JUDGMENT OF THE GENERAL COURT (Third Chamber)

14 May 2014 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Fines — Article 23 of Regulation (EC) No 1/2003 — 2006 Guidelines on the method of setting fines — Mitigating circumstances — Cooperation during the administrative procedure — Obligation to state reasons — Equal treatment — Proportionality — Ability to pay’

In Case T‑406/09,

Donau Chemie AG, established in Vienna (Austria), represented by S. Polster, W. Brugger and M. Brodey, lawyers,

applicant,

v

European Commission, represented initially by N. von Lingen and M. Kellerbauer, acting as Agents, assisted by Professor T. Eilmansberger, and subsequently by Messrs. von Lingen and Kellerbauer,

defendant,

APPLICATION for annulment of Article 2 of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction in the fine imposed on the applicant by that decision,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 16 October 2013,

gives the following

Judgment

Background to the dispute

1 By Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’) the Commission of the European Communities found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, from 7 April 2004 to 16 January 2007, in a single and continuous infringement consisting in market-sharing, quota-fixing, customer-allocation, price-fixing and the exchange of sensitive commercial information relating to prices, customers and sales volumes in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom.

2 The procedure was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the 2002 Leniency Notice’), submitted on 20 November 2006 by Akzo Nobel NV.

3 On 25 January 2007, the applicant Donau Chemie AG submitted an application for the reduction of its fine (recital 342 to the contested decision) in accordance with the 2002 Leniency Notice (‘the applicant’s leniency application’).

4 In the contested decision (Article 1(c)), the Commission found that the applicant had participated in the infringement from 7 April 2004 to 16 January 2007. In particular, it is apparent from recitals 57, 64 to 92, 114 and 214 to the contested decision that, according to the Commission, during the abovementioned period, the applicant was involved by members of its management or staff in the parts of the agreements or concerted practices which related to calcium carbide powder and calcium carbide granulates. By contrast, the Commission found that the applicant had not been involved in the other part of those agreements and concerted practices, which related to magnesium.

5 In Article 2(c) of the contested decision, the Commission imposed a fine of EUR 5 million on the applicant in respect of the infringement referred to above.

6 In determining the amount of the fine which it imposed on the applicant and on the other addressees of the contested decision, the Commission applied the method described in its 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 Guidelines’).

7 That method comprises two stages. First, the Commission determines a basic amount for each undertaking or association of undertakings on the basis of the value of its sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area. The basic amount is related to a proportion of the value of such sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. In addition, in accordance with point 25 of the Guidelines, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum, known as the ‘entry fee’, of between 15% and 25% of the value of sales, in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. Secondly, the Commission may adjust the basic amount of the fine set during the first stage either upwards or downwards to take account of aggravating or mitigating circumstances.

8 In this case the Commission set at 17% the proportion of the value of sales in relation to the infringement, which was to be taken into account for the purposes of setting both the basic amount of the fine and the entry fee (recitals 301 and 306 to the contested decision). In addition, it is apparent from the table shown in recital 288 to the contested decision that the Commission held that the value of the applicant’s sales of calcium carbonate, in powder form and in granulated form, to be taken into account in order to set the fine, was between EUR 5 million and EUR 10 million for each of those products.

9 Next, it is clear from recitals 55 to 91 and recitals 92 to 112 of the preamble to the contested decision respectively that the applicant participated in the part of the cartel relating to calcium carbide powder from 22 April 2004 to 16 January 2007 (that is to say, for two years, eight months and 24 days) and in the part of the cartel relating to calcium carbide granulates from 7 April 2004 to 16 January 2007 (two years, nine months and nine days). It is apparent from the table shown in recital 304 to the contested decision that, on that basis, the Commission held that it was appropriate to multiply by 2.5 the proportion (set at 17%) of the value of the applicant’s sales of calcium carbide powder in order to determine the part of the basic amount of the fine relating to that product. As regards calcium carbide granulates, it is apparent from that same table that the Commission decided on a multiplier of 3.

10 The basic amount of the fine to be imposed on the applicant, as indicated in the table shown in recital 308 to the contested decision, was thus set at EUR 7.7 million. However, for the reasons stated in recitals 342 to 346 of the preamble to the contested decision, the Commission decided to grant the applicant a reduction of 35% of the basic amount of the fine in recognition of its cooperation during the administrative procedure, in accordance with the 2002 Leniency Notice (see paragraph 3 above).

11 Moreover, in recitals 362 to 378 of the preamble to the contested decision, the Commission considered the requests made by a number of cartel members for a reduction in their respective fines, pursuant to point 35 of the Guidelines. The Commission refused the applicant’s request to that effect (recitals 373 and 374 of the Contested decision), although it granted another cartel member, Almamet GmbH, a 20% reduction in the amount of its fine (recital 372 of the contested decision).

12 It was on the basis of the considerations summarised in paragraphs 9 and 10 above that the Commission set the fine imposed on the applicant in the contested decision at EUR 5 million.

Procedure and forms of order sought

13 By application lodged at the Registry of the General Court on 5 October 2009, the applicant brought the present action.

14 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur initially designated was assigned to the Third Chamber, to which the present case was accordingly allocated. By reason of the partial renewal of the Court, the present case was allocated to a new Judge-Rapporteur sitting in the same Chamber.

15 On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, requested the Commission to produce certain documents. The Commission complied with that request within the prescribed period.

16 The parties made oral submissions and gave their answers to the questions put by the Court at the hearing on 16 October 2013.

17 At the hearing the applicant asked to be allowed to lodge extracts from the statement which it had made to the Commission in the context of its leniency application. The Commission opposed the lodging of the document in question. The Court rejected the applicant’s proposal for the reasons set out in paragraphs 212 to 214 below.

18 The applicant claims that the Court should: — annul Article 2 of the contested decision in so far as it concerns it; — in the alternative, reduce the fine imposed on it in the contested decision; — order the Commission to pay the costs.

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

Law

20 The applicant states that its action solely concerns the determination of the amount of the fine which was imposed on it. It argues in this connection that, in determining the amount of the fine which it imposed on the applicant, the Commission committed a number of infringements of EU law and of the Guidelines and the 2002 Leniency Notice. It submits that the Commission disregarded the essential circumstances of the case which stood in its favour and, moreover, that its evaluation and application of the criteria which it employed was legally and factually incorrect, which, it argues, constitutes an infringement of EU law. Furthermore, the Commission unlawfully exceeded its discretion.

21 Although the applicant has not formally divided its arguments into specific pleas, it is clear from the application that, in substance, it puts forward five pleas in law, alleging, first, incorrect determination of the basic amount of the fine, secondly, unlawful failure to take into consideration mitigating circumstances in its favour, thirdly, infringement of the 2002 Leniency Notice, fourthly, breach of the principles of equal treatment and proportionality and, fifthly, unlawful failure on the Commission’s part to grant it a reduction in the amount of its fine on the grounds of its inability to pay and the particular features of the case. Those pleas will be examined in turn below. In addition, it should be noted that the applicant has devoted a section at the end of its application to the allegation of a breach of essential procedural requirements in that there are several failures to state reasons in the contested decision. However, the applicant does not intend by that part of its application to develop a separate plea, but rather to emphasise that it puts forward in the context of the five abovementioned pleas a number of complaints regarding alleged failures to state reasons in the contested decision. These complaints will therefore be examined along with the remainder of the arguments relating to each of the five pleas.

The first plea, alleging incorrect determination of the basic amount of the fine

22 The applicant argues that the basic amount of the fine imposed on it, set at EUR 7.7 million in recital 308 to the contested decision, is excessive. The reasoning which the applicant puts forward in this connection falls into six parts, alleging, first, incorrect assessment of the combined market share of the cartel members resulting from an error in the definition of the relevant markets, secondly, a failure on the Commission’s part to take into consideration the fact that the infringement had no impact on the market, thirdly, incorrect assessment of the economic importance of the relevant market, fourthly, incorrect assessment of the relative gravity of its participation in the infringement, fifthly, failure on the Commission’s part to take into consideration the fact that the applicant participated only in some parts of the infringement and, sixthly, an error of law and a breach of the duty to state reasons in connection with the determination of the entry fee.

Introductory remarks

23 As was pointed out in paragraph 7 above, according to the method laid down in the Guidelines and applied by the Commission in this case, the basic amount of the fine to be imposed on each participant in the cartel is calculated on the basis of a proportion of the value of sales in relation to the cartel, multiplied by the number of years of infringement (point 19 of the Guidelines).

