JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

15 July 2015 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure — 2006 Guidelines on the method of setting fines — Reasonable time’

In Cases T‑413/10 and T‑414/10,

Socitrel — Sociedade Industrial de Trefilaria, SA, established in Trofa (Portugal), represented by F. Proença de Carvalho and T. Faria, lawyers,

applicant in Case T‑413/10,

Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA, established in Lisbon (Portugal), represented by D. Proença de Carvalho and J. Caimoto Duarte, lawyers,

applicant in Case T‑414/10,

v

European Commission, represented by F. Castillo de la Torre, P. Costa de Oliveira and V. Bottka, acting as Agents, and by M. Marques Mendes, lawyer,

defendant,

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

THE GENERAL COURT (Sixth Chamber),

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

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 17 November 2014,

gives the following

Judgment ( 1 )

…

Procedure and forms of order sought

1. Case T‑413/10 — Socitrel v Commission

60 By application lodged at the Court Registry on 15 September 2010, Socitrel brought the present action.

61 By separate document lodged at the Court Registry on 16 September 2010, Socitrel made an application for suspension of operation of the contested decision. That application was dismissed by order of the President of the General Court of 13 April 2011 in Socitrel v Commission (T‑413/10 R, EU:T:2011:179), and the costs were reserved.

62 By document lodged at the Court Registry on 10 December 2010, Socitrel stated that it was requesting leave to amend its pleas following the adoption of the first amending decision.

63 By decision of 6 June 2011, Court asked the Commission to provide it with the second amending decision. The Commission complied with that request on 17 June 2011.

64 Following the adoption of the second amending decision, Socitrel again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011.

65 The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case.

66 The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013.

67 The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014.

68 On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Socitrel and the Commission.

69 By letters of 6 and 9 June 2014 respectively, the Commission and Socitrel complied with those measures.

70 On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.

71 Socitrel claims that the Court should: — annul Articles 1 and 2 of the contested decision in so far as they relate to it; — in the alternative, annul in part Article 2 of the contested decision in that it relates to Socitrel and reduce the amount of the fine imposed on it; — order the Commission to pay the costs.

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

2. Case T‑414/10 — Companhia Previdente v Commission

73 By application lodged at the Court Registry on 15 September 2010, the applicant brought the present action.

74 By separate document lodged at the Court Registry on 16 September 2010, Companhia Previdente applied for suspension of operation of the contested decision. That application was dismissed by order of 10 June 2011 in Companhia Previdente v Commission (T‑414/10 R, EU:T:2011:268), and the costs were reserved.

75 By document lodged at the Court Registry on 10 December 2010, Companhia Previdente indicated that it was seeking leave to amend its pleas following the adoption of the first amending decision.

76 By decision of 6 June 2011, the Court asked the Commission to provide it with certain documents. The Commission complied with that request on 17 June 2011.

77 Following the adoption of the second amending decision, Companhia Previdente again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011.

78 The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case.

79 The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013.

80 The preliminary report referred to in Article 52(2) of the Rules of Procedure of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014.

81 On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Companhia Previdente and the Commission.

82 By letters of 6 and 9 June 2014 respectively, the Commission and Companhia Previdente complied with those measures.

83 On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.

84 Companhia Previdente claims that the Court should: — annul Articles 1, 2 and 4 of the contested decision in so far as they relate to it; — acknowledge that any reduction in the fine imposed on Socitrel, in the context of other actions concerning infringements for which Companhia Previdente may be jointly and severally liable, automatically entails an equivalent reduction in the fine for which Companhia Previdente is jointly and severally liable; — order the Commission to pay the costs.

3. Joinder for the purposes of the oral procedure of Cases T‑413/10, T‑414/10 and T‑409/13 Companhia Previdente and Socitrel v Commission, and removal from the register of Case T‑409/13 Companhia Previdente and Socitrel v Commission

85 By application lodged at the Court Registry on 2 August 2013, Companhia Previdente and Socitrel brought an action against the letter sent to them on 24 May 2013 by the Director-General of DG Competition of the Commission.

86 That case was registered at the Court Registry as Case T‑409/13. By order of 30 June 2014, Cases T‑413/10, T‑414/10 and T‑409/13 were joined for the purposes of the oral procedure.

87 The applicants withdrew the action initiated in the context of Case T‑409/13 by letter to the Court Registry of 11 November 2014. As the Commission had indicated by letter of 14 November 2014 that it did not object to withdrawal of that action and that it asked that the applicants be ordered to pay the costs, the Court took formal notice of that withdrawal in the minutes of the hearing of 17 November 2014, where it ordered that Case T‑409/13 be removed from the Court’s register and ordered the applicants to pay the costs in that case.

Law

88 Cases T‑413/10 and T‑414/10 are joined for the purposes of the present judgment, the parties having been questioned on that subject at the hearing and having raised no objections.

89 Socitrel puts forward eight pleas in law in support of its action and also two additional pleas put forward in the context of the second amendment of its pleas and the form of order sought.

90 Companhia Previdente puts forward four pleas in law in support of its action and also two additional pleas submitted in the context of the second amendment of its pleas and the form of order sought.

91 The first plea put forward by Socitrel alleges failure to state reasons and breach of its rights of defence, in that, in essence, the contested decision lacks various elements that would enable it to understand the way in which the Commission set the amount of the fine.

92 The second plea submitted by Socitrel alleges breach of the ‘reasonable time’ requirement.

93 The third plea put forward by Socitrel alleges breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations, owing to the fact that the Commission amended the initial decision on two occasions.

94 The fourth plea on which Socitrel relies alleges infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and also failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded by the Commission.

95 That plea consists of three parts.

96 The first part of the fourth plea alleges that Companhia Previdente was wrongly held by the Commission to be jointly and severally liable and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on the basis of Companhia Previdente’s turnover and not on Socitrel’s turnover. That argument also forms the subject matter of the first and second pleas put forward by Companhia Previdente.

97 The second part of the fourth plea, submitted in the alternative, alleges that it was incorrect to take the turnovers of Emesa, Galycas and ITC into account when calculating the 10% maximum amount. That argument also forms the subject matter of the first part of the third plea submitted by Companhia Previdente.

98 The third part of the fourth plea, submitted further in the alternative, alleges that it was incorrect to take Companhia Previdente’s turnover for 2009 into account. That argument also forms the subject matter of the second part of the third plea submitted by Companhia Previdente.

99 The fifth plea on which Socitrel relies alleges breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines and also failure to state reasons, in that the Commission incorrectly set the rate to reflect gravity in the fine to be imposed on Socitrel at 18%.

100 Socitrel’s sixth plea alleges breach of the principles of proportionality and equal treatment, in so far as the minor or passive role which it played was not taken into account by the Commission as a mitigating circumstance.

101 The seventh plea put forward by Socitrel alleges breach of the principles of proportionality and equal treatment, in so far as its effective cooperation was not taken into account by the Commission as a mitigating circumstance.

102 The eighth plea submitted by Socitrel alleges breach of the principles of proportionality and equal treatment, owing to the failure to take the economic context of crisis and Socitrel’s inability to pay into account. That argument also forms the subject matter of the fourth plea submitted, in the alternative, by Companhia Previdente.

103 The applicants withdrew that plea by letter of 11 November 2014 to the Court Registry. The withdrawal of the plea was duly recorded in the minutes of the hearing held on 17 November 2014.

104 Socitrel and Companhia Previdente also rely on an additional plea, put forward in the context of the second amendment of their pleas and the forms of order sought, alleging, as regards Socitrel, breach of the principles of equal treatment, proportionality and legitimate expectations and failure to state reasons and, as regards Companhia Previdente, breach of the principles of equal treatment, proportionality and legitimate expectations, in so far as Socitrel and Companhia Previdente were not treated in the same way as Arcelor and SLM, which obtained a reduction of their fines that the applicants did not receive.

