Case T-132/07

Fuji Electric Co. Ltd

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Proof of the infringement – Whether liable for the infringement – Duration of the infringement – Fines – Mitigating circumstances – Cooperation)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Undertaking – Meaning – Economic unit – Attribution of infringements

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

2. Competition – Community rules – Infringements – Attribution

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

3. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof

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

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

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

5. Competition – Agreements, decisions and concerted practices – Proof – Assessment of the probative value of a document – Criteria

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

6. Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Applicability

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

7. Competition – Agreements, decisions and concerted practices – Participation in meetings having an anti-competitive object

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

8. Competition – Administrative procedure – Statement of objections – Obligation to respond – None

(Council Regulation No 1/2003, Art. 18)

9. Action for annulment – Admissibility – Natural or legal persons – Acceptance during the administrative procedure, by the undertaking to which the statement of objections is addressed, of facts or points of law justifying attribution of liability for an infringement to it – Restriction on the right to bring proceedings – Infringement of the fundamental principles of legality and respect for the rights of the defence

(Arts 81 EC and 230, fourth para., EC; Charter of Fundamental Rights of the European Union, Arts 47 and 52(1))

10. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules

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

11. Action for annulment – Pleas in law – Infringement of essential procedural requirements – To be considered of the Court’s own motion

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

12. Competition – Community rules – Infringement committed by a subsidiary – Attribution of liability to the parent company – Burden of proof on the Commission

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

13. Competition – Fines – Amount – Discretion of the Commission – Unlimited jurisdiction of the General Court – Whether possible to take into consideration additional information not mentioned in the decision imposing the fine

(Arts 263 TFEU and 264 TFEU; Council Regulations No 17, Art. 15(4) and No 1/2003, Art. 23(2)(a))

14. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Production of additional evidence after sending the statement of objections – Whether permissible – Conditions

(Art. 81(1) EC)

15. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, Section 26)

1. In prohibiting undertakings from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

In order to be applied and enforced, decisions taken pursuant to Article 81 EC must, however, be addressed to entities possessing legal personality. Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be penalised for that conduct, and the decision will be addressed to them.

(see paras 56-57)

2. Where a number of persons may be held personally liable for the participation of one and the same undertaking, for the purposes of competition law, in an infringement, they must be considered to be jointly and severally liable for that infringement.

The person who had direct responsibility for or managed the undertaking at the time the infringement was committed, and the person who, by reason of actually exercising control over the undertaking and determining its conduct on the market, indirectly managed that undertaking at the time when the infringement was committed, may be held personally liable and jointly and severally liable for the participation of one and the same undertaking in an infringement.

It follows that the principle of personal liability, under which a person can be held liable only for his own acts, must be understood as also covering the personal liability of both the person directly managing the undertaking at the time when the infringement was committed and the person who, at the same time, indirectly managed that undertaking.

(see paras 58-59, 153)

3. In relation to the burden of proof, it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that that authority will then have to resort to other evidence.

The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission.

That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged.

(see paras 84-85)

4. As regards the evidence on which the Commission can rely, the principle which prevails in competition law is that of the unfettered evaluation of evidence.

In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law.

In any event, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

As regards the duration of the infringement, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

(see paras 86-87)

5. As regards the probative value to be accorded to various pieces of evidence assembled in relation to an infringement of the competition rules, the only relevant criterion for the purpose of assessing the evidence adduced relates to its reliability. According to the general rules of evidence, the reliability and therefore the probative value of a document depends on the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and its content. It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events, or by a direct witness of those events. Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice. Further, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence.

(see para. 88)

6. Where, in the case of an application for annulment brought against a Commission decision finding an infringement of the competition rules and imposing fines on the addressees, there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point. In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights, which is one of the fundamental rights which, according to the case-law of the Court of Justice, and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union, are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments.

(see para. 89)

7. An undertaking which does not publicly distance itself from the results of a meeting which it has attended or an agreement to which it has been a party remains, as a general rule, wholly liable for its participation in the cartel. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition. It follows that, even if the undertaking concerned did not comply with all of the agreements entered into within the cartel, that fact is not enough, without evidence that it publicly distanced itself from the other cartel members, to exempt it from the liability it incurs as a consequence of its participation in those agreements and, through those agreements, in the infringement which has been found.

(see para. 100)

8. The competition rules cannot be interpreted as meaning that the person concerned in an administrative procedure is under an obligation to reply to the statement of objections sent to him by the Commission. Neither the rules setting out the rights and duties of undertakings within the administrative procedure provided for by competition law nor any general principle of law oblige those undertakings to do any more than supply the Commission with such information as it has requested from them under Article 18 of Regulation No 1/2003. Such a duty would, in the absence of any legal basis, be difficult to reconcile with the principle of respecting the rights of the defence, since it would create difficulties for a person who, having failed for whatever reason to reply to a statement of objections, wished to bring legal proceedings before the courts of the European Union.

Thus, while the legality of the Commission decision finding that a person has infringed competition law and consequently imposing a fine on that person can be assessed only in relation to the facts and points of law pertaining at the date when the decision was adopted, it does not follow that the person concerned is under an obligation to supply to the Commission, at the stage of the administrative procedure, all the material on which it may wish to rely in support of an action for annulment, brought before the courts of the European Union, of the decision adopted at the conclusion of the administrative procedure.

(see paras 124, 158)

9. In proceedings concerning infringement of the competition rules, where the person concerned decides voluntarily to cooperate and, within the administrative procedure, accepts explicitly or implicitly facts or points of law which justify the attribution of liability for the infringement to that person, the actual exercise of its right to bring proceedings under the fourth paragraph of Article 230 EC is not thereby restricted.

In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence. Further, the right to an effective remedy and of access to an impartial court is guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and, under Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law.

(see para. 159)

10. The statement of the reasons on which a decision having adverse effect is based must make it possible to carry out an effective review of its legality and must provide the party concerned with details sufficient to allow that party to ascertain whether or not the decision is well founded, and the adequacy of such a statement of reasons must be assessed in the context of the circumstances of the case, and in particular the content of the measure, the nature of the reasons relied on and the interest which addressees may have in obtaining explanations.

In order to perform those functions, an adequate statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority of the European Union which adopted the measure in question.

Where a decision pursuant to Articles 81 EC and Article 53 of the EEA Agreement relates to several addressees and raises a problem of attribution of liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for that infringement.

(see para. 162)

11. In an action for annulment of a decision under Article 81 EC and Article 53 of the EEA Agreement, the fact that the applicant has relied on a substantive plea, alleging a manifest error of assessment, and not a failure to state reasons or a failure to state adequate reasons, in other words a plea relating to an infringement of an essential procedural requirement, within the meaning of Article 230 EC, does not deprive the Courts of the European Union of the possibility of raising such a plea of their own motion, since such a plea is a matter of public policy which may, or even must, be raised by the Courts of their own motion, provided that the rule that the parties should be heard is respected.

(see para. 163)

12. For the purposes of applying the competition rules, the fact that a subsidiary has separate legal personality is not sufficient to exclude the imputation of its conduct to the parent company, especially where the subsidiary does not determine its market conduct independently but in all material respects carries out the instructions given to it by the parent company.

Against that background, it is, as a rule, for the Commission to demonstrate that the parent company or companies actually exercised a decisive influence on the market conduct of their subsidiary, on the basis of a body of factual evidence, including, in particular, any management power exercised by the parent company or companies over their subsidiary. It is generally the case that if a parent company holds a majority interest in the subsidiary’s share capital, that can enable it actually to exercise a decisive influence on its subsidiary and, in particular, on the subsidiary’s market conduct.

