JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

13 September 2013 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Market for paraffin waxes — Market for slack wax — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Proof of the existence of the cartel — Concept of single and continuous infringement — Duration of the infringement — Interruption of the infringement — 2006 Guidelines on the method of setting fines — Equal treatment — Presumption of innocence — Imputability of the unlawful conduct — Liability of a parent company for the infringements of the competition rules committed by its subsidiaries — Decisive influence exercised by the parent company — Presumption in the case of 100% shareholding — Proportionality — Rounding-up method — Unlimited jurisdiction’

In Case T‑566/08,

Total Raffinage Marketing, established in Puteaux (France), represented by A. Vandencasteele, C. Falmagne, C. Lemaire and S. Naudin, lawyers,

applicant,

v

European Commission, represented by F. Castillo de la Torre and A. Biolan, acting as Agents, and by N. Coutrelis, lawyer,

defendant,

APPLICATION, primarily, for annulment in part of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 – Candle Waxes) and, in the alternative, for a reduction in the amount of the fine imposed on the applicant,

THE GENERAL COURT (Fourth Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and K. O’Higgins, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 20 October 2010,

gives the following

Judgment

Facts giving rise to the dispute

1 By Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.181 – Candle Waxes) (‘the contested decision’), the Commission of the European Communities found that the applicant, Total Raffinage Marketing SA (formerly Total France SA), and its parent company, owning 100% of its capital, Total SA, had, together with other undertakings, infringed Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) by participating in an agreement on the candle wax market in the EEA and on the German market for slack wax.

2 The addressees of the contested decision are, in addition to the applicant and its parent company Total SA (together ‘the Total group’ or ‘Total’), the following companies: ENI SpA, Esso Deutschland GmbH, Esso Société Anonyme Française, ExxonMobil Petroleum and Chemical BVBA and Exxon Mobil Corp. (together ‘ExxonMobil’), H&R ChemPharm GmbH, H&R Wax Company Vertrieb GmbH and Hansen & Rosenthal KG (together ‘H&R’), Tudapetrol Mineralölerzeugnisse Nils Hansen KG, MOL Nyrt., Repsol YPF Lubricantes y Especialidades SA, Repsol Petróleo SA and Repsol YPF SA (together ‘Repsol’), Sasol Wax GmbH, Sasol Wax. International AG, Sasol Holding in Germany GmbH and Sasol Ltd (together ‘Sasol’), Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Ltd, The Shell Petroleum Company Ltd, Shell Petroleum NV and The Shell Transport and Trading Company Ltd (together ‘Shell’) and RWE Dea AG and RWE AG (together ‘RWE’) (recital 1 to the contested decision).

3 Paraffin waxes are manufactured in refineries from crude oil. They are used for the production of a variety of products such as candles, chemicals, tyres and automotive products as well as in the rubber, packaging, adhesive and chewing-gum industries (recital 4 to the contested decision).

4 Slack wax is the raw material required for the manufacture of paraffin waxes. It is produced in refineries as a by-product in the manufacture of base oils from crude oil. It is also sold to end-customers, to producers of particle boards for instance (recital 5 to the contested decision).

5 The Commission began its investigation after Shell Deutschland Schmierstoff informed it, by letter of 17 March 2005, of the existence of a cartel and submitted an application to it for immunity under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) (recital 72 to the contested decision).

6 On 28 and 29 April 2005, the Commission, pursuant to Article 20(4) 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], conducted unannounced inspections at the premises of ‘H&R/Tudapetrol’, ENI, MOL and also the premises of companies in the Sasol, ExxonMobil, Repsol and Total groups (recital 75 to the contested decision).

7 On 29 May 2007, the Commission sent a statement of objections to the companies referred to at paragraph 2 above, including Total France (recital 85 to the contested decision). By letter of 14 August 2007, Total France replied to the statement of objections.

8 On 10 and 11 December 2007, the Commission held a hearing in which Total France took part (recital 91 to the contested decision).

9 In the contested decision, in the light of the evidence available to it, the Commission considered that the addressees, which constituted the majority of the producers of paraffin waxes and slack wax in the EEA, had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the EEA territory. That infringement consisted in agreements or concerted practices relating to price-fixing and the disclosure of sensitive business information affecting paraffin waxes (‘the main aspect of the infringement’). As regards RWE (later Shell), ExxonMobil, MOL, Repsol, Sasol and Total, the infringements relating to paraffin waxes also concerned customer-sharing or market-sharing (‘the second aspect of the infringement’). Furthermore, the infringement committed by RWE (subsequently Shell), ExxonMobil, Sasol and Total, also related to slack wax sold to end-customers on the German market (‘the slack wax aspect of the infringement’) (recitals 2, 95 and 328 to and Article 1 of the contested decision).

10 The unlawful practices took form at anti-competitive meetings called ‘technical meetings’ or sometimes ‘Blauer Salon’ meetings by the participants and at ‘slack wax meetings’ devoted specifically to questions relating to slack wax.

11 According to the contested decision, employees of Total France had participated directly in the infringement throughout its entire duration. The Commission therefore held Total France liable for its participation in the cartel (recitals 555 and 556 to the contested decision). In addition, Total France was, between 1990 and the end of the infringement, directly or indirectly owned as to more than 98% by Total SA. The Commission considered that it could be presumed on that basis that Total SA exercised decisive influence over the conduct of Total France, as the two companies were part of the same undertaking (recitals 557 to 559 to the contested decision). In answer to an oral question at the hearing concerning the imputation of liability to its parent company, the applicant referred to all the information communicated by Total SA in the related Case T‑548/08 Total SA v Commission, delivered today. In that case, Total SA stated, in answer to a written question from the Court, that Total France was directly or indirectly wholly owned by it during the relevant period.

12 The amount of the fines imposed in the present case was calculated on the basis of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’), which was in force when the statement of objections was notified to the companies referred to at paragraph 2 above.

13 In the applicant’s case, first of all, the Commission took into account the value of annual sales on the relevant markets. That represented EUR 31 133 865 (including EUR 1 993 620 for slack wax).

14 Next, with respect to the gravity of the infringement, the Commission took into account 18% of the annual value of sales of paraffin waxes and 15% of the annual value of sales for slack wax. The amounts thus obtained were multiplied, in order to take into account the duration of the infringement, by a factor of 13 for paraffin waxes and 7 for slack wax. Likewise, in application of point 25 of the 2006 Guidelines, the Commission included in the basic amount an additional amount (‘the entry fee’) representing 18% of the value of annual sales of paraffin waxes and 15% of the annual value of sales of slack wax. The Commission thus arrived at a basic amount of the fine of EUR 75 390 000 for Total (recital 671 to the contested decision).

15 The Commission did not find any aggravating circumstance or mitigating circumstance in the applicant’s case and the basic amount of the fine was therefore not adjusted on that basis. However, for deterrence, in the light of the significant worldwide turnover of the Total group, in application of point 30 of the 2006 Guidelines, the Commission fixed a coefficient of 1.7. Thus, by multiplying the basic amount by that coefficient, the Commission arrived at an adjusted basic amount of the fine of EUR 128 163 000.

16 As no reduction of the amount of the fine was made under the Commission notice on immunity from and the reduction of fines in cartel cases (OJ 2002 C 45, p. 3), the adjusted basic amount of EUR 128 163 000 was the total amount of the fine (recital 785 to the contested decision).

17 The contested decision includes, in particular, the following provisions: ‘Article 1 The following undertakings have infringed Article 81(1) [EC] and – from 1 January 1994 – Article 53 of the EEA Agreement by participating, for the periods indicated, in a continuing agreement and/or concerted practice in the paraffin waxes sector in the common market and, as of 1 January 1994, within the EEA: … Total France SA: from 3 September 1992 to 28 April 2005; and Total SA: from 3 September 1992 to 28 April 2005. For the following undertakings, the infringement also includes slack wax sold to end-customers on the German market for the periods indicated: Total France SA: from 30 October 1997 to 12 May 2004; Total SA: from 30 October 1997 to 12 May 2004. … Article 2 For the infringement referred to in Article 1, the following fines are imposed: ENI SpA: EUR 29 120 000; Esso Société Anonyme Française: EUR 83 588 400; of which jointly and severally with: ExxonMobil Petroleum and Chemical BVBA and ExxonMobi1 Corporation for EUR 34 670 400, of which jointly and severally with Esso Deutschland GmbH for 27081600 EUR; Tudapetrol Mineralölerzeugnisse Nils Hansen KG: EUR 12 000 000; Hansen & Rosenthal KG jointly and severally with H&R Wax Company Vertrieb GmbH: EUR 24 000 000, of which jointly and severally with: H&R ChemPharm GmbH for EUR 22 000 000; MOL Nyrt.: EUR 23 700 000; Repsol YPF Lubricantes y Especialidades S.A. jointly and severally with Repsol Petroleo S.A. and Repsol YPF S.A.: EUR 19 800 000; Sasol Wax GmbH: EUR 318 200 000; of which jointly and severally with: Sasol Wax International AG, Sasol Holding in Germany GmbH and Sasol Limited for EUR 250 700 000; Shell Deutschland Oil GmbH, Shell Deutschland Schmierstoff GmbH, Deutsche Shell GmbH, Shell International Petroleum Company Limited, the Shell Petroleum Company Limited, Shell Petroleum N.V. and the Shell Transport and Trading Company Limited: EUR 0; RWE-Dea AG jointly and severally with RWE AG: EUR 37 440 000; Total France SA jointly and severally with Total SA: EUR 128 163 000.’