105 Last, Socitrel and Companhia Previdente rely on a second additional plea, alleging breach of the principles of diligence, fairness, good faith and legal certainty, in so far as the Commission amended the initial decision again in 2011.

1. The first plea relied on by Socitrel, alleging failure to state reasons and breach of its rights of defence

Outline of the principles

106 According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure 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 meets the requirements of Article 296 TFEU 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 (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‑367/95 P, ECR, EU:C:1998:154, paragraph 63; 30 September 2003Germany v Commission, C‑301/96, ECR, EU:C:2003:509, paragraph 87; and 22 June 2004Portugal v Commission, C‑42/01, ECR, EU:C:2004:379, paragraph 66).

The merits of the first plea

107 It is appropriate to recall briefly the arguments submitted by Socitrel in support of its plea, which were amended following the adoption of the first amending decision.

108 In the application, Socitrel, maintained, in essence, that the initial decision lacked various elements which were needed in order to understand the way in which the Commission had set the amount of the fine; this, in Socitrel’s submission, resulted in a failure to state reasons that constituted a breach of its rights of defence.

109 Thus, it maintained, the initial decision mentioned neither the turnover nor the value of sales taken into consideration when establishing the basic amount, nor the parameters taken into account when setting the rate to reflect gravity and the additional amount at 18%.

110 In addition, Socitrel claims that the fact that numerous passages in the decision addressed to it had been made confidential prevented it from reconstituting the premisses on which the Commission had relied when establishing the amount of the fine.

111 Following the adoption of the first amending decision, Socitrel amended its first plea.

112 Socitrel submits, in essence, that the amendment of the initial decision by the Commission shows that its first plea, as set out in the application, is well founded.

113 In addition, Socitrel maintains that the first amending decision has failed to address the most significant defects to which it had objected in the application, in particular as regards the rate taken into account by the Commission concerning the gravity of the infringement and the additional amount.

114 It further observes that the first amending decision distinguishes two infringement periods on its part (recital 5), while attributing the same sales figures to each of them, although in its submission that distinction is not reflected later in the first amending decision and in particular in recital 7 of that decision, where only a single infringement period is imputed to it.

115 Socitrel further observes that the Commission acknowledges, in recital 8 of the first amending decision, that it made a mistake in calculating the additional amount, but without naming the undertakings affected by that mistake. That recital refers to the table in recital 5 of that decision, in which the applicant appears with a turnover relating to a number of infringement periods. The applicant assumes that it must be concluded from that reference that it must therefore have been affected by the mistake in the calculation of the additional amount, which seems to lead to the reduction of the basic amount of its fine, which went from EUR 22500000 to EUR 20000000. That nonetheless results from conjecture on the applicant’s part, which, it maintains, shows that there was a failure to state reasons.

116 The Commission disputes those claims.

The indication of the value of sales

117 It should first of all be noted that the first amending decision addressed a number of defects affecting the initial decision, in particular as regards the determination of the value of sales taken into consideration (recital 5 of the first amending decision).

118 To that extent, the argument put forward by Socitrel in support of its first plea concerning that defect in the initial decision has become inoperative.

The two infringement periods distinguished by the Commission in recital 5 of the first amending decision

119 Furthermore, as Socitrel observes, the Commission distinguished two periods in the table showing the value of sales, in particular by Socitrel, in recital 5 of the first amending decision.

120 That table states that for the period from 7 April 1994 to 8 January 1996, the amount taken into consideration by the Commission on the basis of the replies provided by Socitrel on 30 June 2009 is EUR 12016516. An identical amount is taken into consideration for the period from 9 January 1996 to 19 September 2002.

121 It is stated, in recital 932 of the initial decision, that ‘the relevant geographic area evolved over time. From 1984 to 1995 (Zurich Club period), it included Germany, France, Italy, the Netherlands, Belgium, Luxemburg, Spain and Austria. It also included Portugal as from 1992 (under the Club España arrangements). From 1996 to 2002 (Zurich Club crisis period (when the Club Europe quota arrangement was prepared), Club Europe period and expansion period), the geographic area covered the same countries as during the Zurich Club period, including Portugal, and in addition Denmark, Sweden, Finland and Norway (see Sections 9.1.1 to 9.1.5 [of the contested decision]). This is taken into account in the calculation of the value of sales by excluding the sales in Portugal before 15 December 1992 and excluding the sales in Denmark, Sweden, Finland and Norway before 9 January 1996.

122 It is apparent from recital 5 of the first amending decision that the Commission distinguished several periods in connection with the value of sales to be taken into consideration (from 1 January 1984 to 21 December 1985; from 1 January 1986 to 14 December 1992; from 15 December 1992 to 31 December 1993; from 1 January 1994 to 8 January 1996; from 9 January 1996 to 19 September 2002), depending on the geographic area to which the cartel related.

123 The infringement imputed by the Commission to Socitrel extended over two of those periods (from 7 April 1994 (the date taken into consideration by the Commission as regards the beginning of Socitrel’s participation in the infringement) to 8 January 1996 and from 9 January 1996 to 19 September 2002) which the Commission thus took into consideration.

124 However, in recital 949 of the initial decision, the Commission decided that, because of the late stage at which Socitrel became aware of the European dimension of the cartel, only its sales in Spain and Portugal should be taken into consideration.

125 The need to take sales in Denmark, Sweden, Finland and Norway after 9 January 1996 into account (recital 932 to the contested decision) for the cartel members concerned by that geographic area therefore had no impact on Socitrel. That explains that the value of sales taken into account in recital 5 of the first amending decision is the same for each of the two infringement periods distinguished by the Commission.

126 In addition, the Commission acknowledged having made a mistake in counting the additional amount twice in the initial decision owing to having taken a double infringement period into account for, in particular, Socitrel.

127 However, it corrected that mistake when it adopted the first amending decision, which led to a reduction of the basic amount of the fine to be imposed on Socitrel, which, following that correction, was reduced from EUR 22500000 to EUR 20000000.

128 It should further be noted that, in Annex 8 to the application, Socitrel produced a letter from the Commission’s DG Competition, dated 13 August 2010, in which the official responsible for the case stated: ‘As indicated in [the Commission’s] letter of 30 July, there is a mistake in the calculation as regards the “entry fee”. So far as your clients are concerned, that means that the amount in the tables in recitals 923 and 1057 is too high. The amending decision will amend that amount and replace the amount of EUR 22500000 by an amount of EUR 20000000. As previously stated, owing to the maximum amount [of 10%], that does not alter the fine imposed on your clients or lead to a change in the reasoning in the decision.’

129 To that extent, it must be considered that the contested decision, as amended by the first amending decision, is not vitiated by a failure to state reasons.

The rate of 18% applied for gravity

130 As regards the failure to state reasons with respect to gravity, it should be borne in mind that the gravity of the infringement is examined in Section 19.1.3 of the contested decision.

