the amount of the fine. Those pleas relate to the ‘failure to state reasons in determining the penalty’; the use, after 2000, of SLM’s European turnover in order to set the basic amount of the fine; the ‘failure to state reasons in determining the gravity common to the undertakings in order to determine the basic amount’, the ‘failure to state reasons in determining the additional amount provided for in point 25 of the guidelines’ and the breach, in that respect, of the ne bis in idem principle; the breach of the principle of proportionality and of the principle of equal treatment on the ground that the penalty does not take sufficient account of the ‘alleged gravity of the infringement’, of ‘its effect’, ‘of the economic context of the sector’, of the Commission’s previous practice, or of the ‘acts which SLM and the other undertakings concerned are alleged to have committed’; an erroneous assessment of the duration of SLM’s participation in the infringement; the failure to taken into consideration mitigating circumstances relating to its low market shares, to the cooperation with the Commission and to SLM’s ‘minor role’ in the infringement; and the failure to take into consideration statements made in the context of the leniency application.

114 In order to facilitate the examination of those pleas, the Court has proposed — and SLM has accepted — to organise them on the basis of the various steps taken by the Commission in order to determine the amount of the fine, namely, first, the factors taken into account in order to determine the basic amount (value of sales, gravity, duration, additional amount) and, secondly, the factors that may be taken into account in order to adjust that amount (mitigating circumstances and leniency notice, ability to pay). Account will also be taken of the cross-cutting complaints made by SLM regarding the breach of the obligation to state reasons and of the principles of proportionality and equal treatment.

115 In addition, under the guise of a plea alleging breach of the principle of sound administration, SLM refers to four aspects of the case, which, in its submission, show that the Commission, in a biased and unfair manner, dismissed the evidence adduced by SLM so as to favour other elements available to it. Those aspects concern the treatment given to invoices adduced by SLM during the administrative procedure, the importance accorded to meetings of Club Italia which it has not been proved that SLM attended; the potential impact of the dates on which the technical authorisations necessary for the sale of [prestressing steel (‘PS’)] in various EU Member States were obtained and the date on which the checks of the person to whom that task was assigned by the members of Club Italia began.

116 In that respect, it must be noted that the four aspects referred to above by SLM are also invoked in the context of the various pleas relating to the factors taken into account in calculating the amount of the fine, and they will therefore be examined together.

117 Taken together, those arguments are intended, in essence, to criticise the Commission’s decision finding that SLM participated in a complex of agreements and concerted practices in the PS sector from 10 February 1997 to 19 September 2002 without taking into account the nature and duration of the participation invoked or acknowledged by SLM which submits, first, that it did not participate in the infringement before the end of 1999 and, secondly, that its participation was then limited to Italy, and only later was its participation in other territories envisaged.

118 Ori Martin, by its plea relating to certain aspects of the calculation of the fine, alleges several errors of assessment committed by the Commission in the application of the 2006 Guidelines, the infringement of Article 23 of Regulation No 1/2003, the breach of the principles of proportionality and of equal treatment, the breach of the principle that penalties should be applied only to the offender and the principle that penalties must be provided for by law. In essence, Ori Martin puts forward three complaints in that plea in law: the first concerns an erroneous assessment of the gravity of the infringement SLM is alleged to have committed; the second relates to an unlawful application of the additional amount provided for in point 25 of the 2006 Guidelines and the third concerns a failure to take into account certain mitigating circumstances.

119 Those complaints will be examined at the same time as those made by SLM in relation to the same issues.

120 In essence, it must be pointed out that, under the guise of a criticism of the result of the assessments made by the Commission on the basis of the methodology set out in the 2006 Guidelines for determining the amount of the fine, the applicants submit that due account was not taken of the specific circumstances of SLM’s participation in the infringement, which was both belated and limited.

1. Preliminary observations

a) Content of the contested decision

121 It is apparent from Article 1 of the contested decision that SLM and Ori Martin infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 10 February 1997 to 19 September 2002 as regards SLM and from 1 January 1999 to 19 September 2002 as regards Ori Martin, in a ‘continuing agreement and/or a concerted practice in the prestressing steel sector in the internal market and, as of 1 January 1994, within the EEA’ (‘the cartel’ or ‘the single infringement’, the latter also being complex and continuous according to the terminology normally used).

Components of the cartel and characterisation of the single infringement

122 In recital 122 of the contested decision, the cartel is described as ‘a pan-European arrangement, consisting of a Zurich and a European phase, and/or, as the case may be, in national/regional arrangements’. Recitals 123 to 135 of the contested decision set out briefly those various agreements and concerted practices, which are subsequently described in detail and assessed under Article 101 TFEU and Article 53 of the EEA Agreement.