24 In accordance with point 21 of the Guidelines, ‘as a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales’. Point 22 provides, in this connection, that, ‘[i]n order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’. According to point 23, ‘[h]orizontal price-fixing, market-sharing and output-limitation agreements ..., which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’

25 The entry fee provided for in point 25 of the Guidelines (see paragraph 7 above) is added to the amount thus determined and the resulting figure becomes the basic amount of the fine. As has already been pointed out, the percentage which the Commission decided on in this case, for the purposes of the application of points 19 to 24 as well as point 25 of the Guidelines, was 17% in the case of all of the members of the cartel.

26 It must be observed at the outset that, in this case, although the nature of the infringement would have justified, in accordance with the terms of point 23 of the Guidelines, the adoption of a percentage of sales at the higher end of the scale (which rises to 30%), the percentage which the Commission decided on, 17%, falls towards the middle of that scale. In so far as the determination of the entry fee is concerned, that same percentage is very close to the lower limit (15%) of the scale provided for in point 25 of the Guidelines. Those facts must be borne in mind when considering the various parts of the reasoning which the applicant puts forward in the context of the present plea.

The first part of the plea, alleging incorrect evaluation of the combined market share of the cartel members resulting from an error in the definition of the relevant markets

27 The applicant complains, first, from a formal point of view, that the Commission failed to give a statement of reasons or an adequate statement of reasons in the contested decision and, secondly, as to the substance, that the Commission erred in fact and law in its determination of the combined market share of the cartel members. It submits that, had the Commission assessed the markets concerned by the cartel correctly, it would have considered the infringement in question to have been less grave and would have set the basic amount of the fine at a lower figure.

29 It is also clear from the case-law that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Commission v Sytraval and Brink’s France, paragraph 28 above, paragraph 63 and the case-law cited, and T-304/02 Hoek Loos v Commission [2006] ECR II-1887, paragraph 58).

30 Furthermore, the obligation to state reasons laid down in Article 253 EC requires that the reasons on which a decision is based be clear and unequivocal. Thus, the reasoning on which a measure is based must be logical and contain no internal inconsistency that would prevent a proper understanding of the reasons underlying the measure (Elf Aquitaine v Commission, paragraph 28 above, paragraph 151).

31 First, the applicant argues that the contested decision is vitiated by a failure to state reasons in that recital 297 refers to an ‘overall combined market share in the relevant geographic area within the EEA of the undertakings for which the infringement is established’ of ‘below 80%’. The applicant submits that that statement is meaningless, inasmuch as it could refer to any possible market share up to 80%.

32 That argument cannot succeed. In this connection, footnote 620, to which recital 297 to the contested decision refers, must be taken into account. That footnote is worded as follows: ‘Estimation based on the value of sales provided by the parties (see recital (288) and footnote 604 in particular) and the data used for the table in recital (46).’

33 Indeed, recital 46 to the contested decision contains a table setting out the market share in each of the three products to which the cartel related held in 2006 by each of the undertakings that participated in the cartel. The table also sets out, in a separate row, the combined market share held by ‘others’, that is to say, the undertakings active on the same markets that did not participate in the cartel. It is clear from the table that the combined sales in 2006 of the cartel members accounted for between 80% and 85% of all sales of calcium carbide powder in the geographic area concerned, between 65% and 70% of all sales of calcium carbide granulates, and 70% of all sales of magnesium granulates. Moreover, the value in euro of the sales made during that same period by each of the cartel members, established on the basis of information provided by the undertakings themselves, is set out in a table shown in recital 288 to the contested decision.

34 It follows that, read in context, the statement ‘below 80%’ appearing in recital 297 to the contested decision may easily be understood, as the Commission correctly points out, as meaning that the combined market share of the cartel members is fairly close to, although not in excess of that figure. The statement of reasons given in the contested decision therefore meets the requisite legal standard in that regard.

35 Secondly, the applicant complains that the Commission failed to state adequate reasons in the contested decision regarding the definition of the markets for the products concerned by the cartel. The applicant argues in this connection that the Commission referred, in recitals 3 et seq. to the contested decision, to the differences between the uses of calcium carbide power and calcium carbide granulates and, in recitals 40 et seq., to the difference between those two products on the demand side. Moreover, the table setting out the market shares shown in recital 46 to the contested decision also distinguishes between calcium carbide powder and calcium carbide granulates. According to the applicant, that information implies that the two products belong to two separate markets, whereas the information given in recitals 182 and 183 to the contested decision, regarding the similar properties of the two products and changes in their prices and cost structures, suggests that the Commission regarded them as belonging to the same market. Similarly, on the matter of the relationship between calcium carbide power and magnesium granulates, the statements made in recital 184 to the contested decision, although ambiguous, tend to suggest that the Commission regarded those two products as belonging to one and the same market. In that context, the statement made in recital 177 to the contested decision that ‘the events which are the subject of this Decision took place on what may be considered two different markets and cover three products’ is, the applicant submits, quite simply incomprehensible. In short, the applicant considers that the Commission’s findings in the contested decision in relation to the markets concerned by the cartel are inconclusive, contradictory and incomprehensible and that the contested decision is consequently vitiated by a lack of reasoning and unlawfulness.

36 Those arguments, which are based on a partial reading of the contested decision, without regard to context, cannot succeed either.

37 In recitals 3 to 5 and 7 of the preamble to the contested decision, the Commission made the following statements about the products concerned by the cartel: ‘(3) Calcium carbide (CaC2) is a chemical compound produced in a carbide furnace through a high temperature reduction process. It has the appearance of greyish white lumps and it is crushed, sieved, grinded and packaged in accordance with each client’s specifications. ... Calcium carbide may be applied in several ways. ... (4) In a basic cubic form (granulates) calcium carbide is used in the gas industry for the production of acetylene. Welding and cutting with acetylene is relatively unsophisticated, but remains the most commonly used technique for joining materials in the world. This type of application will be referred to as calcium carbide granulates in this Decision. (5) In powder form, calcium carbide is used in the steel industry to decontaminate and purify molten steel from oxygen ([deoxidation]) and sulphur (desulphurisation). For desulphurisation purposes, the calcium carbide is mixed with smaller quantities of active ingredients such as carbon dust, flux agents and magnesium to further enhance its properties. ... This type of application will be referred to as calcium carbide power in this Decision. (7) For desulphurisation purposes in the steel industry calcium carbide competes with magnesium based reagents ... Magnesium is more expensive but requires less volume and acts faster. ... The use of magnesium based reagents for desulphurisation purposes in the steel industry will be referred to as magnesium granulates in this Decision.’

38 In so far as demand for the three products concerned by the cartel is concerned, in recitals 40 to 43 of the preamble to the contested decision the Commission gave the following explanations: ‘(40) Customers of calcium carbide can be divided into those active in the steel industry (customers of calcium carbide power) and those active in the gas industry (customers of calcium [carbide] granulates). For both categories, the number of customers was limited, each with several plants in the EEA. (41) The customers of calcium carbide powder normally purchased from several suppliers. In areas with only one producer (such as Northern Europe) the customer primarily sourced the product from the supplier in its home market. (42) For the gas industry, the market was more stable, because a gas plant, for technical reasons, usually uses only one calcium carbide supplier. ... (43) The demand for calcium carbide has been decreasing due to economic and technical developments. ... The rising cost of cokes and electricity also made magnesium a more attractive alternative. Some customers could easily switch from the use of calcium carbide powder to magnesium granulates, which was the trend. Furthermore, the consolidation in the European steel and gas industry has led to an increased market power of the customers.’

39 Recitals 168 to 194 of the preamble to the contested decision, which include recitals 177 and 182 to 184, to which the applicant refers in its arguments, address the question whether the agreements and concerted practices found in the contested decision constituted a single and continuous infringement. As was pointed out in paragraph 1 above, the Commission answered that question in the affirmative.

40 In particular, recitals 181 to 184 of the preamble to the contested decision are worded as follows: ‘(181) Seen from the demand side, steel customers may use magnesium granulates as an alternative to calcium carbide. ... Both are desulphurisation reagents for the steel industry and it was logical for the suppliers of calcium carbide based reagents to widen the collusion to magnesium based reagents for those companies involved in the sale of both reagents and benefit from the collusion for calcium carbide powder for magnesium granulates. (182) Calcium carbide in granular form may have a different use [from] calcium carbide in powder form (gas industry / steel industry), but seen from the supply side, the products are very similar. ... Only the finishing is different. The untreated product remains the same ... and comes at the same price irrespective of use. As a consequence, the price evolution of the product in granular form is similar to some extent to the price evolution of the product in powder form, with a necessary alignment of the prices for both products in the end. ... It is very much due to this identical cost structure for the untreated product and the price similarity on the market that it was only logical for the companies to benefit from the collusion for calcium carbide powder for calcium carbide granulates. (183) Moreover, the agreements/concerted practices on calcium carbide powder for the steel industry affected the commercial behaviour of the undertakings involved for calcium carbide granulates for the gas market and vice versa. In bilateral meetings and telephone contacts the suppliers discussed volumes, clients and prices for the steel and the gas market simultaneously. ... (184) The agreements/concerted practices on calcium carbide powder for the steel industry equally affected the commercial behaviour of the undertakings involved for magnesium granulates and vice versa. … Apparently, the competitive threat of the alternative product[s] magnesium and lime was taken into account when deciding on a realistic price increase for calcium carbide powder. ...’