Procedure and forms of order sought

18 By application lodged at the Court Registry on 17 December 2008, the applicant brought the present action.

19 The applicant claims that the Court should: — annul Articles 1 and 2 of the contested decision in so far as they concern the applicant; — substantially reduce the amount of the fine imposed on the applicant in Article 2 of the contested decision; — order the Commission to pay the costs.

20 The Commission contends that the Court should: — dismiss the action; — order the applicant to pay the costs.

Law

21 In support of its claims for annulment in part of the contested decision and a reduction of the amount of the fine imposed on it, the applicant puts forward 11 pleas in law.

22 The first plea alleges infringement of Article 81 EC and breach of the obligation to state reasons as regards the assessment relating to the slack wax aspect of the infringement. The second plea alleges infringement of Article 81 EC and breach of the obligation to state reasons as regards the implementation of the practices relating to paraffin waxes. The third plea alleges infringement of Article 81 EC and breach of the principles of presumption of innocence, legal certainty and equal treatment as regards the applicant’s participation in the infringement after 12 May 2004. The fourth plea alleges infringement of Article 81 EC and breach of the principle of presumption of innocence as regards the Commission’s failure to take into account the interruption of the applicant’s participation in the practices in question. The fifth plea alleges breach of the obligation to state reasons and of the 2006 Guidelines resulting from failure to take into account the fact that the cartel was not implemented. The sixth plea alleges breach of the obligation to state reasons and of the 2006 Guidelines in the determination of the reference period serving for the calculation of the basic amount of the fine. The seventh plea alleges breach of the 2006 Guidelines and of the principle of proportionality as regards the determination of the percentage of the value of sales of slack wax to be taken into account. The eighth plea alleges infringement of Regulation No 1/2003 and breach of the principles of proportionality, equal treatment and presumption of innocence as regards the calculation method established by the 2006 Guidelines. The ninth plea alleges breach of the 2006 Guidelines, the principle that penalties must be specific to the offender and the principle of proportionality as regards the determination of the additional amount of the fine for deterrence. The tenth plea alleges breach of the principle of proportionality in setting the amount of the fine. The eleventh plea alleges infringement of Article 81 EC as regards the imputation of the anti-competitive conduct of Total France to its parent company, Total SA. In addition, at the hearing the applicant raised a twelfth plea, alleging breach of its rights of defence in that the turnover of other companies belonging to the Total group were included in the value of sales used in setting the amount of the fine.

23 The Court considers it appropriate to begin by examining the second plea.

1. Second plea, alleging infringement of Article 81 EC and breach of the obligation to state reasons as regards the practices relating to paraffin waxes

24 First of all, it should be borne in mind that the Commission considered, at recital 2 to the contested decision, under the heading ‘Summary of the infringement’, that the addressees of the contested decision had participated in a single, complex and continuous infringement of Article 81 EC and Article 53 of the EEA Treaty. As regards paraffin waxes, that infringement consisted in ‘agreements and/or concerted practices aimed at price fixing and exchanging and disclosing commercially sensitive information’ (main aspect of the infringement) and of ‘customer and/or market allocation’ (second aspect of the infringement).

25 The applicant claims that the Commission’s assessment of the evidence relating to the first two aspects of the infringement, relating to paraffin waxes, is incorrect. It thus maintains that the Commission infringed Article 81 EC and breached its obligation to state reasons.

26 By the first part of the present plea, the applicant claims that, of the conduct coming within the main aspect of the infringement, only the exchange of information relating to the state of the market for paraffin waxes, sales volumes and price levels charged could be established, while the agreements and concerted practices concerning the fixing of prices of paraffin waxes could not be validly found in respect of the applicant on the basis of the evidence in the file.

27 In the second part, the applicant submits that the Commission unlawfully disregarded the absence of proof of the implementation of the price-fixing agreements.

28 By the third part, the applicant takes issue with the Commission on the ground that the evidence in the file does not show that the applicant participated in the second aspect of the infringement, that is to say, geographic market and customer allocation at the technical meetings relating to paraffin waxes.

29 By the fourth part, the applicant observes that the economic analysis of sales prices which it supplied contradict its alleged adherence to a price-fixing agreement.

Preliminary observations

The concepts of agreement and concerted practice

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

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

32 An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, HFB and Others v Commission, paragraph 31 above, paragraphs 151 to 157 and 206).

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

34 In that respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, paragraph 33 above, paragraphs 116 and 117).

The principles of the assessment of evidence

35 According to the case‑law, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [2006] ECR II-3567, paragraph 59 and the case‑law cited).

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

37 In this respect, any doubt on the part of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 60).

38 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 European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of European Union law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 61 and the case‑law cited).

39 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others v Commission, paragraph 35 above, paragraphs 62 and 63 and the case‑law cited).

40 The indicia on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 185 and the case‑law cited).

41 It should also be observed that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in so far as several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated with it. While it is necessarily incumbent upon the Commission to establish that an unlawful price-fixing agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was to be attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it were able to base its argument on the vagueness of the information produced regarding the operation of an illegal agreement in circumstances in which the existence and anti-competitive purpose of the agreement had none the less been sufficiently established. The undertakings are able to defend themselves properly in such a situation, provided that they are able to comment on all the evidence adduced against them by the Commission (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 203).

42 As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Union law is the unfettered evaluation of evidence (Case T-50/00 Dalmine v Commission [2004] ECR II-2395, paragraph 72).

43 As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability (Dalmine v Commission, paragraph 42 above, paragraph 72).

45 Where the Commission bases its decision solely on the conduct of the undertakings in question on the market to conclude that there has been an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the European Union competition rules had been infringed (see, to that effect, JFE Engineering and Others v Commission, paragraph 41 above, paragraph 186).

46 Where, on the other hand, the Commission has relied on documentary evidence, it is for the undertakings concerned not merely to present a plausible alternative to the Commission’s theory but to show that the evidence used in the decision is insufficient to establish the existence of the infringement (JFE Engineering and Others v Commission, paragraph 41 above, paragraph 187). Such an approach to evaluating the evidence does not constitute a breach of the principle of the presumption of innocence (see, to that effect, Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraph 181).

47 Since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. The Commission cannot therefore be required to produce documents explicitly showing contacts between the operators concerned. Even if it discovers such documents, they will normally be only fragmentary and incomplete, so that it is frequently necessary to reconstitute certain details by inference. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraphs 55 to 57; see also Dresdner Bank and Others v Commission, paragraph 35 above, paragraphs 64 and 65 and the case‑law cited).

48 It follows from the principle of the free evaluation of evidence that even if the absence of documentary evidence may be relevant in the context of the overall assessment of the set of indicia put forward by the Commission, it does not in itself have the consequence that the undertaking concerned is able to call the Commission’s allegations into question by presenting an alternative explanation of the events. The applicant may do so only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (see, to that effect, judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 74).

49 The case‑law cited is applicable, by analogy, to Article 53 of the EEA Agreement.

First part, concerning the allege absence of proof allowing the agreements or concerted practices aimed at fixing the prices of paraffin waxes to be established

50 In the context of this part, the applicant disputes the principles applied by the Commission when assessing the evidence and calls into question the assessment of the evidence in respect of the technical meetings for which an agreement or concerted practice aimed at fixing the prices of paraffin waxes was established by the Commission.