131 As regards Socitrel, it should be observed that, in the contested decision, the Commission considers: — first, that ‘all undertakings except Fundia were involved in market sharing (quota fixing), customer allocation and horizontal price fixing (see Section 9 and Annexes 2 [to] 4 [to the contested decision]’ and that ‘these arrangements are among the most harmful restrictions of competition, distorting the main parameters of competition’ (recital 939, Section 19.1.3.1 on the nature of the infringement); — second, that ‘the combined market share of the undertakings for which the infringement is established … is estimated to be around 80%, as explained in recital 98’ (recital 946, Section 19.1.3.2 on combined market share); — third, that the relevant geographic area evolved over time (recital 932: see paragraph 121 above); — fourth, that, ‘however, for Socitrel, Proderac, Fapricela and Fundia, undertakings which were participating exclusively in Club España (covering Spain and Portugal only) or — for the latter undertaking — in the Addtek coordination, and for which awareness of the single and continuous infringement could only be established at a very late stage of the infringement (17 May 2001 and 14 May 2001 respectively, see Section 12.2.2.4), the Commission takes into account the more limited geographical scope in determining the proportion of the value of the sales’ and that ‘the situation is different for the other Club España participants (Emesa/Galycas, Tycsa/Trefilerías Quijano) [which] participated simultaneously at several levels of the cartel and/or for which awareness of the single and continuous infringement is established at a much earlier stage’ (recital 949, Section 19.1.3.3 on geographic scope).

132 The Commission concludes that, ‘given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement (see Section 19.1.3.1) and the geographic scope (see Section 19.1.3.3), the proportion of the value of sales to be taken into account should be 16% for the Fundia undertaking, 18% for the undertakings Socitrel, Fapricela and Proderac and 19% for all other undertakings’ (recital 953).

133 It must be considered that, to that extent, the contested decision is not vitiated by a failure to state reasons and that it enables the reasoning followed by the Commission to be understood, without prejudice to whether or not it is well founded.

134 The complaint put forward by Socitrel must therefore be rejected.

The rate applied in order to determine the additional amount for deterrence

135 As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, ‘irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15% and 25% of the value of sales in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements’. In addition, ‘the Commission may also apply such an additional amount in the case of other infringements’ and, ‘for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred to in point 22’, such as ‘the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’.

136 In the present case, the Commission set the rate applicable to the additional amount at 18% and referred, in recital 953 of the contested decision, to the considerations which it had set out, concerning the gravity of the infringement, in relation to the nature of the infringement (Section 19.1.3.1 of the contested decision) and its geographic scope (Section 19.1.3.3 of the contested decision).

137 In fact, such reasoning was held to be sufficient by the Court of Justice in its judgment of 11 July 2013 in Ziegler v Commission (C‑439/11 P, ECR, EU:C:2013:513, paragraphs 121 to 124).

138 The complaint put forward by Socitrel must therefore be rejected.

The breach of Socitrel’s rights of defence

139 Socitrel maintains that its rights of defence have been breached, on two grounds.

140 First, it claims that it follows from the defects vitiating the initial decision, which were acknowledged in part by the Commission in the first amending decision, that its rights of defence were breached.

141 That argument cannot succeed, since Socitrel was invited by the Court, by letter of 29 October 2010, to amend its pleas and the form of order sought following the adoption of the first amending decision, which it did by document lodged at the Court Registry on 10 December 2010.

142 Second, as regards the claims that parts of the contested decision were suppressed by the Commission, which prevented Socitrel from understanding how the fine was calculated by the Commission, it should be noted that all the recitals referred to by Socitrel (recitals 1142, 1144, 1149, 1157, 1159, 1160, 1165, 1171, 1172, 1175, 1178, 1179, 1181, 1185 and 1188) concern the assessment of the requests relating to the ability to pay of other undertakings.

143 In such a case, the Commission is required to ensure the confidentiality of the data communicated to it by undertakings when they ask it to do so, in particular in the case of sensitive data relating to the undertakings’ financial situation.

144 The Commission is correct, moreover, to claim that all the elements of assessment relating to Socitrel, and, in particular, the information relating to its ability to pay, were communicated to it.

145 Socitrel’s argument must therefore be discounted and the complaint alleging breach of the rights of the defence must be rejected in its entirety.

146 The first plea must therefore be rejected in its entirety.

2. The second plea put forward by Socitrel, alleging breach of the ‘reasonable time ’ requirement

Outline of the principles

147 First, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the Courts of the European Union ensure (see judgment of 19 December 2012 in Heineken Nederland and Heineken v Commission, C‑452/11 P, EU:C:2012:829, paragraph 97 and the case-law cited).

148 The principle that an administrative procedure must be conducted within a reasonable time has been reaffirmed by Article 41(2) of the Charter of Fundamental Rights of the European Union, under which ‘every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’ (judgment of 5 June 2012 in Imperial Chemical Industries v Commission, T‑214/06, ECR, EU:T:2012:275, paragraph 284).

149 Second, whether the time taken for the procedure is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity (see, to that effect, judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, 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, ECR, EU:T:1999:80, paragraph 126) and also, where relevant, to information or justification which the Commission may provide concerning the measures of investigation carried out during the administrative procedure.

150 Third, the Court of Justice has held that the administrative procedure may give rise to the examination of two successive periods, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the EU legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (judgment of 21 September 2006 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, ECR, EU:C:2006:592, paragraph 38).

151 Fourth, it follows from the case-law that breach of the reasonable time principle may have two types of consequences.

152 Where the failure to comply with the reasonable time requirement has affected the outcome of the proceedings, such a breach may entail annulment of the contested decision (see, to that effect, judgment of 21 September 2006 in Technische Unie v Commission, C‑113/04 P, ECR, EU:C:2006:593, paragraph 48 and the case-law cited).

153 It should be pointed out that, for the purposes of the application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that the breach of that principle has adversely affected the rights of defence of the undertakings concerned. Except in that specific circumstance, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17 (see judgment of 16 December 2003 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, T‑5/00 and T‑6/00, ECR, EU:T:2003:342, paragraph 74 and the case-law cited, upheld on appeal on that point in the judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraphs 42 and 43).

154 However, as respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court of Justice (judgment of 9 November 1983 in Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, ECR, EU:C:1983:313, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration (judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraph 50).

155 Furthermore, where the breach of the reasonable time requirement does not affect the outcome of the procedure, such a breach may lead the Court, in the exercise of its unlimited jurisdiction, to provide an appropriate remedy for the breach resulting from failure to observe the reasonable time requirement by reducing, where appropriate, the amount of the fine imposed (see, to that effect, judgments in Technische Unie v Commission, cited in paragraph 152 above, EU:C:2006:593, paragraphs 202 to 204, and of 16 June 2011 in Heineken Nederland and Heineken v Commission, T‑240/07, ECR, EU:T:2011:284, paragraphs 429 and 434, upheld on appeal in the judgment in Heineken Nederland and Heineken v Commission, cited in paragraph 147 above, EU:C:2012:829, paragraph 100).

The merits of the second plea

156 Socitrel maintains, in essence, that the Commission failed to comply with the reasonable time requirement by not adopting the initial decision until almost eight years after initiating the administrative procedure, which in Socitrel’s submission is detrimental to its rights of defence, owing in particular to the restructurings which it has undergone and to the difficulties which it has encountered in gathering evidence to the contrary, owing to the fact that various members of its staff have left over time.

157 It follows from the foregoing that, in order for an administrative procedure of long duration to be capable of entailing annulment of the contested decision or a reduction of the amount of the fine, the duration of that procedure must be characterised as excessive.

158 In the present case, the administrative procedure consisted of four successive phases, the first preceding the statement of objections and the next three following the statement of objections.

159 The first phase began on 9 January 2002, with the communication to the Commission by the Bundeskartellamt of the documents referred to in paragraph 21 above, and ended on 30 September 2008 with the adoption of the statement of objections.

160 The second phase was then opened (see paragraphs 32 to 37 above) and was completed by the adoption of the initial decision, on 30 June 2010.

161 Following the initiation of a first series of actions (referred to in paragraph 10 above), the Commission on 30 September 2010 adopted a first amending decision (see paragraph 4 above) in order to correct various mistakes which it had found in the initial decision; that marked the close of the third phase of the administrative procedure.

