Parties

Grounds

Operative part



Parties

In Case T-154/09,

Manuli Rubber Industries SpA (MRI), established in Milan (Italy), represented by L. Radicati di Brozolo, M. Pappalardo and E. Marasà, lawyers,

applicant,

v

European Commission, represented by V. Di Bucci, S. Noë and L. Prete, acting as Agents,

defendant,

APPLICATION, primarily, for annulment in part of Commission Decision C(2009) 428 final of 28 January 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine Hoses), in so far as that decision relates to the applicant, and, in the alternative, for annulment or a substantial reduction of the fine imposed on the applicant in that decision,

THE GENERAL COURT (First Chamber),

composed of J. Azizi, President, M. Prek and S. Frimodt Nielsen (Rapporteur), Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 26 April 2012,

gives the following

Judgment

Grounds

Facts giving rise to the dispute

A – The oil and gas marine hoses sector

1. Marine hoses are used to load sweet or processed crude oil and other petroleum products from offshore facilities (for example, buoys – normally anchored offshore and serving as a mooring point for tankers – or floating production, storage and offloading platforms – which are floating tank systems used to take the oil or gas from a nearby platform, process it and store it until it is offloaded on to a tanker) on to vessels and then to offload those products from those vessels to offshore (for example buoys) or onshore facilities.

2. Marine hoses are used offshore – that is to say, in or near the water – while industrial or onshore hoses are used on land.

3. Each marine hose installation is composed, according to customers’ specific needs, of a number of standard hoses, specific hoses with connections at both ends and ancillary equipment, such as valves, end gear or floating equipment. In this case, the expression ‘marine hoses’ encompasses those complementary mechanisms.

4. Marine hoses are used by petroleum companies, buoy manufacturers, port terminals, the oil industry and governments, and are purchased either for new projects or for replacement purposes.

5. With respect to new projects, oil terminals or other end users usually engage an engineering company (also known as an ‘original equipment manufacturer’ or ‘OEM’) to construct or install new oil distribution facilities, such as single buoy moorings or floating production, storage and unloading platforms. For such projects, the manufacturer purchases an entire marine hoses installation from a marine hoses producer.

6. Once those marine hoses are installed, the individual parts must be replaced within a period of between one and seven years. Purchases of marine hoses for replacement purchases (also known as ‘spares business’) are often made directly by end users. In some cases, however, end users outsource and centralise their purchases to subsidiaries or external companies. Replacement sales account for a greater proportion of the worldwide marine hoses market than sales of new products.

7. Demand for marine hoses largely depends on the development of the oil sector, and in particular on oil exploitation in areas remote from the place of consumption. Demand has expanded over time. It is cyclical and to a certain extent linked with the development of oil prices. It started to become significant in the late 1960s and rose in the early 1970s, in particular from oil-producing regions in the Persian Gulf, the North Sea and North Africa. During the 1980s demand from national oil companies in South America increased. In the late 1990s demand moved towards West Africa.

8. Marine hoses are manufactured by undertakings known for the manufacture of tyres and rubber or by their spin-offs. They are produced on demand, according to the specific needs of customers. As demand for marine hoses is widely dispersed, most marine hose producers engage a significant number of agents who, for specific markets, provide general marketing services and offer their products in the context of published calls for tenders.

9. Marine hoses are marketed throughout the world and the main producers are active at international level. The regulatory requirements for marine hoses are not fundamentally different from one country to another and while technical requirements differ according to the specific environment and conditions of use, that is not seen as an obstacle to selling marine hoses throughout the world.

10. Last, during the period taken into consideration in the contested decision, the participants in the cartel sold marine hoses produced in Japan, the United Kingdom, Italy and France to end users and also to OEMs established in different countries of the European Union and the European Economic Area (EEA). While the final destination of most marine hoses systems is in non-European regions, some of the main worldwide OEMs are based in the different countries of the European Union and the EEA.

B – The applicant

11. The applicant, Manuli Rubber Industries SpA (MRI), is a company active in the design, manufacture and distribution of machines and fluid-conveying rubber/metal components and systems for high pressure hydraulics and oil and marine applications worldwide.

12. The applicant is the ultimate parent company of the Manuli group. Its headquarters are in Milan (Italy).

13. On 2 December 1984 Manuli founded Uniroyal Manuli (USA) Inc., which was established in Delaware (United States) and wholly owned by MRI. That company was subsequently named Uniroyal Manuli Rubber (USA) Inc. in 1986, Manuli Rubber Industries (USA) Inc. in 1990, then Manuli Oil & Marine (USA) Inc. (‘MOM’) in 1997. The company was liquidated on 31 December 2006.

14. After the creation of MOM, the international sales and marketing of MRI’s marine hoses were conducted by MOM.

15. [ Confidential ]. (1)

16. [ Confidential ].

17. [ Confidential ].

18. In January 2006 the marine hoses sector was placed under the authority of the Ingénerie group of undertakings and MOM reported to the head of that group.

19. On 1 January 2007, following the liquidation of MOM, the marine hoses operational activity was resumed by MRI.

C – Administrative procedure

20. When an investigation was opened by the United States Department of Justice and the Japanese and United Kingdom competition authorities for similar facts, [ confidential ], relying on the leniency programme set out in the Commission Notice on immunity from and the reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’), submitted an application for immunity to the Commission of the European Communities on 20 December 2006, reporting the existence of a cartel on the marine hoses market.

21. The Commission then initiated an investigation for infringement of Article 81 EC and Article 53 EEA and on 2 May 2007 carried out a series of inspections at the premises of Parker ITR, other producers concerned and also of [ confidential ] and Mr W.

22. Manuli, Parker ITR and Bridgestone submitted applications for leniency to the Commission on 4 May, 17 July and 7 December 2007 respectively.

23. On 28 April 2008 the Commission adopted a statement of objections, which it notified to the various companies concerned between 29 April and 1 May 2008.

24. All the companies concerned replied to the statement of objections within the prescribed period and, with the exception of [ confidential ] /DOM, ContiTech AG and Continental AG, requested to be heard at an oral hearing, which was held on 23 July 2008.

D – The contested decision

25. On 28 January 2009 the Commission adopted Decision C(2009) 428 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39406 – Marine Hoses; ‘the contested decision’). It follows, in substance, from the contested decision that:

– the decision was addressed to 11 companies, including the applicant;

– the companies to which the contested decision was addressed participated, sometimes in different ways, in a single, complex infringement, having had as its object:

– the allocation of tenders;

– price-fixing;

– quota-fixing;

– the fixing of sales conditions;

– the sharing of geographic markets;

– the exchange of sensitive information on prices, sales volumes and procurement tenders;

– the cartel began at least on 1 April 1986 (although it is likely that it dates from the early 1970s) and ended on 2 May 2007;

– between 13 May 1997 and 11 June 1999, for some companies, 21 June 1999, for other companies, and 9 May 2000 for MRI, the cartel’s activities were limited and there was friction between the members; however, according to the Commission, that did not entail a real interruption of the infringement; the organised structure of the cartel was re-established in full from June 1999, according to the same procedures and with the same participants, apart from the applicant, which was wholly re-integrated in the cartel on 9 June 2000; it must therefore be considered that the producers committed a single and continuous infringement which lasted from 1 April 1986 until 2 May 2007, or, at least, if in spite of everything it should be considered that there was an interruption, a single repeated infringement; however, the period from 13 May 1997 until, so far as the applicant is concerned, 9 June 2000 is not taken into consideration in the calculation of the fine, in view of the limited amount of evidence of the infringement for that period;

– the applicant’s participation in the infringement was established for the periods 1 April 1986 to 1 August 1992 and 3 September 1996 to 2 May 2007;

– in application of the criteria laid down in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’), the basic amount of the fine to be imposed on each of the companies was determined as follows:

– the Commission relied on the average annual worldwide sales of each of the companies between 2004 and 2006, with the exception of Yokohama Rubber, for which it applied the period 2003 to 2005; in that regard, the Commission used sales invoiced to purchasers established in the EEA;

– the Commission determined the relevant sales of each undertaking by applying their worldwide market share to aggregate sales within the EEA, in accordance with point 18 of the Guidelines;

– it took 25% of that value (instead of the 30% maximum provided for in the Guidelines) in consideration of the gravity of the infringement;

– it multiplied the value thus obtained by the number of years of each undertaking’s participation in the infringement;

– last, in accordance with point 25 of the Guidelines, it applied an additional sum equal to 25% of the relevant sales, for the purposes of deterrence;

– the Commission then applied aggravating circumstances against Parker ITR and Bridgestone and rejected all mitigating circumstances for the other undertakings;

– last, pursuant to the Leniency Notice, the Commission reduced the fines imposed on [ confidential ] (by 100%) and MRI (by 30%), but rejected the applications for a reduction submitted by Bridgestone and Parker ITR.