41 Contrary to the applicant’s assertions, the considerations in the contested decision mentioned in paragraphs 37, 38 and 40 above are clear and in no way contradictory. Indeed, it is clear from the explanations provided in recitals 3 to 5, 40, 41 and 182 to the contested decision that calcium carbide powder and calcium carbide granulates are two different presentational forms of what is, from the point of view of their chemical composition and their production process, the same product. As the Commission points out in recital 182 to the contested decision, it is only the finishing of the lumps of calcium carbide (mentioned in recital 3 to the contested decision) that differentiates the two types of calcium carbide referred to in the contested decision. Those two types of product satisfy the requirements of two different industries: for the gas industry, the calcium carbide lumps are broken into cubic granulates (see recital 4 to the contested decision), while, for the steel industry, the lumps are ground into powder (recital 5). Since what is at issue is the sale of something that is essentially the same product in two different presentational forms, the consideration set out in recital 182 to the contested decision that changes in the respective prices of those two forms of product are similar is entirely logical and comprehensible.

42 In so far as concerns magnesium granulates, it is clear from recitals 7, 43 and 184 to the contested decision that, although this is an entirely different product from a chemical point of view, it is nevertheless destined for to the same users as those that use calcium carbide powder, for which it may be substituted (that is to say, the steel industry).

43 Read in context, the assertion made in recital 177 to the contested decision that the actions with which the contested decision is concerned were taken ‘on what may be considered two different markets’ can only be understood as meaning that the markets in question are those for the reagents destined respectively for the gas industry (calcium carbide granulates) and the steel industry (calcium carbide powder and magnesium granulates). Moreover, that conclusion is confirmed by the title of the contested decision (see paragraph 1 above). Notwithstanding, the Commission was careful to present separately, in the tables shown in recitals 46 and 288 to the contested decision, the sales made in each of the three products, even though two of them belong to the same market.

44 It follows that the contested decision is not vitiated by a lack of reasoning in so far as concerns the definition of the markets for the products covered by the cartel.

45 Thirdly, the applicant complains that the Commission wrongly defined the markets in question and that, as a result, the market shares stated in the contested decision are incorrect and do not provide the basis for proper assessment of the factors that were taken into consideration in calculating the basic amount of the fine, as set out in point 22 of the Guidelines.

46 In this context, the applicant complains that the Commission wrongly defined the market concerned as being that for calcium carbide, without distinguishing between calcium carbide granulates and calcium carbide powder. That argument however, must, be rejected since it is founded on an incorrect premiss. As is clear from paragraphs 41 to 43 above, the Commission indeed drew a distinction in the contested decision between the market for reagents for the gas industry (calcium carbide granulates) and the market for reagents for the steel industry (which include calcium carbide powder).

47 The applicant also points out that the market to which calcium carbide powder belongs also includes magnesium granulates and lime and that the latter is also regarded by customers as a product that may substitute for calcium carbide powder and magnesium granulates, since it has similar characteristics to the other two products and is sold at a similar price.

48 As the applicant points out, it had already raised this argument in its reply to the statement of objections. The argument was examined and rejected in recital 298 to the contested decision, which is worded as follows: ‘Donau Chemie argues in its reply to the Statement of Objections that lime is an alternative to calcium carbide and magnesium for desulphurisation purposes in the steel industry. ... The relevant market would therefore be wider and the combined market share of the cartel members lower. It is correct that (quick) lime is traditionally added to the magnesium and/or calcium carbide based reagents for desulphurisation purposes. As a separate product, it is not, however, commonly used in Europe as an alternative for magnesium and/or calcium carbide-based reagents because it progresses the desulphurisation process very slowly. ... There is no indication that the lime market was affected by the cartel arrangements. Furthermore, even if lime were to be taken into account in relation to the product market, the resulting changed market shares in this case would not have had any influence on the way the Commission takes this factor into account in order to assess the gravity of the infringement in this decision.’

49 It must be observed that, in its application, the applicant did not put forward any specific argument to demonstrate in what way the abovementioned considerations in the contested decision are incorrect. In its reply, it argued that there was a contradiction between recitals 298 and 184 to the contested decision: whereas, in the first, it is stated that lime is not used as a substitute product for calcium carbide powder, in the second it is expressly described as such. That argument cannot, however, succeed.

50 Admittedly, recital 184 to the contested decision refers to ‘the competitive threat of the alternative product[s] magnesium and lime’, which was ‘taken into account when deciding on a realistic price increase for calcium carbide powder’. Nevertheless, that statement does not contradict the explanations given in recital 298 to the contested decision, according to which, in substance, lime is not commonly used in Europe as an alternative to calcium carbide powder and magnesium granulates. Indeed, lime could still have constituted a ‘competitive threat’, in the sense that a very significant increase in the price of calcium carbide powder might have led producers in the steel industry to alter their practices and start using lime as a desulphurisation reagent.

51 In addition, the applicant also referred in its reply to ‘recent developments’ in the market for desulphurisation reagents for the steel industry, maintaining that the total demand for calcium carbide power for desulphurisation purposes had decreased from 140000 tonnes in 2000 to just 90000 tonnes. It also gave examples of European steel plants owned by a number of undertakings in which the use of calcium carbide power had been replaced with lime.

52 Whilst it is true that, in recital 43 to the contested decision (transcribed in paragraph 38 above), the Commission itself acknowledged the continued decrease in demand for calcium carbide, the fact remains that the applicant has provided no evidence whatsoever in support of its assertion that that decrease is attributable to the replacement of calcium carbide by lime. Equally, it has failed to provide any evidence to support its assertions concerning the replacement of calcium carbide powder by lime in various European factories. That being so, it cannot be held that the Commission’s decision is vitiated by any error in so far as no account was taken of sales of lime in the determination of the combined market shares of the cartel members.

53 The applicant also argues that the market for calcium carbide granulates also includes the market for petrochemical acetylene. It explains that, as stated in recital 4 to the contested decision, calcium carbide granulates are used in the gas industry for the production of acetylene, which is used in welding. The Commission, however, failed to take into account the possibility of using, for the same purpose, acetylene obtained by petrochemical processes. Petrochemical acetylene has the same uses and price structure as acetylene obtained from calcium carbide granulates and the two products are substitutable, as is proven by the case of a customer of the applicant’s which recently stopped production and packaging of acetylene obtained from calcium carbide and is now using petrochemical acetylene.

54 As the Commission correctly points out, the applicant’s allegations regarding the supposed substitutability of acetylene obtained from calcium carbide power and acetylene obtained by petrochemical processes are, like its allegations concerning lime, unsupported by any evidence. They are therefore incapable of founding a complaint against the Commission for having wrongly defined the markets concerned by the cartel and wrongly determined the combined market share of the undertakings which participated in it.

55 It must also be pointed out that the applicant merely asserts that, had the Commission correctly defined the markets at issue, the combined market share would have been ‘well below’ that found in the contested decision, which would have lessened the gravity of the infringement and justified setting the basic amount of the fine at a lower figure.

56 However, it must be observed that that argument is vague and general and cannot support the conclusion that the assessment of the gravity of the infringement in the contested decision is vitiated by error. Indeed, the applicant has failed to identify the principal suppliers of lime and petrochemical acetylene to the steel and gas industries respectively in the geographic area concerned by the cartel, or their sales volumes. Nor has it provided even approximate figures for the market shares, as adjusted in accordance with its own conception of the matter, held by the cartel members and by non-participating undertakings respectively. In the absence of such information, the applicant’s assertion that a correct definition of the markets at issue would have significantly lessened the gravity of the infringement is nothing more than a mere allegation and cannot succeed.