None the less, a minority interest may enable a parent company actually to exercise a decisive influence on its subsidiary’s market conduct, if it is allied to rights greater than those normally granted to minority shareholders in order to protect their financial interests and which, when considered in the light of a set of consistent legal or economic indicia, are such as to show that a decisive influence is exercised over the subsidiary’s market conduct. Proof of the actual exercise of a decisive influence may therefore be adduced by the Commission by relying on a body of evidence, even if each of those indicia taken in isolation does not have sufficient probative value.

The actual exercise of management power by the parent company or parent companies over their subsidiary may be capable of being inferred directly from the implementation of the applicable statutory provisions or from an agreement between the parent companies, entered into under those statutory provisions, in relation to the management of their common subsidiary. The extent of the parent company’s involvement in the management of its subsidiary may also be proved by the presence, in leading positions of the subsidiary, of many individuals who occupy managerial posts within the parent company. Such an accumulation of posts necessarily places the parent company in a position to have a decisive influence on its subsidiary’s market conduct since it enables members of the parent company’s board to ensure, while carrying out their managerial functions within the subsidiary, that the subsidiary’s course of conduct on the market is consistent with the line laid down at management level by the parent company. That objective can be attained even though member(s) of the parent company who take on managerial functions within the subsidiary do not have authority as agents of the parent company. Lastly, the involvement of the parent company or companies in the management of the subsidiary may follow from the business relationship which they have with each other. Accordingly, where a parent company is also the supplier or customer of its subsidiary, it has a very specific interest in managing the production or distribution activities of the subsidiary, in order to take full advantage of the added value created by the vertical integration thus achieved.

Further, there is no requirement, in order to attribute to a parent company liability for the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. The reason why the Commission is able to address a decision imposing fines to the parent company of a group of companies is not that the parent company instigated its subsidiary to commit the infringement nor, a fortiori, that the parent company was involved in the infringement, but that the parent company and the subsidiary adopted the same course of conduct on the market when the infringement was committed.

(see paras 179-184, 196)

13. More than a simple review of legality within an action for annulment under Article 263 TFEU, which merely permits dismissal of the action for annulment or annulment of the contested measure, as provided in Article 264 TFEU, the unlimited jurisdiction conferred on the Courts of the European Union authorises them to vary the contested measure, even without annulling it, by taking into account all the factual circumstances, so as to amend, for example, the amount of the fine imposed for infringement of the competition rules.

It follows that, in areas where the Commission has retained a margin of discretion, such as determining the scale of the increase of the fine according to the duration of the infringement or the need to ensure that the penalty has a deterrent effect, or assessing the quality and usefulness of the cooperation provided by an undertaking in the administrative procedure, in particular by reference to the contributions made by other undertakings, the fact that the review of legality within an action for annulment under Article 263 TFEU is limited to determining the absence of manifest error of assessment does not, in principle, preclude the Courts of the Union from exercising their unlimited jurisdiction.

In the context of their unlimited jurisdiction, the Courts of the European Union have the power to assess the appropriateness of the amounts of fines in the light of the criteria set out, as the case may be, in Article 15(4) of Regulation No 17 or in Article 23(2)(a) of Regulation No 1/2003. That assessment may justify the production and taking into account of additional information which is not mentioned in the Commission decision imposing the fine.

(see paras 208-209)

14. The statement of objections must enable the parties concerned properly to identify the conduct complained of by the Commission, that requirement being satisfied if the final decision does not allege that those concerned have committed infringements other than those referred to in the statement of objections and only takes into consideration facts on which the parties concerned have had the opportunity of making known their views.

While the infringements which an undertaking is alleged in a decision to have committed cannot be other than those stated in the statement of objections, the same cannot be said of the facts taken into consideration, since it is sufficient, with regard to those facts, that the undertakings subject to the proceedings have had the opportunity to make known their views on the facts considered to inculpate them. There is no provision which prevents the Commission from sending to the parties after the statement of objections fresh documents which it considers support its argument, provided that it gives the undertakings the necessary time to submit their views on them.

(see para. 238)

15. While it is correct that the date when evidence is delivered to the Commission has an effect on whether that evidence is to be classified as having significant added value, since that classification is dependent on what evidence is already held by the Commission at the date of delivery, the mere fact that such evidence has been delivered after the notification of the statement of objections does not mean that it may not still constitute, notwithstanding the advanced stage of the administrative proceedings, significant added value. In particular, in an application pursuant to the notice on immunity from fines and reduction of fines in cartel cases submitted after the statement of objections has been sent, an undertaking may focus on the facts which, in its opinion, have not been proved to the requisite legal standard in order to provide significant added value compared with the evidence already in the Commission’s possession.

Further, point 26 of the Leniency Notice does no more than state a procedural obligation which must be met by the Commission. It does not provide that any cooperation by an undertaking in proving the infringement is necessarily deprived of any value if it occurs only after notification of the statement of objections. Further, such cooperation may be very useful where the material provided was previously unknown to the Commission and where it has a direct effect on the gravity or duration of the presumed cartel.

(see paras 239-240)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

12 July 2011( )

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Proof of the infringement – Whether liable for the infringement – Duration of the infringement – Fines – Mitigating circumstances – Cooperation)

In Case T‑132/07,

Fuji Electric Co. Ltd, previously Fuji Electric Holdings Co. Ltd and successor in title to Fuji Electric Systems Co. Ltd, established in Kawasaki (Japan), represented by P. Chappatte and P. Walter, Solicitors,

applicant,

v

European Commission, represented initially by F. Arbault, and subsequently by X. Lewis, J. Bourke and F. Ronkes Agerbeek, and then by N. Khan and F. Ronkes Agerbeek, acting as Agents, and by J. Holmes, Barrister,

defendant,

APPLICATION for the partial annulment of Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) and reduction of the fine imposed on Fuji Electric Holdings and Fuji Electric Systems,

THE GENERAL COURT (Second Chamber),

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

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 9 February 2010,

gives the following

Judgment

Background to the dispute

1 The background to the dispute, as it is revealed essentially in the findings made by the Commission in Commission Decision C (2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas Insulated Switchgear) (‘the contested decision’), is as follows.

1. The goods concerned

2 Gas insulated switchgear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.

3 Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, the essential components of substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to protect the transformer from overload and/or insulate the circuit and the faulty transformer.

4 Insulation of switchgear may be by gas, air or a hybrid, where air and gas are combined. GIS is sold worldwide as an integral part of turnkey power substations or as separate equipment which has to be integrated in such substations. GIS represents approximately 30% to 60% of the total price of such substations.

5 The contested decision concerns GIS projects involving a voltage from 72.5 kV upwards (‘the GIS projects’), including both GIS as stand-alone products, with all associated services (transport, erection, testing, insulation, etc.), and turnkey power substations containing GIS, which comprise therefore the GIS and other parts of the substation, such as transformers and all associated services (transport, cabling, erection, insulation, etc.).

2. The undertakings concerned

6 Fuji Electric Holdings Co. Ltd (‘FEH’), is the holding company of the Fuji group, and presides over four operating subsidiaries, one of which is Fuji Electric Systems Co. Ltd (‘FES’). The Fuji group manufactures and markets a wide range of products, including GIS projects. The GIS activities of the Fuji group were carried out by, inter alia, FEH and FES.

7 On 1 October 2002 the Fuji group transferred its GIS activities to Japan AE Power Systems Corporation (‘JAEPS’), a joint venture in which Fuji has a 30% shareholding, the rest of the shares in the joint venture being held by Hitachi Ltd and Meidensha Corporation, with 50% and 20% respectively.

3. Administrative procedure

8 On 3 March 2004 ABB Ltd (‘ABB’) informed the Commission of anti-competitive practices in the GIS projects sector and made an oral application for immunity from fines pursuant to the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).