162 Last, on 4 April 2011, the fourth phase of the administrative procedure ended when the Commission adopted the second amending decision, whereby it granted a reduction of the amount of the fines imposed on (i) ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France and (ii) SLM and Ori Martin (see paragraph 6 above).

163 It should be observed at the outset that Socitrel’s plea relates only to the first two phases of the administrative procedure.

164 On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court addressed a written question to the Commission, in order to obtain a detailed description of the steps which the Commission had carried out following the inspections, which took place on 19 and 20 September 2002, and up to the adoption of the initial decision.

165 The Commission complied with that request by document lodged at the Court Registry on 6 June 2014.

166 A copy of the Commission’s reply was communicated to Socitrel by the Court Registry on 16 June 2014.

167 The Commission sets out in its reply, in detail and convincingly, the steps which it completed throughout the administrative procedure and the reasons why the procedure lasted from 2002 until 2010.

168 A number of factors explain the length of the administrative procedure in the present case.

169 It is appropriate, in that respect, to have regard to the duration of the cartel (more than 18 years), to its particularly wide geographic scope (the cartel concerned most of the Member States), to the organisation of the cartel at geographic level and over time (the different clubs described in paragraphs 41 to 53), to the number of meetings held within the framework of the different clubs (more than 500), to the number of undertakings involved (17), to the number of leniency applications (see paragraphs 22 and 27 et seq. above) and to the particularly large volume of documents, supplied in connection with the leniency applications or obtained in the course of the inspections and in various languages, which had to be examined by the Commission, to the various requests for further information that had to be addressed by the Commission to the various companies involved, as understanding of the cartel developed (see paragraph 24 et seq. and paragraph 36 et seq. above), to the number of addressees of the statement of objections (more than 40), to the number of languages of the case (8) and also to the various applications relating to ability to pay (14).

170 On the basis of the information supplied by the Commission, which confirms the particular complexity of the case, the Court considers that, in spite of the particular length of the first two phases of the procedure, the procedure cannot be characterised as excessive. Consequently, the Commission did not fail to comply with the reasonable time requirement.

171 That conclusion is not called into question by the arguments whereby Socitrel maintains that its rights of defence have been breached because between 2002 and 2008 the Companhia Previdente group changed significantly as a result of the restructurings connected with the acquisition of a number of companies — the number of entities in the group rose from 21 to 27 — and because, from the time when it received the statement of objections, in September 2008, the facts imputed to it were so remote that none of the persons directly concerned was still present or able to recollect them.

172 In fact, such arguments are too vague for the actual impact on Socitrel’s rights of defence to be measured. In that regard, it should be observed that, as stated in the Commission’s reply to the measures of organisation of procedure, Socitrel received the first request for information from the Commission on 11 February 2004 and that request clearly stated the material and temporal object and scope of the investigation. As from that date, Socitrel was therefore able to gather and submit for the Commission’s attention all the evidence that it deemed relevant in order to respond to the Commission. It cannot therefore rely on its own failure to gather and retain any evidence that might be used for the purposes of its defence. Likewise, in the absence of the slightest argument that would explain the extent to which the period of one and a half years between September 2002 and February 2004, during which the Commission examined the documents obtained during the inspection or submitted in the context of leniency applications, could adversely affect Socitrel’s exercise of its rights of defence, the Court is unable to consider that that period may have adversely affected that undertaking in the present case.

173 The second plea should therefore be rejected.

3. The third plea put forward by Socitrel, alleging breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations

Outline of the principles

174 It should be borne in mind, first of all, that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union. According to the case-law, the right to rely on that principle assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 9 September 2011 in Deltafina v Commission, T‑12/06, ECR, EU:T:2011:441, paragraph 190 and the case-law cited).

175 Furthermore, it is settled case-law that the duty of diligence entails the obligation for the Commission to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 21 November 1991 in Technische Universität München, C‑269/90, ECR, EU:C:1991:438, paragraph 14, and 16 September 2013ATC and Others v Commission, T‑333/10, ECR, EU:T:2013:451, paragraph 84 and the case-law cited).

176 It has also been repeatedly held that it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in a decision (see, to that effect, judgment of 14 December 2006 in Germany v Commission, T‑314/04 and T‑414/04, EU:T:2006:399, paragraph 45, and order of 22 November 2007 in Investire Partecipazioni v Commission, T‑418/05, EU:T:2007:354, paragraph 40).

The merits of the third plea

177 Socitrel maintains, in essence, that when the initial decision had been adopted, it was informed by the Commission that that decision would be amended. Socitrel was thus required to bring an action without knowing what the actual substance of the decision imposing a fine on it was. The Commission thus breached its duty of diligence — which is confirmed, should that be necessary, by the fact that the Commission then amended the decision for a second time, without that second amending decision being notified to Socitrel — and it thus also breached Socitrel’s rights of defence.

178 However, that argument cannot succeed.

179 The Commission cannot allow to remain in the legal order a decision which it knows to be vitiated with errors and omissions and, to that extent, it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in the initial decision (see the case-law referred to in paragraph 176 above).

180 The Commission cannot therefore be criticised for having corrected, by the first amending decision, the errors and omissions which it had found in the initial decision.

181 It should be emphasised that in doing so the Commission also enhanced the reasoning on which the contested decision was based.

182 Admittedly, the first amending decision was adopted by the Commission after several actions, including the applicants’, had been brought, originally, against the initial decision. However, Socitrel — like the other undertakings that brought proceedings — was invited by the Court to amend its pleas and the form of order sought, if necessary, following the adoption of that decision.

183 It should be noted that Socitrel amended its pleas in the light of the first amending decision, by document lodged at the Court Registry on 10 December 2010.

184 In addition, although it was not an addressee of the second amending decision, Socitrel received a copy of that decision at the initiative of the Court, which invited it to amend its pleas and the form of order sought, if necessary, which it did, so far as its pleas were concerned, by document lodged at the Court Registry on 2 August 2011.

185 Socitrel cannot therefore maintain that its rights of defence were breached by the Commission when the latter adopted those amending decisions.

186 Socitrel also claims that the Commission breached the principle of legitimate expectations and also the principles of fairness and good faith, although the reasons for invoking the last two principles are not clearly stated in its application.

187 In so far as Socitrel seeks to maintain, by that argument, that in correcting the initial decision the Commission prevented its action against the initial decision from succeeding, it must be held that the Commission was entitled, in the interest of sound administration, to correct the initial decision, which was vitiated by errors and omissions, before the Court made its determination.

188 No precise, unconditional and consistent assurance, originating from authorised and reliable sources, that a decision vitiated by errors and omissions would be maintained until such time as it was annulled by the Court can therefore have been given to Socitrel by the administration.

189 Nor can the Commission be criticised for acting unfairly or in bad faith on the sole ground that it amended a decision which, on its own admission, was vitiated by various errors and omissions.

190 The third plea must therefore be rejected in its entirety.

4. The fourth plea put forward by Socitrel and the first three pleas put forward by Companhia Previdente, alleging infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded

The first part of the fourth plea put forward by Socitrel and the first and second pleas submitted by Companhia Previdente, alleging that Companhia Previdente was wrongly held jointly and severally liable by the Commission and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on Companhia Previdente’s turnover instead of on Socitrel’s

Outline of the facts

191 Companhia Previdente is a company that manages shareholdings in various companies.

192 Between 1994 and 1998, it had a direct shareholding of 21.2% in the capital of Socitrel and 70% in the capital of Preside SGPS, which owned 70.6% of Socitrel’s capital.