26. [ Confidential ].

27. There are no attenuating circumstances relating to the infringement in MRI’s case.

28. However, a reduction of 30% was granted to the applicant under the Leniency Notice, thus bringing the fine imposed on it to EUR 4 900 000.

Procedure and forms of order sought by the parties

29. By application lodged at the Court Registry on 10 April 2009, the applicant brought the present action.

30. As a member of the Chamber was unable to sit in the present case, the President of the Court designated another judge to complete the Chamber, pursuant to Article 32(3) of the Court’s Rules of Procedure.

31. Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, requested the parties to produce certain documents and put a number of questions to them in writing. The parties complied with that request.

32. By letter of 25 April 2012, the applicant submitted a request that the hearing be held in private.

33. The parties presented oral argument and replied to the oral questions put to them by the Court at the hearing on 26 April 2012.

34. The applicant withdrew its request that the hearing be held in private on that occasion.

35. The applicant claims that the Court should:

– primarily:

– annul Article 1 of the contested decision in that the applicant is stated to have participated in a single and continuous infringement in the marine hose sector from 1 April 1986 until 1 August 1992 and from 3 September 1996 to 2 May 2007, in particular for the period 3 September 1996 to 3 May 2000;

– annul Article 2 of the contested decision in so far as it imposes a fine of EUR 4 900 000 on the applicant;

– reject all objections and claims to the contrary;

– in the alternative:

– reduce, in accordance with Article 229 EC, the fine of EUR 4 900 000 imposed on the applicant by Article 2 of the contested decision;

– order the Commission to pay the costs.

36. The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

A – The claims for annulment

37. The applicant puts forward three pleas in support of its action for annulment.

38. The first plea alleges an error in the characterisation of the infringement and an infringement of Article 253 EC.

39. The second plea alleges various errors of assessment in the determination of the duration of the infringement, and also infringement of Articles 81 EC and 253 EC and of Article 2 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

40. The plea is divided into six parts, alleging, respectively, errors in the assessment of the evidence used by the Commission (first part); that the Commission did not adduce the requisite evidence (second part); that the applicant adduced evidence to the contrary and a different plausible explanation (third part); breach of the principle of equal treatment and failure to state reasons, owing to errors of assessment in the comparison of MRI’s conduct between September 1996 and May 1997 and its conduct between May 1997 and May 2000 (fourth part); that the limitation period ought to have been applied to any separate infringements committed during the period 1996 to 2000 (fifth part); and that the use of the documents which MRI supplied in the context of the leniency programme to establish the existence of an infringement for the period from 3 September 1996 to 13 May 1997 is contrary to the Leniency Notice and constitutes a breach of the applicant’s legitimate expectation (sixth part).

41. The third plea is divided into five parts, alleging, respectively, an error of assessment of the gravity of the infringement and breach of the principle of equal treatment (first part); an error in the calculation of the fine by reference to the duration of the infringement, and breach of the principle of legitimate expectations (second part); incorrect application of the increase for deterrence and breach of the obligation to state reasons and of the principle of equal treatment (third part); incorrect rejection of mitigating circumstances and breach of the obligation to state reasons (fourth part); and insufficient reduction of the fine for cooperation in the context of the leniency programme (fifth part).

42. It is appropriate to examine the first plea and the six parts of the second plea together.

B – First plea, alleging error in the characterisation of the infringement and infringement of Article 253 EC, and second plea, alleging manifest errors of assessment in the determination of the duration of the infringement, infringement of Articles 81 EC and 253 EC and of Article 2 of Regulation No 1/2003

1. The contested decision

43. As regards the first plea, it follows, in essence, from recital 412 to the contested decision that the Commission considered that MRI had interrupted its participation in the infringement between 1 August 1992 and 3 September 1996, that the limitation period might apply for the infringement period between 1 April 1986 and 1 August 1992 and that the Commission therefore decided not to impose a fine on MRI for that period. It follows from Article 1 of the contested decision, moreover, that the Commission considered that a continuous infringement had been committed between 1 April 1986 and 2 May 2007, in which MRI took part between 1 April 1986 and 1 August 1992 and between 3 September 1996 and 2 May 2007; and from recitals 187, 201 to 208 and 446 to 448 to the contested decision that the infringement period taken into account by the Commission for the purposes of calculating the fine runs from 3 September 1996 to 13 May 1997 and from 9 May 2000 to 2 May 2007, the period between 13 May 1997 and 9 May 2000 being regarded, so far as the applicant is concerned, as a period of reduced cartel activity that did not warrant the imposition of a fine.

44. As regards the second plea, it follows from recitals 141 to 147 to the contested decision that that Commission, relying on various documents, including certain internal notes communicated by MRI in the context of its leniency application (recitals 143 to 145 to the contested decision), considered that the applicant had actively rejoined the cartel with effect from 3 September 1996.

45. Recitals 148 to 187 to the contested decision, moreover, set out the evidence, including a number of documents communicated by MRI in the context of its leniency application, on which the Commission relied when it considered that between 13 May 1997 and May 1999 the cartel had gone through a period of limited activity, during which contacts were maintained, involving the applicant, with the object, in particular, of relaunching the cartel and negotiating the conditions of the participation of its various members. The Commission considered, however, that, in view of the limited nature of the activity of the cartel members, no fine should be imposed on them for that period, which was extended, in MRI’s case, until 9 May 2000 (recital 447 to the contested decision).

46. Recitals 289 to 307 to the contested decision then explain the reasons why the Commission considered that the infringement was continuous or, in the alternative, repeated, in spite of the fact that it considered that the cartel’s activities had been limited between 13 May 1997 and May 1999 and that no fine should be imposed for that period.

47. Recitals 480 to 488 to the contested decision set out, last, the reasons why the Commission granted MRI a 30% reduction of its fine under the leniency application but rejected MRI’s argument that, under paragraph 26 of that notice, evidence which it supplied to the Commission for the period 1996/1997 should not be used against it.

2. Arguments of the parties

(a) The first plea

48. The applicant maintains, in essence, that, since the Commission acknowledged, first, that the applicant had withdrawn from the cartel between 1 August 1992 and 3 September 1996; second, that this was a genuine interruption and not a suspension of its participation in the cartel, in the sense in which the case-law distinguishes those two concepts (recitals 129, 130 and 402 to the contested decision); and, third, that the applicant should therefore benefit from the provisions on limitation for the period before 1992 (recital 412 to the contested decision), with the consequence that that period should not be taken into consideration for the purposes of calculating the fine, the Commission could not at the same time decide that the applicant had participated in a complex and continuous infringement from 1 April 1986 until 2 May 2007, which is contrary to Article 25(2) of Regulation No 1/2003. The period following the resumption of the applicant’s participation in the cartel can therefore be regarded only as a new infringement, distinct from the preceding infringement.

49. The applicant also denies, in essence, that the application of the limitation period to it involved the Commission’s ‘discretion’, as the latter asserts (recital 412 to the contested decision).

50. Such reasoning also seems to be contradictory and incomplete, in the applicant’s submission.

51. The applicant maintains, moreover, that having regard to that interruption of its participation in the cartel, its situation cannot be compared with that of the other cartel members.

52. The Commission disputes those assertions and contends that it was not required to find that the limitation period was applicable and that it therefore merely indicated that it could be applied.

(b) Second plea

First part

53. The applicant maintains that, in order to find that it participated in the infringement during the period 1996 to 2000, the Commission relies on certain documents that reveal the contacts between the applicant and its competitors and which indicated that, ‘as of late 1996, [the applicant] returned to coordinate some marine hoses tenders with cartel members’ (recital 141 to the contested decision) and that in that period it ‘benefited from the comprehensive market information exchanged for the purpose of supervising the market allocation arrangements among cartel members’ (recital 147 to the contested decision).