9 The practices reported by ABB consisted of a worldwide coordination of sales of GIS projects, which involved sharing of markets; allocation of quotas and maintenance of respective market shares; allocation of GIS projects to designated producers and manipulation of bidding procedures (bid-rigging) in order to ensure the award of contracts to those producers; price-fixing by means of complex arrangements for GIS projects which were not allocated; termination of licence agreements with non-cartel members, and the exchange of sensitive market information.

10 ABB’s oral application for immunity from fines was supplemented, in particular on 7 May 2004, by oral observations and documentary evidence. On 25 April 2004 the Commission granted conditional immunity to ABB.

11 On the basis of ABB’s statements the Commission launched an investigation and carried out inspections on 11 and 12 May 2004 at the premises of various companies in the GIS sector.

12 Between 14 and 25 May 2004 the Areva group cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.

13 On 30 July 2004 the group of which VA Technologie AG was the parent company (‘the VA Tech group’) cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.

14 From 9 September 2004 onwards the representatives of the Hitachi group or JAEPS also cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.

15 On 4 October 2004 FEH and FES replied to a request for information sent to them by the Commission under Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81[EC] and 82 [EC] (OJ 2002 L 1, p. 1) (‘the reply of 4 October 2004 to the request for information’). On the same day ABB also replied to a request from the Commission for information.

16 On 4 November 2004 Mitsubishi Electric System Corp. (‘Melco’) sent to the Commission an application pursuant to the Leniency Notice in respect of its ‘account of its involvement in certain arrangements relating to the GIS [projects] market’.

17 On 5 November 2004 the Areva group sent its reply to a request from the Commission for information.

18 On 20 April 2006 the Commission adopted a statement of objections which was notified to FEH and FES, and also to ABB, Alstom SA, Areva SA, Areva T & D AG, Areva T & D Holding SA and Areva T & D SA (together, ‘the Areva group companies), Hitachi and Hitachi Europe Ltd (together: ‘the Hitachi group companies’), JAEPS, Melco, Nuova Magrini Galileo SpA, Schneider Electric SA (‘Schneider’), Siemens AG, Toshiba Corp. and five companies in the VA Tech group, including VA Technologie.

19 On 30 June 2006 FEH and FES sent to the Commission, within the time allowed, their observations in reply to the statement of objections. As an annex to their reply to the statement of objections, they produced a number of statements or documents for which they requested confidentiality. Similarly, ABB, Alstom, the Areva group companies, the Hitachi group companies or JAEPS, Melco, Schneider, Siemens AG Österreich, Siemens and Toshiba replied in writing to the statement of objections within the time allowed.

20 By letter of 12 July 2006 FEH and FES cooperated with the Commission and provided a range of documentary evidence and information, pursuant to the Leniency Notice.

21 On 14 July 2006 ABB sent to the Commission a ‘Supplement to response to the statement of objections’.

22 On 18 and 19 July 2006 the Commission held hearings for the companies to which the statement of objections had been addressed.

23 On 25 August 2006 the Commission made available to the parties to the procedure, for their comments, extracts of the non-confidential version of reply of FEH and FES to the statement of objections, the request of FEH and FES of 12 July 2006 pursuant to the Leniency Notice, ABB’s supplementary reply to the statement of objections and additional documents.

24 On 11 September 2006 FEH and FES submitted their views on ABB’s supplementary reply to the statement of objections.

25 By letter of 29 September 2006 FEH and FES sent to the Commission a further witness statement from one of their former employees, Mr M. H.

26 By letter of 10 November 2006 FEH and FES sent to the Commission their observations on the comments, relating to the management of JAEPS, which had been sent by the Hitachi group companies or JAEPS to the Commission by letter of 29 September 2006.

27 By letter of 14 November 2006 the Commission sought additional comments from FEH and FES on a number of pieces of evidence which they deemed relevant to the final decision. FEH and FES replied by letter dated 21 November 2006.

4. The contested decision

28 On 24 January 2007 the Commission adopted the contested decision, a summary of which was published in the Official Journal of 10 January 2008 (OJ 2008 C 5, p. 7). The decision was notified to FEH and FES on 9 February 2007.

29 In addition to FEH and FES, the contested decision was addressed to ABB, Alstom, the Areva group companies, the Hitachi group companies, JAEPS, Melco, Nuova Magrini Galileo, Schneider, Siemens, Siemens AG Österreich, Siemens Transmission & Distribution Ltd (‘Reyrolle’), Siemens Transmission & Distribution SA, Toshiba and VA Tech Transmission & Distribution GmbH & Co. KEG.

30 In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. The Commission stated that the allocation of GIS projects was carried out on the basis of a joint ‘Japanese’ quota and a joint ‘European’ quota, which the respective Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (‘the GQ Agreement’) established rules allowing the allocation of GIS projects to either Japanese producers or to European producers and to set their value against the corresponding quota. In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (‘the common understanding’), under which GIS projects, on the one hand, in Japan and, on the other, in the countries of European members of the cartel – together described as the ‘home countries’ for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the ‘home countries’ were not the subject of information exchanges between the two groups and were not charged to their respective quotas.

31 The GQ Agreement also contained rules relating to the exchange of information necessary for the operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 Western European countries. Furthermore, under the common understanding, GIS projects in European countries other than the ‘home countries’ were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.

32 According to the Commission, the allocation of GIS projects among European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled ‘E‑Group Operation Agreement for GQ-Agreement’ (‘the EQ Agreement’). It indicated that the allocation of GIS projects in Europe was to follow the same rules and procedures as those governing the allocation of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.

33 In recital 142 of the contested decision, the Commission stated that, in the GQ Agreement and in the EQ Agreement and for the purposes of organisation and operation of the cartel, the various members of the cartel were identified by a code, composed of figures for the European members and letters for the Japanese members. The initial codes were replaced by just numbers from July 2002.

34 The Commission found, in Article 1(g) of the contested decision, that FEH had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’) by participating in a complex of agreements and concerted practices in the GIS sector in the EEA from 15 April 1988 until 11 May 2004 and, in Article 1(h) of the contested decision, that FES had participated in the infringement for the same period. Furthermore, in Article 1(k) of the contested decision, the Commission found that JAEPS had participated in the same infringement from 1 October 2002 until 11 May 2004.

35 For the infringements found in Article 1 of the contested decision, FEH and FES were fined, in Article 2(d) of the contested decision, EUR 2 400 000, for which they were jointly and severally liable, and, in Article 2(f) of the contested decision, EUR 1 350 000, for which they, JAEPS and Hitachi were jointly and severally liable.

Procedure and forms of order sought

36 By application lodged at the Court Registry on 19 April 2007 FEH and FES brought the present action. In that document they stated, in particular, that the application, the annexes to it and the documents lodged at the Registry contained confidential information, which needed to be treated as confidential vis-à-vis third parties.

37 Upon hearing the report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure of the General Court, put written questions to the parties and requested the production of documents. The parties responded within the time allowed.

38 By letter lodged at the Court’s Registry on 26 January 2010, FEH and FES made certain comments on the Report for the Hearing which had been sent to them on 11 January 2010, concerning the point of time when they transferred their GIS activities to JAEPS and when they acquired a holding in JAEPS.

39 The parties presented oral argument and their replies to the Court’s questions at the hearing on 9 February 2010. FEH and FES stated in particular that it was not their intention, when commenting on the Report for the Hearing, to bring incidentally before the Court a plea that the contested decision was vitiated by errors of fact in finding that FES was responsible, as the parent company of JAEPS, for the participation of JAEPS’s GIS business in the infringement from 1 October 2002 until 30 September 2003. At the hearing, the Court adopted a new measure of organisation of procedure and invited FEH and FES to clarify the subject-matter of their request in the application for confidentiality (see paragraph 36 above). The observations of FEH and FES and the abovementioned measure of organisation of procedure were recorded in the minutes of the hearing. By letter of 23 February 2010 FEH and FES clarified the subject-matter of their request for confidentiality within the period allowed.