123 Put simply, the cartel was composed of the following arrangements: — the Zurich Club, or the first phase of the pan-European agreement. That agreement lasted from 1 January 1984 until 9 January 1996 and concerned quota-fixing by country (Germany, Austria, Benelux, France, Italy and Spain), customer-sharing, prices and the exchange of commercially sensitive information. Its members were Tréfileurope, Nedri, WDI, DWK and Redaelli, which represented several Italian undertakings at least from 1993 and 1995, subsequently joined by Emesa in 1992 and Tycsa in 1993. — Club Italia, a national arrangement that lasted from 5 December 1995 to 19 September 2002. That agreement concerned the fixing of quotas for Italy and also exports from Italy to the rest of Europe. Its members were the Italian undertakings Redaelli, ITC, CB and Itas, subsequently joined by Tréfileurope and Tréfileurope Italia (on 3 April 1995), SLM (on 10 February 1997), Trame (on 4 March 1997), Tycsa (on 17 December 1996), DWK (on 24 February 1997) and Austria Draht (on 15 April 1997). — The Southern Agreement, a regional arrangement negotiated and concluded in 1996 by the Italian undertakings Redaelli, ITC, CB and Itas, with Tycsa and Tréfileurope in order to determine the penetration rate of each of the participants in the Southern countries (Spain, Italy, France, Belgium and Luxembourg) and to undertake to negotiate quotas jointly with the other Northern European producers. — Club Europe, or the second phase of the pan-European agreement. That agreement was concluded in May 1997 by Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa (‘the permanent members’ or ‘the six producers’) and ended in September 2002. The agreement was intended to overcome the crisis in the Zurich Club, to share new quotas (calculated over the period from the third quarter of 1995 to the first quarter of 1997), to share customers and fix prices. The six producers agreed on coordination rules, including the appointment of coordinators responsible for the implementation of the arrangements in the individual countries and for coordination with other interested companies active in the same countries or in respect of the same customers. In addition, their representatives regularly met at different levels in order to monitor the implementation of the arrangements. They exchanged sensitive commercial information. In the case of discrepancy with the agreed trade behaviour, an appropriate compensation scheme was applied. — The coordination in respect of the customer Addtek. In the context of that pan-European arrangement, the ‘six producers’, joined occasionally by the Italian producers and Fundia, also maintained bilateral (or multilateral) contacts and participated in price-fixing and customer-sharing on an ad hoc basis, if it was in their interest to do so. For example, Tréfileurope, Nedri, WDI, Tycsa, Emesa, CB and Fundia coordinated together on prices and volumes for the customer Addtek. Those projects related mainly to Finland, Sweden and Norway, but also the Netherlands, Germany, the Baltic States and Central and Eastern Europe. The coordination in respect of Addtek already took place during the Zurich Club phase of the pan-European arrangement and continued at least until the end of 2001. — The discussions between Club Europe and Club Italia. During the period between at least September 2000 and September 2002, the six producers, and also ITC, CB, Redaelli, Itas and SLM met regularly with the aim of integrating the Italian companies into Club Europe as permanent members. The Italian undertakings wished to increase the Italian quota in Europe, while Club European maintained the status quo. To that end, meetings were held within Club Italia in order to define a uniform position, meetings were held within Club Europe in order to examine that position and/or define its own position, and meetings were held between participants in Club Europe and Italian representatives in order to agree on the allocation of the Italian quota on a specific market. The undertakings involved exchanged commercially sensitive information. For the purposes of redistributing the European quota with the aim of including the Italian producers, those undertakings agreed to use a new reference period (from 30 June 2000 to 30 June 2001). Those undertakings also reached an understanding on the overall volume of exports to Europe by the Italian undertakings, which the Italian undertakings shared among themselves for each country. At the same time, they discussed prices, as the members of Club Europe sought to adopt, on a Europe-wide scale, the price-fixing mechanism applied by the Italian producers within Club Italia. — Club España. Alongside the pan-European arrangement and Club Italia, five Spanish undertakings (Trefilerías Quijano, Tycsa, Emesa, Galycas and Proderac, the latter from May 1994) and two Portuguese undertakings (Socitrel, from April 1994, and Fapricela, from December 1998) agreed, for Spain and Portugal, and for a period from at least December 1992 until September 2002, to keep their market shares stable and to fix quotas, to allocate customers, including for public works contracts, and to fix prices and payment conditions. In addition, they exchanged commercially sensitive information.

124 In the Commission’s view, all of the arrangements described above present the characteristics of a single infringement of Article 101 TFEU and Article 53 of the EEA Agreement (contested decision, recitals 135 and 609 and section 12.2.2).

125 In particular, the Commission considered that the abovementioned arrangements were part of an overall scheme which laid down the lines of action of the cartel members in all the geographic areas: ‘they restricted their individual commercial conduct in order to pursue an identical anticompetitive object and a single identical anticompetitive economic aim, namely to distort or eliminate normal competitive conditions for PS in the EEA and to establish an overall equilibrium, notably by fixing quotas and prices, allocating customers and exchanging sensitive commercial information’ (contested decision, recital 610, see also section 9.3)

126 The Commission stated in that respect: ‘The plan, which was subscribed to by DWK, WDI, Tréfileurope, Nedri, Tycsa, Emesa, Fundia, Austria Draht, Redaelli, CB, ITC, Itas, SLM, Trame, Proderac, Fapricela, Socitrel, Galycas and Trefilerías Quijano (not all at the same time), was developed and implemented over a period that lasted at least 18 years, through a complex of collusive arrangements, specific agreements and/or concerted practices, pursuing the same common purpose of restricting competition between them and using similar mechanisms to pursue this common purpose (see section 9.3.1). Even at times when an arrangement did not work smoothly, other arrangements continued to function normally’ (contested decision, recital 612).

Factors taken into account as regards SLM

127 In the contested decision, the Commission found that SLM had directly participated in the cartel and in particular in Club Italia and the integration of the Italian producers into Club Europe from 10 February 1997 until 19 September 2002 (contested decision, recital 862).

128 The Commission referred in that respect to the following factors, set out in recitals 474 to 478 of the contested decision in a section relating to SLM’s individual participation in Club Italia. ‘(474) As regards SLM, there are ample indications that it was aware of the Italian agreement since 18.12.1995 where it was decided to inform amongst others SLM of the new prices to be applied in 1996 ... Further, at the meeting of 17.12.1996 ..., a table was circulated indicating the allocation of tons per client and the appointment of lead suppliers for a number of clients on the Italian market for 1997. Despite the fact that the columns for SLM were left blank, the fact that SLM was already considered in the table is an indication that discussions between parties must have taken place or were at least envisaged. SLM’s case was again discussed at the meetings of 19.01.1997 and 27.01.1997. The first concrete proven quota allocation to SLM occurred at the meeting of 10.02.1997, which the Commission therefore considers as the starting date of SLM’s involvement in the Italian arrangement. Indeed, the handwritten notes from ITC ... on that meeting show a list of volumes (to be) supplied to certain customers between SLM, on the one hand, and Redaelli, CB, Tycsa, ITC ..., on the other hand. The ITC notes expressly state that CB and ITC had obtained the sale information on SLM from [a representative of SLM]. Also on 07.04.1997, SLM’s case was discussed. Furthermore, there is clear evidence of SLM’s presence at over 100 meetings relating to the Italian market between 15.04.1997 and September 2002. Where it was not present, SLM’s case was discussed amongst the other Club Italia members thus showing its continued contribution and participation in Club Italia. (475) SLM itself confirms its participation in Club Italia from late 1999 to 2002, through [two representatives of SLM] and that at company management level, it also took part in a few meetings between European producers at the Hotel Villa Malpensa in 2001. SLM finally also states that at a meeting at the registered offices of Redaelli in late 1998 or early 1999, it was asked to participate in periodical meetings and to discuss limits on output. First, it claims that it refused but then decided to take part. (476) SLM, however, contests the Commission’s findings concerning its starting date in the cartel, claiming that it only participated in Club Italia as of the end of 1999. First, SLM argues that it would not have been present in the meeting of 10.02.1997. The Commission notes, however, that the available documentary evidence on the meeting of 10.02.1997 (handwritten notes from ITC) shows detailed quota allocation concerning certain customers to amongst others SLM. As explained before, the data had been communicated by ... SLM’s representative [himself], showing that SLM had shared its information prior to the meeting. Its alleged absence at that meeting is therefore irrelevant. (477) Even if on 04.03.1997 SLM showed some doubts regarding its future position in the cartel, SLM continued participating in cartel meetings already the next month, i.e. at the meeting of 15.04.1997, at which prices for raw material and sales prices were fixed for France, Spain and Germany and at which there were discussions on sales made by Redaelli to a number of customers and on offers made to customers by SLM and CB. It continued to regularly participate in Club Italia meetings and discuss with the other cartel participants until the date of the Commission’s inspections. The ‘doubts’ of SLM can therefore not be interpreted as an interruption of its cartel participation, as SLM claims. (478) Although, according to Redaelli, SLM did not join the agreement on the sharing of the Italian market from the start, ITC, Tréfileurope and CB confirm SLM’s participation in the Club Italia meetings. Whilst being aware of the Italian agreement since the start (decision of the members to inform SLM), the Commission considers, based on the documentary evidence ... that SLM’s continued participation started on 10.02.1997 and ended on 19.09.2002.’

