Case T-112/07

Hitachi Ltd and Others

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Rights of the defence – Proof of the infringement – Single and continuous infringement – Fines – Gravity and duration of the infringement – Deterrent effect – Cooperation)

Summary of the Judgment

1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Failure to communicate a document – Consequences

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

2. Competition – Administrative procedure – Observance of the rights of the defence – Communication of responses to the statement of objections – Conditions – Limits

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

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Written witness statements of employees of a company involved in an infringement – Probative value – Assessment

(Art. 81(1) EC; Commission Notice 2002/C 45/03)

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

(Art. 6(2) EU; Art. 81(1) EC; EEA Agreement, Art. 53(1))

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

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Assessment of the probative value of various items of evidence – Criteria

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

7. Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration

(Art. 81(1) EC; Commission Notice 2002/C 45/03)

8. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned

(Art. 81(1) EC; Commission Notice 2002/C 45/03, Section 21)

9. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient finding

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

10. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Concept – Personal liability for the entire infringement of undertakings which were co-perpetrators of the infringement – Conditions

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

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Council Regulation No 1/2003, Art. 23(2))

12. Competition – Fines – Amount – Determination – Deterrent effect

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 1A)

1. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that, in administrative proceedings concerning the application of the competition rules, the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

The failure to communicate a document on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different if the document which was not communicated had to be disallowed as incriminating evidence.

Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine.

(see paras 31, 36-37)

2. In the context of proceedings brought for infringement of the competition rules, it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies to the statement of objections of the other undertakings alleged to have participated in the cartel are not, in principle, included in the documents of the investigation file that the parties may consult.

However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement.

By analogy, if a passage in a reply to a statement of objections or on a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon.

(see paras 32-34)

3. The written witness statements of the employees of a company, drawn up under the supervision of that company and submitted by it in its defence in the administrative procedure for infringement of the competition rules carried out by the Commission cannot, in principle, be classed as evidence which is both different from, and independent of, the statements made by that same company. Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based, primarily, on the knowledge and opinions of its employees and management.

Thus, the witness statements of the employees of a company which has participated in a cartel do not constitute evidence which is distinct and independent from the statements of that company, since the witnesses made them before the Commission on the initiative of that company and in the context of the latter’s duty to cooperate under the Commission notice on immunity from fines and reduction of fines in cartel cases, while benefiting from the presence of the outside counsel of the company concerned. Consequently, those statements are not such as to corroborate the statements of the company which employs them. Rather, they are complementary to those statements and can explain them and express them in concrete form. Consequently, they must also be corroborated by other evidence.

(see paras 48, 129)

4. Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement of Article 81(1) EC was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine.

In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention on Human Rights, which is one of the fundamental rights which are general principles of Community law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 58-59)

5. As regards competition, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

However, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another, plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed.

That rule does not apply to all cases in which the infringement is established solely on the basis of non‑documentary evidence. As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence.

Consequently, even if the lack of documentary evidence may be relevant in the global assessment of the set of indicia relied on by the Commission, it does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative version of the facts. That is only the case where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

For the same reason, even if there is no documentary evidence, the Commission is not required to carry out independent investigations to verify the facts.

(see paras 60-66)

6. In the context of proceedings concerning infringement of Article 81(1) EC, the sole criterion relevant in evaluating the different items of evidence is their reliability. According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content.

As regards statements made by undertakings, particularly great probative value may also be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection.

However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue.

(see paras 68-71)

7. Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, considering the possibility that those participants might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the Commission notice on immunity from fines and reduction of fines in cartel cases in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking to benefit from leniency, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

As regards the individual motivation of the witnesses, it is indeed possible that the employees of an undertaking which has sought leniency, who are required to act in the interests of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the requirement for corroboration.