57 It follows that the contested decision is not vitiated by any failure to state reasons or to state adequate reasons in so far as concerns the combined market share held by the cartel members or the definition of the markets concerned by the cartel. It must also be concluded that the applicant has failed to demonstrate that the Commission committed any factual or legal error in this regard, and that institution cannot, therefore, be reproached for having acted unlawfully in determining the gravity of the infringement or in setting the basic amount of the fine.

58 In any event, it must be recalled that, pursuant to Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2009 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), in the matter of fines for the infringement of the rules on competition, the General Court has unlimited jurisdiction and may therefore substitute its own assessment for that of the Commission and, consequently, cancel, reduce or increase the fine or periodic penalty payment imposed (Case C-389/10 P KME Germany and Others v Commission [2011] ECR I-13125, paragraph 130).

59 When exercising its unlimited jurisdiction, the General Court is not bound by the Guidelines, which do not prejudge the assessment of the fine by the Courts of the Union (Joined cases T-49/02 to T-51/02 Brasserie nationale and Others v Commission [2005] ECR II-3033, paragraph 169, and Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II-4949, paragraph 213). Indeed, although the Commission must observe the principle of the protection of legitimate expectations when it applies its self-imposed rules, such as the Guidelines, that principle cannot bind the Courts of the Union in the same way, in so far as they do not propose to apply a specific method of setting fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations (judgment of 30 May 2013 in C‑70/12 P Quinn Barlo and Others v Commission, not published in the ECR, paragraph 53).

60 Nevertheless, the case-law of the Court of Justice also makes clear that the exercise of unlimited jurisdiction with regard to the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to the competition rules of EU law. If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in its judgment (Quinn Barlo and Others v Commission, paragraph 59 above, paragraph 46).

61 In the present case, there is nothing to justify departing from the method for determining the amount of the fine set out by the Commission in the Guidelines. Consequently, following that method, the Court may, in the exercise of its unlimited jurisdiction, substitute its own assessment of the gravity of the infringement at issue for that of the Commission and, if appropriate, alter the percentage decided on by the Commission for the purposes of applying points 19 and 25 of the Guidelines.

63 That being so, even if it were to be accepted that, as the applicant argues, the combined market share of the undertakings which participated in the cartel was significantly smaller than that found by the Commission in the contested decision, the figure of 17% of the value of sales in relation to the infringement, decided on by the Commission for the purpose of setting the basic amount of the fine and the entry fee, in no way exceeds what was reasonable in this case, particularly in light of the general remark made in paragraph 26 above. It would not, therefore, be appropriate for the Court, in the exercise of its unlimited jurisdiction, to fix a lower percentage.

64 Finally, there is no basis for the applicant’s argument that there is a lack of reasoning or a lack of adequate reasoning in the contested decision inasmuch as, in recital 298 to the decision, the Commission gave no intelligible explanation as to why a different definition of the market concerned by the infringement would have had no influence on its assessment of the gravity of the infringement. This argument of the applicant’s addresses a reason that could have been stated, but only for the sake of completeness, in that the conclusion that it was not appropriate for sales of lime to be taken into account for the purpose of determining the combined market share of the cartel members was supported, to the requisite legal standard, by the assertion that lime was not commonly used in Europe in place of calcium carbide power and magnesium granulates, an assertion which the applicant has not succeeded in calling into question. Furthermore, the consideration set out in the preceding paragraph also supports the conclusion that, even if this argument of the applicant’s were well founded, it could not justify a reduction in the percentage of sales in relation to the infringement taken as a basis in the contested decision for fixing the basic amount of the fine (including the entry fee).

65 It follows from all the foregoing considerations that the Court must reject the first part of the first plea.

The second part of the first plea, alleging a failure on the Commission’s part to take into consideration the fact that the infringement had no impact on the market

66 The applicant complains that the Commission incorrectly assessed the criterion of the implementation of the infringement and its effects on the market, of which it was appropriate for account to be taken when fixing the basic amount of the fine. In its reasoning, the applicant refers to point 22 of the Guidelines, which includes the matter of ‘whether or not the infringement has been implemented’ as one of the criteria to be taken into account in fixing the proportion of sales to be used as a basis for determining the basic amount of the fine. It also submits that it is clear from the judgment in Degussa v Commission (Case T-279/02 [2006] ECR II-897, paragraph 247) and from the Commission’s decision-making practice that the question of whether or not an infringement has had actual effects on the market is relevant to the assessment of the gravity of that infringement.

67 According to the applicant, it is clear from the judgment in Degussa v Commission, paragraph 66 above (paragraph 231) that the actual effects of a cartel on the market are to be regarded as sufficiently well established if the Commission has been able to provide specific, credible evidence that proves, to a reasonable degree of probability, that the cartel has had an impact on the market. Moreover, in its judgment of 12 September 2007 in Prym and Prym Consumer v Commission (Case T‑30/05, not published in the ECR), the General Court held that the Commission must do more than merely adduce evidence of the implementation of a cartel in order to demonstrate that it actually had an impact on the market.

68 According to the applicant, it is true that, in the present case, the infringement at issue was implemented, at least in part. However, it demonstrated during the course of the administrative procedure that customers had not suffered harm as a result of the implementation of the infringement, and this was for a number of reasons: they were not dependent on supplies from the undertakings which participated in the cartel, their profits reached record levels during the period of the infringement, there was frequent ‘cheating’ in the implementation of the infringement and, lastly, customer purchasing power was so considerable that it scarcely permitted any increase in prices. It follows, according to the applicant, that any effects that the cartel had on the market were, in any event, negligible. In particular, the recitals to the contested decision referred to in recital 300 and footnote 624 may, at most, prove that the cartel was partially implemented, but they signally fail to prove that it had an impact on the market.

69 In view of the arguments which the applicant puts forward, it is necessary, first of all, to point out that there is difference between the criterion of whether or not an infringement has been implemented and the criterion of its actual impact on the market. In the case of an infringement such as that here in issue, consisting in market-sharing, quota-fixing, customer allocation, price-fixing and the exchange of sensitive commercial information, the first of the two abovementioned criteria must be regarded as having been satisfied if it is demonstrated that what was agreed among the participants in the cartel was in fact implemented in their commercial practices, that is to say, that the cartel members took measures to apply the agreed prices, for example, announcing them to customers, instructing their employees to use them as the basis for negotiation and monitoring their application by their competitors and their own sales departments (Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraph 285). The applicant acknowledges that the Commission was right to find, in the contested decision, that this criterion was satisfied in the case of the infringement at issue.

70 In so far as concerns the criterion of the actual impact of the infringement on the market, that raises the question of the real effect of the implemented infringement on competition in the market in question. Whilst, admittedly, the implementation of an infringement is a relevant factor that, depending on the particular circumstances of the case, may be sufficient to found the conclusion that the infringement at issue has had a real impact on the market (see, to that effect, Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 148, and Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 69 above, paragraphs 283 to 288), the fact remains that the implementation of an agreement does not necessarily mean that it has an actual impact (Prym and Prym Consumer v Commission, paragraph 67 above, paragraph 110; see also, to that effect, Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraph 157). The criteria of whether or not the infringement has been implemented and of its actual impact on the market as thus quite distinct and it cannot be presumed that, where the former is satisfied, the latter will automatically be satisfied also.

71 Clearly, point 22 of the Guidelines expressly mentions the first of these two criteria as one of the factors which the Commission has undertaken to appraise when deciding whether the proportion of the value of sales in relation to the infringement, to be taken as a basis for determining the basic amount of the fine, should be at the lower end or at the higher end of the scale mentioned in point 21 of the Guidelines, which rises to 30%. The Guidelines do not, by contrast, provide for the actual impact on the market to be taken into account in the determination of the basic amount of the fine. Point 5 of the Guidelines, according to which ‘the duration of the infringement ... necessarily has an impact on the potential consequences of the infringement on the market’, cannot lead to any different conclusion, since, as the Commission correctly points out, that point is made solely to justify the fact that the proportion of the value of sales decided on in accordance with points 19 to 23 of the Guidelines will, in accordance with point 24 thereof, be multiplied by the number of years of the infringement’s duration.

72 It follows that the Commission cannot be reproached for infringing the Guidelines by omitting to analyse in the contested decision the possible impact of the infringement at issue on the market and by omitting to take such an analysis into account in its determination of the basic amount of the fine.

73 In this connection, the Commission correctly points out that the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ESCS Treaty (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’) expressly provided, in the first indent of Section 1 A thereof, that, when assessing the gravity of an infringement, the Commission had to consider its actual impact on the market where it appeared that that could be measured. The case-law to which the applicant refers in its arguments relates to cases in which the 1998 Guidelines were applied (Degussa v Commission, paragraph 66 above, paragraph 214, and Prym and Prym Consumer v Commission, paragraph 67 above, paragraph 108).