54. In essence, however, the evidence on which the Commission relies [ confidential ] does not support such a finding and the applicant disputes both the Commission’s reading and its interpretation of the evidence, even on the assumption that the Commission might validly rely on the evidence which the applicant itself provided in the context of its leniency application to establish that the applicant was involved in the cartel during the period from 3 September 1996 until 13 May 1997, which was taken into consideration in the calculation of the fine imposed on it.

55. The Commission disputes that argument and observes that the applicant acknowledges at several points in its written pleadings that it had numerous prohibited contacts with its competitors between 1997 and 2000, although it attempts to play down their scope and significance.

Second part

56. The applicant claims, in essence, that the evidence adduced by the Commission is not sufficient to show that the applicant participated anew in a common plan during the period in question. It submits that it was for the Commission to prove that the applicant had participated in a new infringement, since it had wholly left the cartel in 1992 and the infringement for the period before 1992 was time barred. The Commission could therefore not be satisfied with indicia on the basis of which it presumed that the applicant’s participation in the cartel had continued: yet that is what it did by wrongly relying on the argument that the infringement was continuous from 1986.

57. The applicant further maintains that, in any event, the indicia gathered by the Commission show that it explicitly refused to respond favourably to the proposals for collaboration made by the other participants in the cartel.

58. The Commission disputes those arguments.

Third part

59. First, the applicant denies, in essence, having failed to provide a plausible explanation other than participation in the collusive agreement for the evidence adduced by the Commission (recital 142 to the contested decision) and, in addition, disputes the Commission’s argument that the infringement may be inferred from mere presumptions provided that exchanges of information and unlawful contacts with competitors have been demonstrated, with the consequence that it is then for the undertaking to supply another plausible explanation (recital 262 to the contested decision).

60. In effect, the applicant maintains that it supplied another explanation that was not only plausible but was supported by various items of evidence – the first oral statement of [ confidential ] –, on which it might be considered that the applicant had not participated in the cartel between 3 September 1986 and 9 May 2000 and that it rejoined the cartel only on that date.

61. The applicant claims, in that regard, that the documents to which the Commission refers in the contested decision show that the contacts that took place were in reality the outcome of the other undertakings’ efforts to try to persuade the applicant to join the cartel and show that one of its managers adopted the strategy of ‘feigning a vague disposition to collaborate with competitors’ in order to encourage them not to implement concerted boycotting actions that might have proved dangerous for the applicant, such as those implemented by Dunlop and Bridgestone, while continuing to adopt an independent and indeed offensive approach to competition on the market.

62. Second, the applicant maintains in essence that the Commission is wrong to disregard various documents that substantiate that explanation and to deny that they had probative value.

63. The applicant maintains, in that regard, that, while acknowledging that the documents in question ‘confirm that [the applicant] was not part of the formal “Club” structure before that date [9 May 2000]’, the Commission none the less maintains that those documents ‘do not contradict the finding … that [the applicant] continued to be in some kind of illicit contacts with other cartel members and was updated by them about ongoing collusion’ and that those contacts related to ‘cooperation on the marine hoses market’, which led the Commission to take the view that the applicant had also formed part of the cartel between 1997 and 9 May 2000 (recitals 146, 209 and 210 to the contested decision).

64. The applicant submits that the Commission thus seems to rely on the case-law according to which the fact that each member of the cartel played its own specific role, by adopting conduct which embraces only some of the constituent elements of the infringement, does not mean that each of the undertakings is not responsible for the infringement considered as a whole, including the acts committed by other participants (recitals 284 to 288 to the contested decision).

65. The applicant maintains that that case-law is not applicable in the present case, since it relates to proof of the participation in a cartel of undertakings whose presence at meetings held for the purpose of concluding anti-competitive agreements has been established and who did not manifest their disagreement with the cartel in question.

66. The applicant claims that it is common ground that it left the cartel in 1992 and the contacts between 1996 and 2000 should therefore be assessed by reference to their ability to demonstrate that the applicant again acceded to a common plan.

67. The Commission cannot therefore be satisfied with mere presumptions.

68. In addition, the applicant submits that, in accordance with the case-law, it is not sufficient for the Commission, in order to demonstrate that the applicant adhered to the common plan pursued by the other cartel members, to prove that the applicant was aware of the existence of the cartel or that it pursued the general objective of restricting competition on the marine hoses market – which the applicant in any event denies –, but it is also necessary to establish that the applicant’s conduct was ‘closely linked’ to the achievement of ‘all the anti-competitive effects intended by those responsible, within the framework of a global plan aimed at a single objective’. In the applicant’s submission, the documents on which the Commission relies show in reality not only that the applicant had no intention of adhering to a common plan pursued by the other producers but that it preferred even to act contrary to that plan, while understandably seeking to avoid reprisals on the part of its competitors, since they were able to take concerted action to exclude the applicant from the market or to cause it serious harm.

69. The applicant maintains, moreover, in essence that, in disregard of the case-law of the Court of Justice, the Commission failed to take account of the fact that, in order to assess the actual participation of an undertaking in a cartel, the knowledge of the members of the cartel of whether the undertaking in question is inside or outside the cartel is decisive. The applicant maintains that it has shown that, in its contacts with competitors, on their initiative, it had always expressly refused any proposal for collaboration, albeit in hypothetical terms and for the future, and that the competitors themselves had the clear impression that the applicant in fact opposed their overall plan.

70. The applicant denies, last, that the evidence which it adduces has less probative value than that adduced by the Commission and maintains that the distinction which the Commission draws between the formal structure of the club and participation outside that structure is incorrect, since that distinction did not exist for club members who were aware only of the formal structure. It is precisely for that reason that the other members of the club, in the applicant’s submission, considered that the applicant was outside the club.

71. The Commission disputes those claims.

Fourth part

72. The applicant submits that the Commission considered that, for the period between 13 May 1997 and 9 May 2000, it was not appropriate to impose a penalty on the applicant, owing to the fact that the gravity and degree of the cartel was lower. It therefore imposed a penalty on the applicant only for the period 1996-1997. In the applicant’s submission, its conduct did not change between 1996 and 2000, which, it claims, is apparent from the documents to which it has previously referred in the context of the second plea, as the evidence for the period between September 1996 and May 1997 is no more conclusive than that relating to the period between May 1997 and June 1999. No penalty therefore ought to have been imposed on the applicant for the period September 1996 to May 1997.

73. The applicant maintains, moreover, that the inconsistency in the Commission’s findings and reasoning is demonstrated by the fact that, unlike the other undertakings, the applicant did not receive a penalty for the period June 1999 to May 2000, as its participation in the cartel was not regarded as serious, whereas the other undertakings did receive a penalty for that period.

74. The Commission disputes those claims.

Fifth part

75. First, the applicant maintains that, irrespective of whether the cartel was characterised as an agreement or as a concerted practice, the limited contacts and exchanges of information between it and its competitors during the period 1996 to 2000 took place outside the mechanism of the cartel in which the other undertakings participated.

76. In its submission, even if that conduct could constitute an infringement of Article 81 EC, it was of a different nature and gravity from participation in the cartel, since it is not connected with the single objective of the cartel; furthermore, the Commission has failed to prove the contrary.

77. The conduct in question should therefore be regarded, at most, as separate and distinct episodes of infringements of Article 81 EC and be assessed separately, both from the infringement committed by the applicant between 1986 and 1992 and from its renewed adherence to the cartel after 2000.

78. It follows, in the applicant’s submission, that since they do not form part of a single and continuous or repeated infringement, those infringements, on the assumption that they are established, were completed at the actual time when they were perpetrated. As in each case more than five years had elapsed between the time when the infringement was committed and the time when it was pursued by the Commission, the infringements were in any event time barred, pursuant to Article 25(1)(b) of Regulation No 1/2003.

79. Second, the applicant claims that, in view of the fact that the interruption between the facts committed until 1992 and the facts committed after 2000 lasted eight years, those facts cannot be regarded as sufficiently proximate in time to show that the cartel was uninterrupted.

80. The same would apply even if the duration of the interruption were only four years (1992 to 1996).

81. Third, the applicant submits that, in any event, it ceased to participate in the cartel in 1992 and that its participation was therefore interrupted and not suspended, which, moreover, is acknowledged by the Commission, which considered that the facts before 1992 were time barred.