193 Between 30 December 1998 and 19 September 2002, Companhia Previdente increased its shareholding in Preside SGPS to 100% of the latter’s capital.

194 It is common ground that Companhia Previdente therefore had, during that period, a shareholding in Socitrel’s capital of 91.8% to 93.7%.

195 Furthermore, after the date on which the infringement came to an end, Companhia Previdente acquired various companies, including Emesa, Galycas and ITC, all three of which were also penalised by the Commission for their participation in the cartel.

The contested decision

196 According to recitals 765 to 768 of the contested decision: ‘(765) Between 1994 and the end of 1998, Companhia Previdente directly owned 21.2% of Socitrel and 70% of Preside, SGPS which, in turn and throughout the same period, owned 70.6% of Socitrel. Between 30 December 1998 and the end of 2002, Companhia Previdente owned 100% of Preside, SGPS and through Preside, SGPS, it directly and indirectly owned 91.8% to 93.7% of Socitrel. As explained in recital 32, at least between the beginning of 1994 and the end of 2002, there were numerous and strong personnel links between Socitrel and Companhia Previdente. (766) Companhia Previdente claims that it should not be held jointly and severally liable with Socitrel because it did not have decisive influence on Socitrel’s behaviour. First, it submits that the Commission did not present concrete facts from which Companhia Previdente’s decisive influence on Socitrel could be deduced. Further, it argues that until 1999 — when Socitrel became its almost wholly owned subsidiary — the presumption of decisive influence could not apply. The two companies were separate entities, with different activities and Socitrel was autonomous in its commercial activity and strategy. This was illustrated by the fact that after buying Socitrel, the latter’s Executive Administration would not have been changed and would have remained totally independent. Also, Companhia Previdente limited itself to exercising its social rights and obligations, such as the approval of Socitrel’s financial statements and deciding on the dividend and capital structure policy. Companhia Previdente finally argues that its Board members participated in Socitrel’s Board with a non-executive function and that, according to the Portuguese company law, this participation in Socitrel’s Board was personal and not in representation of the parent company. (767) While the Commission considers that the presumption of exercise of decisive influence applies for the period between 30 December 1998 and the end of 2002, when Companhia Previdente owned 91.8% to 93.7% of Socitrel, in any event Companhia Previdente’s arguments cannot be upheld in view of the numerous and strong personnel links existing between the two companies between at least the beginning of 1994 and the end of 2002, as described in recital 32. In particular, the Commission emphasises that not only Messrs P.B., L.F. and A.S. were members of both companies’ Board of Directors but they were also regularly and continuously attending the cartel meetings for Socitrel. Therefore, the Commission considers that Companhia Previdente exercised decisive influence on the conduct of the Socitrel undertaking for the entire duration of the latter’s participation in the cartel (see recital 694). (768) Consequently the Decision should be addressed to [Socitrel] and [Companhia Previdente]. [Socitrel] should be held liable for its direct participation in the cartel in the period 7 April 1994 until 19 September 2002. [Companhia Previdente] should be held jointly and severally liable with [Socitrel] for the same period.’

Outline of the principles

197 It is settled case-law that the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. On that point, the Court of Justice has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that when such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (see judgment of 29 September 2011 in Elf Aquitaine v Commission, C‑521/09 P, ECR, EU:C:2011:620, paragraph 53 and the case-law cited).

198 It is also clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 54 and the case-law cited).

199 In such a situation, since the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 55 and the case-law cited). Thus, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necssarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 88).

200 It must be made clear that, according to that case-law, the Commission cannot merely find that an undertaking ‘was able’ to exert a decisive influence over another undertaking, without checking whether that influence was actually exerted. It follows from that case-law, on the contrary, that it is, in principle, for the Commission to demonstrate such decisive influence on the basis of a body of factual elements, including, in particular, any power that one of those undertakings may have to issue directions to the other (see, to that effect, judgments of 2 October 2003 in Aristrain v Commission, C‑196/99 P, ECR, EU:C:2003:529, paragraphs 95 to 99; 28 June 2005Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, ECR, EU:C:2005:408, paragraphs 118 to 122; and 20 March 2002HFB and Others v Commission, T‑9/99, ECR, EU:T:2002:70, paragraph 527).

201 However, the Court of Justice has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union: (i) the parent company is able to exercise decisive influence over the conduct of the subsidiary; and (ii) there is a rebuttable presumption that the parent company does in fact exercise such influence (‘the presumption of actual exercise of decisive influence’) (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 56 and the case-law cited).

202 In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited).

203 It should be pointed out that, although it is true that the Court of Justice has referred in its case-law, in addition to ownership of 100% of the share capital of the subsidiary, to other circumstances, such as fact that it was not disputed that the parent company exercised decisive influence over the commercial policy of its subsidiary and the fact that the two companies were jointly represented during the administrative procedure (judgment of 16 November 2000 in Stora Kopparbergs Bergslags v Commission, C‑286/98 P, ECR, EU:C:2000:630, paragraphs 28 and 29), the fact nonetheless remains that such circumstances were not mentioned by the Court of Justice with the aim of making the application of the presumption conditional on the production of further indicia of the actual exercise of influence by the parent company (see, to that effect, judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C‑97/08 P, ECR, EU:C:2009:536, paragraphs 60 to 62 and the case-law cited). In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and operation of that presumption (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 80 and the case-law cited).

204 However, a parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary, having regard to the economic, organisational and legal links which join it to that subsidiary. Consequently, the Commission is entitled to apply to that situation the same evidential regime, namely to rely on the presumption that that parent company makes effective use of its power to exercise a decisive influence over the conduct of its subsidiary. However, it cannot be precluded that in certain cases minority shareholders may have rights vis-à-vis the subsidiary that allow the abovementioned analogy to be called into question (judgment of 30 September 2009 in Arkema v Commission, T‑168/05, EU:T:2009:367, paragraph 53, upheld on appeal in the judgment of 29 September 2011 in Arkema v Commission, C‑520/09 P, ECR, EU:C:2011:619).

205 The purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of combating conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is, in particular, for that reason that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59).

206 It should be borne in mind, furthermore, that that presumption is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, on the basis of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and, furthermore, that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 60).

207 In those circumstances, if, in order to rebut that presumption, it were sufficient for a party concerned to put forward mere unsubstantiated assertions, the presumption would be largely robbed of its usefulness (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

208 Furthermore, it has consistently been held that the mere fact that the parent company is a holding company is not sufficient to preclude the possibility that it exercised decisive influence over that subsidiary. In the context of a group of companies, a holding company that coordinates, inter alia, financial investments within the group is a company which is in a position to regroup shareholdings in various companies and whose function is to ensure that they are run as one, including by means of such budgetary control (see, to that effect, judgments of 8 October 2008 in Schunk and Schunk Kohlenstoff-Technik v Commission, T‑69/04, ECR, EU:T:2008:415, paragraph 63; 13 July 2011Shell Petroleum and Others v Commission, T‑38/07, ECR, EU:T:2011:355, paragraph 70 and the case-law cited; and 29 June 2012E.ON Ruhrgas and E.ON v Commission, T‑360/09, ECR, EU:T:2012:332, paragraph 283).

209 In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74).

210 It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption of exercise of decisive influence cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see judgment of 16 June 2011 in FMC v Commission, T‑197/06, ECR, EU:T:2011:282, paragraph 105 and the case-law cited). It follows that the independence of the subsidiary, for the purposes of the abovementioned case-law, cannot be established merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement (judgment in FMC v Commission, EU:T:2011:282, paragraph 106).

211 Likewise, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 145).

212 Furthermore, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary cannot prove that such instructions did not exist (see judgment in Arkema France and Others v Commission, T‑217/06, EU:T:2011:251, paragraph 118 and the case-law cited).