(see paras 72, 130)

8. For the Commission to be able to reduce a fine under Section 21 of the Leniency Notice, the evidence concerned must be of significant probative value with respect to the evidence already in the Commission’s possession. Consequently, in a leniency application made after the reply to the statement of objections has been sent, it is legitimate for the undertaking wishing to obtain a reduction of its fine to focus on the evidence which, in its view, has thus far not been established to the requisite legal standard, in order to add significant value to it. This can explain why the undertaking concerned may choose to omit the evidence which it regards as established beyond doubt by the evidence previously submitted.

Moreover, in the light of the wording of Section 21 of the Leniency Notice, it cannot be ruled out that the submission of evidence of a certain probative value, but which contains facts established by other evidence, will not result in any reduction.

(see paras 178-180)

9. In order for there to be an agreement within the meaning of Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA), it is sufficient that the undertakings in question expressed their joint intention to conduct themselves on the market in a specific way. There is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition. In that regard, the existence of a mutual agreement necessarily implies the existence of a meeting of minds, even if there is no evidence which makes it possible to determine with precision the exact point in time that meeting of minds was manifested or which formalised its expression.

(see paras 268-269)

10. The agreements and concerted practices referred to in Article 81(1) EC and in Article 53(1) of the Agreement on the European Economic Area (EEA) are necessarily the result of collusion on the part of a number of undertakings, all of which are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect.

Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC or Article 53(1) of the EEA Agreement and which was intended to help bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk.

That is the case of an undertaking of a third country which played only a passive role in the common understanding, reserving the allocation of specific projects in the EEA to European producers, which committed itself not to take such projects, since it was aware of the understanding at issue and that its passive role was not due to its choosing, but to the form of its participation in the agreement relating to the EEA market, its participation being a prerequisite for ensuring that the allocation of projects in the EEA could be carried out by the European producers.

(see paras 287-290)

11. Where an infringement of Article 81(1) EC has been committed by several undertakings, the relative gravity of the participation of each of them must be examined. Thus, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined.

As regards, in particular, an agreement under which undertakings from third countries have committed not to enter the European Economic Area (EEA) market, and the European undertakings, for their part, distribute the various projects on that same market through active collusion, the gravity of the conduct of the undertakings from third countries is comparable to that of the conduct of the European undertakings, since their lack of participation in the distribution of such projects was not the result of their choice, but a mere consequence of the nature of their participation in the agreement concerned.

(see paras 312, 314-316)

12. As regards repeated infringements, deterrence is an objective of the fine. Moreover, the need to ensure such deterrence is a general requirement which must be a reference point for the Commission throughout the calculation of the fine and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective.

Thus, the Commission may, legitimately, take that factor into account when assessing the aggravating circumstances, but not when determining the deterrence multipliers.

(see para. 353)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

12 July 2011( )

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Rights of the defence – Proof of the infringement – Single and continuous infringement – Fines – Gravity and duration of the infringement – Deterrent effect – Cooperation)

In Case T-112/07,

Hitachi Ltd, established in Tokyo (Japan),

Hitachi Europe Ltd, established in Maidenhead (United Kingdom),

Japan AE Power Systems Corp., established in Tokyo,

represented by M. Reynolds, P. Mansfield and B. Roy, Solicitors, D. Arts, lawyer, N. Green QC, and S. Singla, Barrister,

applicant,

v

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

defendant,

APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) to the extent to which it concerns the applicants and annulment of the fines imposed on them and, in the alternative, for the annulment of Article 2 of that decision to the extent to which it concerns the applicants and, in the further alternative, for the annulment or a reduction of the fines imposed on the applicants,

THE GENERAL COURT (Second Chamber),

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

Registrar: C. Kantza, Administrator

having regard to the written procedure and further to the hearing on 8 December 2009,

gives the following

Judgment

Background to the dispute

A – Applicants

1 Hitachi Ltd and its subsidiary Hitachi Europe Ltd (referred to collectively as ‘Hitachi’) are companies active in various industrial sectors, including the sector for gas insulated switchgear (‘GIS’). Japan AE Power Systems Corp. (‘JAEPS’) is a joint venture between Hitachi, Fuji Electric Systems Co. Ltd and Meidensha Corp., which took over in particular the GIS business of the respective groups of its shareholders on 1 October 2002.