40 The oral procedure was closed on 3 March 2010.

41 By order of 25 November 2010 the oral procedure was re-opened, and as part of measures of organisation of procedure under Article 64 of the Rules of Procedure, the Court sent further questions to the parties. The parties were, in particular, invited to offer their view of the implications which paragraphs 87 to 92 of the judgment in Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑0000 had for the present case. The parties replied to the questions put by the Court within the time allowed.

42 The oral procedure was closed on 10 January 2011.

43 By letter dated 22 June 2011, with supporting documents, the representative of FEH and FES informed the Court that, as from 1 April 2011, FES had ceased to exist following its merger into FEH, which had itself changed its name and is now Fuji Electric Co. Ltd (‘the applicant’). By decision of the President of the Second Chamber of the Court of 29 June 2011, that letter was added to the file, and the Commission was duly informed.

44 The applicant, formerly named FEH and successor in title to FES, claims that the Court should:

– annul Article 1(g) of the contested decision in so far as it finds that the infringement imputed to FEH by that provision continued after September 2000;

– annul Article 1(h) of the contested decision;

– annul Article 2(d) of the contested decision, in so far as it imputes joint and several liability upon FES for the fine imposed;

– annul Article 2(f) of the contested decision, in so far as it imputes joint and several liability upon FEH and FES for the fine imposed;

– reduce the amount of the fine imposed on FEH and FES;

– order the Commission to pay the costs.

45 The Commission contends that the Court should:

– dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

46 Although FEH and FES brought this action jointly, their interests within the action were not identical and coincided only in part, as is clear from the paragraphs of the application which summarise the purpose of these proceedings. However, since 1 April 2011, the interests of FEH and FES have come together in the person of the applicant.

47 In the present case, the applicant claims, in essence, that the Court should annul both Article 1(g) of the contested decision, in that the Commission holds FEH personally liable for the infringement for the period from September 2000 until 30 September 2002, and Article 2(d) of the contested decision, in that the Commission consequently imposes on FEH a fine of EUR 2 400 000, for which it is jointly and severally liable with FES. In support of that claim, the first three pleas in law relied on by the applicant concern, (i) manifest errors of assessment and an infringement of the right to a fair hearing and the principle of the presumption of innocence, (ii) an infringement of the rules relating to allocation of the burden of proof, and (iii) an infringement of the principle of equal treatment.

48 Further, the applicant claims that the Court should annul both Article 1(h) of the contested decision, in that the Commission holds FES personally liable for the infringement for the period from 15 April 1988 until 11 May 2004, and Article 2(d) and (f) of the contested decision, in that the Commission consequently imposes on FES a fine of EUR 2 400 000, for which it is jointly and severally liable with FEH, and a fine of EUR 1 350 000, for which it is jointly and severally liable with FEH, JAEPS and Hitachi. In support of that claim, the applicant’s fourth plea in law concerns a manifest error of assessment.

49 The applicant further claims that the Court should annul Article 2(f) of the contested decision in that the Commission relied on the finding that FEH and FES could be held personally liable for the participation of JAEPS in the infringement for the period from 1 October 2002 until 11 May 2004, and in that the Commission consequently imposed on them a fine of EUR 1 350 000, the applicant, JAEPS and Hitachi being jointly and severally liable therefor. In support of that claim, the applicant’s fourth and fifth pleas in law allege manifest errors of assessment.

50 The applicant claims, lastly, that the fines imposed on FEH and FES in Article 2(d) and (f) of the contested decision should be reduced. In support of that claim, the applicant puts forward argument in a sixth plea in law.

1. The claims for the partial annulment of the contested decision

51 In support of its claims for the partial annulment of the contested decision, the applicant puts forward five pleas in law.

52 In the first three pleas the applicant claims, in essence, that Article 1(g) and Article 2(d) of the contested decision should be annulled, in that the Commission found or relied on the finding that FES infringed Article 81 EC and Article 53 of the EEA Agreement from September 2000 until 30 September 2002, the date when the Fuji group transferred its GIS activities to JAEPS. In the first plea, it is claimed that the Commission made manifest errors of assessment and infringed the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, by concluding, in the contested decision, that FEH continued to participate in the cartel set up by the GQ Agreement after the Japanese members’ meeting which took place ‘in or around’ September 2000. In the second plea, it is claimed that the Commission infringed the rules relating to allocation of the burden of proof. In the third plea it is claimed that the Commission infringed the principle of equal treatment.

53 In the fourth plea, the applicant claims that Article 1(h) and Article 2(d) and (f) of the contested decision, in so far as the Commission holds FES jointly and severally liable for the fines imposed, should be annulled, since those articles are based on a manifestly incorrect assessment of the facts of the case, to the effect that FES could be held to be personally liable for the infringement for the period from 15 April 1988 until 11 May 2004.

54 In the fifth plea, the applicant maintains that Article 2(f) of the contested decision should be annulled, in that it is based on a manifestly incorrect assessment of the facts of the case, to the effect that, as parent companies of JAEPS, FEH and FES could be held personally and jointly and severally liable, with Hitachi and JAEPS, for the infringement for the period from 1 October 2002 until 11 May 2004.

Preliminary observations on the undertakings involved in the infringement found in Article 1(g) and (h) of the contested decision and on the liability incurred, for that reason, by FEH and FES

55 Before examining the applicant’s first five pleas, it is appropriate to identify the undertakings for whose participation in the infringement FEH and FES were held to be responsible in Article 1(g) and (h) of the contested decision.

56 In that regard, it must be recalled that competition law is aimed at ‘undertakings’ and that, in that context, the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the infringement in question (see, to that effect, Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Case T‑234/95 DSG v Commission [2000] ECR II‑2603, paragraph 124, and Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85). In prohibiting undertakings from, inter alia, entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 81(1) EC is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see, to that effect, Case T‑6/89 Enichem Anic v Commission [1991] ECR II‑1623, paragraph 235, and Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 311).

57 In order to be applied and enforced, decisions taken pursuant to Article 81 EC must, however, be addressed to entities possessing legal personality (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II‑931, paragraph 978, and Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraph 59). Thus, when the Commission adopts a decision pursuant to Article 81(1) EC, it must identify the natural or legal person or persons who can be held responsible for the conduct of the relevant undertaking and can be penalised for that conduct, and the decision will be addressed to them (see, to that effect, Hydrotherm Gerätebau, paragraph 56 above, paragraph 11).

58 In accordance with the principle of personal liability (Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 131 to 141; Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 78, and Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39; see also the Opinion of Advocate General Kokott in said Case C‑280/06 ETI and Others point 71 et seq.), under which a person can be held liable only for his own acts (Opinion of Advocate General Cosmas in said Case C‑49/92 P Commission v Anic Partecipazioni [1997], point 74), it falls, in principle, to the person managing the undertaking when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, that undertaking is the responsibility or under the management of a different person (Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 27, and Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 37; see, also, to that effect, Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 79).

59 According to the case-law, where a number of persons may be held personally liable for the participation of one and the same undertaking, for the purposes of competition law, in an infringement, they must be considered to be jointly and severally liable for that infringement (see, to that effect, Joined Cases 6/73 and 7/73 Istituto Chemicoterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 41; Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraphs 33 and 34; Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraphs 54, 524 and 525; the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 62, and Akzo Nobel and Others v Commission, paragraph 57 above, paragraphs 57 to 62). It is, moreover, apparent from those judgments that the person who had direct responsibility for or managed the undertaking at the time the infringement was committed, or the person who, by reason of actually exercising control over the undertaking and determining its conduct on the market, indirectly managed that undertaking at the time when the infringement was committed, may be held personally liable and jointly and severally liable for the participation of one and the same undertaking in an infringement (see also, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraphs 40, 43 and 44). It follows that the case-law cited in paragraph 58 must be understood as covering the personal liability of both the person directly managing the undertaking at the time when the infringement was committed and the person who, at the same time, indirectly managed that undertaking.