213 It should also be observed that the Courts of the European Union consider that the fact that the parent company is represented in the management bodies of its subsidiary is relevant evidence that it exercises actual control over the subsidiary’s commercial policy (judgment of 27 September 2012 in Total v Commission, T‑344/06, EU:T:2012:479, paragraph 73; see also, to that effect, judgments of 26 April 2007 in Bolloré and Others v Commission, T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02, ECR, EU:T:2007:115, paragraph 137, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 150).

214 Last, a parent company may, moreover, be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and of 27 September 2012 in Shell Petroleum and Others v Commission, T‑343/06, ECR, EU:T:2012:478, paragraph 52).

The merits of the first part of the fourth plea put forward by Socitrel and the first and second pleas submitted by Companhia Previdente

215 It should be borne in mind that Socitrel was held liable in respect of the period from 7 April 1994 to 19 September 2002 and that Companhia Previdente was held jointly and severally liable in respect of the same infringement period.

216 However, it is necessary to distinguish the period from 7 April 1994 to 29 December 1998, in respect of which the Commission considered, in essence, that it had evidence showing that Companhia Previdente exercised decisive influence over Socitrel, and the period from 30 December 1998 to 19 September 2002, in respect of which the Commission considered that, given the size of Companhia Previdente’s shareholding in the capital of its subsidiary Socitrel, the presumption of actual exercise of decisive influence could be applied.

217 The applicants maintain, in essence, first, that Companhia Previdente cannot be held liable since the infringement was committed solely by Socitrel and there is no evidence that the parent company participated or was even merely aware of the infringement; second, that the Commission cannot make use of the presumption of actual exercise of decisive influence, since Companhia Previdente never owned 100% of its subsidiary’s share capital; third, that in any even they put forward evidence that rebuts that presumption; and fourth, and last, that for the period from 7 April 1994 to 29 December 1998 the Commission merely referred to ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel, but without having regard to the arguments which the applicants put forward to show that there was no decisive influence by the parent company over the subsidiary.

218 However, none of those arguments can be accepted.

219 The Court will examine, in turn, Companhia Previdente’s liability for the unlawful conduct of its subsidiary; the evidence showing that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998; whether the Commission was entitled to apply the presumption of actual exercise of decisive influence during the period from 30 December 1998 to 19 September 2002; and, last, the various arguments put forward by the applicants to demonstrate that there was no exercise of such influence during the period from 7 April 1994 to 29 December 1998 and also to rebut the presumption of actual exercise of decisive influence during the ensuing period.

– Companhia Previdente’s liability for the unlawful conduct of its subsidiary

220 As regards Companhia Previdente’s alleged liability for the infringement which it claims to be imputable only to Socitrel, it should be borne in mind that, according to settled case-law of the Court of Justice referred to in paragraph 199 above, there is no requirement to establish the personal involvement of the parent company in the infringement in order to address to it a decision imposing a fine on it because of the commission of that infringement.

221 The applicants’ argument that the infringement cannot be imputed to Companhia Previdente since it was not itself the author of the infringement cannot therefore succeed and, accordingly, this complaint must be rejected.

– The period from 7 April 1994 until 29 December 1998 and the evidence establishing that Companhia Previdente exercised decisive influence over Socitrel

222 It should be borne in mind that in the contested decision the Commission, after taking into account the parent company’s shareholding in the share capital of its subsidiary, referred to the existence of ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel. It concluded that Companhia Previdente exercised decisive influence over Socitrel.

223 The merits of each of those elements must be examined.

224 As regards the significance of Companhia Previdente’s shareholding in Socitrel’s share capital, it should be observed that the Commission submitted that, in Portuguese company law, a shareholder who owned more than two thirds of the voting rights of an incorporated company — like Companhia Previdente, which had a direct shareholding of 21.2% in Socitrel’s share capital and of 70% in the share capital of Preside SGPS, which owned 70.6% of Socitrel’s share capital — enjoyed, in principle, total control over that company, in so far as it could approve all deliberations, in particular those relating to the appointment of the management board, whatever its structure. Furthermore, the Commission stated that such a situation could be avoided only if certain provisions of the company statutes, or certain rules introduced by shareholder agreements, provided otherwise, in order to enable blocking minorities to be formed in the case of certain strategic decisions. According to the Commission, Socitrel did not demonstrate, or even claim, that a provision of that type existed.

225 When questioned in that regard at the hearing, the applicants did not dispute those factors.

226 It must therefore be stated that during the relevant period Companhia Previdente had a particularly high shareholding in its subsidiary’s share capital which allowed it to exercise control over all the deliberations within the subsidiary.

227 As for the common managers, it is appropriate to refer to the document addressed to the Commission by Socitrel on 29 June 2006 (pages 19662 to 19664 of the administrative file), from which it is apparent that Socitrel and Companhia Previdente had two common managers in 1995 (Messrs A.C. and P.B.), in 1996 (Messrs L.D. and P.B.) and in 1997 (Messrs L.D. and P.B.), and three common managers in 1998 (Messrs A.S., L.D. and L.F.).

228 It should be borne in mind that according to the case-law referred to in paragraph 213 above, the fact that the parent company is represented in the managing bodies of the subsidiary constitutes relevant evidence of the exercise of actual control over the subsidiary’s commercial policy.

229 It should also be emphasised that Mr P.B. participated in cartel meetings between 26 August 1993 and 14 May 1998. Mr L.F. participated in cartel meetings between 8 September 1998 and 30 July 2002. Last, Mr A.S., who chaired both companies between 18 September 1998 and the end of 2002, participated in cartel meetings between 10 December 1998 and 22 May 2001. Those facts are not disputed by the applicants.

230 Those members of the Board of Directors of the parent company were therefore duly advised of the unlawful conduct of its subsidiary, since they themselves participated in it.

– The period from 30 December 1998 to 19 September 2002 and the presumption of actual exercise of decisive influence by the parent company over the subsidiary

231 At the hearing, the applicants acknowledged that, in the light of the decision of the Court of Justice referred to in paragraph 204 above, which was delivered after they had lodged their action against the initial decision, the Commission was entitled to rely on the presumption that Companhia Previdente exercised decisive influence over Socitrel, notwithstanding that the parent company’s shareholding in the share capital of its subsidiary was below 100%.

232 They stated that, while they were withdrawing their argument on that point, they were nonetheless maintaining their argument in order to rebut that presumption.

– The evidence put forward by the applicants to demonstrate the absence of decisive influence during the period from 7 April 1994 to 29 December 1998 and to rebut the presumption of actual exercise of decisive influence as regards the period from 30 December 1998 to 19 September 2002

233 The applicants maintain, in essence, that in spite of the size of Companhia Previdente’s shareholding in the capital of its subsidiary and the fact that there were common managers during the first period, and of the even greater size of Companhia Previdente’s shareholding in the subsidiary’s capital during the second period, which justify the application of the presumption of actual exercise of decisive influence, various factors show that Companhia Previdente did not exercise decisive influence over Socitrel.

234 As a preliminary point, the applicants’ first complaint, alleging that a presumption based solely on ownership of the share capital of a subsidiary constitutes a probatio diabolica for a parent company wishing to rebut that presumption, which to that extent constitutes a breach of the principle of personal liability and of the presumption of innocence, must be rejected.

235 It should be borne in mind that the Court of Justice has held that the purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of combating conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59).

236 It follows from the case-law, moreover, that a presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 62 and the case-law cited).