The description of the main aspect of the infringement in the contested decision

51 In section 4.1 of the contested decision, under the heading ‘The Basic Principles and Functioning of the Cartel’, the Commission described the terms of the price-fixing practices as follows: ‘… (106) The Technical Meetings have been divided into two parts: an initial discussion on technical issues, which was followed by discussions of an anti-competitive nature such as price fixing, market and customer allocations (in certain cases), and exchange and disclosure of commercially sensitive information including present and future pricing policies, customers, production capacities and sales volumes. (107) Discussions about prices and potential price increases normally took place at the end of the Technical Meetings. Usually, Sasol would instigate the discussions about prices, but then prices and pricing strategies were discussed by all the attendees in the form of a round table discussion. The discussions concerned both price increases and target prices for specific customers and general price increases as well as minimum and target prices for the whole market. Price increases were normally agreed upon in terms of absolute numbers, not percentages (for example [EUR] 60 … per ton for fully-refined paraffin waxes). Minimum prices were not only agreed upon when there was an agreement of a price increase but also when a price increase was not feasible (for example in times of falling prices). … (109) Furthermore, the individuals representing the companies exchanged commercially sensitive information and disclosed their general business strategies. (110) The companies, except for MOL, were represented by managers that had the power to determine their respective company’s pricing strategy and set prices with respect to individual customers. … (111) In most of the Technical Meetings the price discussions concerned paraffin waxes in general and only rarely the different kinds of paraffin waxes (such as fully-refined paraffin waxes, semi-refined paraffin waxes, wax-blends/specialties, hard paraffin waxes or hydro-finished paraffin waxes) were specified. Moreover, it was understood by all the companies that prices for all types of paraffin waxes would be increased by the same amount or percentage. … (113) The outcome of the Technical Meetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes. Occasional cases of cheating or non-implementation were discussed at subsequent meetings (see, for example, recitals 149 and 157). Usually, one of the companies represented would take the lead and start increasing its prices. Usually, that would be Sasol, but sometimes Sasol asked another participant to take the lead. Shortly after one company announced its intention to raise prices to its customers, the other suppliers would follow suit by announcing price increases as well. The individuals representing the companies at the Technical Meetings informed each other of the steps they took to implement the results of the Technical Meetings. This information was transmitted orally or by sending a copy of the relevant price increase or price cancellation announcements to one or all of the other [participating] companies … The Commission indeed found that such announcements were exchanged between the parties. A sample of around 150 such letters have been identified as having been exchanged within six weeks after Technical Meetings. Also, an agreement has been reported where the companies represented should not profit from the implementation of an agreed price increase to increase their own market share. This statement was not contested in the replies to the [s]tatement of [o]bjections.’

52 In section 4.2 of the contested decision, under the heading ‘Details on the Technical Meetings’, the Commission first of all presented a table setting out the places and dates of the Technical Meetings and also the undertakings present (recital 124 to the contested decision). It then examined the available evidence relating to each of the Technical Meetings (recitals 126 to 177 to the contested decision).

53 In section 5.3 of the contested decision, under the heading ‘The Nature of the Infringement in the Present Case’, the Commission set out the principles governing the characterisation of the anti-competitive conduct that were applicable in the present case: ‘… (205) … it is not necessary for the Commission to characterise the conduct as [an agreement or a concerted practice], particularly in the case of a complex infringement of long duration. The concepts of agreement and concerted practice are fluid and may overlap. The anti-competitive behaviour may well have varied from time to time, or its mechanisms may have been adapted or strengthened to take account of new developments. Indeed, it may not even be possible to make such a distinction, as an infringement may simultaneously present the characteristics of each form of prohibited conduct, while when considered in isolation, some of its manifestations could accurately be described as one rather than the other. It would be analytically artificial, however, to subdivide what is clearly a continuing common enterprise having one and the same overall objective into several different forms of infringement. A cartel may therefore be an agreement and a concerted practice at the same time. Article 81 [EC] lays down no specific category for a complex infringement of the type described in this decision. (206) In circumstances where there are several cartel members and their anti-competitive behaviour over time can be characterised as either agreements or concerted practices (complex infringements), the Commission is not required to classify each type of behaviour.’

54 Next, in the same section of the contested decision, the Commission described the content of the infringement, as follows: ‘5.3.2 Application (210) It is demonstrated by the facts described in Chapter 4 of the present [d]ecision that all undertakings subject to the present procedure were involved in collusive activities concerning paraffin waxes and, for those companies identified in recital (1), slack wax … and regularly attended meetings at which the following items were at issue: (1) price fixing[;] (2) … customer and/or market allocation[;] (3) disclosure and exchange of commercially sensitive information, in particular information relating to customers, pricing, production capacities and sales volumes[;] … 5.3.2.2. Price fixing (240) Recitals 98, 107, 126, 128, 131, 133, 135, 137, 139, 140, 142, 145, 147, 149, 152, 153, 156, 157, 163, 168, 174, 176 and 177 demonstrate that the undertakings involved fixed minimum prices and agreed on price increases (“price fixing”). (241) ExxonMobil, Repsol, Sasol and Shell confirmed that price-fixing occurred [see recital 107] and reconfirmed this at the oral hearing and in their written replies to the statement of objections.’

55 As regards the applicant, it is apparent from the annex to the contested decision that it was present at 39 Technical Meetings and ‘slack wax meetings’ out of a total of 51 meetings during the period of its participation in the cartel, that is to say, between 3 September 1992 and 28 April 2005.

The probative value of the evidence gathered by the Commission

56 First of all, it is appropriate to examine the evidence relating to the content of the discussions at the Technical Meetings on which the Commission relied in the contested decision. That evidence consists of corporate statements and contemporaneous handwritten notes of the Technical Meetings, made either at a particular Technical Meeting or shortly afterwards, and describing the content of the discussions at the meeting.

57 In that regard, the applicant calls into question the principles of interpretation of the evidence which the Commission applied in the contested decision and also the probative value of the statements and documentary evidence.

– Corporate statements

58 It should be observed that, according to Sasol’s statement of 12 May 2005, the Technical Meetings generally resulted in collusive activity, in so far as price increases and reductions were discussed in those meetings and information on overall prices and capacity planning was exchanged.

59 According to Repsol’s statement of 19 May 2005, discussion of the price levels charged by participants formed part of the Technical Meetings.

60 Shell stated that all the Technical Meetings concerned price fixing. According to its statement of 14 June 2006, at least since 1999, when its representative who had given evidence began to participate in the technical meetings, the prices of paraffin waxes were never decided unilaterally but were always agreed by competitors at technical meetings.

61 In addition, those undertakings also asserted, in those statements, that at a number of technical meetings the participants had in fact agreed on minimum prices or price increases, sometimes even on the means of applying increases. It is apparent from those statements, moreover, that Total was fully involved in those anti-competitive arrangements.

62 Furthermore, it should be pointed out that the Commission referred to the statements in question (see paragraphs 58 to 61 above) at recitals 107 and 113 to the contested decision.

63 The applicant claims that statements made in the context of the 2002 Leniency Notice have limited probative value, especially when they are not corroborated by any other evidence. Such statements are by nature subjective and tend to ‘blame the others rather than oneself’. Furthermore, the statements by Sasol and Repsol about the gravity of the infringement were made ‘at the Commission’s incentive’ and in order to maintain the benefit of their leniency applications.

64 It should be observed that such arguments have already been examined and rejected by the Courts of the Union.

65 According to the case‑law, no provision or any general principle of Union law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (JFE Engineering and Others v Commission, paragraph 41 above, paragraph 192).

66 Particularly high probative value may be attached to statements which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to that effect, JFE Engineering and Others v Commission, paragraph 41 above, paragraphs 205 to 210).

67 In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, given the possibility that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the 2002 Leniency Notice in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the 2002 Leniency Notice (see, to that effect, Case T-120/04 Peróxidos Orgánicos v Commission [2006] ECR II-4441, paragraph 70).

68 In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (JFE Engineering and Others v Commission, paragraph 41 above, paragraphs 211 and 212; Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 166; and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 59).

69 In the present case, the statements in question were made on the basis of the testimony of the individuals who had participated in the Technical Meetings, they were made after mature reflection and they also incriminate the undertakings on whose behalf they were made. In addition, the statements are agreed on the broad outlines of the description of the infringement, which further increases their reliability. Thus, within the meaning of the case‑law cited at paragraph 66 above, they are particularly reliable.

70 Furthermore, the applicant mentions no reference or evidence to substantiate its assertion that the statements by Sasol and Repsol were made ‘at the Commission’s incentive’. Nor does any incentive to exaggerate the gravity of the infringement result from the 2002 Leniency Notice and none can be found in the present case. On the contrary, it must be emphasised that the statements made by Sasol, Repsol and ExxonMobil were made after the inspections, so that those undertakings could suspect that there was little chance that they were the first to have information enabling the Commission to order inspections or to find the existence of a cartel (see point 8 of the 2002 Leniency Notice). Thus, according to their perception, there was a strong chance that they might receive at most a maximum reduction of 50% of the amount of the fine (see point 23 of the 2002 Leniency Notice). In those circumstances, there was no economic reason that might have provided the abovementioned undertakings with an incentive to present the infringement as being more serious than it was in reality, since the increased gravity of the infringement would have had the consequence of increasing the amount of their fines. Last, it should be borne in mind that the submission of false evidence in statements may deprive the undertaking concerned of the benefit of the 2002 Leniency Notice (see paragraph 67 above).