129 In recitals 649 and 650 of the contested decision, in the section relating to the single, complex and continuous nature of the infringement, the Commission states as follows: ‘(649) As regards SLM, besides participating in Club Italia as of 10.02.1997 ..., it also participated in the Club Europe’s expansion discussions as of 11.09.2000 ... SLM does not contest its presence in the meeting of 11.09.2000. However, even before that date, SLM was or should have been aware that Club Italia, in which it participated, was part of a larger scheme with also a pan-European-level. First, the Commission has proof that SLM, at an early stage of its participation in Club Italia, met with companies that participated in the other Clubs, like DWK, Tréfileurope (that participated in the pan-European arrangement) and Tycsa (that participated in the pan-European arrangement and in Club España), and it discussed with them the conditions on the European market. For example, at a meeting between these companies on 15.04.1997, prices in several European countries (France, Spain and Germany) and imports and exports were discussed ... Further, on 29.11.1999 ..., SLM had a meeting with Redaelli, Austria Draht, Tréfileurope, Tycsa and DWK at which not only the prices applied in Spain and Portugal by two of the companies participating in Club España, i.e. Emesa and Fapricela were discussed, but also Addtek, the biggest client in the Scandinavian market around whom the ‘Scandinavian Club’ was organised ... SLM also participated in a discussion on the situation and the problems inherent to the European market on 18.01.2000 (with Redaelli, ITC, Itas, AFT/Tréfileurope Italia, CB, Nedri, Tycsa and Tréfileurope) On 21.02.2000, SLM met with Redaelli, ITC, Itas, Tréfileurope Italia, CB, Tréfileurope, DWK and Tycsa (the latter over the phone) and discussed amongst others volume in Spain and a price increase in Germany ... At a meeting on 13.03.2000 between SLM, Redaelli, ITC, Itas, CB, Tréfileurope Italia, DWK, Tycsa and Trame the situation in the Netherlands and Switzerland was discussed. On 15.05.2000, in the presence of SLM, ITC, Itas, Tréfileurope Italia, CB, SLM, Trame and DWK, Tréfileurope stated that Club Europe and Club Italia were both in crisis. Finally, on 12.06.2000, SLM attended a meeting with Redaelli, ITC, Itas, Tréfileurope Italia CB, Trame, Tycsa and DWK, at which it was mentioned that Club Europe is complaining about Tycsa ... (650) It is therefore sufficiently established that at least as of 29.11.1999 SLM was aware or should reasonably have been aware that while participating in Club Italia, it was part of a larger scheme with several levels.’

130 In addition, in response to SLM’s observations regarding its participation in Club Italia before the end of 1999, the Commission stated that: ‘(863) SLM contests its participation in the cartel and in particular in Club Italia until the end of 1999. Its participation in Club Italia as of 10.02.1997, however, is clearly established on the basis of documentary evidence and several leniency statements of ITC, Tréfileurope and CB ... SLM also invokes that, despite its participation in certain Club Italia meetings, it adopted an aggressive commercial policy, it did not agree to any illicit agreement and that when it shared data with competitors, these data, although credible, were never real or true. In this respect, it is sufficient to repeat that any direct or indirect contact between competitors the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market is prohibited ... The mere participation in meetings with an anticompetitive content is therefore sufficient to trigger liability. The fact that SLM would not have respected the cartel arrangements is irrelevant. Indeed, cheating is an inherent element to any cartel, in particular of long duration ... Moreover, SLM itself admits that its objective in participating in the meetings was to increase its clients or at least maintain them.’

131 In response to SLM’s observations regarding Club Europe, the Commission notes the following: ‘(864) SLM further contests that it participated in the integration of Italian producers in Club Europe from 11.09.2000 to 19.09.2002. In this respect, SLM submits that it participated only in nine of the 51 Club Europe meetings, at a very late stage and only at the insistent request of the other Italian producers. SLM also claims that it had no interest in participating in Club Europe as it did not have the required certifications for most of the countries involved. Finally, its participation in Club Europe meetings was the result of negligence. (865) Over a period of only two years (between 11.09.2000 and 19.09.2002) SLM participated at regular intervals in 9 Club Europe meetings ... SLM’s presence was moreover expected in 2 more meetings (23.07.2001 and 25.07.2001). Hence it is established that SLM was a regular participant in Club Europe as of its expansion phase. In those circumstances, the reasons why SLM joined the cartel meetings, or the fact that it would not have had certifications for some or most of the countries, are not relevant. Even if SLM did not have certification for all countries covered in the cartel, it can be presumed that participation in the meetings has influenced its behaviour ... in deciding for which countries it would apply for a certificate ... In any event Club Europe covered Italy and several other countries where SLM sold so that SLM certainly had an interest in the discussions. Finally, alleged negligence does not allow an undertaking to escape liability for participation in a cartel. The Commission therefore concludes that SLM participated in Club Europe from 11.09.2000 until 19.09.2002. (866) In any event, it is also established that as of 10.02.1997 SLM participated in Club Italia ... SLM should therefore be held liable for its cartel participation from 10.02.1997 to 19.09.2002.’