60 The case-law referred to in paragraphs 56 to 59 above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission adopted pursuant to that article.

61 It is clear from the contested decision and, in particular, the description made, in recitals 5 to 87, of the ‘industry subject to the proceeding’ and, in recitals 28 to 44 and 482, of the ‘undertakings subject to the proceedings’ or of the ‘differential treatment’ accorded to those undertakings that the Commission identified, among the undertakings found to have participated in the infringement in Article 1 of the contested decision, (i) the unitary organisation of personal, tangible and intangible elements which operated the Fuji group’s GIS business in the period from 15 April 1988 until 30 September 2002 (‘the first undertaking concerned’) and (ii) the unitary organisation of personal, tangible and intangible elements which operated the GIS businesses of the Fuji group, Hitachi and Meidensha – which were transferred to JAEPS – in the period from 1 October 2002 until 11 May 2004 (‘the second undertaking concerned’).

62 It is clear moreover from recital 379 of the contested decision that FEH and FES were held to be personally and jointly and severally liable for the participation of the first undertaking concerned in the infringement from 15 April 1988 until 30 September 2002. It follows from recitals 32, 33 and 373 of the contested decision that the liability thereby incurred by FEH and FES stems from the fact that they ‘presided over’ or managed ‘inter alia’ the first undertaking concerned in that period and that they were therefore directly involved in that undertaking’s participation in the infringement.

63 Further, it is clear from recital 380 of the contested decision that FEH and FES were held to be personally and jointly and severally liable, with Hitachi and JAEPS, for the participation of the second undertaking concerned in the infringement in the period from 1 October 2002 until 11 May 2004. Moreover, it follows, in particular, from recitals 380, 385 and 402 of the contested decision that the liability thereby incurred by FEH and FES stems solely from the fact that they had, with Hitachi, determined the conduct on the market of JAEPS, their joint subsidiary which was directly in charge of the second undertaking concerned, and that they were therefore indirectly involved in that undertaking’s participation in the infringement, as the parent companies of JAEPS.

64 The applicant’s first five pleas must be examined in the light of the foregoing considerations. In the interests of expediency and procedural economy, it is appropriate to examine together the first two pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of the burden of proof.

The first and second pleas: manifest errors of assessment, an infringement of the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and an infringement of the rules relating to allocation of the burden of proof

Arguments of the parties

65 By the first and second pleas the applicant complains, in essence, that the Commission made a number of manifest errors of assessment and infringed the rules relating to the allocation of the burden of proof, in that, in Article 1(g) of the contested decision, the Commission held FEH to be personally liable for the participation of the first undertaking concerned in the infringement for the period dating from the Japanese members’ meeting which took place ‘in or around’ September 2000 until 30 September 2002, the date when the Fuji group transferred its GIS activities to JAEPS, and in that, in Article 2(d) of the contested decision, the Commission consequently imposed on FEH a fine of EUR 2 400 000, jointly and severally with FES. The Commission did not discharge its burden of proving to the requisite legal standard that the first undertaking concerned had continued to participate in the ‘GQ Agreement cartel’, which for its part continued after the Japanese members’ meeting which took place ‘in or around’ September 2000. Further, the applicant claims that the Commission’s reasoning is, in that regard, vitiated by a number of manifest errors of assessment of evidence.

66 The Commission contests the applicant’s arguments and contends that the first and second pleas should be rejected.

Findings of the Court

67 Before analysing the substance of the first and second pleas, it is important to identify the exact point of dispute which underlies those pleas and the recitals of the contested decision in dispute and to recall the rules applicable to proof of an infringement of Article 81 EC and Article 53 of the EEA Agreement and to proof of an undertaking’s participation in such an infringement.

– The exact point of dispute underlying the first and second pleas

68 In the present case, the applicant does not dispute either the participation of the first undertaking concerned in the infringement from 15 April 1988 until September 2000 or the liability incurred personally by FEH because of that participation. Moreover, the applicant does not dispute that FEH, with other companies, managed the first undertaking concerned from September 2000 until 30 September 2002.

69 Furthermore, while the applicant is careful to distinguish ‘the GQ Agreement cartel’, which ended following the departure of Siemens and Hitachi, from the ‘New Scheme cartel’ which commenced in the middle of 2002, the applicant does not develop specific pleas or arguments to counter the Commission’s findings, in recitals 2, 3, 248, and 270 to 299 of the contested decision, that the various successive agreements and concerted practices in the period from 15 April 1988 until 11 May 2004 were no more than various manifestations of a single and common plan. Consequently, it cannot be held that the applicant has, in the first and second pleas, validly called into question those findings and, therefore, validly disputed the fact that the infringement was single and continuous.

70 Lastly, the applicant does not dispute that the second undertaking concerned participated in the infringement from 1 October 2002 until 11 May 2004. The applicant disputes only that FEH could have incurred any liability and, as a result, be fined on that basis, since FEH did not determine JAEPS’s conduct on the market and, consequently, was not involved, as the parent company of JAEPS, in the participation of the second undertaking concerned in the infringement (see paragraph 173 et seq., below).

71 On the other hand, the applicant complains that the Commission assessed incorrectly the evidence submitted to it and infringed the right to a fair hearing, the principle of the presumption of innocence and the principle in dubio pro reo, and infringed the rules relating to the allocation of the burden of proof, by holding that the infringement found in Article 1 of the contested decision continued from September 2000 until 30 September 2002, that the first undertaking concerned continued to participate in it and that FEH could be held personally liable for that participation because of the control it exercised over that undertaking when the infringement was committed. According to the applicant, the Commission failed to discharge its burden to provide in the contested decision proof, to the requisite legal standard and without manifest errors of assessment of evidence, that the first undertaking concerned had continued to participate, under FEH’s management, in the infringement found in Article 1 of the contested decision, that infringement as such having continued from 1 October 2002 to 11 May 2004.

72 The Commission maintains that, in the circumstances of this case, it was for the companies in the Fuji group to establish that the first undertaking concerned had ended its participation in the infringement during the period at issue.

73 In the light of the parties’ arguments, the Court must assess whether in the contested decision the Commission established to the requisite legal standard that the infringement continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002.

– The recitals of the contested decision disputed by the underlying argument of the first and second pleas

74 The Commission’s findings in respect of (i) the continuation of the infringement found in Article 1 of the contested decision from September 2000 until 30 September 2002 and (ii) the participation of first undertaking concerned in that infringement during that period are as follows.

75 In recital 323 of the contested decision the Commission concluded that the agreements and/or concerted practices between the producers of GIS had lasted at least from 15 April 1988 until 11 May 2004. The reference in that recital to the year ‘1998’, instead of the year ‘1988’, is clearly the result of mere clerical error, which should be corrected.

76 In recitals 324, 326 and 373 of the contested decision the Commission stated that FEH and FES had participated in the infringement from 15 April 1988, the date of adoption and entry into force of the GQ and EQ agreements, until 11 May 2004, the date of the cartel’s last working meeting, which was abruptly interrupted by the Commission inspections. The reference in recital 324 of the contested decision to the year ‘1998’, instead of the year ‘1988’, is clearly the result of mere clerical error, which should be corrected.

77 In recitals 177 to 216 of the contested decision, the Commission presented a ‘chronological overview of the evolution of the cartel’. In that context, the Commission made the following findings, in recitals 178 and 179 of the contested decision:

‘(178) Siemens discontinued its participation in the cartel meetings in September 1999, followed by Hitachi and Schneider/VA Tech in 2000. Siemens’s absence was particularly destabilising from the European perspective, since it had been the E‑Secretary since 1988 and it was a major market player both outside and inside Europe. However, the cartel activities continued and Alstom took over as E‑Secretary. With fewer members as compared with 1988, the logistics were simplified, and a complex structure was no longer justified.