71 Thus, the applicant’s argument that there was an ‘incentive’ for the undertakings that have applied for leniency to present the infringement as being more serious than it actually was must be rejected.

72 In addition, the applicant claims that the Commission cannot base its findings on a corporate statement the accuracy of which is disputed by a number of undertakings involved and which is not supported by other evidence.

73 Admittedly, according to the case‑law, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue (JFE Engineering and Others v Commission, paragraph 41 above, paragraphs 219 and 220).

74 In the present case, however, the Commission did not rely on a statement by a single participant which was disputed by the other participants, but on statements made independently by a number of undertakings, which in broad terms are agreed on the description of the infringement (see paragraphs 58 to 61 above). In addition, the Commission relied on numerous pieces of documentary evidence that supplement and corroborate the content of the corporate statements, some of which will be examined at paragraph 76 et seq. below.

75 Accordingly, the statements in question form part of the body of evidence demonstrating the agreements or concerted practices relating to the fixing of the prices of paraffin waxes decided upon at the technical meetings in which the applicant participated. The arguments whereby the applicant challenges the probative value of those statements must therefore be rejected.

– Documentary evidence

76 It should be observed that the contested decision contains references to a large number of pieces of contemporaneous documentary evidence found at the premises of the undertakings concerned during the inspections. That documentary evidence consists mainly in handwritten MOL notes and minutes of ‘Blauer Salon’ meetings prepared by Sasol.

77 The applicant disputes the probative value of those documents. It claims that when the handwritten notes were taken during the technical meetings, as MOL’s were, they are not exhaustive and contain signs or symbols the meaning of which is specific to their author. As regards the minutes of the ‘Blauer Salon’ meetings, their probative value is limited, in so far as they were not drawn up during the technical meetings or by an individual who had participated in them. Furthermore, certain information set out in those minutes had its origins in private conversations outside the framework of the technical meetings. The Commission’s argument that they were drawn up in tempore non suspecto cannot be upheld, particularly as their meaning rarely emerges clearly when they are read.

78 It should be observed that this Court and the Court of Justice have had occasion to examine and reject such arguments.

79 Thus, as stated in the case‑law cited at paragraph 47 above, as the prohibition on participation in anti-competitive practices and agreements, and also the penalties which those involved in infringements may incur, are well known, those practices and agreements frequently take place in a clandestine fashion, meetings are often held secretly and the relevant documentation is mostly kept to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contacts between operators, it will normally be only fragmentary and incomplete, so that it is frequently necessary to reconstitute certain details by inference.

80 Furthermore, according to the case‑law, when assessing the probative value of documentary evidence, it is necessary to attach great importance to the fact that those documents were drawn up in close connection with the facts (Case T-157/94 Ensidesa v Commission [1999] ECR II-707, paragraph 312, and Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II-5761, paragraph 181) or by a direct witness of those facts (JFE Engineering and Others v Commission, paragraph 41 above, paragraph 207).

81 The fact that a document is undated or unsigned or is badly written does not impugn its probative force, especially where its origin, probable date and content can be determined with sufficient certainty (Joined Cases T-217/03 and T-245/03 FNCBV v Commission [2006] ECR II-4987, paragraph 124; see also, to that effect, Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 86).

82 In the present case, as the Commission stated at recital 215 to the contested decision, MOL’s notes were drawn up during the meetings by the person who attended them and their content is structured and relatively detailed. The probative value of those notes is therefore very high. As regards the minutes of the ‘Blauer Salon’ meetings drawn up by Sasol, they are documents dating from the time of the facts and drawn up in tempore non suspecto, shortly after each technical meeting. Even though the person who drafted them was not present at the technical meetings, she relied on information obtained from a participant. The probative value of those minutes is therefore also high.

83 Consequently, the arguments whereby the applicant calls into question the probative value of the documentary evidence mentioned in the decision must be rejected.

Detailed examination of the applicant’s arguments relating to the individual technical meetings

84 The applicant claims that, for 36 out of 52 technical meetings, the Commission does not assert that the participants reached an agreement on prices. First, as regards four technical meetings, the Commission acknowledged in the contested decision that it was not sure that those meetings took place or that the content of the meeting could not be established. Second, for 12 technical meetings, the Commission accepted in the contested decision that it had no information about their content other than the statements of certain participants, according to which the meetings had an anti-competitive object, although the nature of the conduct in question was not precisely identified. Third, as for six other technical meetings, the Commission did not state in the contested decision that they had pertained to discussions on prices. Fourth, as regards 14 other technical meetings, the Commission acknowledged in the contested decision that, although information on prices had been exchanged at those meetings, no agreement on an increase and, a fortiori, on a common level of increase had been concluded or that, in any event, it was not sure of the outcome of those exchanges.

85 The applicant claims, moreover, that there are only 16 technical meetings during which that the Commission found that the applicants had reached agreement on prices. The applicant submits detailed argument on what it alleges to be the incorrect assessment of the evidence with respect to each of those technical meetings.

86 In the first place, as regards the technical meeting held on 3 and 4 September 1992, the Commission relied, at recital 126 to the contested decision, on a Sasol ‘Blauer Salon’ minute containing the comment ‘until 22/11, price “0”’. It inferred that an agreement not to change prices had been reached at that meeting.

87 The applicant claims that Sasol’s minute relates to an internal communication between two Sasol employees, Mr K. instructing Mr O. not to change prices, with the consequence that that minute does not show that an agreement was reached at the technical meeting.

88 It must be stated that Sasol understood that reference as establishing an agreement not to change prices in a statement made in the context of the administrative procedure. Furthermore, it follows from numerous Sasol ‘Blauer Salon’ minutes and from Sasol’s statements that by those minutes Mr K. Sasol’s representative at the technical meetings, informed Mr O. of the content of the discussions at those meetings. In addition, the figure ‘0’ was often used by participants to note that prices were being maintained. Accordingly, although, strictly speaking, the minute at issue constitutes an internal communication between Mr K. and Mr O., the fact none the less remains that it shows that there was an agreement not to change prices, reached during the technical meeting in question. The arguments put forward by the applicant in that regard must therefore be rejected.

89 Nor can the applicant counter the Commission’s finding by claiming that no price increase was agreed at those meetings. An agreement to maintain prices is also an agreement to fix prices, since there is a concurrence of wills of the participants on the application of a price level which they have fixed together.

90 Consequently, the Commission was correct, at recital 240 to the contested decision, to rely on the technical meeting in question for its conclusion that ‘the undertakings involved fixed minimum prices’.

91 In the second place, as regards the meeting held on 23 and 24 November 1992, the Commission referred, at recital 128 to the contested decision, to a MOL note containing the comment ‘first quarter – maintain prices – exchange information where necessary – minimal price’. The Commission inferred that that note showed the existence of an agreement to maintain prices.

92 In the applicant’s submission, the reference in the MOL note is ‘meaningless’ in so far as it could not be attached to a defined price. In addition, MOL did not confirm that interpretation and a different interpretation, in favour of a mere exchange of information, would have been just as credible.

93 The Court considers that the explanation supplied by the applicant is not plausible. No undertaking’s name is specified before that comment and it is therefore impossible to conclude that the note was a unilateral communication. To take an example to the contrary, the Sasol note, relating to the ‘Blauer Salon’ meeting held on 17 and 18 September 1996, contained the comment ‘MOL, HU DEM 110,- flü.ffr ab 1/10.96’. The Commission concluded on that basis that that ‘show[ed] that the individuals representing the companies at that meeting [had] discussed and disclosed future pricing intentions’ (recital 141 to the contested decision).

94 Thus, the Commission was correct, at recital 240 to the contested decision, to rely on that technical meeting in order to conclude that ‘the undertakings involved fixed minimum prices’ (see paragraph 89 above).

95 In the third place, as regards the meeting held on 7 and 8 September 1995 (recital 137 to the contested decision), the applicant claims that the participants only exchanged information about their prices.

96 That interpretation is contradicted by the Sasol ‘Blauer Salon’ note, as interpreted by Sasol in the context of the administrative procedure, and by the MOL note relating to that meeting.

97 The MOL note contains the following: ‘11. Schümann DEM 970, - min. price … 13. Total DM 920,- → raised DM 950, → DM 970, - planned before the end of the year … 15. we are raising to 900’.