Ori Martin’s situation

132 After indicating in recital 866 of the contested decision that SLM was to be held liable for its participation in the cartel from 10 February 1997 to 19 September 2002, the Commission described the situation of Ori Martin as follows: ‘(867) Since 01.01.1999 SLM has been controlled 100% by Ori Martin S.A. (which ceded 2% to Ori Martin Lux SA on 31.10.2001). (868) On the basis of the (almost) 100% ownership of SLM by Ori Martin ... from 01.01.1999 to 19.09.2002), the Commission considers that Ori Martin ... exercised decisive influence on [SLM]. (869) Ori Martin ..., in its reply to the SO, does not contest the facts assessed by the Commission, but claims that it cannot be held jointly and severally liable with SLM. In particular, it holds that the Commission did not sufficiently show that it exercised a decisive influence on SLM. It claims that such a presumption would breach the principle of personal liability and argues that the Commission did not prove any direct or indirect involvement of Ori Martin ... in the infringement. (870) It is established case-law, as recently confirmed by the Court of Justice, that the Commission can presume that parent companies exercise decisive influence on their wholly-owned subsidiary. Where such a presumption applies it is for the parent company to rebut it, by adducing evidence demonstrating that its subsidiary decided independently on its conduct on the market. Failure to provide sufficient evidence on the part of the parent company amounts to a confirmation of the presumption and provides a sufficient basis for the imputation of liability. (871) The claim of absence of direct involvement of the parent company in the anticompetitive conduct and their alleged lack of awareness is therefore irrelevant. Attribution of liability to a parent company for the infringement committed by its subsidiary flows from the fact that the two entities constitute a single undertaking for the purposes of EU rules on competition and not from proof of the parent’s participation in or awareness of the infringement. (872) Finally, in relation to the principle of personal liability, Article 101 of the TFEU is addressed to ‘undertakings’ which may comprise several legal entities. In this context the principle of personal liability is not breached as long as different legal entities are held liable on the basis of circumstances which pertain to their own role and their conduct within the same undertaking. In the case of parent companies, liability is established on the basis of their effective control on the commercial policy of the subsidiaries which are materially implicated by the facts (see section 13). (873) Ori Martin ... further claims that it did not exercise decisive influence on SLM, which always carried out autonomously its activity in the PS sector. This was proven by the fact that it had no obligation to report to Ori Martin ..., which was moreover a financial holding company and therefore did not decide on its commercial policy. (874) The Commission observes that the mere fact that a company is a financial holding does not exclude that it exercises a decisive influence on its subsidiaries. Ori Martin ... also had an interest and role over its subsidiary SLM as a shareholder to protect its financial ownership interest. Finally, while Ori Martin ... claims that it was not active in the sector covered by the cartel, the Commission notes that its subsidiary, Ori Martin SpA, was active in the steel business itself, thus SLM’s commercial activities were related to the group’s business. In those circumstances, Ori Martin ... cannot be qualified as a pure holding company and in any event should not escape liability. (875) Consequently, the Decision should be addressed to [SLM] and Ori Martin ... [SLM] should be held liable for the period from 10.02.1997 until 19.09.2002. Ori Martin ... should be held jointly and severally liable for the infringing behaviour of [SLM] for the period from 01.01.1999 until 19.09.2002.’

Calculation of the amount of the fine imposed on SLM and Ori Martin

133 The amount of the fine imposed on SLM and Ori Martin was calculated by the Commission in accordance with the methodology contained in the 2006 Guidelines (contested decision, recitals 920 to 926).

134 The calculation factors taken into account by the Commission were the following: — the value of sales was set at EUR 15.86 million (first amending decision, recital 5); — the proportion of the value of SLM’s sales taken into account in calculating the basic amount was 19% (contested decision, recital 953); — the duration of participation in the infringement, 5 years and 7 months for SLM and 3 years and 8 months for Ori Martin, resulted in a multiplying factor of 5.58 for SLM and of 3.66 for Ori Martin (first amending decision, recital 7); — the Commission used a coefficient of 19% to determine the additional amount (contested decision, recital 962); — the value of sales was set at EUR 19.8 million (first amending decision, recital 9); — no aggravating or mitigating circumstance was found; — The amount of the fine before the application of the ceiling of 10% of turnover was set at EUR 19.8 million (first amending decision, recital 10); — SLM’s request for a reduction of the fine on the basis of the leniency notice was rejected (contested decision, recitals 1126 to 1129); — after the ceiling of 10% was taken into account, the amount of the fine was reduced to EUR 15.965 million, in order to ensure that fine for which SLM is solely liable complies with the limit of 10% of that company’s turnover (second amending decision, recitals 17 and 19); — SLM’s request for a reduction of the fine in the light of its ability to pay was rejected ... — the final amount of the fine imposed on SLM is EUR 15.956 million for its participation in the cartel for the period from 1 January 1999 to 19 September 2002, in respect of which Ori Martin is held jointly and severally liable for the amount of EUR 14 million (contested decision, Articles 1 and 2, and second amending decision, recital 21 and Article 1(2)), SLM being solely liable for the payment of EUR 1.956 million for its participation in the cartel for the period from 10 February 1997 to 31 December 1998 (contested decision, Articles 1 and 2, and second amending decision, Article 1(2)).

b) Outline of principles

135 It follows from Article 49 of the Charter of Fundamental Rights that the severity of penalties must not be disproportionate to the offence.

136 In that regard, Article 101(1) TFEU and Article 53(1) of the EEA Agreement expressly state that agreements and concerted practices which directly or indirectly fix purchase or selling prices or any other trading conditions or limit or control production or markets are incompatible with the internal market. Infringements of that type, in particular where they involve horizontal cartels, are characterised in the case-law as particularly serious since they have a direct impact on the essential parameters of competition on the market in question (judgment of 11 March 1999 in Thyssen Stahl v Commission, T‑141/94, ECR, EU:T:1999:48, paragraph 675).

137 Under Article 23(2) of Regulation No 1/2003, the Commission may impose fines on undertakings which participate in such an infringement, provided that, for each undertaking participating in the infringement, the fine does not exceed 10% of its total turnover in the preceding business year. Article 23(3) of that regulation also provides that, in fixing the amount of the fine to be imposed, regard is to be had both to the gravity and to the duration of the infringement.

138 In that connection, it is settled case-law that, in fixing the amount of the fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as, in particular, the role played by each of the parties to the infringement and the threat that infringements of this type pose to the objectives of the EU. Where an infringement has been committed by several undertakings, the relative gravity of the participation of each undertaking must be examined (see judgment of 8 July 1999 in Hercules Chemicals v Commission, C‑51/92 P, ECR, EU:C:1999:357, paragraph 110 and the case-law cited).