74 It must be observed in this connection that, while the Commission may not depart from rules which it has imposed on itself, without giving reasons for so doing which are consistent with the principle of equal treatment, it is nevertheless free to modify those rules or to replace them. In a case that falls within the scope of the new rules, such as that of the infringement at issue, which falls, ratione temporis, within the scope of the Guidelines, as is clear from point 38 thereof, the Commission cannot be criticised for having failed to analyse, for the purpose of determining the gravity of the infringement, a criterion not provided for by those new rules, solely on the ground that its analysis was provided for under the earlier rules (see, to that effect, Case T‑352/09 Novácke chemické závody v Commission [2012] ECR, paragraph 93).

75 The applicant nevertheless argues that the Commission was required to carry out an overall legal and economic assessment of all the relevant circumstances in order to determine the gravity of the infringement and that, in that context, it ought also to have analysed the actual effects of the infringement at issue on the markets concerned and should have fixed the basic amount of the fine by reference to those effects.

76 According to settled case-law, the gravity of infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines; although no binding or exhaustive list of the criteria to be applied has been drawn up (see Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 69 above, paragraph 238 and the case-law cited). The fact that, in the Guidelines, the Commission set out its approach to assessing the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines (Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 69 above, paragraph 237).

77 Therefore, the fact that the Guidelines do not expressly provide for the analysis of the actual impact of the infringement on the market for the purpose of determining the gravity of the infringement, with a view to setting the basic amount of the fine, does not mean that the Commission was not at liberty also to consider that factor in this case.

78 Nevertheless, it is not sufficient for an applicant wishing to challenge the amount of the fine imposed on it for infringement of the competition rules merely to assert that the Commission ought to have included in its analysis, for the purpose of determining the gravity of the infringement, a factor the analysis of which is not provided for in the Guidelines. Such an applicant must also demonstrate in what way that additional analysis would have altered the Commission’s assessment of the gravity of the infringement and justified the imposition of a smaller fine.

79 It must be held that, in this case, the applicant has failed to demonstrate that latter point. Its brief and general reasoning on the matter (see paragraph 68 above) is nothing more than mere allegation. It must also be pointed out in this connection that the applicant has failed to set out in detail the arguments by which it supposedly demonstrated during the administrative procedure that customers on the markets concerned by the cartel had not suffered harm as a result of the cartel’s implementation, nor has it put before the court any documentary evidence of the matter.

80 Moreover, the applicant’s unsubstantiated assertions are not sufficient to rule out the possibility that the cartel at issue had a real impact on the market. Indeed, the fact that the profits of the cartel members’ customers reached record figures during the period covered by the cartel does not mean that the cartel cannot have affected the prices paid by those customers. On the contrary, the fact that those customers enjoyed great profitability during the cartel period, for separate reasons relating to the general economic climate, might have left them somewhat indifferent to the prices that they were paying for the reagents covered by the cartel and persuaded them not to use their purchasing power or the fact that they were not dependent on the cartel members to obtain better prices. Furthermore, as regards the applicant’s reference to frequent ‘cheating’, it must be borne in mind that, notwithstanding the fact that such cheating is in no way unusual in a cartel of this type, the applicant itself admits that the cartel at issue was, for the main part, implemented.

81 It should also be observed that, according to the case-law cited in paragraph 62 above, the effect of an anti-competitive practice is not a conclusive criterion for determining the proper amount of the fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly in the case of infringements which are intrinsically serious, such as those involving price-fixing and market-sharing, aspects which are present in this case.

82 It follows from all of the foregoing considerations that the arguments put forward by the applicant in the context of this part of the first plea are insufficient to prove that the Commission’s assessment of the gravity of the infringement at issue is in any way vitiated by error. Furthermore, for the same reasons, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that those arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.

83 Consequently, the second part of the first plea must also be rejected.

The third part of the first plea, alleging incorrect assessment of the economic importance of the relevant market

84 The applicant refers to a decision of the Commission’s in another case involving infringement of the competition rules in which the Commission granted a reduction in the amount of the fine on the ground that the infringement related to a relatively small market. It argues, by reference to figures for the total value of transactions on the markets concerned by the infringement at issue and on other markets in the chemicals sector, that the markets involved in the present case are economically insignificant. It complains that the Commission unlawfully failed to take that aspect of the infringement into account and to reduce the fine accordingly.

85 It must be recalled in this connection that, in accordance with the method set out in the Guidelines for setting the basic amount of the fine (see paragraph 7 above), that amount is comprised of a percentage of the value of sales in relation to the infringement multiplied by the number of years of participation in the infringement, increased by an entry fee, which is also calculated as a percentage of the value of sales in question.

86 Therefore, as the Commission correctly points out, the method applied in this case in order to set the basic amount of the fine took into account, almost automatically, the relative economic importance of the markets concerned by the infringement by comparison with other markets, since that economic importance is inevitably determined by the volume of sales in relation to the infringement and, consequently, is reflected in a basic amount of the fine in proportion thereto. That being so, it appears that, in any case where that method is applied, it is in no way necessary to grant an additional reduction in the fine to take account of the allegedly lesser economic importance of the market concerned by the infringement, irrespective of whether it is justified or appropriate for that aspect to be taken into account.

87 The earlier decision to which the applicant refers is the Commission’s Decision of 9 December 2004 relating to a proceeding under Article 81 [EC] and Article 53 [EEA] (Case No C.37.533 — Choline Chloride) (OJ 2005 L 190, p. 22). Since that decision was adopted in 2004, the fines imposed in it were determined according to a different method from that set out in the Guidelines, which were adopted in 2006. Consequently, no useful guidance can be obtained from that decision in so far as concerns the lawfulness and appropriateness of the fine imposed on the applicant in this case. In any event, it must be borne in mind that, according to settled case-law, the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition law matters (Case C-167/04 P JCB Service v Commission [2006] ECR I-8935, paragraph 205, and Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 233).

88 Moreover, it should be noted that, as the Commission correctly points out, the General Court, in its judgment of 8 July 2004 in Mannesmannröhren-Werke v Commission (Case T‑44/00, ECR II‑2223, paragraph 229), expressly rejected the argument that fines are to be set in direct proportion to the size of the market affected. The Court pointed out that size was only one among a number of factors and that, in accordance with the relevant provisions, as interpreted in the case-law, the fine imposed on an undertaking for infringement in a competition-related matter must be proportionate to the infringement, assessed in its entirety, account being taken, in particular, of its gravity, which must be assessed by reference to a large number of factors, as is pointed out in the case-law cited in paragraph 76 above.

89 In support of its claims, the applicant has also referred to the judgment in Groupe Danone v Commission, paragraph 70 above (paragraph 191). Admittedly, the Court observed in that judgment that the absolute value of the sales in question is also a relevant indication of the gravity of the infringement, since it is an accurate reflection of the economic importance of the transactions which the infringement seeks to remove from the normal interplay of competition. However, not only is that consideration entirely unhelpful to the applicant in so far as this part of the second plea is concerned, but it also confirms the appropriateness of the method set out in the Guidelines for setting the basic amount of the fine by reference to the value of sales in relation to the infringement.

90 In the light of all the foregoing considerations, it must be held that the Commission cannot be criticised for not reducing, in this case, the fine imposed on the applicant, which was calculated in accordance with the method set out in the Guidelines, in order to take account of the allegedly lesser economic importance of the markets covered by the infringement. Furthermore, in light of the unlimited jurisdiction which the Court enjoys with regard to fines, it must be held that there is nothing in the arguments put forward by the applicant in the context of this part of the first plea to support the conclusion that the amount of the fine, as fixed in the contested decision, exceeds what is appropriate. The third part of the second plea must, therefore, be rejected also.

The fourth part of the first plea, alleging incorrect assessment of the relative gravity of the applicant’s participation in the infringement

91 The applicant observes that, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined. It submits that, in the present case, a number of factors, of which the Commission was aware, demonstrate that its participation in the infringement was insignificant. First of all, the cartel was instigated and pursued at the initiative of another undertaking, namely Almamet. The applicant admits that it participated in the cartel, but maintains that it did not have a leading role. Secondly, it is the smallest member of the cartel in terms of turnover relating to the cartel taken into account in the determination of the amount of the fine. In addition, it was forced by the other members to obtain supplies of magnesium from another of the undertakings participating in the cartel, the Ecka group. The applicant was, therefore, merely an insignificant member of the cartel and one on which the other participants exerted economic pressure during cartel meetings. Thirdly, the applicant points out that, in terms of its overall size, it is a much smaller undertaking than the majority of the other cartel members. It submits that all of those factors ought to have been taken into account in the contested decision and the gravity of its participation in the infringement, and thus also the basic amount of the fine fixed in its case, reduced accordingly.