98 The Sasol ‘Blauer Salon’ note states ‘Preise hoch per 1/1.95’. According to Sasol’s response of 16 December 2006 to a request for information from the Commission, moreover, the date was stated incorrectly, so that in fact the price increase was planned for 1 January 1996. According to that response, that reflects the outcome of the meeting held on 7 and 8 September 1995.

99 Accordingly, the Commission’s assertion that the participants in that meeting ‘exchanged information on their future pricing policy and discussed and fixed price increases as well as minimum prices’ is based on a particularly coherent body of evidence. Sasol’s statement dispels any uncertainty as to the existence of a concurrence of wills on an increase in prices. The mere fact that the level of the increase and that of the minimum prices varies from one undertaking to another does not affect the characterisation of that meaning as having given rise to a ‘price fixing’ agreement, as the expression ‘price fixing’ does not imply the application of a single price for all participants.

100 In the fourth place, as regards the technical meeting held on 22 and 23 February 1996, the Commission relied, at recital 139 to the contested decision, on a MOL note containing the following: ‘paraffin – all levels of quality – same price DEM 108; small customer/large customer – same price DEM 108; dipping wax DEM 1200-1250’. According to that recital, that shows that the participating undertakings agreed on the prices of paraffin waxes.

101 The applicant submits that that note, read as a whole, does not permit such a conclusion to be drawn. It maintains that the information was presented in the usual form of MOL notes, which involved ‘going round the table’ and collecting the information disclosed and exchanged by participants.

102 However, it should be observed that Sasol and Repsol, independently of each other, confirmed the anti-competitive nature of the technical meeting held on 22 and 23 February 1996. In addition, the MOL note also contains the comment ‘from DEM 1.8 80/t increase everywhere’, that is to say, the date and level of the price increases.

103 Thus, the Commission was correct to establish at recital 240 to the contested decision that at that technical meeting the undertakings involved had fixed minimum prices and agreed on price increases.

104 In the fifth place, as regards the meeting held on 14 and 15 May 1996 (recital 140 to the contested decision), the Sasol ‘Blauer Salon’ note states the following: ‘Starting point was price increase [second] half of ’96 – D + F: on 1.8.96 candle – FRP min 115, – nto nto liquid freight paid tealight 115% gravelight 115% packed + 5% on today’s price blender FRP min 105,- nto, nto liquid freight paid’.

105 On that basis, the Commission concluded that ‘the German and French undertakings involved [had] agreed during the discussions to increase prices in the second half of 1996 in planning the increase of paraffin wax for candles on 1 August 1996’.

106 The applicant claims that there was no agreement on prices and that, in any event, it was not present at that meeting.

107 Those arguments cannot undermine the Commission’s analysis. Sasol’s reply of 16 December 2006 to a request for information from the Commission states unequivocally that an agreement on prices was reached at that meeting.

108 The fact that the applicant did not participate in that meeting cannot prevent the Commission from concluding, generally, that it had participated in the price-fixing agreements and from taking into account in that regard the evidence relating to that meeting. An undertaking may be held liable for an overall cartel even though it is shown to have participated directly in only one or some of its constituent elements, if it knew, or must necessarily have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort normal competition and that that overall plan included all the constituent elements of the cartel (see JFE Engineering and Others v Commission, paragraph 41 above, paragraph 370 and the case‑law cited).

109 According to Sasol’s reply of 16 December 2006 to a request for information from the Commission, Sasol learnt, via telephone calls after the meeting, that Total had in fact increased its price to German marks (DEM) 115 per 100 kg, but had granted rebates for certain sub-categories of products. Accordingly, the applicant was not only informed about the agreement concluded at the meeting in question but also applied its outcome in part. Since that aspect of the statement, aimed, admittedly, at the applicant’s conduct, could not have resulted in to the alleviation of Sasol’s liability, since Sasol could have lost the benefit of leniency if had provided false information to the Commission and since, in any event, Sasol emphasised that the applicant’s adherence to the agreement was only partial, there is no reason to cast doubt on the reliability of that statement.

110 In the sixth place, it is appropriate to examine the applicant’s arguments concerning the meetings held on 30 and 31 October 1997 (recital 145 to the contested decision) and 5 and 6 May 1998 (recital 147 to the contested decision).

111 It should be observed that the ‘Blauer Salon’ note relating to the first meeting states the following: .‘DateIncreaseMin. price√ SCHS, D...√ Dea, D...√ SRS-Tuda, D...√ MOL, HU1.1...√ Total, F1.1.DEM 10,-DEM 120Mobil-Bp, F...√ Repsol, E...√ Agip, I1.1.DEM 10’.

112 Sasol stated that that note showed that all the participants had committed themselves to increase prices by DEM 10 to 12 per 100 kg, that Total and Agip had wanted to increase prices by DEM 10 and that that would lead to a minimum price of DEM 120 per 100 kg, at least for Total.

113 The levels and dates of the increases are wholly confirmed by two notes relating to that meeting, found at MOL’s premises.

114 The applicant confines itself to claiming that there is another explanation for the notes found at MOL’s premises, namely that the prices of the various types of paraffin waxes were read aloud by one of the participants. However, that alleged explanation is clearly contradicted by Sasol’s note, as interpreted by Sasol, in respect of which the applicant has submitted no argument.

115 Furthermore, the applicant’s argument that the different dates of the planned increases show that the participants did not reach an agreement is wholly unfounded. The different dates for the planned increases may indicate that the participants took account of the individual commercial positions of the different undertakings represented. In addition, in order to be able to maintain the illusion with customers that the paraffin waxes market always obeyed the rules of supply and demand, it could be reasonable that the participating undertakings should introduce new prices on different dates, thus pretending that their increases were the result of independent business decisions. Such an explanation of the application of different dates and different levels of increases was supplied by Shell, for the period following the beginning of 2004.

116 The Commission’s conclusion that a minimum price of DEM 1 200 per tonne was fixed for at least some participants at the meeting held on 30 and 31 October 1997 is further confirmed by a MOL note relating to the meeting held on 5 and 6 May 1998, which contains the comment ‘Repsol – min. price DEM 1 180 (unable to sell at 1200)’. The most coherent explanation of that comment is that Repsol could not charge the price agreed at the previous meeting and indicated the minimum price which seemed to it to be possible to charge.

117 Accordingly the Commission demonstrated to the requisite legal standard that the participants had fixed the prices of paraffin waxes at the meeting held on 30 and 31 October 1997.

118 In the seventh place, as regards the technical meeting held on 3 and 4 November 1998, the Commission relied, at recital 149 to the contested decision, on a MOL note and a Sasol ‘Blauer Salon’ note.

119 The Sasol ‘Blauer Salon’ note contains the following: ‘proposal by 1/1 99 + DEM 6 ?,- for all [prices] that are below DEM 120,- = circular will be drafted with the reasoning “situation in raw material” (= availability of amounts) with the goal — that prices that are below DM 120,- are increased — it is secured that prices do not decrease — candle makers get “documents” for their negotiations with [presumably store] chains’.

120 The MOL note contains the following comment: ‘DEM 60,-/t to raise from 1 January 1999’.

121 In the contested decision, the Commission inferred from those indications that the participants had discussed the situation that had arisen following their agreement, dating from the technical meeting held on 30 and 31 October 1997 and fixing as its objective the increase of prices of paraffin waxes above DEM 120 per 100 kg, which had not yet been achieved. The participants then agreed at the technical meeting held on 3 and 4 November 1998 on a price increase of DEM 6 for all customers buying paraffin waxes at below DEM 120, which was planned for 1 January 1999. Likewise, according to the contested decision, that increase should be explained to customers by a shortage of raw materials. In addition, the individuals representing the companies agree that, in any event, prices should not fall.

122 The applicant claims that the reference in the MOL note relates to a comment made by Mr S. (Shell), since it comes under the name ‘S.’. The comment in Sasol’s ‘Blauer Salon’ note that ‘[a] circular will be drafted … with the goal … [that] prices do not decrease’ refers to a Sasol internal circular and cannot be understood as an agreement concluded at the technical meeting, but only as an expressed objective that Sasol defined.

123 In that regard, it should be observed that the explanation supplied by the applicant is not plausible and is not supported by a coherent interpretation of the documentary evidence. The applicant wholly fails to explain why Sasol would have decided to draft a circular addressed to its customers and announcing a price increase of DEM 6 per 100 kg following the unilateral statement of another participant, Shell, in the absence of an agreement between participants to increase prices. In addition, the interpretation supplied by the Commission establishes the links with the discussions at the technical meeting held on 30 and 31 October 1997, unlike the applicant’s interpretation.