139 Likewise, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and, where appropriate, when the fine is determined (judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 90, and 7 January 2004 in Aalborg Portland and Others v Commission, 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, ECR, EU:C:2004:6, paragraph 86).

140 Where there has been, in particular, a single infringement, in the sense of a complex infringement, combining a number of agreements and concerted practices on separate markets, where the offending undertakings are not all present or may have only partial knowledge of the overall plan, the penalties must be made to fit the individual conduct and specific characteristics of the undertakings concerned (see, by analogy, judgment of 7 June 2007 in Britannia Alloys & Chemicals v Commission, C‑76/06 P, ECR, EU:C:2007:326, paragraph 44).

141 In that context, the principle of proportionality requires that the fine must be fixed proportionately to the factors to be taken into account both in assessing the objective gravity of the infringement, as such, and in assessing the relative gravity of the participation in the infringement of the undertaking on which the penalty is to be imposed (see, to that effect, and in consideration of the distinction between the objective gravity of the infringement, within the meaning of points 22 and 23of the 2006 Guidelines, and the relative gravity of the participation in the infringement of the undertaking on which the penalty is to be imposed, within the meaning of point 27 et seq. of those guidelines, judgment of 27 September 2006 in Jungbunzlauer v Commission, T‑43/02, ECR,EU:T:2006:270, paragraphs 226 to 228 and the case-law cited).

142 Thus, as regards a penalty imposed for infringement of competition law applicable to cartels, the Commission must ensure that it fits the penalties to the infringement, taking account of the particular situation of each offender (see, to that effect, judgments of 15 September 2011 in Lucite International and Lucite International UK v Commission, T‑216/06, EU:T:2011:475, paragraphs 87 and 88; and of 14 May 2014 in Donau Chemie v Commission, T‑406/09, ECR, EU:T:2014:254, paragraph 92). Accordingly, a contravener which is not held responsible for certain aspects of a single infringement cannot have had a role in the implementation of those components. Owing to the limited extent of the infringement in which he is found to have been involved, the infringement of competition law is necessarily less serious than that imputed to the offenders who participated in all the parts of the infringement.

143 In practice, the penalty may be made to fit the particular infringement at various stages of the determination of the amount of the fine, as was done in the contested decision.

144 First, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the objective gravity of the single infringement. In the present case, the factors which it took into consideration at that stage were, on the one hand, the material limitation (as in the case of Fundia, which participated only in the coordination concerning Addtek) or geographic limitation (as in the case of Socitrel, Fapricela and Proderac, which participated only in Club España, which affected only Spain and Portugal) of the undertaking’s participation in the single infringement and, on the other, belated awareness of its pan-European dimension (May 2001 for the abovementioned undertakings).

145 Secondly, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the mitigating circumstances referred to in point 29 of the 2006 Guidelines in the context of an overall assessment of all the relevant circumstances (see point 27 of the 2006 Guidelines). Although no undertaking was able to prove that the infringement had been committed negligently, the Commission acknowledged that the role of Proderac and Trame (Emme) was significantly more limited than that of the other participants in the cartel and that they should therefore be granted a reduction of the amount of the fine (5%).

146 Thirdly, the Commission may recognise the particularity of an undertaking’s participation in the infringement at a later stage than that of the assessment of the objective gravity of the infringement or the mitigating circumstances put forward by the undertakings concerned. Point 36 of the 2006 Guidelines thus states that the Commission may, in certain cases, impose a symbolic fine and, as indicated in point 37 of those Guidelines, it may also depart from the general methodology laid down for the setting of fines, in the light, inter alia, of the particularities of a given situation.

147 In the present case, the Commission did not — either at the initial stage of the assessment of the gravity of the infringement as such, or at the later stage of the discussion of the mitigating circumstances, or at any other stage — take account of the specific situation alleged by the applicants when it determined the amount of the fine.

148 Consequently, in the absence of the slightest mitigating circumstance or particular circumstance, the Commission applied to the applicants the same formula as that used in order to penalise the undertakings that participated in all the components of the overall cartel, and not just in some of them. That formula is as follows: 19% of the total PS sales of the undertaking concerned in the EEA (to take account of the gravity of the infringement as such) multiplied by the number of years and months of participation in the infringement (to take account of the period of SLM’s individual participation in the infringement, or of the period for which Ori Martin is presumed to have exercised a decisive influence over SLM), plus 19% of the value of the PS sales of the undertaking concerned in the EEA (the additional amount).

149 In the applicants’ case, the result of that formula, a fine of EUR 19.8 million, was reduced to EUR 15.956 million in order to ensure that the amount of the fine for which SLM is held solely liable complies with the limit of 10% of that company’s turnover.

150 In the light of the foregoing observations, it is appropriate to examine the complaints of SLM and Ori Martin, according to which the Commission failed to take due account of the specific circumstances of SLM’s participation in the infringement when it determined the amount of the fine.

2. The general failure to state reasons and the general complaint of bias

151 As a preliminary point, SLM submits that it does not understand how the Commission determined the amount of the fine, or how it divided that fine between SLM and Ori Martin. Such a breach of the obligation to state reasons must, according to SLM, give rise to the annulment of the contested decision and its alteration.

152 Nevertheless, the information provided by the Commission in the contested decision and summarised in paragraphs 133 and 134 above are such as to enable SLM to understand the various factors taken into account in order to determine the amount of the fine. It is also apparent from the contested decision that the Commission set out in that decision the reasons that enabled it to find SLM and Ori Martin jointly and severally liable for payment of a part of the fine, which penalises SLM’s participation in the infringement for the period from 1 January 1999 to 19 September 2002 (contested decision, recitals 867 to 875, and paragraph 132 above).

153 Moreover, SLM argues that the Commission always decided against SLM when the evidence before it was not consistent with its accusations.

154 In that respect, in view of the information provided in the contested decision and, inter alia, in Annexes 2 and 3 thereto, which set out the various evidence gathered by the Commission as regards the Zurich/Europe clubs and Club Italia, it is not sufficient to allege biased or unfair conduct by the Commission merely because it favoured one explanation over another proposed by SLM. Bias cannot be inferred from the mere fact that the administrative procedure resulted in an outcome unfavourable to SLM.

155 The pleas put forward by SLM in relation to the general failure to state reasons and the general complaint of bias must therefore be rejected as unfounded.