82. Fourth, it also follows that, having accepted that the interruption in 1992 could mean that the rule on limitation was applicable, the Commission could not leave that question open and assert that the fact that no penalty was imposed for the earlier period was merely the result of the exercise of its discretion. It follows that there is a failure to state the reasons on which the characterisation of the infringement is based.

83. Fifth, and last, the applicant maintains that the Commission has not adduced the slightest evidence to show that it adopted one of the forms of conduct which, according to the contested decision (recital 300), would show that the cartel was continuous between 1996-1997 and 2000.

84. The applicant claims that it did not participate in any meeting with the other members of the cartel; that it provided no information to the coordinator about future invitations to tender; that it did not participate in discussions of the proposals to designate ‘champions’ in application of alleged global agreements; and that it did not receive any penalty for not having complied with alleged earlier agreements.

85. The Commission has therefore not shown that the applicant was again a party to the cartel, even on a limited basis, during the period 1996 to 2000.

86. The Commission disputes those claims.

Sixth part

87. The applicant claims that all the evidence – apart from one item, namely [ confidential ] – used by the Commission to prove its guilt during the period 3 September 1996 to 13 May 1997, and then in order to calculate the fine imposed on the applicant, was provided by the applicant itself in the context of the leniency programme.

88. The applicant observes that the Commission thus significantly extended the duration of the infringement, which resulted in a significant increase in the fine (recitals 243 and 448 to the contested decision).

89. The applicant adds that it cooperated in the administrative investigation and maintains that it was justified in considering that that would not prove harmful to it. However, the outcome of that cooperation was, in the applicant’s submission, used by the Commission in order to make a finding against the applicant although it had no proof relating to the period at issue before the applicant supplied such proof to the Commission. The Commission thus breached the applicant’s legitimate expectation.

90. The applicant also disputes the Commission’s interpretation where it considers that the reduction of the fine and partial immunity cannot both be granted in the context of the application of the Leniency Notice.

91. In the Commission’s submission, the applicant’s arguments relate in reality to the calculation of the fine and not to the finding of infringement.

92. In addition, it claims that documents supplied in the context of the Leniency Notice can always be used by the Commission for the purpose of finding an infringement.

93. The Commission submits that the applicant was rewarded for its cooperation by being granted a 30% reduction of its fine, which, in absolute terms, is appreciably higher than the reduction that would result from any partial immunity. In the system governed by the Leniency Notice, the two advantages cannot both be granted.

94. Furthermore, in the Commission’s submission, point 26 of the Leniency Notice states only that, as regards the first undertaking eligible for a reduction of the fine, the ‘compelling evidence’ (within the meaning of point 25 of that notice, that is to say, evidence which does not required corroboration if contested) serving to ‘establish additional facts increasing the gravity or the duration of the infringement’ will not be used in setting any fine to be imposed on that undertaking.

95. While the evidence supplied by the applicant was indeed important for the purpose of corroborating the evidence obtained in the leniency application submitted by [ confidential ] and the on-the-spot investigations carried out on 2 May 2007, that, in the Commission’s submission, is not sufficient to satisfy the conditions set out at point 26 of the Leniency Notice, which requires that the evidence should make it possible to ‘establish additional facts increasing the gravity or the duration of the infringement’ and, the Commission emphasises, of the infringement as a whole and not only in consideration of one or more participating undertakings taken in isolation.

96. The Commission maintains that the purpose of that provision is to enable it to grant partial immunity to an undertaking which provides new evidence allowing it to increase the gravity or the duration of an infringement of which it was already aware and in respect of which it had already granted total immunity to another participating undertaking. On the other hand, an undertaking which has merely improved the Commission’s existing knowledge of a certain period or a certain aspect of the infringement could not benefit from that provision, even where its collaboration enables its own participation in the cartel to be better established.

97. In the Commission’s submission, however, the evidence supplied by the applicant did not enable either the greater gravity or the longer duration of the infringement of which the Commission was aware to be established.

98. Last, the Commission maintains that the applicant did not inform it of new facts also relating to its participation in the cartel during the period from 1996 to 1997. In effect, [ confidential ] – which confirms that both undertakings agree that the applicant should be awarded a lot in a call for tenders and which proves unequivocally that MRI collaborated in the unlawful activity at that time – had been discovered during the inspections carried out on 2 May 2007 and was already in the Commission’s possession when MRI submitted its leniency application on 4 May 2007.

99. The Commission therefore claims that the sixth part of the second plea should be rejected.

3. Findings of the Court

(a) Principles relating to the burden of proof

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

101. That apportionment of the burden of proof may vary, however, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (see, to that effect, Aalborg Portland and Others v Commission , paragraph 100 above, paragraph 79, and Peróxidos Orgánicos v Commission , paragraph 100 above, paragraph 53).

102. As regards the evidence which the Commission can rely on, the principle which prevails in competition law is that of the unfettered evaluation of evidence (Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 63, and Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 273). Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities entailed by those practices and those agreements to take place clandestinely, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between operators, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others v Commission , paragraph 100 above, paragraphs 55 to 57). Such indicia and coincidences may reveal not just the existence of anti-competitive practices or agreements, but also the duration of a continuous anti-competitive practice or the period of application of an agreement concluded in breach of competition law (Case C-113/04 P Technische Unie v Commission [2006] ECR I-8831, paragraph 166).

103. The Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (see Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraphs 43 and 72 and the case-law cited, and Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 217). However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient that the body of evidence on which the Commission relies (see paragraph 102 above), assessed globally, satisfies that requirement ( JFE Engineering and Others v Commission , paragraph 102 above, paragraph 180, and Groupe Danone v Commission , paragraph 218; see also, to that effect, Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘ PVC II ’) [1999] ECR II-931, paragraphs 768 to 778, and in particular paragraph 777). As regards the duration of the infringement, the case-law requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates ( Technische Unie v Commission , paragraph 102 above, paragraph 169; Dunlop Slazenger v Commission , paragraph 100 above, paragraph 79; and Peróxidos Orgánicos v Commission , paragraph 100 above, paragraph 51).

104. As regards the probative value that should be placed on different types of evidence, it should be emphasised that the only relevant criterion for the purpose of assessing evidence freely adduced relates to its credibility ( Dalmine v Commission , paragraph 102 above, paragraph 63; see Case T-44/00 Mannesmannröhren-Werke v Commission [2004] ECR II-2223, paragraph 84 and the case-law cited, and JFE Engineering and Others v Commission , paragraph 102 above, paragraph 273). According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T-25/15, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T-37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T-48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T-57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T-65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 1053; Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, II-869, at II-956). It is necessary, in particular, to attach great importance to the fact that documents were drawn up in close connection with the events (Case T-157/94 Ensidesa v Commission [1999] ECR II-707, paragraph 312), or by a direct witness of those events (see, to that effect, JFE Engineering v Commission , paragraph 102 above, paragraph 207). Documents from which it is evident that contacts took place between a number of undertakings and that they in fact pursued the aim of removing in advance any uncertainty as to the future conduct of their competitors demonstrate, to the requisite legal standard, the existence of a concerted practice (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 175 and 179). Furthermore, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see, to that effect, JFE Engineering v Commission , paragraph 102 above, paragraphs 207, 211 and 212).

105. Furthermore, it has consistently been held that the disclosure by an undertaking of information to its competitors in preparation for an anti-competitive agreement is sufficient to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 82, and Case T-53/03 BPB v Commission [2008] ECR II-1333, paragraph 178).

106. Last, it should be borne in mind that the role of a Court hearing an application for annulment brought under Article 230 EC against a Commission decision finding the existence of an infringement of competition law and imposing fines on the addressees consists in assessing whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the infringement ( JFE Engineering and Others v Commission , paragraph 102 above, paragraphs 174 and 175; see also, to that effect, PVC II , paragraph 103 above, paragraph 891). Where there is doubt, the benefit of that doubt must be given to the parties to whom the decision is addressed, and consequently the court cannot conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains doubts on that point ( JFE Engineering v Commission , paragraph 102 above, paragraph 177, and Groupe Danone v Commission , paragraph 103 above, paragraph 215). In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p. 1), are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments (see Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraphs 149 and 150; Case C-235/92 P Montecatini v Commission [1999] ECR I-4539, paragraphs 175 and 176; and Groupe Danone v Commission , paragraph 103 above, paragraph 216).