(179) In 2002, Siemens, Hitachi and VA Tech returned to the cartel. …’.

78 In recitals 270 to 299 of the contested decision, the Commission stated why it considered that ‘the complex arrangements in this case present[ed] the characteristics of a single and continuous infringement’. In recital 279 of the contested decision, the Commission stated in particular that ‘[s]ome cartel members have argued that the evolution of the cartel made it change its nature as from 2002, and two infringements should be distinguished accordingly, rather than a single and continuous one’. However, in recitals 279 to 299 of the contested decision, the Commission set out the factors which, in its opinion, proved that the various successive agreements and concerted practices between 15 April 1988 and 11 May 2004 were only various manifestations of a single and common plan and the Commission stated that it would have been artificial to split up such continuous conduct, characterised by a single aim, into several separate infringements.

79 In recital 284 of the contested decision, the Commission stated the following:

‘ABB has submitted an explanation for the practices described coherent with the facts and the documents in the file, including the written agreements. The submissions made by those undertakings arguing that there were two successive infringements diverge considerably as to the end date of the first one (see recital 290 below). The contradicting submissions are also at variance with the documentary evidence obtained from the inspections. A closer analysis reveals that the contradicting submissions constitute simple statements (none of them contemporaneous with the facts) unsupported by any contemporaneous or otherwise compelling evidence showing that the GIS [projects] cartel would have ended on any of the various dates suggested. They do not constitute factual evidence, but assessments of the facts proposed by the parties or inferences by witnesses in documents written at the request of the attorneys for the purpose of the companies’ defence in this procedure. Parties tend to allege dates on which they consider that the cartel worked less efficiently as dates where the cartel should be deemed as ended de facto.’

80 Recital 290 of the contested decision further states:

‘The Commission cannot rely on the submissions by [the] Areva [group of companies], Melco, [the] Hitachi [group of companies] or JAEPS and Toshiba as regards their respective claims that the cartel would have ended for the first time in 1997 ([the] Areva [group of companies [in their leniency submission, see paragraph 12 above]), or in September 1999 (Melco [in its reply to the statement of objections] and Toshiba [in its reply to the statement of objections]), or in 1999 after the departure of Siemens (the Hitachi [group of companies][or] JAEPS [in their reply to the statement of objections]), or around September 2000 ([FEH and FES in their reply to the statement of objections]). They are not reliable on that point, because they contradict each other and, as already mentioned, they are at odds with the evidence in the file. Melco, Toshiba, Fuji, ABB, Alstom, Reyrolle/VA Tech and Magrini/Schneider (both became later VAS and hence VA Tech) continued to take part in multilateral meetings and contacts in 2000 and/or 2001 (see recitals 191 to 198 above). Furthermore, they are ambiguous and inconclusive.’

81 In recitals 191 to 198 of the contested decision, the Commission set out the evidence, produced by ABB or the Fuji group companies, which demonstrated, in its opinion, that the cartel had continued after the departures of Siemens in September 1999 and then Hitachi and ‘Schneider/VA Tech’ in 2000, and before their gradual return after March 2002. First, the Commission referred, in recitals 191 to 196 of the contested decision, to documents sent by ABB in its immunity application (see paragraph 8 above), consisting of a series of fax messages exchanged, between 18 December 2000 and 22 January 2001, by ABB, Melco and Alstom on the subject of meetings and allocations of GIS projects. Next, in recital 197 of the contested decision, the Commission referred to a document sent by ABB in its immunity application containing a list of ‘committee meetings’ covering part of the years 2000-2001 and dated 12 May 2000. The Commission stated that it was clear from that list that the participants at those meetings were Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba, but not Siemens and ‘JAEPS (Hitachi)’, which was consistent with ABB’s statement, in its reply of 4 October 2004 to a request from the Commission for information (see paragraph 15 above): ‘that the latter two undertakings did not take part in the cartel at that stage’. Lastly, in recital 198 of the contested decision, the Commission relied on a set of documents, provided by FEH and FES in their application pursuant to the Leniency Notice and by ABB in a supplement of 7 May 2004 to its immunity application (see paragraph 10 above), recording agreements entered into by the cartel members on eight GIS projects bearing, within the cartel, the reference numbers [confidential] ( ), which demonstrated that the cartel had been active during that period.

82 The Commission also found, in recital 372 et seq. of the contested decision, that the first undertaking concerned had continued to participate in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000. In that regard, the contested decision reads as follows:

‘(372) Two periods must be distinguished in the attribution of liability to the relevant legal entities within [the] Fuji [group]: before and after the transfer of Fuji’s GIS activities to JAEPS on 1 October 2002.

(373) [FEH] and [FES] have participated in the collusive behaviour described in this Decision from at least 15 April 1988 (date on which Fuji entered into the GQ Agreement) until 30 September 2002. (Fuji’s GIS activities were transferred to JAEPS on 1 October 2002). [FEH] is the 100% owner of [FES] ….

Arguments by Fuji

(374) Fuji admits having participated in the cartel described in the Statement of Objections between 1988 and September 2000, but not thereafter. Fuji’s participation in the cartel would have ended “at the latest in or around September 2000. Fuji did not participate in the new scheme at any time” on the grounds that Fuji would not have participated in joint meetings with European suppliers and that it would not have continued to exchange information either.

(375) Fuji argues that, although some of the arrangement sheets provided by [it] (see recital 198) “are expressed to be valid beyond this date (September 2000), Fuji would not have been able to act upon these arrangements after September 2000, since all the ‘Tender Due Dates expired several months before’. Furthermore, Fuji understood that the arrangements previously made in connection to the GQ Agreement no longer had any binding force between the cartel participants; Fuji did not win any of the tenders listed and so it did not profit from any of the arrangements”.

The Commission’s assessment

(376) Since Fuji was not a member of the E/J Committee, it was not expected to meet with European producers either at management or at working level, but only at Annual Meetings. Furthermore, annual meetings were not essential for the practical implementation of the cartel, as implicitly confirmed by Fuji’s admission of having participated in the cartel also in 2000 (when no annual meeting took place).

(377) Fuji’s claim that it would have left the cartel around September 2000 has not been supported by any of the other parties to the proceedings, despite the fact that it was part of the information submitted for their comments. Fuji’s contention is also unclear, since it sometimes claims that it [the departure from the cartel] happened “in or around September 2000” and other times it claims in the same document that it was “at the latest in September 2000”. Fuji also states that “the latest arrangement sheet received by [Mr Oz.] was dated 28 September 2000” and that “Fuji did not conduct any further GQ Agreement cartel communications after that date”. This means that Fuji was supposed to present an “arranged” bid to a client to create the impression that there was competition for the project, but it does not provide any evidence of having dropped the project or having bid for it in competitive terms. In addition to this, Mr [I.H.]’s statement says that Fuji left the cartel “soon after Siemens”, but it has been established that Siemens left in September 1999. The claim is further not supported by any indication or evidence in the file that they would have publicly distanced themselves from the cartel in September 2000.

(378) Finally, even if the Commission were to admit that there were no other cartel exchanges with Fuji until the creation of JAEPS, the Commission must take into account that the information already exchanged could not be disregarded by Fuji in its commercial activities and that the arrangements already agreed upon were still in force. According to the evidence in the file, and in particular the information provided by Fuji, it was a party to some arrangements listed in recital 198 above, which had a validity date extending beyond September 2000 and non-compliance with which was subject to penalties. Despite the fact that the Commission granted Fuji the possibility to comment and provide further evidence to contest these conclusions, it [Fuji] has not provided any evidence showing that it withdrew from the arrangements, that it actually contested them, or did not respect them. On the contrary, the fact that all “Tender Due Dates expired several months before”, as Fuji argues, only adds to the conclusion that the arrangements were already adopted and in force, and the fact that Fuji would not have finally won the tenders (which is also argued without supporting evidence) does not detract from the aforementioned conclusions. First, Fuji was a participant in all the arrangements listed, but not their organiser or, necessarily, their beneficiary. Its appearance in the list meant that it should submit the bids, not that it was the nominated winner. Second, even if it had been the designated winner by the cartel members (which Fuji has not argued or proved), that would still not be a total guarantee that the bid would have been ultimately won, since other bidders outside the cartel could have been more successful.