92 With regard to those arguments, it must be observed at the outset that, according to settled case-law, as the applicant points out, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of fines, to consider the relative gravity of the participation of each of them. That implies, in particular, that the roles played by each of them in the infringement for the duration of their participation in it should be established. That conclusion follows logically from the principle that penalties must be appropriate to the offender and the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under the competition rules of EU law (see Groupe Danone v Commission, paragraph 70 above, paragraphs 277 and 278 and the case-law cited).

93 However, as the Commission correctly points out, it is precisely to reflect those principles that the Guidelines provide, in points 28 and 29, for the basic amount of a fine to be adjusted in accordance with certain aggravating and mitigating circumstances specific to each undertaking concerned. Moreover, there is nothing to warrant criticism in the method, chosen by the Commission in the Guidelines, consisting in the adoption, for the purpose of determining the basic amount of the fine, of the same percentage of sales in relation to the infringement with respect to all the participants in that infringement, and in the adjustment upwards or downwards, as may be appropriate, of the basic amount of the fine thus determined for each participant, on the basis of aggravating or mitigating circumstances specific to it, so as to reflect the relative gravity of its participation in the infringement (see, to that effect, Case T-73/04 Carbone-Lorraine v Commission [2008] ECR II-2661, paragraph 100, and Novácke chemické závody v Commission, paragraph 74 above, paragraph 58).

94 It is therefore necessary to examine whether the circumstances which the applicant puts forward in its arguments in this part of the first plea justify the imposition on it of a smaller fine than that which was imposed on it in the contested decision. Clearly, it matters little whether any such reduction in the fine imposed on the applicant results from the reduction, in its case, of the basic amount of the fine or from the acknowledgement of mitigating circumstances in its favour.

95 First, as regards the allegation that Almamet had a leading role in the infringement, it must be observed that, in accordance with the last indent of point 28 of the Guidelines, the role of leader in, or instigator of the infringement is an aggravating circumstance which may provide a ground for increasing the basic amount of the fine. In other words, the applicant’s allegation, if well founded, would justify an increase in the basic amount of Almamet’s fine, rather than any reduction in the basic amount of its own fine. However, that consideration alone does not mean that the applicant’s complaint may be automatically rejected as ineffective. Indeed, depending on the particular circumstances of the case, the most appropriate means of remedying unequal treatment of a number of participants in an infringement owing to the fact that the gravity of the offending conduct of some participants has been underestimated by comparison with that of others may be to reduce the amount of the fine imposed on the latter (see, to that effect, Novácke chemické závody v Commission, paragraph 74 above, paragraphs 55 and 56 and the case-law cited).

96 Without it being necessary to examine the question whether the case-law cited in the preceding paragraph may be applied to the applicant’s case, its complaint must, in any event, be rejected as unfounded.

97 Indeed, in support of its allegation that Almamet was a leader of the cartel, the applicant merely states that almost all of the meetings of the cartel were organised by that undertaking. The applicant refers in this connection to recitals 64 and 67 to the contested decision, according to which the first two meetings took place at Almamet’s premises and were organised by one of its representatives.

98 First of all, it must be observed that, whilst it is admittedly apparent from those two recitals to the contested decision that the meetings of 22 April and 7 September 2004, which concerned calcium carbide powder, took place at Almamet’s premises, it is, on the other hand, incorrect to assert that all the meetings of the cartel were organised by that undertaking.

99 As recital 69 to the contested decision shows, at the meeting of 7 September 2004, the participants, including the applicant, decided to organise similar meetings on a regular basis and to take turns in organising them. The contested decision goes on to refer, in recitals 70 to 89, to nine other meetings relating to calcium carbide powder organised by various cartel members. Recital 78 to the contested decision states, without the applicant taking issue with that statement, that it was the applicant itself that organised the seventh meeting, held on 22 November 2005 in Vienna (Austria). Moreover, according to recital 90, at the eleventh and last meeting relating to the same product, it was decided that the applicant would be responsible for organising a further meeting (which was subsequently cancelled, as is noted in recital 91), which was to have taken place in Vienna on 9 January 2007. The applicant had already made a hotel reservation for that purpose.

100 With regard to calcium carbide granulates, the Commission notes in recital 98 to the contested decision that the first meeting took place on 7 April 2004 in a hotel in Slovenia, and that it was organised by TDR-Metalurgija d.d. The applicant and Novácke chemické závody a.s were the only other undertakings to participate in that meeting. In recital 99, the Commission refers to two other meetings in Bratislava (Slovakia) between the same three producers of calcium carbide granulates. It adds, however, that issues relating to that product were also discussed either in meetings relating to calcium carbide powder, or during special meetings that immediately followed on from those meetings (see recitals 101 and 108 to the contested decision).

101 As regards the meetings relating to the part of the cartel concerning magnesium, in which the applicant did not participate, the Commission states, in recital 115 to the contested decision, that the three undertakings which did attend those meetings, which included Almamet, took turns in organising them and meeting the related expenses.

102 In so far as concerns the argument that Almamet was the leader in, or instigator of the infringement since it organised the first two meetings, it must be observed that the Court has already had occasion to consider and reject a similar argument in its judgment in Novácke chemické závody v Commission, paragraph 74 above (paragraphs 77 to 79), an action brought against the contested decision by another participant in the same cartel.

103 The Court held that it was evident from recital 54 to the contested decision that, according to the Commission, the agreement relating to calcium carbide powder arose from the negative trend in the price of that product since the beginning of the 21st century, in conjunction with an increase in the cost of production and a fall in demand. According to recital 104 to the contested decision, matters were similar on the market for calcium carbide granulates. That recital refers to an ‘employee of Akzo Nobel’ who is said to have claimed that all suppliers of the product in question ‘were in apparent need of price increases’. As regards magnesium, also intended for the steel industry and substitutable for calcium carbide powder, the Commission acknowledges in recital 113 that the demand for that product was growing, but adds that ‘the suppliers also felt the increased market power of their customers’ and were, in addition, under growing pressure following the arrival on the market of new Chinese competitors.

104 The Court held that, against that background, it mattered little who had taken the initiative to organise the initial meeting, since that initiative merely reflected the shared sentiments of a number of producers of the product concerned. The Court therefore dismissed the argument that the Commission had erred in failing to find that there was an aggravating circumstance in the case of certain other participants, including Almamet, for the reason that they were the leaders in, or instigators of the infringement.

105 Those findings, which have in no way been called into question by the applicant’s arguments, enable this Court to dismiss as unfounded the corresponding complaint put forward by the applicant in the present case.

106 Secondly, the fact, alleged by the applicant, that it is the smallest member of the cartel in terms of turnover in the products covered by the cartel is sufficiently taken into consideration in the method for calculating the basic amount of the fine adopted in the Guidelines, which consists in setting that basic amount by reference to the value of sales in relation to the infringement. Clearly, a lower turnover figure in the market in question will result in the fixing of a lower basic amount of the fine.

107 As regards the argument that the applicant was an ‘insignificant member’ of the cartel, it must be recalled that, while the ‘exclusively passive or “follow-my-leader” role’ of an undertaking in an infringement was expressly referred to as an attenuating circumstance in the first indent of Section 3 of the 1998 Guidelines, it does not appear in the non-exhaustive list of mitigating circumstances set out in point 29 of the Guidelines.

108 In any event, the applicant does not fulfil the criteria for the recognition of such a mitigating circumstance in its favour, even if that were possible under the Guidelines. As the General Court held in its judgment of 9 July 2003 in Cheil Jedang v Commission (Case T‑220/00, ECR II‑2473, paragraphs 167 and 168), a passive or ‘follow-my-leader’ role in an infringement implies that the undertaking will adopt a ‘low profile’, that is to say, not actively participate in the creation of any anti-competitive agreements. The factors which may indicate that an undertaking has played a passive role in a cartel include participation in cartel meetings that is significantly more sporadic than that of the ordinary members of the cartel, entry into the market affected by the infringement at a late stage, regardless of the length of involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect.