107. The existence of an infringement must be assessed by reference solely to the evidence gathered by the Commission in the decision finding that infringement and the only relevant question is therefore to ascertain, on the merits, whether or not the infringement has been proved by that evidence ( Cimenteries CBR and Others v Commission , paragraph 104 above, paragraph 726).

108. Last, 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 Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 for a measure 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 (Case C-367/95 Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63; Case C-301/96 Germany v Commission [2003] ECR I-9919, paragraph 87; and Case C-42/01 Portugal v Commission [2004] ECR I-6079, paragraph 66).

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

110. It is by reference to the rules set out at paragraphs 100 to 109 above that the Court must ascertain whether, in the contested decision, the Commission adduced sufficiently credible, precise and consistent evidence to substantiate, in the context of a global assessment and after consideration of the explanations or alternative reasons supplied by the applicant, the firm conviction that the applicant rejoined the cartel with effect from 3 September 1996 and the extent to which it participated in the infringement between that date and 9 May 2000, in so far as it does not dispute having participated in the cartel either during the earlier period, between 1986 and 1992, or during the subsequent period, from 9 May 2000 until 2 May 2007.

(b) The applicant’s participation in the infringement between 3 September 1996 and 9 May 2000

111. The applicant’s arguments require that two periods be distingu ished: first, the period between 3 September 1996 and 13 May 1997, for which a fine was imposed on the applicant and for which it disputes, in essence, that the Commission relied, in the applicant’s case, on evidence which the applicant had supplied to the Commission and which enabled it to take the view that the infringement had continued until 13 May 1997; and, second, the period between 13 May 1997 and 9 May 2000 (‘the intermediate period’), for which no fine was imposed on the applicant by the Commission and in respect of which the applicants claims, in essence, that the evidence used by the Commission in its case shows only that it intended to give the other members of the cartel the impression that it was to a certain extent prepared to talk, but in order to deceive them and to avoid reprisals on their part, and not that that it was involved in the cartel, even during that period of reduced activity.

The period between 3 September 1996 and 13 May 1997

112. It is appropriate, in that regard, first of all to examine the sixth part of the second plea.

113. The Court must determine whether the applicant is correct to claim that, in the light of the terms of the final paragraph of point 26 of the Leniency Notice, the Commission could not use against it, for the period between 3 September 1996 and 13 May 1997, the evidence which the applicant itself had supplied to the Commission in the context of its leniency application.

– The scope of point 26 of the Leniency Notice

114. Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement.

115. It has consistently been held, moreover, that within the limits set by Regulation No 1/2003 the Commission enjoys a wide discretion when exercising its power to impose such fines (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 172, and Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-125/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 123). That power is however limited; where the Commission adopts guidelines which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, it then limits that discretion in that it must comply with the guidelines which it has imposed upon itself (see, to that effect, Case C-413/08 P Lafarge v Commission [2010] ECR I-5361, paragraph 95, and Case T-73/04 Carbone-Lorraine v Commission [2008] ECR II-2661, paragraph 192 and the case-law cited). It may not depart from those guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment or protection of legitimate expectations ( Dansk Rørindustri and Others v Commission , paragraph 209).

116. It is within that framework that it is necessary to have regard to points 23 to 26 of the Leniency Notice, which provide:

‘23. Undertakings disclosing their participation in an alleged cartel affecting the Community that do not meet the conditions under Section II above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.

24. In order to qualify, an undertaking must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must meet the cumulative conditions set out in points (12)(a) to (12)(c) above.

25. The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Incriminating evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance. Similarly, the degree of corroboration from other sources required for the evidence submitted to be relied upon against other undertakings involved in the case will have an impact on the value of that evidence, so that compelling evidence will be attributed a greater value than evidence such as statements which require corroboration if contested.

26. The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:

– first undertaking to provide significant added value: a reduction of 30-50%,

…

In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 24 was submitted and the extent to which it represents added value.

If the applicant for a reduction of a fine is the first to submit compelling evidence in the sense of point 25 which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence.’

117. In other words, in order to be able to benefit from the provisions of the final paragraph of point 26 of the Leniency Notice, a number of conditions must be satisfied: the undertaking must supply compelling evidence within the meaning of point 25 of the Leniency Notice, which means that such evidence must have significant added value and must not require corroboration; the evidence must make it possible to establish facts in addition to those which the Commission is in a position to establish, which increase either the gravity or the duration of the infringement.

118. Where those conditions are satisfied, the Commission will not take those facts into account when setting the amount of the fine – which depends on the gravity and the duration of the fine, in accordance with Article 23(3) of Regulation No 1/2003 – that will be imposed on the undertaking which enable those facts to be established by the evidence which it supplied to the Commission, as stated in the final paragraph of point 26 of the Leniency Notice.

119. It therefore follows from the final sentence of the final paragraph of point 26 of the Leniency Notice that the Commission will not rely on that evidence in order to determine the gravity or the duration of the infringement of the leniency applicant, provided that the latter satisfies the conditions laid down in point 26 of that notice, while enabling the leniency applicant to benefit, for the remainder, from the reduction provided for in that notice for the rest of the infringement period found against it.

120. It should be emphasised that the fact that the mechanism for the protection of the leniency applicant was provided for in point 26, dealing with the reduction of the fine, confirms that the two measures may be applied simultaneously by the Commission, contrary to the latter’s contention.

121. The percentage of the reduction of the fine must therefore be proportionate to the added value of the evidence supplied by the leniency applicant, as the final paragraph of point 26 has, in addition, as its object to ensure that an undertaking is not penalised solely on the basis of the evidence which it has itself supplied to the Commission.

122. The Commission’s argument must therefore be rejected on that point.

– The establishment, in the present case, of additional facts increasing either the gravity of the duration of the infringement

123. The Court will examine, next, the objection put forward by the Commission that the evidence supplied by the applicant did not enable it to establish new facts, whereas that is one of the conditions for the application of the final paragraph of point 26 of the Leniency Notice.

124. It should be observed that the Leniency Notice refers to ‘additional facts’ that increase the duration or the gravity of the infringement.

125. In the present case, in order to prove the activity of the cartel between September 1996 and May 1997, the Commission essentially relied on:

– [ confidential ] (recital 142 to the contested decision);

– [ confidential ] (recitals 143 to 145 to the contested decision);

– ‘[f]our samples of communications with other cartel members between May 1995 and March 1996 and between September 1996 and January 1997 saved on floppy disks found at the premises of Mr W. …’ (recital 139 to the contested decision); it states however, in footnote 216 to the contested decision, that ‘while the directories of those floppy disks show many more files from that period with similar names and this suggests that they consist of further faxes sent among cartel members, the Commission will not use the content of these files in evidence, as they were not part of the accessible Commission file’;

– Bridgestone’s reply to the statement of objections (‘Bridgestone claimed that the cartel established in 1986 had ceased in the spring of 1997’) (recital 291 to the contested decision);

– DOM’s responses to the statement of objections (‘DOM argued that there [was] clear evidence that the cartel [had] ceased to operate in the period from March 1997 to 1999’) (recital 292 to the contested decision);

– the history of activities drawn up by Mr W. (‘3.97: Stop all cooperation’) (recital 157 to the contested decision);

– the statements of [ confidential ] (‘the marine hose club had almost collapsed in 1998’) (recital 151 to the contested decision);

– responses to the request for information lodged by P. on 29 June 2007 and by Trelleborg on 15 June 2007 and also documents discovered at Trelleborg’s and Dunlop’s premises (paragraph 163 of the defence); and, last

– the tables prepared by Mr W. relating to the period November 1996 to December 1997 and also 1998 and 1999 (recital 165 to the contested decision).

126. The Commission therefore did indeed have a body of indicia, but it had in its possession only a single piece of contemporary documentary evidence, namely [ confidential ], and also the tables prepared by Mr W. – which it acknowledges being unable to date precisely – and the statements of the various cartel members, apart from the evidence supplied by MRI in the context of its leniency application.

127. The Court must therefore consider whether the elements of the body of indicia used by the Commission in the contested decision as the basis for its conclusion that the cartel was fully active between 3 September 1996 and 13 May 1997, other than the evidence supplied by MRI in the context of its leniency application, are sufficient on their own to support such a conclusion.

128. It is appropriate, first of all, to have regard to [ confidential ] addressed to DOM (recital 142 to the contested decision).