3. The factors taken into account in order to determine the basic amount of the fine (value of sales, gravity, duration, additional amount)

156 As regards the factors taken into account in order to determine the basic amount of the fine, it is necessary to examine the following complaints: the complaint made by SLM in the context of its fourth plea in law, regarding the value of sales to which the infringement relates; the fifth plea in law raised by SLM and the first and second pleas in law raised by Ori Martin, relating to the assessment of the gravity of the infringement and the determination of an additional amount; the sixth plea in law raised by SLM, relating, also — under the guise of an allegation of a breach of the principle of proportionality and of the principle of equal treatment — to the assessment of the gravity of the infringement and the seventh plea in law raised by SLM, relating to the assessment of the duration of the infringement.

a) The value of sales to which the infringement relates

Arguments of the parties

157 SLM submits that it apparent from recital 865 of the contested decision that it participated in Club Europe only as from September 2000. Sales made outside Italy prior to that time should therefore not have been taken into account in determining the amount of the fine. The contested decision should be amended so as to take into account only the value of sales made outside Italy during the period when SLM participated in Club Europe.

158 The Commission contends that, from at least 1995 and until September 2002, in parallel to the pan-European arrangements, SLM participated in anti-competitive meetings concerning both Italy and exports from Italy to the rest of Europe. It is therefore objectively justified to determine the basic amount on the basis of the value of SLM’s European sales.

Assessment of the Court

159 Point 13 of the 2006 Guidelines states that, ‘[i]n determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA’. In the same point, the Commission stated that it ‘will normally take the sales made by the undertaking during the last full business year of its participation in the infringement’. As can be seen from point 37 of the 2006 Guidelines, ‘although these Guidelines present the general methodology for the setting of fines, the particularities of a given case ... may justify departing from such methodology’.

160 In the present case, first, it must be pointed out that, in order to define the relevant geographic area for determining the value of sales, the Commission referred mainly to the geographic area covered by Club Zurich and then by Club Europe.

161 Thus, in recital 932 of the contested decision, the Commission indicated that, ‘from 1984 to 1995 (Zurich Club period), [that area] included Germany, France, Italy, the Netherlands, Belgium, Luxembourg, Spain and Austria’, that ‘it also included Portugal as from 1992 (under the Club España arrangements)’ and that, ‘from 1996 to 2002 (Zurich Club crisis period (when the Club Europe quota arrangement was prepared), Club Europe period and expansion period), the geographic area covered the same countries as during the Zurich Club period, including Portugal, and in addition Denmark, Sweden, Finland and Norway’.

162 Nevertheless, in order to take account of the development over time of the geographic area concerned, the Commission stated that it excluded sales in Portugal before 15 December 1992 and sales in Denmark, Sweden, Finland and Norway before 9 January 1996 from the value of sales taken into account. Likewise, in order to take account of EU accession and the entry into force of the EEA Agreement, the Commission also stated that it would not take account of sales in Spain before 1 January 1986 or sales in Austria, Finland, Sweden and Norway before 1 January 1994. In addition, as regards Fundia, whose participation in the cartel was limited to co-ordination regarding Addtek, the Commission indicated that it would take into account only the sales made by Fundia to that customer (contested decision, recitals 932, 933 and 935).

163 In the contested decision, the Commission therefore took account of certain factors relating to the cartel’s development over time, to the alteration of the scope of the applicable rules and to the manner in which an undertaking participated in the infringement in order to distinguish between two or more situations in determining the value of sales to be taken into consideration. Such an exercise is particularly necessary in the context of a single infringement, of a complex nature, such as that penalised in the contested decision, which covers a ‘continuing agreement and/or a concerted practice in the prestressing steel sector in the internal market and, as of 1 January 1994, within the EEA’ from 1 January 1984 to 19 September 2002.

164 Secondly, it can be seen from the file that the value of sales used as a starting point by the Commission in order to determine the amount of the fine, namely EUR 15.863 million, corresponds to the values of sales of PS made by SLM in 2001 in the various Member States in respect of which it was asked to provide information (that is to say, Germany, France, Italy, Belgium, the Netherlands, Luxembourg, Spain, Portugal, Denmark, Austria, Sweden, Finland and Norway).

165 Geographically, almost all (approximately 96.5%) of SLM’ sales were made in Italy, the rest (approximately 3.5%) being made in Austria, Germany or France.

166 It can also be seen from the file that SLM obtained the technical approvals necessary to sell PS in Europe outside of Italy only as from August 2000 as regards Germany and France, from July 2001 as regards Austria and from January 2002 as regards the Netherlands. It was only after the end of the infringement, namely in July 2006 for Spain and in April 2007 for Belgium, that SLM obtained the technical approvals necessary for those countries.

167 In its reply of 9 September 2009 to a request for information from the Commission, SLM also indicated that the sales made in Austria before the approval of its products in July 2001 were made to ‘Austrian commercial customers who resold those products in countries other than Austria’. It is indeed clear from the information sent to the Commission that SLM made some sales in Austria in 1999 and 2000.

168 Thirdly, as SLM submits, it must be noted that, in the present case, the Commission considered that, although SLM participated in Club Italia from 10 January 1997 to 19 September 2002 and that, from 29 November 1999, it was or ought to have been aware that, by participating in Club Italia, it was taking part in larger scheme, it was only held to have participated in Club Europe as from 11 September 2000 (contested decision, recitals 650, 865 and 866).

169 Two periods must therefore be distinguished in order to take account of the manner in which SLM participated in the infringement: a first period, from 10 February 1997 to 10 September 2000, corresponding to SLM’s participation in Club Italia, and a second period, from 11 September 2000 to 19 September 2002, during which participated SLM participated in both Club Italia and Club Europe.

170 As regards the second period, given the geographical area concerned by SLM’s participation in Club Italia and Club Europe, it is objectively justified to determine the amount of the fine on the basis of the value of SLM’s European sales. It is thus apparent that, during that period, SLM indeed made sales in Italy, but also in Austria, Germany and France.

171 As regards the first period, however, it must be examined whether the geographic area concerned by SLM’s participation in Club Italy indicates that it is objectively justified to determine the amount of the fine on the basis of the value of SLM’s European sales.

172 That question does not arise in relation to the sales made in Italy, which represent 96.5% of the value of SLM’s sales taken into account in determining the amount of the fine, since those sales were clearly the subject of Club Italia during the first period.

173 As regards Austria, which represents approximately 2% of the value of SLM’s sales taken into account in order to determine the amount of the fine, it must be noted that there is not evidence in the present case that Austria was the subject of discussions within Club Italia in the presence of SLM from 10 February 1997 to 10 September 2000. At the hearing, when asked by the Court to identify the evidence that, during SLM’s participation in the infringement, quotas on exports from Italy to Austria or commercially sensitive information concerning PS sales in Austria were discussed in the present of representatives of SLM, the Commission replied that it was not able to produce such evidence.