237 To that end, it is necessary to adduce sufficient evidence to show that the subsidiary acted independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited). However, the applicant cannot rebut that presumption by putting forward mere unsubstantiated assertions (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

238 In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74).

239 None of the arguments put forward by the applicants is sufficient to refute the Commission’s argument that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998, or that, having regard to the size of its shareholding in Socitrel’s capital, the actual exercise of such decisive influence could be presumed, as regards the period from 30 December 1998 to 19 September 2002.

240 First, the fact that Companhia Previdente is a holding company, even non-operational, does not suffice to preclude the presumption of actual exercise of decisive influence (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 63; Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70 and the case-law cited; and E.ON Ruhrgas and E.ON v Commission, cited in paragraph 208 above, EU:T:2012:332, paragraph 283) and does not entail any reversal of the burden of proof, as Socitrel incorrectly maintains.

241 In that regard, the fact that the parent company confines itself to managing its shareholdings, owing to the type of company it is and to the objectives set out in its statutes, is not in itself sufficient to call the Commission’s argument into question (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 70, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 130).

242 It also follows that the fact that Companhia Previdente and Socitrel were companies with different legal personalities and had different shareholders and different registered offices is irrelevant, since in any event they were part of the same undertaking (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 53 and the case-law cited).

243 Also irrelevant is the applicants’ argument that, in Portuguese law, the management of Companhia Previdente did not represent that company when they sat on the Board of Directors of its subsidiary. It should be borne in mind that a company cannot rely on national rules to avoid the EU rules, as the terms used in EU law must in principle be uniformly interpreted and implemented throughout the European Union (judgments of 1 February 1972 in Hagen, 49/71, ECR, EU:C:1972:6, paragraph 6, and 27 September 2012Heijmans v Commission, T‑360/06, EU:T:2012:490, paragraph 70).

244 Second, the attribution of Socitrel’s unlawful conduct to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred (see, to that effect, judgment in Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70).

245 It follows that the fact that the parent company was not itself active in the prestressing steel sector is also insufficient to rebut the presumption of actual exercise of decisive influence, and the applicants’ arguments on that point must therefore be rejected.

246 Third, the fact that Companhia Previdente held shares in many other companies active in different sectors from that affected by the cartel is irrelevant, according to consistent case-law (see, to that effect, judgment in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and Shell Petroleum and Others v Commission, cited in paragraph 214 above, EU:T:2012:478, paragraph 52).

247 Fourth, Socitrel’s argument that it enjoyed complete independence as regards its commercial policy must also be rejected.

248 In fact, the presumption of actual exercise of decisive influence cannot be rebutted merely by showing that Socitrel managed its commercial policy in the strict sense, such as the distribution or pricing strategy, without receiving instructions from Companhia Previdente in that regard. Likewise, given that Socitrel’s independence is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (see, to that effect, judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 105 et seq. and the case-law cited).

249 Furthermore, Socitrel merely puts forward argument the reality of which it fails to establish. However, mere unsubstantiated assertions cannot suffice to rebut the presumption of actual exercise of decisive influence (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

250 Fifth, the independence that Socitrel is alleged to have enjoyed owing to the historical context in which Companhia Previdente acquired that company, which had previously been a State-owned undertaking, cannot be inferred from that sole fact, or from the fact that the management previously in place remained in charge of the undertaking after it had been purchased.

251 Those arguments must therefore be rejected.

252 Sixth, it should be made clear that, according to consistent case-law, in order for an infringement of Article 101 TFEU to be imputed to an undertaking, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking is sufficient (judgments of 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 97, and 20 March 2002Brugg Rohrsysteme v Commission, T‑15/99, ECR, EU:T:2002:71, paragraph 58).

253 The fact that Companhia Previdente was not aware of the unlawful conduct of its subsidiary, even on the assumption that it were established, quod non, would therefore in any event have no impact on the possibility that it will be held jointly and severally liable for the subsidiary’s conduct.

254 In conclusion, it should be stated that the applicants have failed to show that Companhia Previdente did not exercise decisive influence on Socitrel and that Socitrel acted wholly independently on the market.

255 The Commission was therefore correct to find that Companhia Previdente was jointly and severally liable in respect of both the period from 7 April 1994 to 29 December 1998 and for the period from 30 December 1998 to 19 September 2002.

256 The first part of the fourth plea put forward by Socitrel and the first two pleas put forward by Companhia Previdente must therefore be rejected.

The second and third parts of the fourth plea relied on by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente, submitted in the alternative and further in the alternative, and alleging an error in the taking into consideration of the turnover of Emesa, Galycas and ITC in the calculation of the 10% maximum amount and an error in the taking into consideration of Companhia Previdente’s turnover for 2009

The contested decision

257 For the purposes of calculating the maximum amount of 10% provided for in Article 23 of Regulation No 1/2003, the Commission, after rejecting the applicants’ claims, took into consideration the turnover for 2009 of the group composed of Companhia Previdente and all of its subsidiaries, including Emesa, Galycas and ITC, which had been purchased by Companhia Previdente in 2004 and 2005 (recitals 1059, 1061, 1062 and 1063 to 1069 of the contested decision).

Outline of the principles

258 The second subparagraph of Article 23(2) of Regulation No 1/2003 provides that ‘for each undertaking and association of undertakings participating in the infringement the fine shall not exceed 10% of its total turnover in the preceding business year’.

259 The maximum amount of 10% of turnover, within the meaning of that provision, must be calculated on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking for the purposes of Article 101 TFEU (see, to that effect, judgments of 26 November 2013 in Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 56, and HFB and Others v Commission, cited in paragraph 200 above, EU:T:2002:70, paragraph 528).

260 That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 48 and the case-law cited).

261 That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, that is to say, the global resources of the infringer (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 49 and the case-law cited).

262 The taking into consideration of the size and overall resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 50 and the case-law cited).

263 In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is imputed, the taking into account of the turnover of all the companies in respect of which the undertaking concerned has the opportunity to exercise a decisive influence is justified (judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 51).

264 If, on the other hand, the economic unit going to make up the undertaking has broken up between the time when the infringement ceased and the time when the decision imposing a fine is adopted, each addressee of the decision is entitled to have the maximum amount in question applied individually to it (see, to that effect, judgment of 15 June 2005 in Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, EU:T:2005:220, paragraph 390).

265 Furthermore, as regards the determination of the ‘preceding business year’, within the meaning of Article 23(2) of Regulation No 1/2003, it is apparent from the case-law that, in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it must be considered that the Commission is obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity (judgment of 29 November 2005 in Britannia Alloys & Chemicals v Commission, T‑33/02, ECR, EU:T:2005:428, paragraph 49).

266 This Court has also held that the Commission has no arbitrary power to apply the 10% upper limit to business years prior to the business year preceding the date of adoption of the decision. The Commission may use such an earlier business year only in exceptional circumstances, where, for example, the undertaking achieved no turnover in the business year preceding the adoption of the Commission’s decision. Moreover, even in such cases, it does not enjoy any great latitude regarding the choice of business year to use in fixing the upper limit of the fine. It is obliged to refer to the last full business year corresponding to a full year of normal economic activity (see, to that effect, judgment in Britannia Alloys & Chemicals v Commission, cited in paragraph 265 above, EU:T:2005:428, paragraphs 39 to 42 and 74).