129. The wording of [ confidential ] at issue reads as follows:

‘I think we have a unique chance to re-establish better price level this year; from what I understand, Sumed should not be prepared for high price increasing.

I agree with your suggestion to let C have a substantial part of this tender and I propose the following figures where the second after champion is at PL x 0.65; we have to try it.

Thank you to confirm if it is OK for all members: if not please send suggestions ASAP.’

130. That text is followed by a table in which the various lots (or shares) of the ‘Sumed’ tender are allocated between various ‘champions’ designated among the six undertakings in the cartel:

>lt>1

131. The references A 1, A 2, B 1, B 2, B 3 and C are the usual code names of the different cartel members (recital 114 to the contested decision). According to those code names, Bridgestone is A 1, Yokohama Rubber A 2, DOM B 1, Trelleborg B 2, Parker ITR B 3 and MRI C.

132. The table shows not only that, for each lot or each share of the contract, a ‘champion’ was designated, but also that the price offered by the ‘second’, which in the table is in bold, italicised and underlined, and also the prices offered by the other participants, were also envisaged.

133. The significance of the role played by the ‘second’ in manipulating the offer may also be inferred from the wording of the fax, which states: ‘I propose the following figures where the second after champion is at PL x 0.65’.

134. It may be stated, moreover, that the price indicated for each lot with respect to the second always corresponds with that calculation: price PL x 0.65. There is only one exception, relating to ‘item 5’, where, according to that calculation, the price of the ‘second’ should be 29 360 (column C, that is to say, MRI) and not 29 860. That is in all likelihood a material error, however, as the author of the table no doubt placed in bold and underlined 29 860 in error.

135. The significance of the role of the ‘second’ is also confirmed by the applicant in its answers to the written questions put to it by the Court. It states that ‘the rule known by the cartel consisted precisely in deciding the price of the “second lowest bidder” while the details of the champion’s offer were … left to its discretion’.

136. It thus follows from the table that the applicant is the designated champion for one offer – which could no t have been orchestrated without its having participated in the discussions or even being aware, as it maintains –, but also that it is designated to come second on two occasions, or even three if the error relating to ‘item 5’ is taken into account.

137. In order for the manipulation of the offer envisaged in that table to work, it was necessary for each company to assume the role assigned to it and, in particular, the second, as otherwise the champion would never have been sure to win it.

138. It follows that it is unlikely that the extremely detailed orchestration of the ‘Sumed’ call for tenders appearing in that table could have worked without the applicant’s active and voluntary participation and that the role of ‘second’ envisaged for it should have been attributed to it by the other cartel members unless it had been fully involved in the cartel’s activities as early as September 1996.

139. It follows that, even though that document originates from a third party, it establishes to the requisite legal standard that MRI participated in the discussions relating to the ‘Sumed’ contract.

140. Consequently, the applicant’s argument that, in essence, it knew nothing about that document or the discussion to which it relates must be rejected.

141. It follows, moreover, from the table prepared by Mr W. (annex 10 to the application, line 87), relating to the contracts actually allocated between the cartel members, that three undertakings shared among themselves a ‘Sumed’ call for tenders awarded in November 1996, a little over two months after the proposal for coordination sent by [ confidential ]. The undertakings in question were Yokohama Rubber (designated as Japan C0.2), Trelleborg (designated as European C0.2) and MRI (designated as European C0.4).

142. Those were the three companies among which the lots of the ‘Sumed’ call for tenders were allocated in the table annexed to the fax from Trelleborg.

143. It should be stated, admittedly, as the applicant claims, that Mr W.’s table contains the word ‘estimates’ with respect to the ‘Sumed’ market, but the fact none the less remains that the three undertakings to which the lots were allocated correspond to the allocation as proposed in the fax from Trelleborg and that, for two of those undertakings, the amounts correspond to the value of the lots multiplied by the unit price of the successful bidder as indicated in that fax.

144. The Court considers that, in those circumstances, this was not a question of mere coincidences or conjectures concerning MRI, as the latter claims.

145. Furthermore, the Court considers that, since Mr W.’s table thus reflects the results of the coordination of the ‘Sumed’ call for tenders as disclosed in the fax from Trelleborg, the probative value of that evidence is thus increased.

146. Mr W.’s tables set out over several pages the results of various coordinations of bids between the various cartel members between 1996 and late 1997.

147. It follows that the Commission was correct to rely on that table not only in order to find that MRI rejoined the cartel from 3 September 1996 and that it participated fully in the cartel until 13 May 1997, but also in order to corroborate, more generally, the elements – and in particular the various statements which it had gathered (see paragraph 125 above) – in its possession concerning the pursuit of the cartel by the other cartel members up to that date.

148. The documents supplied by MRI were therefore not necessary in order for the Commission to arrive at such a conclusion.

149. It follows that the evidence supplied to the Commission by MRI concerning the period from 3 September 1996 to 13 May 1997 did not enable the Commission to establish that the infringement was of longer duration or greater gravity.

150. The applicant cannot therefore claim the benefit of the final paragraph of point 26 of the Leniency Notice.

151. It also follows that that evidence could be used by the Commission against the applicant.

152. Accordingly, the sixth part of the second plea must be rejected.

153. In addition, some of that evidence confirms beyond doubt that MRI was involved in coordinating certain bids.

154. Thus, in [ confidential ], Mr F. stated:

‘I rejected that offer in so far as it altered the initial arrangement given to me by Dunlop and also because, in the context of the first call for tenders, we had received only 18 lengths instead of the 36 envisaged owing to Sumed’s budgetary constraints. We are sure that Kléber has problems with the 24" in Sumed and it is for that reason that they only received 4 lengths instead of the 12 indicated in an earlier call for tenders.’

155. In fact, in the table annexed to the fax from Trelleborg (see paragraph 130 above), MRI is designated for a lot of 36 lengths of FF 20" and ‘Kléber’ – that is to say, Trelleborg – for five lots, including a lot of 12 lengths of FF 24".

156. The references which Mr F. makes to an earlier ‘Sumed’ contract are therefore perfectly consistent with the table annexed to [ confidential ] (see paragraph 130 above), which cannot be a mere coincidence.

157. In addition, the details in that communication explain Mr W.’s reference to ‘estimates’ in his table relating to the ‘Sumed’ call for tenders forming the subject matter of [ confidential ] indicating that MRI eventually received a smaller lot than initially envisaged.

158. Accordingly, the applicant’s argument that, in essence, it is no longer able to determine today whether the ‘Sumed’ tender referred to in that [ confidential ] corresponds to that mentioned in [ confidential ] must be rejected for the remainder.

159. In so far as necessary (see paragraph 147 above), the applicant’s participation in the infringement between 3 September 1996 and 13 May 1997 is thus confirmed.

The intermediate period

160. According to consistent case-law, the concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 115, and Hüls v Commission , paragraph 106 above, paragraph 158).

161. In that respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni , paragraph 160 above, paragraphs 116 and 117).

162. The disclosure of information to competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC ( Tréfilunion v Commission , paragraph 105 above, paragraph 82, and BPB v Commission , paragraph 105 above, paragraph 178).

163. According to settled case-law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves ( Commission v Anic Partecipazioni , paragraph 160 above, paragraphs 131 and 132, and Case T-9/99 HFB and Others v Commission [2002] ECR II-1487, paragraph 190).

164. In the context of a complex infringement which involves may producers seeking over a number of years to regulate the market between them the Commission cannot be expected to characterise the infringement precisely as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission v Anic Partecipazioni , paragraph 160 above, paragraphs 111 to 114, and PVC II , paragraph 103 above, paragraph 696).

165. The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 264, and HFB and Others v Commission , paragraph 163 above, paragraph 187).

166. It should be observed that in the present case the Commission decided to penalise the applicant and its competitors for having participated in ‘a series of agreements and concerted practices in the marine hoses sector’ during the period under consideration.

167. It indicated, at recitals 263 to 272 to the contested decision, how it proposed to characterise the unlawful facts of which it was aware and stated, in particular, at recitals 271 and 272 to the contested decision, that the exchanges of information constituted concerted practices.

168. It took issue with the applicant for having exchanged information with certain members of the cartel during the intermediate period with a view, in particular, to relaunching the cartel.