(379) For the reasons explained above and in recitals 334 and 373, [FEH] and [FES] should be held jointly and severally liable for Fuji’s involvement in the infringement between 15 April 1988 and 30 September 2002.’

– The rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s participation in such an infringement

83 Since the parties disagree on the question of which party should bear the burden of proof and, more generally, on whether or not, in this case, there has been compliance with the rules applicable to proving an infringement of Article 81 EC and Article 53 of the EEA Agreement and proving an undertaking’s participation in such an infringement, it is appropriate, first, to recall the relevant law.

84 According to settled case-law on the burden of proof, it is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement, and it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 50; see also, to that effect, Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Joined Cases C‑204/00 P, C‑205/00 P, C 211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 78). The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79 and Peróxidos Orgánicos v Commission, paragraph 51).

85 That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, Aalborg Portland and Others v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos v Commission, paragraph 84 above, paragraph 53).

86 As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered evaluation of evidence (Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 63; Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 273). Since the prohibition on participating in anti‑competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 84 above, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law (Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 166).

87 In any event, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraphs 43 and 72 and case-law cited; JFE Engineering v Commission, paragraph 86 above, paragraph 179, and case-law cited, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 217). However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering v Commission, paragraph 86 above, paragraph 180, and Groupe Danone v Commission, paragraph 218; see also, to that effect, ‘PVC II’, paragraph 57 above, paragraphs 768 to 778 and, in particular, paragraph 777). As regards the duration of the infringement, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Technische Unie v Commission, paragraph 86 above, paragraph 169; Dunlop Slazenger v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos v Commission, paragraph 84 above, paragraph 51).

88 As regards the probative value to be accorded to various pieces of evidence, it must be emphasised that the only relevant criterion for the purpose of assessing the evidence adduced relates to its reliability (Dalmine v Commission, paragraph 86 above, paragraph 63; see Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 84 and case-law cited, and JFE Engineering and Others v Commission, paragraph 86 above, paragraph 273). According to the general rules of evidence, the reliability and therefore the probative value of a document depends on the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and its content (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 1053; Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, II‑869, at II‑956). It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events (Case T‑157/94 Ensidesa v Commission [1999] ECR II‑707, paragraph 312), or by a direct witness of those events (see, to that effect, JFE Engineering v Commission, paragraph 86 above, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 175 and 179). Further, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see, to that effect, JFE Engineering v Commission, paragraph 86 above, paragraphs 207, 211 and 212).

89 Lastly, it must be borne in mind that the role of a court hearing an application for annulment brought under Article 230 EC (now Article 263 TFEU) against a Commission decision finding an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (JFE Engineering v Commission, paragraph 86 above, paragraphs 174 and 175; see also, to that effect, ‘PVC II’, paragraph 57 above, paragraph 891). Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point (JFE Engineering v Commission, paragraph 86 above, paragraph 177, and Groupe Danone v Commission, paragraph 87 above, paragraph 215). In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘ECHR’), which is one of the fundamental rights which, according to the case-law of the Court of Justice, and as reaffirmed in the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 149 and 150; Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 175 and 176, and Groupe Danone v Commission, paragraph 87 above, paragraph 216).

90 The existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement has been proved by that evidence (Cimenteries CBR and Others v Commission, paragraph 88 above, paragraph 726).

91 The case-law cited above is applicable, by analogy, to Article 53 of the EEA Agreement and to decisions of the Commission adopted pursuant to that article.

92 In the light of the rules set out in paragraphs 84 to 91 above the Court must determine whether the Commission assembled evidence in the contested decision which is sufficiently reliable, precise and consistent to support, within a global assessment and after consideration of alternative explanations or justificatory arguments offered by the applicant, the firm conviction that the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002, and that FEH could be held personally liable for the infringement because of the management which it exercised over that undertaking when the infringement was committed.

– Analysis of the evidence relied on in the contested decision

93 First, it is useful to recall the essential facts on which the Commission based its assessment in the contested decision that the infringement found in Article 1 of the contested decision continued, with the participation of the first undertaking concerned, from September 2000 until 30 September 2002.

94 In recital 290 of the contested decision the Commission stated that it was disregarding the submissions by FEH and FES, the Areva group companies, Melco, the Hitachi group companies or JAEPS and Toshiba – to the effect that the cartel ended for the first time either sometime in 1997, or in September 1999 or sometime in 1999, after Siemens’ departure, or in or around September 2000 – on the ground that those submissions were not reliable or, further, that they were ambiguous and inconclusive, because they contradicted each other and were at odds with the evidence in the file (see paragraph 80 above). The Commission noted, again in recital 290 of the contested decision, read together with recitals 191 to 198, that the first undertaking concerned and other undertakings had continued to take part in multilateral meetings in 2000 and/or 2001. The factors on which the Commission relies in order to show that the cartel continued to operate – with the participation of the first undertaking concerned – after the departure of ‘Schneider/VA Tech’ on 13 December 2000 are those referred to in paragraph 81 above.

95 As regards, first, the fax messages exchanged by certain cartel members between 18 December 2000 and 22 January 2001, on the subject of meetings and allocating GIS projects, it must be observed that, as is accepted by the Commission, the undertakings involved in those exchanges are solely Alstom (subsequently Areva), Melco and ABB. Accordingly, as the applicant correctly argues, while that exchange, dating from the material time, is credible and precise evidence of the activities of the cartel around December 2000 and January 2001, it does not, on the other hand, provide any indication that the first undertaking concerned itself participated.

96 Next, in relation to the list of 12 May 2000, that indeed is a record of thirteen ‘committee meetings’ scheduled between 18 May 2000 and 17 May 2001. The anti-competitive purpose of those ‘committee meetings’ can be deduced from the fact that the list designates each of the undertakings concerned by means of the code ascribed to it as a cartel member, as reproduced in recitals 142 and 197 of the contested decision, and the fact that, as was confirmed by several cartel members, some meetings of bodies – the joint Europe/Japan committee and the Europe committee – which took part in the operational functioning of the cartel were planned, as is also clear from recitals 150 and 151 of the contested decision. Further, since the fact that six of those committee meetings actually took place is either confirmed by some cartel members or proved by other material in the file, such as notes of travelling expenses or annotations in personal agendas, the activities of the cartel in the period from 18 May 2000 to 18 January 2001 can be considered to be established. However, as the Commission acknowledges, the undertakings which took part in those meetings are only Reyrolle, Alstom, Schneider, ABB, Melco and Toshiba. It follows that, as the applicant correctly argues, while that list is credible and precise evidence of the activities of the cartel between 18 May 2000 and 17 May 2001, it does not, on the other hand, provide any indication that the first undertaking concerned itself participated.

97 Lastly, as regards the documents which were drawn up concerning events of the same period, relating to eight GIS projects with the reference numbers [confidential], those are a record of agreements entered into by the cartel members, with the aim of allocating the abovementioned GIS projects, which differ in their periods of validity. Those documents indicate that the first undertaking concerned participated, with other cartel members, in arrangements for the allocation of eight GIS projects, which were organised by other undertakings participating in the cartel, and which were agreed or entered into force between [confidential] and [confidential] and which were valid for around [confidential] after the date of signature, in other words, as regards the last project, with the reference number [confidential], until [confidential].