124 Accordingly, the Commission was entitled to infer from the evidence relating to the technical meeting held on 3 and 4 November 1998 that the participants had agreed to increase prices.

125 In the eighth place, it is appropriate to examine the applicant’s arguments concerning the meeting held on 27 and 28 October 1999.

126 In that regard, the Commission had in its possession a Sasol ‘Blauer Salon’ minute, which contains the following comments: . ‘Increase present: Total per 15/1.2000 + Ffr 2300 = DEM 6,85 present: Repsol . present:SRS-Tuda per 10/1.2000 present: Dea per 17/1.2000 according to [Mr B. from Dea] +8,50 DEM present: SCHS per 15/1.2000 Mobil-Bp, F .. not present: MOL per 1/2.2000 (alt DEM 110.- flü ffr) + 6 DEM, - according to T. T. 10/1 not present: Mobil . [not present] Esso, F per 1/2.2000 + 40 $,- (according to MA 19/1) Kuwait, NL per? + 8 DEM,- (according to Buchh [Buchhaltung (accountant department)]) 24/1 Generally for all industries - liquid + DEM 7-9,- %kg (in no case less than 6 DEM) - packed + 11 DEM,- % kg’

127 The Commission interpreted that note as follows, taking Sasol’s explanations into account (recital 156 to the contested decision): ‘This note shows that Total, Repsol, H&R/Tudapetrol (“SRS Tuda”), Dea and Sasol committed themselves to price increases in January 2000. Total was to increase prices on 15 January by FRF 2300, H&R/Tudapetrol on 10 January and Dea on 17 January by DEM 8.50 and Sasol on 15 January 2000. For the undertakings that were not present, MOL is listed as increasing on 1 February 2000 by DEM 6. Esso was to increase on 1 February 2000 by USD 40 and Kuwait at an unknown date by DEM 8. The three latter pieces of information were obtained by Sasol after the technical meeting, through bilateral contacts and, according to Sasol, added to the document on 7 December 1999. This is demonstrated by the passages “according to” with a name and a date. Sasol phoned the representatives of these undertakings on the mentioned date and received the information on the price increase.’

128 The applicant cannot validly claim that this was not an exchange of information. That argument is clearly contradicted by Sasol’s statement of 16 December 2006, according to which Total, Repsol, ‘SRS TUDA (Hanson & Rosenthal)’ were present and committed themselves to increasing their prices in January 2000.

129 The fact that the dates alongside the undertakings’ names vary does not support the applicant’s argument, for the reasons already stated at paragraph 115 above.

130 Likewise, the most plausible explanation for the absence of figures alongside the names of the undertakings represented at the meeting, in the light of Sasol’s statement, is that the level of price increases was the same for all of those undertakings, namely DEM 6.85.

131 Accordingly, the Commission demonstrated to the requisite legal standard the existence of a price-fixing agreement at the meeting in question.

132 In the ninth place, it is appropriate to examine the applicant’s arguments relating to the meeting held on 26 and 27 June 2001 (recital 163 to the contested decision).

133 In that regard, Sasol’s ‘Blauer Salon’ note contains the following comments: ‘during July: cancel prices of special customers … at earliest possible date … end of August Cancel all prices by 30/9.01 By 1/10.01 + [EUR] 7,-’.

134 According to the contested decision, those indications show that the individuals representing the undertakings agreed to increase paraffin prices by EUR 7 on 1 October 2001, preceded by the cancellation of all the existing pricing arrangements by 30 September.

135 The applicant claims that Sasol’s statement of 16 December 2006 does not support that interpretation and shows only that prices were discussed.

136 However, that assertion is contradicted by Sasol’s statement. According to that statement, Mr O. of Sasol took note of the results of the technical meeting held on 26 and 27 June 2001 and the intention to increase prices reflected the conclusions drawn from that meeting.

137 Since the statement mentions conclusions drawn during of the meeting concerning price increases, it must be concluded that that statement shows that an agreement to fix prices was reached at that meeting.

138 In the 10th place, the applicant takes issue with the assessment of the evidence relating to the meeting held on 11 and 12 May 2004, set out at recital 174 to the contested decision.

139 In that regard, the handwritten note found at Total France’s premises contains the following: ‘-> Sasol [EUR] 40?[USD]50 – End of July. -> We: 38 – 28. -> 1 July – + FRP : 70 -> [EUR] 6 000/T + Tealight: [EUR]50 -> [EUR] 500/T + Microwax: [EUR] 25 -> [USD] 50/T … -> [EUR]40/T Slack Wax’.

140 According to the contested decision, it may be inferred from the overall context of the handwritten note found at Total France’s premises that an arrow preceding the price points to an agreed strategy for the future, so that a price increase had been agreed by the participants.

141 In the applicant’s submission, the Commission’s interpretation of the handwritten note found at Total France’s premises cannot be accepted, owing to the contradiction in the statements relating to that technical meeting. The applicant maintains that Shell stated that a price increase had been agreed, whereas Sasol referred to the fact that a price increase had been discussed. Therefore, in the light of the handwritten note found at Total France’s premises, too, only an exchange of information can be established.

142 It must be held that Shell’s statement of 14 June 2006 is not in any way ambiguous in that it asserts that a price increase was agreed at that technical meeting and was to become effective on 1 July 2004.

143 The applicant cannot validly rely on Sasol’s statement of 12 August 2005 to deny that an agreement was reached at that meeting. The fact that Sasol admits that discussions on prices took place at that meeting does not in any way preclude the fact that, on the basis of those discussions, the participants reached an agreement. In addition, in that statement, Sasol also asserted that it had sent a ‘chain letter’ announcing a price increase of between EUR 5 and 7 per 100 kg on 14 June 2004 and that it had received a letter from H&R announcing that it would be increasing its prices by between EUR 5.20 and 6.80 per 100 kg.

144 It therefore follows from that statement that Sasol had meant to increase its prices by the same amount as that indicated in the handwritten note found at Total France’s premises and that, subsequently H&R had also sent a letter announcing price increases, indicating an increase very close to Sasol’s.

145 Accordingly, the Commission was correct to find, in the contested decision, that the participants had agreed to increase paraffin wax prices at that technical meeting.

146 In the light of the foregoing examination, and without there being any need to examine the evidence relating to all the technical meetings in which the applicant participated, the Court finds that the Commission demonstrated to the requisite legal standard, in the contested decision, that the participants in the cartel had reached agreements fixing prices of paraffin waxes at the technical meetings held on 3 and 4 September 1992 (recital 126 to the contested decision), 23 and 24 November 1992 (recital 128), 7 and 8 September 1995 (recital 137), 22 and 23 February 1996 (recital 139), 14 and 15 May 1996 (recital 140), 30 and 31 October 1997 (recital 145), 3 and 4 November 1998 (recital 149), 27 and 28 October 1999 (recital 156), 26 and 27 June 2001 (recital 163) and 11 and 12 May 2004 (recital 174).

The overall assessment

147 In the first place, it should be observed that Shell, Sasol and Repsol have admitted that the prices of paraffin waxes had been discussed at the technical meetings with the general objective of reaching agreement on their level. According to the case‑law cited at paragraph 32 above, the fact of having such a common objective already constitutes an agreement within the meaning of Article 81(1) EC, since a concurrence of wills on the very principle of the restriction of competition existed. In addition, those undertakings also stated that at several technical meetings the participants had in fact agreed on minimum prices or on price increases and sometimes even on the means of increasing prices. It should be emphasised that, in their statements, the undertakings also referred to Total’s participation in the technical meetings and stated the names of the applicant’s employees who had represented it at the meetings.

148 In the second place, it must be emphasised that the statements in question are corroborated by numerous handwritten notes contemporaneous to the technical meetings that the Commission found during the inspections, to which the applicant had access during the administrative procedure and some of which are cited, in particular, at recitals 126, 128, 137, 139, 140, 145, 149, 156, 163 and 174 to the contested decision.

149 In the third place, it should be borne in mind that the applicant was present at 39 anti-competitive meetings out of a total of 51 held during the period of its participation in the cartel, that is to say, between 3 September 1992 and 28 April 2005.

150 In that regard, first, it should be recalled (see paragraph 146 above) that the Commission established, in the contested decision, that the participants in the cartel had concluded agreements fixing paraffin wax prices at the technical meetings held on 3 and 4 September 1992 (recital 126 to the contested decision), 23 and 24 November 1992 (recital 128), 7 and 8 September 1995 (recital 137), 22 and 23 February 1996 (recital 139), 14 and 15 May 1996 (recital 140), 30 and 31 October 1997 (recital 145), 3 and 4 November 1998 (recital 149), 27 and 28 October 1999 (recital 156), 26 and 27 June 2001 (recital 163) and 11 and 12 May 2004 (recital 174). The applicant was present at all those technical meetings, apart from the one held on 14 and 15 May 1996.