267 Thus, while it follows from the case-law that, for the purposes of calculating the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the Commission must, in principle, take into account the turnover achieved by the undertaking concerned in the last full business year at the date of adoption of the decision imposing the fine (see, to that effect, judgment of 7 June 2007 in Britannia Alloys & Chemicals v Commission, C‑76/06 P, ECR, EU:C:2007:326, paragraph 32), it is apparent, however, from the context and the objectives pursued by the legislation of which that provision forms part that, where the turnover in the business year preceding the adoption of the Commission’s decision does not represent a full year of normal economic activity over a period of 12 months and, thus, does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of fine to impose on it, that turnover cannot be taken into account in fixing the upper limit of the fine. In the latter situation, which will arise only in exceptional circumstances, the Commission is obliged, for the purposes of calculating the upper limit of the fine, to refer to the last full business year corresponding to a full year of normal economic activity (judgment of 12 December 2012 in 1. garantovaná v Commission, T‑392/09, EU:T:2012:674, paragraph 86, upheld on appeal in the judgment of 15 May 2014 in 1. garantovaná v Commission, C‑90/13 P, EU:C:2014:326).

268 It should be made clear in that regard that the reference in the case-law to a ‘full year of normal economic activity’ is intended to ensure that a year in which the undertaking concerned was in the process of winding down its business, although economic activity had not yet entirely come to an end, is precluded from being taken into account, as, more generally, is a year in which the market conduct of the undertaking concerned did not correspond to that of an undertaking carrying on an economic activity on the usual terms. On the other hand, the mere fact that turnover or the profits generated in a particular year are significantly lower, or higher, than in previous years does not mean that the year in question does not constitute a full year of normal economic activity (judgment of 12 December 2012 in Almamet v Commission, T‑410/09, EU:T:2012:676, paragraph 253).

Findings of the Court

269 The applicants claim, in essence, that the Commission was wrong to take the turnover of Emesa, Galycas and ITC into account when calculating the maximum amount of 10% and also to take Companhia Previdente’s turnover for 2009 into account for that purpose.

270 However, that argument cannot succeed.

271 First, as regards the business year to be taken into account for the purposes of applying the 10% maximum amount, it was for the Commission to refer to the total turnover for 2009 as regards Companhia Previdente, in accordance with the provisions of Article 23(2) of Regulation No 1/2003, without there being any need to have regard to any variations upwards or downwards in that turnover by reference to the date on which the infringement ceased, as Companhia Previdente was not in an exceptional situation permitting a derogation from that rule, within the meaning of the case-law of this Court and of the Court of Justice in Britannia Alloys & Chemicals v Commission (see paragraph 266 above).

272 The applicants’ argument on that point, like the argument based on the length of the administrative procedure, must therefore be rejected.

273 Furthermore, the Commission was required to calculate the maximum amount of 10% of turnover, within the meaning of Article 23(2) of Regulation No 1/2003, on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking, according to the case-law referred to in paragraph 263 above.

274 Accordingly, the Commission was required, to that end, to take into consideration the turnover of Emesa, Galycas and ITC, which formed part of the Companhia Previdente group in 2009, and the fine imposed on the applicants is not disproportionate on that ground.

275 For the remainder, it must be stated that, as the Commission points out, Companhia Previdente was held jointly and severally liable only for the conduct of Socitrel, which was a subsidiary of Companhia Previdente at the time when the infringement was committed, and not for the fine imposed on Emesa, Galycas and ITC, which did not belong to Companhia Previdente at that time.

276 Consequently, the second and third parts of the fourth plea put forward by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente must be rejected.

5. The fifth plea relied on by Socitrel, alleging breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines, and failure to state reasons

Outline of the principles

277 It should be borne in mind that, according to the settled case-law of the Court of Justice, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see judgments of 11 July 2013 in Gosselin Group v Commission, C‑429/11 P, EU:C:2013:463, paragraph 88 and the case-law cited, and Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraph 98 and the case-law cited).

278 In that regard, according to the settled case-law of the Court of Justice, the gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and the context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see judgments in Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 89 and the case-law cited, and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 99 and the case-law cited).

279 The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgments of 12 November 2009 in Carbone-Lorraine v Commission, C‑554/08 P, EU:C:2009:702, paragraph 43 and the case-law cited; Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 90 and the case-law cited; and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 100 and the case-law cited).

280 It also follows from settled case-law that the fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. While what may be the limited extent to which the undertaking concerned participated in all the aspects of a cartel cannot thus remove its personal responsibility for the entire infringement, it may nonetheless affect the assessment of the extent and the gravity of the infringement and, accordingly, the determination of the level of the penalty (see, to that effect, judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 90; 7 January 2004Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraph 86; and Dansk Rørindustri and Others v Commission, cited in paragraph 200 above, EU:C:2005:408, paragraph 145).

281 It has thus been held that the Commission is required to take into account, when assessing the relative gravity of the participation of each offender in a cartel, the fact that certain offenders may not be held liable, for the purposes of the judgment in Commission v Anic Partecipazioni, cited in paragraph 280 above (EU:C:1999:356, paragraph 87) for all the aspects of that cartel (judgment of 19 May 2010 in Chalkor v Commission, T‑21/05, ECR, EU:T:2010:205, paragraph 100).

282 With regard to the principle of proportionality, it should be borne in mind that that principle requires that the measures adopted by the institutions do not exceed what is appropriate and necessary to achieve the intended purpose. In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. The principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgments of 27 September 2006 in Jungbunzlauer v Commission, T‑43/02, ECR, EU:T:2006:270, paragraphs 226 to 228 and the case-law cited, and 28 April 2010Gütermann and Zwicky v Commission, T‑456/05 and T‑457/05, ECR, EU:T:2010:168, paragraph 264 and the case-law cited).

283 Last, it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 3 May 2007 in Advocaten voor de Wereld, C‑303/05, ECR, EU:C:2007:261, paragraph 56 and the case-law cited).

The merits of the fifth plea

284 First of all, Socitrel claims that, in so far as a rate to reflect gravity of 18% was applied to it — and an additional amount for deterrence based on the same percentage — it was treated virtually identically to Emesa and Tycsa, to which a rate of 19% was applied, whereas the infringement which Socitrel committed is significantly less important than the infringement committed by those other two undertakings.

285 Next, it submits, in essence, that in determining the rate to reflect gravity, the Commission failed to take a number of factors specific to Socitrel into account, including that it was a small family undertaking, that this was the first time that it had participated in a cartel, that its participation was only incidental and that, owing to its less extensive legal and economic knowledge, resulting from its small size, it found it more difficult to gauge the consequences of its conduct.

286 Last, Socitrel maintains that the decision is vitiated by a failure to state reasons in so far as it is unable to understand the reasons that dictated the determination of the rate to reflect gravity and of the additional amount.

287 However, that argument cannot succeed.

288 First, it should be borne in mind that in the contested decision (recital 953) the Commission established three categories for the purposes of determining the rate to reflect gravity, relying on the nature of the infringement (recitals 939 to 945), combined market share (recital 946) and the geographic dimension of the cartel (recitals 947 to 949): — one category at 16%, which applied only to Fundia and is justified by the fact that that undertaking participated only in the Addtek ‘coordination’ (recital 939); — one category at 18%, that rate being justified on the basis of two criteria: participation in only Club España and belated awareness of the pan-European dimension of the cartel; Socitrel is in that category (recital 949); — one category at 19%, in which all the other undertakings that participated in the cartel are to be found (recital 953).

289 It should be pointed out that Emesa and Tycsa participated actively in the Zurich Club (from 1992 in the case of one of them and from 1993 in the case of the other) and in Club Europe, whereas Socitrel did not participate in either of those clubs, which the Commission took into account.

290 Admittedly, the difference between the rates of the respective categories in which Emesa and Tycsa, on the one hand, and Socitrel, on the other, come is small, but it should be borne in mind that, according to point 21 of the 2006 Guidelines, the proportion of the value of sales taken into account may be up to 30% and that, according to point 23 of those guidelines, horizontal price-fixing, market-sharing and output-limitation agreements, which are usuall