169. The communication of information to competitors in preparation for an anti-competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (see Case C-8/08 T-Mobile Netherlands and Others [2009] ECR I-4529, paragraphs 51 and 52, and Opinion of Advocate General Kokott in that case, [2009] ECR I-4523, points 90 and 91 and the case-law cited).

170. The question whether that conduct occurred in the context of the ‘Club structure’ or outside that structure is therefore irrelevant and the argument which the applicant puts forward in that respect in the context of the third part of the second plea must be rejected.

171. It follows from the contested decision, moreover, that the applicant withdrew from the cartel in 1992.

172. Furthermore, it is also established that the applicant rejoined the cartel in 1996 on the occasion of the manipulation of the ‘Sumed’ call for tenders, which was reflected by an allocation of quotas and fixing of prices on the marine hoses market following collusion to that effect in which the applicant must be considered to have taken part (see paragraphs 128 to 159 above).

173. As regards the intermediate period, running, so far as the applicant is concerned, from May 1997 to May 2000, it should be observed that the applicant confirmed at the hearing, in answer to a question put to it by the Court, that its plea was confined solely to the evidence relating to the period between 3 September 1996 and 13 May 1997.

174. That evidence could therefore be used by the Commission in order to establish that the applicant had taken part in certain contacts and certain discussions during the intermediate period.

175. However, the applicant disputes the extent of those contacts and also the Commission’s interpretation of the documents relating to them.

176. It is therefore necessary to examine those documents in order to establish whether the Commission was correct to conclude that the applicant had participated in a continuous infringement during the intermediate period, in spite of the fact that no fine was imposed on it or the other members of the cartel in respect of that period.

177. It should be observed, in the light of the applicant’s documents [ confidential ] (recitals 174 and 176 to the contested decision), that it can be established on the basis of those documents, at least, that Mr W. contacted Mr F., of MRI, concerning three calls for tenders (CPC Taiwan, Ancap Uruguay and Petrobras Brazil), an attempt at coordination that also involved Bridgestone, DOM, Yokohama Rubber and Parker ITR, and, moreover, that although Mr F. rejected the offer made to him, the cartel at least attempted to function during that period. There is thus no doubt that the various undertakings were in contact with each other and with the applicant in order to coordinate certain calls for tenders. The fact that those documents may suggest that all was not well in the cartel and that disagreements existed is, moreover, consistent with the Commission’s analysis of that period in the contested decision. As regards Mr F.’s document dated 4 February 1999, in which he sets out a history of the cartel, but also presents the state of the situation at that time, a document intended for one of the applicant’s commercial agents, it must be stated that even though Mr F. claims in that document that the applicant is not part of the cartel, that document at least shows the contacts in which Mr F. participated with other cartel members. Those documents therefore clearly show that contacts existed between the different undertakings concerned, with the intention, at least, of attempting to coordinate bids.

178. [ Confidential ] (recital 177 to the contested decision) establishes the existence of contacts between various protagonists in the cartel (Mr W., Mr F. and Mr P.), when they exchanged commercial data. The fact that the cartel was going through a period of crisis at that time, as that document also shows, does not mean that those contacts were not unlawful. In addition, the cartel was resumed shortly after those contacts took place, which tends to corroborate the idea that they helped to relaunch the cartel, even though the applicant did not itself again become a full party to the cartel until one year after the other protagonists.

179. [ Confidential ] (recital 201 to the contested decision) shows that contact took place between Mr C. and Mr F. at a time when the cartel had not yet been fully resumed – at least so far as the applicant was concerned. It shows, however, that Mr C. and Mr F. exchanged commercially sensitive information, but also that Mr F. was seeking a new operating method for the cartel from that time, in particular with respect to the coordination of the cartel, while already attempting to fix the applicant’s market share at 12%. As the Commission states, moreover, that piece of evidence must be seen from the aspect of the meetings which began to be held again as from June 1999. While it is true that the applicant’s full involvement in the cartel did not begin until later, the fact none the less remains that, at that time, it was making preparations for its return to the cartel and collaborating at least on the fringe with some of its competitors.

180. Last, the document entitled [ confidential ] (recital 190 to the contested decision) clearly shows the framework of the renewed cooperation. The applicant maintains that it did not take part in the meeting – which the Commission does not dispute – and that the fact that the market share allocated to it is shown in that document does not mean that it was part of the cartel. It is indeed true that the Commission considered that the applicant rejoined the cartel only from 9 May 2000 (see recital 202 to the contested decision, where the Commission states that is has evidence showing that MRI was again granted quotas from that date); however, there is, first, direct evidence that the applicant had reprehensible contacts with a view to rejoining the cartel in June 1999 (the applicant’s internal communication of 30 June 1999); second, a document distributed in December 1999, in the context of a meeting held after the other members of the cartel had resumed the cartel, in which the market share to be allocated to the applicant is fixed; and, third, evidence that it did in fact rejoin the cartel in May 2000, which, moreover, the applicant does not deny. It must therefore be considered that, since the ot her cartel members had resumed their unlawful activities, the market share which they proposed to allocate to the applicant could result only from enhanced coordination with the applicant. It is established that MRI was negotiating the terms of its return in June 1999, or six months before the tables distributed in December 1999 were drawn up. Those tables therefore constitute a particularly cogent indicium of the applicant’s participation, in December 1999, in the discussions relating to the allocation and coordination of the cartel members’ respective market shares.

181. To conclude, it must be held that the Commission adduced sufficient evidence showing, for the intermediate period, the existence of unlawful conduct on the applicant’s part, less serious, admittedly, by comparison with the earlier and later periods, which, moreover, induced the Commission not to impose a fine on the applicant with respect to that period.

182. The Court must reject, for the remainder, the applicant’s allegations that it thus sought to give the other cartel members the impression that it had a certain interest in the relaunching of the cartel while using that strategy to protect itself against any commercial reprisals on their part.

183. Not only are the applicant’s intentions irrelevant in that regard, but it must also be held that the applicant thereby recognises that, in maintaining contacts with the other cartel members, it attempted to protect itself from their competition, which is sufficient to establish the existence of an infringement.

184. In addition, the abovementioned documents prove that the essential object of those contacts was to relaunch the cartel and that the applicant took part in them, in particular, in order to negotiate its future place at the centre of the cartel.

185. The applicant’s argument that it took part in those discussions solely in order to deceive its former – and future – partners in the cartel and that it provided a plausible alternative explanation for the various documents used by the Commission to establish its participation in the cartel during the intermediate period must therefore be rejected.

186. Nor is that conclusion in any way called into question by the various items of evidence – [ confidential ] – on which the applicant relies in support of its argument.

187. Those various documents establish beyond doubt that MRI became fully reintegrated in the cartel in May 2000 but do not disprove the existence of its manoeuvres in preparation for that reintegration during the preceding years.

188. The applicant’s argument must therefore be rejected for the remainder.

(c) The existence of a continuous infringement

189. The applicant denies, in essence, first, that the infringement continued between 3 September 1996 and 13 May 1997, maintaining that if infringements must be used against it during that period they would be isolated infringements unconnected with the earlier and later periods, and, second, that the infringement was continuous between 13 May 1997 and 9 May 2000, since it did not take part in the discussions with an anti-competitive intention, but, on the contrary, did so in order to protect itself against any reprisals on the part of the other cartel members and since, in any event, the Commission cannot find the existence of a continuous infringement while at the same time finding the existence of reduced activity owing to a situation of crisis among the cartel members, which, moreover, induced it not to impose a fine for that period.

The concept of a continuous infringement and a repeated infringement

190. Under Article 25(2) of Regulation No 1/2003, time is to begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases.

191. The case-law has made clear, in that regard, that, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. When evaluated globally, such indicia and coincidences may provide information not just about the mere existence of anti-competitive conduct or agreements, but also about the duration of continuous anti-competitive conduct and the period of application of an anti-competitive agreement (see, to that effect, Aalborg Portland and Others v Commission , paragraph 100 above, paragraph 57, and Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraphs 94 to 96 and the case-law cited).

192. Furthermore, such an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. Where the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others v Commission , paragraph 100 above, paragraph 258, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraph 191 above, paragraph 110).

193. As regards the lack of evidence of an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, it should be recalled that the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement ( Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraph 191 above, paragraphs 97 and 98; see also, to that effect, Aalborg Portland and Others v Commission , paragraph 100 above, paragraph 260).