98 In that regard, it must be recalled that in order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑2/89 Petrofina v Commission [1991] ECR II‑1087, paragraph 211, and Case T‑13/89 ICI v Commission [1992] ECR II‑1021, paragraph 253; see, also to that effect, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112). Further, Article 81 EC is applicable where a cartel has continued to produce effects, although it has formally ceased to be in force (see, to that effect, Case T‑13/89 ICI v Commission, paragraph 254, and Case T‑48/98 Acerinox v Commission [2001] ECR II‑3859, paragraph 63). The cited case-law is applicable, by analogy, to Article 53 of the EEA Agreement.

99 In this case, the applicant has not disputed that FEH complied with the cartel rules by entering into agreements for the allocation, within the cartel, of eight GIS projects with reference numbers [confidential]. Further, the applicant has not disputed that the terms of those agreements show that they were intended to produce their effects between [confidential], the date when the agreement on the project with reference number [confidential] entered into force, and [confidential], the date when the validity of the agreement on the project with reference number [confidential] ended.

100 Moreover, there is nothing in the file to suggest that the first undertaking concerned publicly distanced itself from the cartel and the agreements entered into within the cartel. An undertaking which does not publicly distance itself from the results of a meeting which it has attended or an agreement to which it has been a party remains, as a general rule, wholly liable for its participation in the cartel. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (see, to that effect, Mannesmannröhren-Werke v Commission, paragraph 88 above, paragraph 278 and case-law cited). It follows that, even if the first undertaking concerned did not comply with all of the agreements entered into within the cartel, that fact is not enough, without evidence that it publicly distanced itself from the other cartel members, to exempt it from the liability it incurs as a consequence of its participation in those agreements and, through those agreements, in the infringement found in Article 1 of the contested decision.

101 Consequently, it must be held that the fax messages exchanged by some cartel members between 18 December 2000 and 22 January 2001, the list of ‘committee meetings’ dated 12 May 2000 and the documents relating to eight GIS projects, detailed in recitals 191 to 198 of the contested decision, as referred to in recital 290, are reliable, precise and consistent evidence that the infringement found in Article 1 of the contested decision continued from September 2000 until 30 September 2002. Further, having regard to the particularly long duration of the infringement found in Article 1 of the contested decision, the existence of that infringement for the period from 15 April 1988 until September 2000 not being disputed by the applicant, and the elaborate precautions taken by the cartel members in order to disguise or conceal their existence, as described in recital 170 of the contested decision, it can be held that that evidence relates to events sufficiently proximate in time, within the meaning of the case-law cited in paragraph 87 above, for it to be reasonable to accept that that infringement continued uninterruptedly throughout that period.

102 Furthermore, the evidence on which the contested decision is based in that regard is sufficiently reliable, precise and consistent. It cannot be rebutted by submissions of FEH and FES, in their letter to the Commission dated 21 November 2006 and in their reply to the statement of objections (see paragraphs 19 and 27 above), nor by the submissions of Melco, the Hitachi group companies or JAEPS and the VA Tech group, in their applications pursuant to the Leniency Notice (see paragraphs 13, 14 and 16 above), to the effect that the cartel had ended, for the first time, prior to the period between September 2000 and 30 September 2002. Those submissions that the cartel had ended earlier are not supported by reliable and precise evidence. Moreover, those submissions are contradictory, in that the parties making those submissions claim that the cartel ended either sometime in 1997 (Melco), or sometime in 1999 (the Hitachi group companies or JAEPS and the VA Tech group), or again ‘in or around’ September 2000 (FEH and FES). Consequently, as the Commission correctly states in recitals 284, 285 and 290 of the contested decision, those submissions are incapable of calling into question the documentary evidence concerning contemporaneous events and produced by the very undertakings which participated in the infringement found in Article 1 of the contested decision, according to which that infringement continued from September 2000 until 30 September 2002.

103 The applicant indeed claims that the submissions in the letter of FEH and FES to the Commission of 21 November 2006 and in their reply to the statement of objections should be accorded a particular probative value or reliability because they are ‘self-incriminating’ (see paragraph 88 above and paragraph 107 below). However, those submissions, in which FEH and FES argue that the first undertaking concerned ended its participation in the cartel after the Japanese members’ meeting which took place ‘in or around’ September 2000, cannot be regarded as contrary to their interests. Those submissions tend rather to minimise the significance of the contribution made by the first undertaking concerned to the infringement and, consequently, to limit the personal liability incurred by FEH because of the management which it exercised over that undertaking when the infringement was committed. Consequently, such submissions are incapable of rebutting the evidence relied on by the Commission in the contested decision.

104 Accordingly, there is no foundation for the applicant’s complaint that the Commission disregarded the probative value of the submissions in the letter of FEH and FES to the Commission dated 21 November 2006 and in their reply to the statement of objections when it concluded that the first undertaking concerned had participated in the infringement from September 2000 until 30 September 2002, and that FEH could be held personally liable for that infringement because of the management which it exercised over that undertaking when the infringement was committed.

105 Moreover, the documents relating to the agreements entered into within the cartel, as described in recitals 191 and 198 of the contested decision, are credible and precise evidence supporting the Commission’s finding that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002, since it is stated in those documents that ‘Fuji’ was party to those agreements, entered into within the cartel, which were intended to produce their effects between 27 August 1998 and 28 October 2001.

106 It remains accordingly to be determined whether the alternative explanations or justificatory arguments submitted by the applicant are capable of rebutting the reliable and precise evidence on which the contested decision relies. Failing that, it can be concluded that the Commission has discharged the burden on it of proving that the first undertaking concerned continued to participate in the infringement from September 2000 until 30 September 2002 (see, to that effect, Aalborg Portland and Others v Commission, paragraph 84 above, paragraph 79, and Peróxidos Orgánicos v Commission, paragraph 84 above, paragraphs 63 and 71), and that FEH could be held personally liable for that infringement because of the management which it exercised over that undertaking when the infringement was committed.

– Analysis of the alternative evidence submitted by the applicant

107 The applicant complains that the Commission disregarded some arguments or facts which confirmed the credibility of the submissions made in the reply of FEH and FES to the statement of objections, that the first undertaking concerned had ceased to participate in the cartel ‘in or around’ September 2000. First, the applicant claims that the first undertaking concerned ceased to take part in cartel meetings after September 2000, whereas, previously, it attended meetings of the Japanese members, prior to meetings of the members of the Europe committee and the Japan committee, in accordance with the GQ Agreement. Secondly, the applicant argues that the submissions of FEH and FES are supported by certain submissions made by ABB, Melco, the Hitachi group companies or JAEPS, and the VA Tech group. Thirdly, the applicant calls attention to the lack of any reference to the first undertaking concerned in documents subsequent to September 2000. Fourthly, the applicant claims that the Commission failed to take into account the fact that the submissions of FEH and FES that the infringement and the participation of the first undertaking concerned in that infringement had ended in September 2000 were ‘self-incriminating’. Fifthly, they observe that the documents relating to two bidding procedures in [confidential], drawn up in [confidential], which they produced as an annex to the application and in response to the Court’s questions and request for the production of documents (see paragraph 37 above), are evidence that the first undertaking concerned ceased to comply with the arrangements agreed within the cartel and, finally, ceased to participate in cartel activities after September 2000, since, in those bidding procedures, the first undertaking concerned considerably lowered its prices below the ‘level prices’ fixed in the arrangements entered into within the cartel. The applicant claims that those documents show that, in relation to the GIS project for the [confidential] contract in [confidential], the price estimates submitted by the first undertaking concerned to its partners were [confidential] to [confidential]% lower than the ‘level price’ fixed in the arrangement sheet and that, as regards two GIS projects for the [confidential] contra