109 In the present case, the applicant participated in all the meetings of the cartel relating to the two products which it sold, namely calcium carbide powder and calcium carbide granulates (see, respectively, recitals 64 to 88, 98 and 99 to the contested decision). It even organised one meeting and accepted responsibility for organising another (see paragraph 99 above). Moreover, it is apparent from the contested decision that its contribution to the meetings at which it was present was comparable to that of the other participants. The abovementioned recitals to the contested decision in fact state that the participants at the various meetings provided information about their sales volumes and that the market sharing table was subsequently updated. In addition, the prices to be applied were discussed and, from time to time, price increases were agreed (see, for example, recitals 67 and 68 to the contested decision). Furthermore, it is apparent from recital 83 that one of the cartel members that was unable to attend the meeting of 25 April 2006 reported its sales volumes to the applicant ahead of the meeting so that the figures could be conveyed to the cartel members at the meeting. There is, therefore, nothing to indicate that the applicant’s conduct was passive or that its role in the infringement was ‘insignificant’ or, more generally, different from that of the other cartel members.

110 Lastly, as regards the applicant’s assertion that it was ‘forced’ by the other cartel members to obtain supplies of magnesium from another of the participants in the infringement, leaving aside the fact that the applicant fails to explain how and by what means the other cartel members were able to constrain it in that way, that circumstance, even supposing it to be true, does not diminish the relative gravity of its participation in the infringement. Indeed, as the Commission correctly points out, the Court has already held that an undertaking which is pressured into adhering to a cartel may inform the competent authorities rather than support the cartel, and consequently cannot rely on that pressure in order to obtain a reduction in the fine imposed on it (Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission, [2004] ECR II-1181, paragraph 344).

111 Thirdly, the applicant’s argument that it is, in overall size, a much smaller undertaking than most of the other cartel members cannot succeed either. First of all, it must be recalled that point 30 of the Guidelines states that the Commission will pay particular attention to the need to ensure that fines have a sufficiently deterrent effect and that, to that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates. In addition, according to point 35 of the Guidelines, in exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. Thus, the Guidelines provide that, under certain specific conditions, account may be taken, when setting a fine, of the significant overall size of an undertaking that has participated in an infringement of the rules relating to competition or, conversely, of its inability to pay.

112 Beyond those two cases, an undertaking cannot claim a reduction in the fine imposed on it solely because its overall size is much smaller than that of other participants in the same infringement. Indeed, it its judgment in Dansk Rørindustri and Others v Commission (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P [2005] ECR I-5425, paragraph 312), the Court of Justice held that the Commission was not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover.

113 Since the applicant has done no more than refer to its allegedly smaller overall size than that of other participants in the same cartel, with a view to obtaining a reduction in the basic amount of its fine, that latter argument, and consequently the fourth part of the first plea in its entirety, must be rejected. Furthermore, for the same reasons, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that those arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.

The fifth part of the first plea, alleging failure on the Commission’s part to take into consideration the fact that the applicant participated only in some parts of the infringement

114 The applicant points out that, in the contested decision, the Commission found that the agreements and concerted practices in question constituted a single and continuous infringement. However, its participation in the infringement extended to only two of the three products concerned, namely calcium carbide powder and calcium carbide granulates, as the Commission itself acknowledged. The applicant submits that the case-law requires that account be taken of such partial participation in the assessment of the gravity of the infringement and the determination of the fine, which the Commission failed to do in this case. According to the applicant, the Commission ought to have reduced the basic amount of the fine in its case to take account of the fact that its participation in the infringement extended to only two of the three products concerned. Moreover, setting the same basic amount for all the undertakings which participated in the infringement is unlawful, since the basic amount of the fine to be imposed on each participant should reflect the differences in the extent of the participation of each of them in the infringement and, consequently, in the degree of gravity of the infringement that may be imputed to them.

115 Whilst it is true that the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme is not material to the establishment of the existence of an infringement on its part, that factor must, on the other hand, be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P, Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 86).

116 However, it is clear that the method for determining the fine set out in the Guidelines and summarised in paragraph 7 above meets the requirements of that case-law fully. Indeed, as the Commission pointed out, in substance, in recital 296 to the contested decision, the basic amount of the fine is determined on the basis of the sales of the undertaking concerned in relation to the infringement, which signifies that only sales of the products in relation to which the undertaking in question took part in the infringement are taken into consideration. In the specific case of the applicant, only its sales of calcium carbide powder and calcium carbide granulates were taken into consideration, as is confirmed by recital 288 to the contested decision.

117 Moreover, it is incorrect to assert, as the applicant does, that the same basic amount was set for all the undertakings which participated in the infringement. That amount is determined, for each undertaking, on the basis of the sales which it itself has made in relation to the infringement. Consequently, a different basic amount of the fine is determined for each undertaking participating in the infringement. Furthermore, recital 308 to the contested decision, which contains a table setting out the basic amounts of the fines determined for each of the undertakings that participated in the infringement, confirms that this was done in the present case.

118 The fifth part of the first plea is therefore unfounded and must be rejected. Furthermore, and in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that the applicant’s arguments do not support the conclusion that the basic amount of the fine imposed on the applicant, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable.

The sixth part of the first plea, alleging an error of law and a breach of the duty to state reasons in connection with the determination of the entry fee

119 First of all, the applicant argues a breach of the duty to state reasons in that the Commission failed to give sufficient reasons for setting the percentage to be applied in determining the entry fee at 17%. It submits that the Commission breached its duty to state reasons, as defined in the case-law, inasmuch as it used stereotype wording and failed to comment on the decisive factor in setting the entry fee, that is to say, the deterrent effect referred to in point 25 of the Guidelines, or on the reasons which led it to set the percentage needed to achieve the requisite deterrent effect at 17%.

120 The scope of the duty to state reasons arising under Article 253 EC was outlined in paragraphs 28 to 30 above. As regards, in particular, the scope of the duty to state reasons for the calculation of a fine imposed for infringement of the competition rules, it is settled case-law that the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, as well as the factors which it took into consideration for that purpose, under the directions contained in its own guidelines (Case T-48/02 Brouwerij Haacht v Commission [2005] ECR II-5259, paragraph 46 and the case-law cited).

121 In the present case, the Commission set out, in recitals 291 et seq. to the contested decision, beneath the heading ‘Determination of the basic amount of the fine’, the factors which it took into account in setting the basic amount of the fine for each of the undertakings participating in the infringement, including the entry fee. In particular, in recitals 292 to 296 of the preamble to the contested decision, it analysed the gravity of the infringement, stating, in particular, (in recital 294) that an infringement such as that at issue in the present case ‘is by its very nature among the most harmful restrictions of competition’. In recitals 297 to 298 of the preamble to the contested decision, it mentioned the combined market share of the undertakings participating in the infringement (see also paragraphs 28 to 34 above). Finally, in recitals 299 and 300 it referred, respectively, to the geographic scope of the cartel, as mentioned in paragraph 1 above, and to the fact that the offending agreements ‘were in general implemented and monitored’.

122 Having set out those considerations, the Commission gave them due effect in fixing, in recital 301 to the contested decision, the percentage to be applied in order to determine the basic amount of the fine. In so far as concerns the percentage to be applied in determining the entry fee, the Commission stated, in recital 306 to the contested decision, the following : ‘Given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement and the geographic scope of the infringement, the percentage to be applied for the additional amount should be 17%.’

123 It follows that, contrary to the applicant’s assertion, the Commission did provide in the contested decision a sufficient statement of reasons to justify its choice of 17% as the percentage to be applied in order to determine the entry fee. It did not restrict itself to ‘stereotype wording’, but referred back to the considerations which it had already set out in connection with the gravity of the infringement (in recitals 292 to 296), according to which the infringement at issue was, by its very nature, among the most serious, as well as to its considerations in connection with the geographic scope of the infringement. The criteria which the Commission applied were, therefore, stated with sufficient precision and the applicant’s complaint alleging breach of the duty to state reasons must accordingly be rejected.

124 Secondly, the applicant argues that, had the Commission assessed the matter correctly, it would have taken into account the arguments which it put forward during the administrative procedure and, as a result, would have decided on a lower entry fee, or might even have decided not to include any entry fee at all in the basic amount of the fine which it was to impose on the applicant. The applicant refers, in this connection, to the launch of an internal training programme on the infringement of competition law and to its own critical situation during the period of the infringement. It also emphasises that it was the only undertaking participating in the infringement to express regret about its involvement.

125 With regard to those arguments, it must be pointed out, first of all, that it is explicitly stated in point 25 of the Guidelines that the Commission ‘will include in the basic amount’ an entry fee. In other words, contrary to what the applicant implies, the Commission was not required to decide whether or not to include the entry fee in the basic amount of the fine which it was to impose on the applicant: the method set out in the Guidelines, to which the Commission must adhere, provides for the inclusion of such a sum in the basic amount.