174 In that context, in order to determine the amount of the fine on the basis of the gravity and duration of the infringement committed by SLM, account cannot be taken, in relation to the entire duration of its participation in the cartel, of the value of sales made in a Member State which was not the subject of discussions in SLM’s presence within Club Italia. The value of SLM’s sales in Austria can therefore be taken into account only in relation to the period when SLM participated in Club Europe.

175 As regards Germany and France, which represent approximately 1.5% of the value of SLM’s sales taken into account in order to determine the amount of the fine, the Commission rightly submits that Club Italia had not only a domestic dimension, but also an external dimension in that, on several occasions, discussions occurred, with or without a representative of SLM being present, aimed at fixing quotas on exports from Italy or exchanging commercially sensitive information on the situation in Germany or in France, or in other States.

176 Thus, for the period from 10 February 1997 to 10 September 2000, it appears, according to the information on the Club Italia meetings set out in Annex 3 to the contested decision, that, on 15 April 1997, in the present of a representative of SLM, the discussions were aimed, inter alia, at ‘fixing raw material prices and sales prices in France, Spain and Germany (in the latter as from September 1997 and January 1998)’. Likewise, the participants in the meeting of 22 October 1997 — in the absence, on that occasion, of a representative of SLM — exchanged ‘information on prices in Germany, Belgium and the Netherlands’, and the participants in the meeting of 29 November 1999‘discuss[ed] the[ir] needs[,] the Spanish market [and] the prices applied in Spain and Portugal’. In addition, at the meeting of 21 February 2000, at which a representative of SLM was present, ‘an increase of price of “+40%” in Germany was also discussed’.

177 However, even though during the period from 10 February 1997 to 10 September 2000, the situation in Germany and France was sporadically mentioned, it also appears that SLM could make sales in those States only as from August 2000 and that, in view of the data communicated in that respect by SLM to the Commission in its reply of 9 September 2009 to a request for information, those sales were made only in the course of 2000 as regards Germany and 2001 as regards France.

178 In that context, in fixing the amount of the fine in view of the gravity and duration of the infringement committed by SLM, account cannot be taken, in relation to the entire duration of its participation in the cartel, of the value of sales made in States where SLM was not initially present since, inter alia, it was not authorised to sell its products there. The value of SLM’s sales in Germany and in France can therefore be taken into account only as from the date when those sales began, namely in the course of 2000 as regards Germany and, in any event, in the course of 2001 as regards France.

179 In conclusion, given the complex nature of the infringement at issue, which has several different components, including Club Italia and Club Europe, and in order to take account of the specific manner in which SLM participated in the infringement, it is not objectively justified to take all of SLM’s European sales as a starting point for determining the amount of the fine in view of the gravity and duration of the infringement committed by SLM.

180 The consequences of the foregoing on the determination of the amount of the fine will be assessed below in the context of the Court’s use of its unlimited jurisdiction.

b) The proportion of the value of sales determined on the basis of the degree of gravity of the infringement

Arguments of the parties

181 SLM and Ori Martin submit that the Commission’s decision to set the proportion of the value of sales taken into account in order to assess the degree of gravity of the infringement at 19% is not supported by a sufficient statement of reasons and breaches the principle of proportionality, the principle of equal treatment and the principle that penalties must be specific to the offender. First, SLM’s lack of involvement in the European dimension of the cartel, at least until September 2000, should have been taken into account in that respect. SLM did not participate in Club Zurich, Club España, the Southern Agreement, the Northern Agreement on the Scandinavian market, or Addtek’s tenders procedures. It also was not one of the permanent members of Club Europe and it never played a coordinating role within the cartel. A level of 19% should have been set only for the undertakings which initiated the cartel and were heavily involved in its implementation. Secondly, the Commission should also have taken into account the concrete effects of the infringement in order to assess its gravity. Thirdly, aside from the fact that the amount of the fines imposed to penalise the infringement are much higher than that of fines imposed to penalise cartels in the past, and that that amount is greater than the turnover of the sector in 2001, SLM was penalised three and a half times more than Redaelli, which participated in the cartel since 1984 at the European and Italian levels; six times more than Emme, whose participation in the infringement was of a nature and duration similar to that of SLM; seven times more than CB and four times more that ITC, which were more involved than SLM. The Court should therefore reduce considerable the amount of the fine in order to take account of SLM’s actual role in the infringement, as well as the absence of concrete effects on the market of its participation in the cartel, and to ensure equal treatment between SLM and the other penalised undertakings.

182 The Commission disputes those arguments.

Assessment of the Court

183 The various complaints set out above criticise the result of the assessment of the gravity of the infringement carried out by the Commission on the basis of the general methodology set out in the 2006 Guidelines.

184 In that respect, points 19 to 23 of the 2006 Guidelines state: ‘(19) The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. (20) The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. (21) As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. (22) In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. (23) Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’

185 In recital 953 of the contested decision, the Commission concluded that, on a scale of up to 30%, the proportion of the value of SLM’s sales to be taken into account in order to assess the gravity of the infringement should be 19%.

186 According to the contested decision, that proportion was determined on the basis of the four factors mentioned as examples in point 22 of the 2006 Guidelines.

187 First, as regards the nature of the infringement, the Commission noted that ‘all undertakings except Fundia were involved in market sharing (quota fixing), customer allocation and horizontal price fixing’ and that ‘these arrangements are among the most harmful restrictions of competition, distorting the main parameters of competition’ (contested decision, recital 939).

188 Secondly, the Commission found that the combined market share of the undertakings for which the infringement was established was ‘estimated to be around 80%’ (contested decision, recital 946).

189 Thirdly, the Commission indicated that the geographic scope of the infringement ‘evolved over time’, that ‘from 1984 to 1995, it included Germany, France, Italy, the Netherlands, Belgium, Luxembourg, Spain and Austria’, and that, ‘from 1996 to 2002, the infringement covered the same countries and Portugal, Denmark, Sweden, Finland and Norway’ (contested decision, recital 947).

190 Fourthly, as regards the implementation of the arrangements, the Commission considered that ‘although not always completely successful or effective, the arrangements were implemented’ (contested decision, recital 950).