151 Second, the applicant acknowledges that information on paraffin wax prices was exchanged at the technical meetings held on 30 September 1994 (recital 133 to the contested decision), 27 January 1995 (recital 134), 17 and 18 September 1996 (recital 141), 2 and 3 September 1998 (recital 148), 3 and 4 February 2000 (recital 157), 25 and 26 May 2000 (recital 159), 21 and 22 February 2002 (recital 165), 18 December 2002 (recital 168), 27 and 28 February 2003 (recital 169) and 14 and 15 January 2004 (recital 173), at which it was present.

152 The applicant puts forward no specific argument to counter the statements of Sasol, Repsol and Shell, according to which the aim of the technical meetings was price fixing.

153 Thus, at least so far as the technical meetings referred to at paragraphs 146 and 151 above are concerned, the Commission had in its possession a body of irrefutable evidence from which it emerged that the participants had regularly exchanged information on their prices and on planned increases at technical meetings for more than 12 years. The applicant has provided no coherent explanation in respect of those activities that might call into question the Commission’s assertion that the object of those practices was, in particular, price fixing. On the contrary, the long period over which the meetings were systematically held constitutes in itself an indicium that the participants had as their objective to harmonise their pricing policies, knowingly substituting cooperation between them for the risks of the market, putting in place concerted practices relating to the price of paraffin waxes, indeed, at least so far as the technical meetings referred to at paragraph 146 above are concerned, price-fixing agreements.

154 For the sake of completeness, it should be observed that, according to the case‑law cited at paragraph 34 above, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. In the present case, the applicant does not deny either having had such contact or having exchanged sensitive information at the technical meetings.

155 In the fourth place, the applicant cannot validly claim that the Commission has not demonstrated that it participated in the agreements or concerted practices put in place at the technical meetings.

156 As regards agreements of an anti-competitive nature which, as in the present case, become evident at meetings of competing undertakings, the Court of Justice has already held that an infringement of Article 81 EC was constituted when those meetings had the object of restricting, preventing or distorting competition and were thus aimed at artificially organising the functioning of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Aalborg Portland and Others v Commission, paragraph 47 above, paragraph 81, and Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 47).

157 The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it (Aalborg Portland and Others v Commission, paragraph 47 above, paragraph 82, and Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 156 above, paragraph 48).

158 However, the applicant, having regularly participated in the technical meetings, does not claim to have publicly distanced itself from what was discussed at the anti-competitive meetings.

159 In the fifth place, it should be noted that the explanations put forward by the applicant relate each time to a particular technical meeting. Thus, they are not capable of constituting a plausible explanation in respect of the body of evidence gathered by the Commission, which enabled it to establish the existence of a complex, single and continuous infringement.

160 In the light of all of the foregoing considerations, it must be concluded that the Commission was correct to find, in the contested decision, that the participants in the cartel, including the applicant, had committed an infringement consisting, in particular, in ‘agreements and/or concerted practices aimed at price-fixing and exchanging and disclosing commercially sensitive information’.

161 Thus, the Commission has not infringed Article 81 EC in that respect.

162 Consequently, the first part of the present plea must be rejected.

Second part, concerning the absence of proof of the implementation of the price-fixing agreements

163 By the second part of this plea, the applicant claims that the Commission infringed Article 81 EC in finding that the infringement had been implemented. In particular, it submits that the Commission did not demonstrate that the fact of sending letters announcing price increases constituted the implementation of the main aspect of the infringement.

164 As a preliminary point, it should be borne in mind that, in section 4.1 of the contested decision, headed ‘The Basic Principles and Functioning of the Cartel’, the Commission stated the following: ‘… (113) The outcome of the technical meetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes. Occasional cases of cheating or non-implementation were discussed at subsequent meetings (see, for example, recitals 149 and 157). Usually, one of the companies represented would take the lead and start increasing its prices. Usually, that would be Sasol, but sometimes Sasol asked another participant to take the lead. Shortly after one company announced its intention to raise prices to its customers, the other suppliers would follow suit by announcing price increases as well. The individuals representing the companies at the technical meetings informed each other of the steps they took to implement the results of the technical meetings. This information was transmitted orally or by sending a copy of the relevant price increase or price cancellation announcements to one or all of the other [participating] companies. The Commission indeed found that such announcements were exchanged between the parties. A sample of around 150 such letters are identified as having been exchanged within six weeks after technical meetings. Also, an agreement has been reported where the companies represented should not profit from the implementation of an agreed price increase to increase their own market share. This statement was not contested in the replies to the [s]tatement of [o]bjections.’

165 Next, in section 5.1 of the contested decision, under the heading ‘Implementation’, the Commission considered, in particular, the following: ‘… (299) Although the Commission is not obliged to demonstrate the implementation of an anti-competitive agreement, such implementation can be demonstrated in this case. The exchange of pricing letters as well as oral information about pricing (see recital 248) also served as a means for monitoring the agreement. By informing each other of forthcoming price increases or price cancellations, cartel members were able to verify if an undertaking was living up to the commitments it undertook at the technical meetings. In addition, implementation was occasionally discussed at the technical meetings, for instance at those described in recitals 147 and 149. The fact that the cartel members also had cross-supply relationships among themselves, which in principle could explain certain communications among them, does not alter this consideration. The issue is not whether certain communications would have occurred anyway as a consequence of such bilateral cross-supplies, but whether or not these communications objectively helped [to] ensure the monitoring of the implementation of the infringement.’

166 In the first place, the applicant claims that, according to the corporate statements, sending pricing letters to the other participants was not systematic, so that it did not constitute a means of implementing the main aspect of the infringement. In the applicant’s submission, if the technical meetings had had as their object the common fixing of new prices, it would have been necessary, in order to enable the participants to ensure that the agreement was being observed by everyone, that each of the participants communicated its prices to all the others or, at least, to one of them with responsibility for ensuring that the agreement was being observed, which was not the case.

167 In any event, in the applicant’s submission, the practice of exchanging pricing letters cannot be raised against Total France. First of all, as Shell acknowledges, Total France did not often send letters detailing price increases to its customers and habitually announced its price increases orally, during visits to customers, without communicating them to its competitors. Furthermore, of the 123 letters to which the Commission refers, only nine are attributed to Total France and most of them are exchanges of correspondence concerning requests of offers of prices with a view to a possible purchase.

168 It should be observed that those arguments of the applicant concern exchanges of pricing letters between participants in the cartel.

169 However, those exchanges do not constitute the strict implementation of the infringement at issue, which consisted in the application, vis-à-vis customers, of price levels, of the maintenance of prices or increases in prices discussed or fixed at the meetings. The Commission asserted, at recital 113 to the contested decision, that ‘[t]he outcome of the technical meetings was mainly implemented through price increase announcements to customers or by cancelling existing pricing schemes’. The exchanges of pricing letters and oral discussions following the meetings concern the mechanism for controlling the implementation of the infringement by the participants.

170 Thus, the applicant’s argument that only nine pricing letters exchanged between competitors, out of the Commission’s sample of 123 letters, can be attributed to it is irrelevant. In any event, the applicant itself acknowledges that it did not often send pricing letters communicating price increases to customers, but normally announced price increases orally during visits to customers. Consequently, the applicant, on the one hand, itself admits that it regularly increased its prices and, on the other, explains the reason why it was in a position to send only a few copies of pricing letters to competitors: where price increases were communicated to customers orally, no copy of the pricing letter could be sent to competitors, since no pricing letter was sent to the customers.

171 In the second place, it should be observed that the applicant’s argument relating to the failure to implement the infringement in the present case is contradicted by the evidence on which the contested decision was based.

172 Shell expressly asserted, in its statement of 18 March 2005, that after the technical meetings its representative habitually received a pricing letter announcing the price increase applied by a competitor. Those letters were regular announcements on the new prices that paraffin wax producers sent to customers and to other producers, who often also buy paraffin waxes from each other in the context of cross supplies. According to the information supplied by Shell, once the first producer had thus marked its intention to increase its prices, the other participants in the cartel followed suit, in accordance with the discussions during the meetings.

173 In its statement of 14 June 2006, Shell also asserted that each time it had sent a pricing letter announcing a price increase, that letter contained the price agreed at the previous technical meeting. It also stated that it had regularly received such letters from Sasol, H&R and ExxonMobil, although it had never bought paraffin waxes from the latter. Although Total did not often send such letters to its customers, Shell received one or two from Total. In addition, according to Shell’s statement, in order to ensure that the price increases agreed during the technical meetings were being properly implemented, its representative telephoned the representatives of Sasol, H&R, Total and ExxonMobil before beginning price negotiations with its customers.