126 Next, it is clear from recitals 324 and 329 to the contested decision respectively that the Commission took account of the applicant’s assertions regarding the introduction of an internal training programme and its critical economic situation during the period of the infringement when considering the possible mitigating circumstances that might be taken into consideration for each member of the cartel.

127 It must be borne in mind in this connection that the entry fee referred to in point 25 of the Guidelines is part of the basic amount of the fine which, as is clear from point 19 of the Guidelines, must reflect the gravity of the infringement and not the relative gravity of the participation in the infringement of each of the undertakings concerned. According to the case-law, the latter issue must be examined in the context of the possible application of aggravating or mitigating circumstances. Accordingly, the Commission may determine the percentage of the value of sales referred to in point 25 of the Guidelines, as well as that referred to in point 21 of the Guidelines, at the same level for all cartel participants (see Novácke chemické závody v Commission, paragraph 74 above, paragraph 58 and the case-law cited).

128 Consequently, it cannot be claimed that the Commission erred in law or infringed its own Guidelines in that it did not choose, with respect to the applicant, a percentage of the value of sales, for the purpose of determining the entry fee, below 17%, in view of the particular circumstances put forward by the applicant, as summarised in paragraph 124 above. Those circumstances had to be examined in the context of the consideration of possible mitigating circumstances in the applicant’s favour. As was pointed out in paragraph 126 above, two of those mitigating circumstances are mentioned in that context in the contested decision.

129 It is, admittedly, true that the Commission did not recognise any mitigating circumstances in the applicant’s favour. However, the question whether that assessment was incorrect, inasmuch as the abovementioned allegations of the applicant’s justified the recognition of such mitigating circumstances, must be analysed in the context of the second plea, by which the applicant claims that the Commission erred in law for that precise reason. Moreover, the arguments which the applicant puts forward in the context of that plea reiterate and expand on these allegations.

130 Thirdly, the applicant complains that the Commission infringed the principles of equal treatment and proportionality in that it set ‘the same [entry fee] for all the undertakings which participated in the infringement’. It argues, first, that the need for deterrence is greater with regard to undertakings that have already participated in cartels on a number of occasions in the past, which is true of some of the members of the cartel at issue, namely Akzo Nobel and Degussa AG. For its part, it has never before been the addressee of a Commission decision relating to infringement of Article 81 EC. The principles of equal treatment and proportionality ought, for that reason in particular, to have led the Commission to set a much lower entry fee in its case that it did for Akzo Nobel and Degussa. Secondly, the applicant maintains that, in determining the entry fee, account must also be taken of the relative sizes of the various undertakings involved in the infringement. In particular, the case-law recognises the relevance of the overall turnover of undertakings in the determination of the financial capacity of members of a cartel. The applicant’s size and overall turnover are a mere fraction of those of the other undertakings which participated in the cartel, Akzo Nobel and Degussa in particular. The Commission failed to have regard to that important difference when it determined the entry fee. Had it assessed the matter correctly, it would have set a percentage in the applicant’s case far below 17%.

131 Those arguments cannot be upheld either. First of all it must be emphasised that, contrary to the applicant’s assertion, the Commission did not determine the same entry fee for each cartel member. Admittedly, it did choose the same percentage (17%) to be applied in calculating the entry fee for all the members of the cartel. However, in so far as the so-called ‘entry fee’ is a percentage of the value of each cartel participant’s sales in relation to the infringement, it will be different for each participant, depending on the differences in the value of the participants’ sales (Novácke chemické závody v Commission, paragraph 74 above, paragraph 58).

132 Next, as regards the fact that Akzo Nobel and Degussa are repeat offenders, it must be observed that, in accordance with the considerations set out in paragraph 127 above, aggravating circumstances such as repeated infringement, pertaining to one or other participant in an infringement, must be taken into account at a later stage of the determination of the fine, once the basic amount, of which the entry fee forms part, has been fixed. Indeed, as was pointed out in paragraph 7 above, the Commission’s Guidelines provide for the adjustment upwards of the basic amount of the fine to take account of aggravating circumstances. Repeated infringement is one of the aggravating circumstances mentioned, by way of example, in the first indent of point 28 of those Guidelines.

133 Indeed, in the present case, as is clear from recitals 309 and 310 to the contested decision, the Commission found that aggravating circumstance to be established in the case of Akzo Nobel and Degussa and increased the basic amount of their fines by 100% and 50% respectively, on account of it.

134 The applicant’s argument that the percentage to be applied in calculating the entry fee should be lower in its case than for the other undertakings participating in the infringement, and in particular the two undertakings guilty of repeated infringement mentioned above, cannot therefore be upheld.

135 Finally, for the reasons set out in paragraphs 111 to 113 above, it must be concluded that the alleged differences in size and overall turnover between the applicant and other cartel members, even if they were established, equally would not render it necessary to choose, in the applicant’s case, a lower percentage for the purpose determining the entry fee.

136 In the light of all the foregoing considerations, the sixth part of the first plea must be rejected. Moreover, in view also of the general remark made in paragraph 26 above, it must be held, with a view to the possible exercise by the General Court of its unlimited jurisdiction, that the applicant’s arguments do not support the conclusion that the basic amount of the fine imposed on it, as determined by the Commission in accordance with the method set out in the Guidelines, exceeds what is reasonable. The first plea must therefore be dismissed in its entirety.

The second plea, alleging unlawful failure on the Commission’s part to take into consideration mitigating circumstances in the applicant’s favour

137 The applicant argues that the contested decision is vitiated by unlawfulness in that the Commission failed to take into consideration significant mitigating circumstances in its favour. This plea falls into five parts, alleging, first, the non-implementation of the agreements at issue and the fact that the applicant derived no benefit and customers suffered no harm, secondly, failure to take the applicant’s effective cooperation into account, thirdly, failure to take the applicant’s admission and remorse into account, fourthly, failure to take the compliance measures introduced by the applicant into account and, fifthly, failure to take account of the critical situation of the calcium carbide production sector and of the applicant itself.

Preliminary remarks

138 As was pointed out in paragraph 92 above, where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them.

139 In accordance with that consideration, the Guidelines provide, in point 29 thereof, for the basic amount of the fine to be adjusted on the basis of certain mitigating circumstances specific to each undertaking concerned. Point 29 lays down, in particular, a non-exhaustive list of mitigating circumstances that may be taken into account. However, it is permissible for other circumstances not included in the indicative list set out in point 29 of the Guidelines to be taken into consideration, provided that they are capable of diminishing the relative gravity of the participation in the infringement of the person or entity concerned (see, to that effect, judgment of 12 December 2012 in Case T‑400/09 Ecka Granulate and non ferrum Metallpulver v Commission, not published in the ECR, paragraph 61).

140 Those preliminary remarks must be borne in mind during the analysis of the various parts of the present plea.

The first part of the second plea, alleging non-implementation of the agreements at issue, that the applicant derived no benefit, and that customers suffered no harm

141 In the context of the first part of the second plea the applicant repeats, in substance, the arguments summarised in paragraphs 66 to 68 above, which, it maintains, demonstrate that the agreements at issue were implemented only partially and that the infringement had no effect on the market, caused no harm to customers and did not enable the cartel members to benefit unduly from it. It submits that the Commission should have taken those alleged circumstances into consideration as mitigating circumstances for the purpose of reducing the fine.

142 It must be recalled in this connection, first of all, that in recitals 318 and 319 to the contested decision the Commission stated the following: ‘(318) As mentioned in recital (193), implementation of agreements between calcium carbide and magnesium suppliers took place. Throughout the duration of the cartel, the parties exchanged sensitive commercial information, allocated customers, agreed to implement price increases agreed upon and discussed the implementation of the quota agreements by updating their market sharing tables. The agreements did not exclude all further competition between the participants, [but] the existence of rivalry and cheating does not in any case alter the conclusion that the agreements were implemented and did restrict competition among the suppliers of calcium carbide and magnesium granulates. (319) Furthermore, none of the participants have claimed that they avoided all implementation in practice of the unlawful agreements. In particular, no participant has provided evidence that it avoided implementing the agreements by adopting competitive conduct or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation. ... Cheating never led to a denial of the arrangements made, but always started by taking the arrangements agreed into account. It was heavily discussed in the cartel meetings and compensated if needed. ...’

143 It is thus clear that the Commission concluded that the agreements at issue had indeed been implemented. The Commission was entitled to take the view, in its assessment of possible mitigating circumstances, in substance, that the fact that the agreements did not entirely exclude competition among the cartel members and that rivalry and cheating continued among them did not alter the fact that the infringement had been committed. Indeed, as is made clear in the case-law to