191 The applicants’ arguments must be examined in the light of those findings.

192 In the first place, SLM and Ori Martin submit that, in order to determine the proportion of the value of sales, the Commission should have taken account of SLM’s lesser responsibility in the infringement in comparison with other undertakings, which were far more involved or were involved for a longer period. Thus, the applicants argue that the Commission did not sufficiently individualise its reasoning in order to take account of the particularities of SLM’s participation in the infringement.

193 However, in view of the general methodology set out in the 2006 Guidelines, it appears that the Commission generally carries out such an individualisation of the penalty not at the initial stage of determining the basic amount of the fine, but at the later stage of adjusting that amount, or even at a yet later stage if necessary.

194 At the stage of determining the basic amount, the Commission did not treat the undertakings that acted as leaders or coordinators of various aspects of the single infringement differently from undertakings which were only associates. Likewise, the Commission did not deem it useful to distinguish between the undertakings which participated, at first, in Club Italia alone, and those which participated simultaneously in Club Italia and Club Zurich or Club Europe, since, according to the Commission, ‘the geographic scope of Club Italia largely overlaps with that of the pan-European arrangements’ (contested decision, recital 949).

195 In the present case, none of the four findings made by the Commission in order to justify its decision to set the proportion of the value of sales taken into account in order to assess the degree of gravity of the infringement at 19% is called into question, as such, by the applicants. Those findings are all objectively established in view of the elements of the file invoked in that respect in the contested decision and apply to the infringement in general and not to SLM in particular.

196 In addition, as regards the setting of the proportion of the value of sales taken into account in order to assess the degree of gravity of the infringement, it cannot be argued that the Commission failed to consider the fact that SLM did not participate in Club Zurich or in other aspects of the infringement, since that proportion was used only from the time when SLM participated in the infringement and applies only to SLM’s sales in relation to the infringement.

197 The first complaint must therefore be rejected as unfounded.

198 In the second place, as regards the potential impact of the argument that the cartel did not have the expected effects on the market, it must be pointed out that, in the present case, the Commission indicated that where an agreement or concerted practice has as its object the restriction of competition, there is no need to take into account its actual effects on the market. In the present case, the Commission indicated, however, that such effects could be presumed, since it was established that the cartel decisions had been at least partly implemented (contested decision, recitals 676 to 681).

199 In any event, when it determined the proportion of the value of sales taken into account in order to assess the degree of gravity of the infringement, the Commission did not invoke the effects of the infringement on the market, only the fact that it had been implemented.

200 It must be found that, in the present case, the proportion of the value of sales taken into account by the Commission is on the low end of the scale (15% to 30%), even though, in the 2006 Guidelines, after indicating that a cartel of the type at issue in the present case is among the most harmful restrictions of competition and must be heavily fined, the Commission stated that, in such as case, the proportion of the value of sales to be taken into account will generally be set at the higher end of the scale.

201 In those circumstances, it may be considered that, if concrete effects had actually been found by the Commission, it would have taken into account a proportion higher than 19%.

202 The second complaint must therefore be rejected in view of the level of gravity chosen by the Commission in the present case and the reasons stated to justify that choice.

203 In the third place, it is necessary at the outset to reject the complaint based on the generally disproportionate character of the fines imposed in order to penalise the infringement in view of the Commission’s previous practice or of the value of the PS sector in Europe. That issue, which concerns the competition policy practised by the Commission in order to punish cartels, exceeds the Court’s powers of review of the contested decision. In the present case, it is not necessary to adjudicate on the total amount of fines imposed by Commission over time, or to consider the value, in absolute terms, of the total amount of the penalties imposed in relation to the PS cartel.

204 Likewise, as regards the complaint based on the alleged differences between SLM and other undertakings penalised in the contested decision, it must be noted that the Court’s review at this stage concerns the assessment made by the Commission in the contested decision when it set the proportion of the value of sales taken into account in order to assess the degree of gravity of the infringement at 19%. That assessment was made not in the light of the final outcome, the amount of the fine finally imposed after possibly being adjusted in order to take account of certain circumstances, but at an earlier stage, that of the determination of the proportion of the value of sales to be taken into account in order to determine the basic amount of the fine. The final amount of the fine therefore depends on factors specific to each of those undertakings, such as, for example, the cooperation under the leniency notice or the legal maximum limit of 10% of total turnover. In the present case, in the absence of arguments to support the view that the situation of Redaelli, CB or ITC is comparable to that of SLM as regards all of the factors taken into account by the Commission in order to assess the situation of those undertakings, that complaint must be rejected as unfounded.

205 In the fourth and last place, as regards the complaint alleging a failure to state reasons, it must be observed that the decision sets out to the requisite legal standard the factors considered in order to determine the proportion of the value of SLM’s sales taken into account in order to assess the gravity of the infringement (contested decision, recitals 963 to 953).

206 Moreover, Article 296 TFEU cannot be interpreted as requiring the Commission to explain in its decisions the reasons why, in relation to calculation of the amount of the fine, it did not adopt alternative approaches to the one in fact adopted in the contested decision (see to that effect, judgment of 19 May 2010 in IMI and Others v Commission, T‑18/05, ECR, EU:T:2010:202, paragraph 153 and the case-law cited).

207 It follows from the foregoing that the applicants’ complaints concerning the proportion of the value of sales determined on the basis of the degree of gravity of the infringement must be rejected.

c) The duration of SLM’s participation in the cartel

Arguments of the parties

208 SLM claims that the contested should be annulled in that it states that SLM participated in Club Italia as from February 1997 rather than the end of 1999. In particular, the Commission did not take account of several fundamental circumstances capable of refuting the date on which SLM’s participation in Club Italia began. First, no representative of SLM was present at the meeting of 10 February 1997. Secondly, during the following meeting of 4 March 1997, it was reported that SLM had not yet decided to join Club Italia and Redaelli also declared that SLM had not joined the Italian market sharing agreement. Thirdly, at a meeting held in April 1998, it was indicated that SLM, which was again absent, had an aggressive policy. Fourthly, it appears from Redaelli’s leniency application, of 20 March 2003, that SLM did not begin participating in the meetings until the end of 1999, which was confirmed by Tréfileurope. Fifthly, the only invoices issued by the person charged with performing checks which were found as regards SLM concern checks carried out as from March 2000 and not the earlier period.

209 The Commission disputes those arguments. It refers to the nature and content of the single infringement, which existed since the establishment of Club Zurich in 1984, and in which SLM participated as from 10 February 1997 by adhering to a plan which had already been implemented. The meeting of 10 February 1997 was SLM’s first direct participation in the cartel, as can be seen from the allocation