194. In that regard, a number of criteria have been identified in the case-law as being relevant for the assessment of the single nature of an infringement, namely the identity of the objectives of the practices in question (see, to that effect, Technische Unie v Commission , paragraph 102 above, paragraphs 170 and 171; Case T-21/99 Dansk Rørindustri v Commission [2002] ECR II-1681, paragraph 67; and Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraph 312); the identity of the goods and services concerned (see, to that effect, Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission (‘ Tokai II ’), not published in the ECR, paragraphs 118, 119 and 124, and Jungbunzlauer v Commission , paragraph 312); the identity of the undertakings that took part in the practices ( Jungbunzlauer v Commission , paragraph 312); and the identity of the means of implementing it ( Dansk Rørindustri v Commission , paragraph 68). Furthermore, the identity of the natural persons involved on behalf of the undertakings and the identity of the geographic scope of the practices at issue may also be taken into consideration for the purposes of that examination.

195. The case-law thus allows the Commission to presume that the infringement – or an undertaking’s participation in the infringement – has not been interrupted, even where it does not have evidence of the infringement for certain specific periods, provided that the different actions forming part of the infringement pursue a single aim and may come within the framework of a single and continuous infringement; and such a finding must be supported by objective and consistent indicia that show the existence of an overall plan.

196. Where those conditions are satisfied, the concept of a continuous infringement thus allows the Commission to impose a fine for the whole of the infringement period taken into consideration and determines the date on which time begins to run for the purpose of limitation, that is to say, the date on which the continuous infringement ceased.

197. However, the undertakings accused of collusion may rebut that presumption, by putting forward indicia or evidence showing that, on the contrary, the infringement – or their participation therein – did not continue during those periods.

198. Furthermore, it is necessary to distinguish the concept of repeated infringement from the concept of continuous infringement (see, to that effect, Case T-18/05 IMI and Others v Commission [2010] ECR II-1769, paragraphs 96 and 97), that distinction being confirmed, moreover, by the use of the conjunction ‘or’ in Article 25(2) of Regulation No 1/2003.

199. Where it can be established that an undertaking’s participation in the infringement was interrupted and that the infringement committed by the undertaking before and after that period has the same features, to be assessed, in particular, by reference to the identity of the objectives and practices at issue, the products concerned, the undertakings which took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices, the infringement in question must be characterised as a single infringement and as a repeated infringement.

200. In that case, the Commission cannot impose a fine in respect of the period during which the infringement was interrupted.

201. Furthermore, in accordance with Article 25(1)(b) of Regulation No 1/2003, the duration of the interruption cannot exceed five years, since in such a case the imposition of a fine for the infringement period before that interruption would be time barred.

The existence of a continuous infringement in the present case

202. It is therefore necessary to determine whether, in such circumstances, the Commission was entitled to find that the applicant had committed a continuous infringement between 1 April 1986 and 1 August 1992 and between 3 September 1996 and 2 May 2007.

203. It should be borne in mind that in the present case it is apparent from the contested decision that the undertakings to which it is addressed participated, according to what were sometimes different procedures, in an infringement taking the form of the allocation of invitations to tender, price-fixing, quota-fixing, the establishment of sales conditions, the allocation of geographic markets and the exchange of sensitive information on prices, sales volumes and invitations to tender, on the worldwide market for marine hoses.

204. It should be observed, in that regard, that the existence of an overall plan is clearly established by the contested decision. That overall plan results from the identity, before and after the intermediate period, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices.

205. Furthermore, the conduct aimed at smoothing out the disagreements between the cartel members and relaunching the cartel during the intermediate period, as shown by the documents supplied by the applicant and analysed at paragraphs 177 to 180 above, must be regarded as forming an integral part of the overall plan pursued by the members of the cartel.

206. In addition, when heard on that point at the hearing, the applicant did not deny having taken part in the infringement between 1 April 1986 and 1 August 1992 and then between 9 May 2000 and 2 May 2007.

207. The applicant submits, admittedly, that the infringements in question were separate infringements and that they cannot be characterised as a continuous or repeated infringement, which it confirmed at the hearing, but it must be held that the existence of an overall plan emerges clearly from the contested decision, given the identity, between 1986 and 2007, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal ways of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of the practices.

208. It is also established that the applicant rejoined the cartel from 3 September 1996 and participated in the infringement until 13 May 1997 (see paragraph 147 et seq. above) and that it took an active part in the discussions held during the intermediate period with a view to relaunching the cartel and rejoining it (see paragraph 181 et seq. above).

209. The alternative explanations which the applicant put forward concerning its conduct during that period have also been rejected by the Court (see paragraph 181 et seq. above).

210. It is also acknowledged by the Commission, and it follows from Article 1 of the contested decision, that the applicant interrupted its participation in the cartel between 1 August 1992 and 3 September 1996.

211. The Commission did indeed find that there had been a continuous infringement by MRI although at the same time it found that MRI’s participation in the cartel had been interrupted between 1 August 1992 and 3 September 1996.

212. However, the Commission did not err in finding that the applicant had participated in the cartel during two separate infringement periods, from 1 April 1986 until 1 August 1992 and from 3 September 1996 until 2 May 2007.

213. The error of assessment by the Commission referred to at paragraph 211 above therefore has no impact on the legality of the contested decision, since the Commission was entitled to find that the infringement committed by the applicant was a repeated infringement within the meaning of Article 25 of Regulation No 1/2003 – as the two infringement periods are to be characterised by the existence of an overall plan (see paragraphs 203 and 204 above) – and that the interruption of MRI’s participation in the infringement between 1 August 1992 and 3 September 1996 lasted less than five years (see paragraph 201 above).

214. In conclusion, since it must be held that the infringement committed between 1 April 1986 and 1 August 1992 was not time barred, the first plea, alleging, in essence, that the Commission could not find an infringement that was time barred, must be rejected. The complaint alleging failure to state reasons must also be rejected, since it is clear from the contested decision that the applicant had participated in the infringement during two separate infringement periods, from 1 April 1986 until 1 August 1992 and from 3 September 1996 until 2 May 2007.

215. Furthermore, the argument put forward by the applicant in support of its second plea, concerning the fact that the infringement period between 3 September 1996 and 9 May 2000 is time barred, must also be rejected, since it has been established that the applicant rejoined the cartel as from 3 September 1996 and that it participated during the intermediate period in discussions aimed at relaunching the cartel and at determining the applicant’s position within it.

216. It follows from the foregoing that the first, second and third parts of the second plea must be rejected, in so far as the applicant claims therein, in essence, first, that the Commission misinterpreted the evidence in its possession and did not supply proof of the applicant’s involvement in the cartel between 3 September 1996 and 9 May 2000 and, second, that the applicant gave a plausible alternative explanation for the evidence used by the Commission and for its conduct during that period.

(d) The merits of the other parts of the second plea

217. Furthermore, as regards the argument put forward by the applicant in the context of the second part of its second plea, claiming that the Commission ought to have proved that the applicant had participated in a new infringement, since the infringement before 1992 was time barred and the Commission could not rely in that regard on the existence of a continuous infringement from 1 April 1986, it must be borne in mind that the Commission did not err in finding that the applicant had participated in the cartel during two infringement periods, which were indeed separate, but during which the applicant had participated in a joint plan characterised by the identity, before and after the intermediate infringement period, of the objectives of the practices at issue, the products concerned, the undertakings that took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices (see points 203 and 204 above). The applicant is therefore incorrect to maintain that it participated in a new infringement and its argument must, accordingly, be rejected.

218. As for t he argument put forward by the applicant in support of the third part of the second plea, alleging that the Commission has failed to establish that the applicant’s conduct between 3 September 1996 and 9 May 2000 was closely linked to the attainment of all the anti-competitive effects intended by the other parties to the infringement, in the context of an overall plan with a single objective, it must be held that, first, having rejoined the coordination organised by the cartel on 3 September 1996 and having obtained a share of the ‘Sumed’ invitation to tender on that occasion and, second, having actively participated in the contacts designed to relaunch the cartel during the intermediate period, the applicant is clearly shown to have been closely linked to the attainment of all the anti-competitive effects desired by the other parties to the infringement. Its argument must therefore be rejected.

219. The Court must also reject the argument which the applicant puts forward in the context of the fourth part of the second plea, alleging that it was fined only in respect of the period between 3 September 1996 and 13