174 That mechanism for implementing the cartel is confirmed by Sasol’s statement of 12 August 2005, which also provides detailed examples relating to specific technical meetings.

175 In the third place, the applicant contends that, contrary to the Commission’s finding, there is no correlation between the information available about the technical meetings and the pricing letters to which the Commission refers.

176 First, it is apparent from a number of statements cited above that the price increases agreed at the technical meetings could not generally be applied in full vis-à-vis customers. Shell stated that around two thirds of the agreed increases could be implemented. In addition, there are several indications in the file that the participants were frequently unable to implement the agreed increase at all.

177 Second, it should be borne in mind that, according to the case‑law cited at paragraph 47 above, the evidence relating to cartels is normally fragmentary and incomplete. Thus, since the Commission did not have detailed evidence of what was said at each technical meeting and since it had only a small proportion of the pricing letters which the participants sent to their customers, the applicant cannot derive any valid argument from the fact that the Commission was unable to reconstitute the precise link between the discussions at the technical meetings and the prices indicated in the pricing letters, particularly because the prices of the various paraffin wax products varied greatly and customers logically tried to resist the increases.

178 The present argument must therefore be rejected.

179 In the fourth place, the applicant claims that the communication of pricing letters informing competitors of the price increases was justified by the customer-supplier relationship between the undertakings participating in the cartel.

180 In that regard, it should be borne in mind that the implementation of the main aspect of the infringement consisted in the announcement of price increases to customers or the cancellation of existing pricing arrangements, and not the sending of pricing letters to competitors, which was, rather, a means of ensuring that such implementation was taking place. In any event, Shell stated that it had received pricing letters from a competitor to which it did not make supplies (see paragraph 173 above). Also, both Shell and Sasol confirmed that the sending of pricing letters was part of the mechanism for implementing the main aspect of the infringement.

181 The applicant’s argument must therefore be rejected.

182 In the fifth place, in support of its assertion that it did not participate in the implementation of the infringement, the applicant claims that, according to Shell’s statement, the only time when Sasol attempted to convince the applicant to circulate a letter announcing a price increase, it took the opportunity to strengthen its competitive position by sending a fictitious increase letter to its competitors and not to its customers.

183 In that regard, it should be emphasised that it is apparent from Shell’s statement that when Sasol asked the applicant to be the first to send a pricing letter indicating a price increase to customers, the applicant did not do so, but sent a ‘copy’ of a fictitious letter announcing an increase to its competitors. That therefore shows only that the applicant did not comply with Sasol’s request that it be the first to circulate a pricing letter indicating an increase in prices.

184 According to the case‑law, the fact of not complying with a cartel does not alter the existence of the cartel (see, to that effect, Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347, paragraphs 233, 255, 256 and 341). Even on the assumption that it is proved that certain participants in the cartel succeeded in misleading other participants by sending incorrect information and in using the cartel to their advantage, by not complying with it, the infringement committed is not eliminated by that simple fact (judgment of 8 July 2008 in Case T‑52/03 Knauf Gips v Commission, not published in the ECR, paragraph 210; see also, to that effect, 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 [2005], not published in the ECR, paragraph 74).

185 The argument which the applicant puts forward in that respect must therefore be rejected.

186 In the sixth place, it should be emphasised that, as the Commission correctly observes, the implementation of a single, complex and continuous infringement must be assessed as a whole.

187 In that regard, this Court has already held that, where competitors participated in meetings during which they exchanged information on, in particular, the prices which they intended to charge on the market, an undertaking, through its participation in a meeting having an anti-competitive object, had not only pursued the aim of eliminating in advance uncertainty about the future conduct of its competitors, but also, in determining the policy which it intended to follow on the market, could not have failed to take account, directly or indirectly, of the information obtained during the course of those meetings (Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, paragraphs 122 and 123, and Knauf Gips v Commission, paragraph 184 above, paragraph 276).

188 Next, according to the case‑law, subject to proof to the contrary, which the economic operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period (Hüls v Commission, paragraph 33 above, paragraph 162).

189 In the present case, the concertation on prices was regular and frequent and continued over a long period: the Commission has information about more than 50 meetings between 1992 and 2005. Likewise, the Commission produced 343 pricing letters from the applicant informing customers of price increases. The Shell and Sasol statements also show that Total participated in the implementation of the abovementioned practices.

190 In the light of the foregoing considerations, the Court considers that the Commission was correct to find that the infringement was implemented and that the applicant participated in its implementation.

191 In the light of the foregoing, the second part of the second plea must be rejected.

Third part, concerning geographic market and customer allocation

192 The applicant claims that the Commission did not show, in the contested decision, that it had participated in the second aspect of the infringement. The Commission therefore infringed Article 81 EC.

193 In that regard, the Commission asserted the following in the contested decision: ‘… (108) Concerning market and customer allocation discussions, there was a “general understanding between the attending wax manufacturers to respect each other’s main customers in their respective home market” for paraffin, and the companies “tried to protect their home markets by creating an atmosphere of mutual trust and good-will among themselves”. … 5.3.2.3. Customer and/or Market Allocation (243) It follows from the evidence described in recitals 98, 108, 137, [technical meeting held on 7 and 8 September 1995] 145 [technical meeting held on 30 and 31 October 1997], 147, [technical meeting held on 5 and 6 May 1998], 168 [technical meeting held on 18 December 2002] and 170 [technical meeting held on 16 and 17 April 2003] that ExxonMobil, MOL, Repsol, Sasol, Dea (later Shell) and Total allocated customers and/or volumes to be sold to particular customers (“customer allocation”) and/or allocated geographic areas as “home markets” (“market allocation”). (244) ExxonMobil, Sasol and Shell have conceded that customer and/or market allocation occurred. In their replies to the statement of objections they have reconfirmed or have not denied such practices.’

Geographic market allocation

194 In the first place, the applicant claims that the evidence on which the Commission based its assertions at recital 108 to the contested decision is vague.

195 In that regard, it should be emphasised that Sasol’s reply of 16 December 2006 to a request for information from the Commission states unambiguously that the participants in the technical meetings sought to protect their home markets; Sasol states that ‘Total, BP France and Mobil’ claimed French territory, while the German producers (Sasol, H&R and Shell) claimed German territory as their respective home markets. In addition, Sasol mentioned in that reply that when Repsol stated that it had excess volumes in its own production, Total’s representative protested against the possibility that Repsol should sell its excess production in France. Furthermore, Sasol described an incident that occurred during the technical meeting held on 20 and 21 February 1997, when it observed that it had lost sales volume of 6000 tonnes in 1996 and assumed that the French producers had secretly supplied those volumes to German customers in spite of the arrangements on respecting home markets. In reaction, Sasol had decided to re-acquire those market positions by disregarding the prices agreed at the technical meetings.

196 Furthermore, Shell’s statement of 14 June explains that there was a tacit agreement between participants that customers within a radius of 50 to 100 km of the production plant of each participant belonged to that participant. Under that agreement, a candle producer established in Hamburg (Germany) belonged to Sasol and Shell. If another participant attempted to sell to that candle producer, Sasol and Shell would have begun to supply candle waxes to a major customer of that participant, in retaliation. Shell also stated that its representative at the technical meetings had told Total’s representative that it would refrain from selling into France, so that it expected that Total would not sell to Hamburg. Next, Shell supplied examples of customers who were reserved customers of certain participants in the cartel, explaining that candle manufacturers established in France were the reserved customers of Total and ExxonMobil and that that was clear to its representative and the other participants during the technical meetings. In addition, Shell asserted that there was a tacit agreement between Sasol and Total under which each undertook not to enter the other’s home market (France in Total’s case and Germany in Sasol’s), that is to say, to sell only limited quantities to the territory reserved for the other party, as is apparent from the discussions between Sasol’s and Total’s representatives at the technical meetings. According to that statement, H&R none the less sold paraffin waxes to French customers. If those sales exceeded 1000 tonnes per year, Total complained about H&R’s conduct at the next technical meeting, informing all participants that Total would not tolerate significant imports into France. Total thus increased its sales to two traditional customers of H&R, in retaliation. Last, Shell stated that respect for home markets and reserved customers was part of a general plan, which was accepted by all the participants in the technical meetings. When a participant contravened those arrangements, the producer or producers to whom the market or customer was reserved protested and persuaded the offending participant, if necessary by reprisals, to cease his sales, where necessary by offering excessive prices to the customer so that it would no longer buy anything.

197 It is apparent from the foregoing that Sasol and Shel