B – Goods concerned

2 GIS is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for power sub-stations. GIS is sold across the world either as part of turnkey power sub‑stations or as loose equipment which has to be integrated into a turnkey power sub‑station.

C – Administrative procedure

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

4 ABB’s application for immunity was supplemented by oral observations and documentary evidence. It gave rise, on 24 April 2004, to a Commission decision granting conditional immunity to ABB.

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

6 On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies including the applicants. The Commission held hearings on 18 and 19 July 2006 for the companies to which the statement of objections had been sent.

D – Contested decision

7 On 24 January 2007, the Commission adopted Decision C(2006) 6762 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) (‘the contested decision’).

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

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

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

11 On the basis of the findings of fact and legal assessments made in the contested decision, the Commission found that the undertakings implicated had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) and imposed on them fines calculated in accordance with the methods set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the guidelines’) and in the Leniency Notice.

12 In Article 1 of the contested decision, the Commission found, first, that Hitachi had participated in the infringement from 15 April 1988 to 31 December 1999 and from 2 July 2002 to 11 May 2004, second, that Hitachi Europe had participated in the infringement from 15 April 1988 to 31 December 1999 and from 2 July 1999 to 30 September 2002, and, third, that JAEPS had participated in the infringement from 1 October 2002 to 11 May 2004.

13 For the infringement found in Article 1 of the contested decision, Hitachi was fined, in Article 2 of the contested decision, EUR 50 400 000, of which EUR 48 375 000 to be paid jointly and severally with Hitachi Europe. Similarly, in that same article a fine of EUR 1 350 000 was imposed on JAEPS, to be paid jointly and severally with Hitachi, Fuji Electric Holdings Co. Ltd and Fuji Electric Systems (collectively referred to as ‘Fuji’).

Procedure and forms of order sought by the parties

14 By application lodged at the Court Registry on 17 April 2007, the applicants brought the present action. The defence and reply were lodged on 13 August and 21 November 2007. The written procedure closed with the lodging of the rejoinder on 10 January 2008.

15 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided, on 22 September 2009, to open the oral procedure. By way of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court, the Court invited the Commission to submit certain documents and requested the parties to express their views on the relevance of those documents in relation to the plea alleging infringement of the right of access to the file. The Court also put a question to the Commission in writing, inviting it to give its reply at the hearing.

16 In response to the Court’s request, the Commission forwarded the documents concerned on 26 October 2009. The applicants submitted their observations on those documents on 18 November 2009. The Commission replied to the applicants’ observations on 3 December 2009.

17 The parties presented oral argument and submitted their replies to the Court’s written and oral questions at the hearing on 8 December 2009.

18 By order of 26 March 2010, the Court ordered the oral procedure to be reopened. On 29 March 2010, under the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court invited the Commission to submit a number of documents.

19 Since the Commission pointed out that a number of the documents concerned could not be sent because of the protection granted in the context of the leniency programme, the Court, by order of 11 June 2010 ordered the Commission to produce those documents by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure and determined the arrangements by which the applicants could consult them. The Commission complied with that measure of inquiry within the deadline set.

20 The oral procedure was closed on 27 July 2010.

21 The applicants claim that the Court should:

– annul the contested decision in so far as it concerns them and, consequently, annul the fines imposed on them;

– in the alternative, annul Article 2 of the contested decision in so far as it concerns them;

– in the further alternative, annul or reduce the fines imposed on each of them;

– order the Commission to pay the costs.

22 The Commission contends that the Court should:

– dismiss the action as unfounded;

– order the applicants to pay the costs.

Law

23 In support of their action, the applicants put forward five pleas in law. The first plea alleges that the Commission infringed their rights of defence. The second plea alleges that the Commission failed to prove the existence of the common understanding or the infringement resulting from it. The third plea alleges that the Commission has not proved the existence of a single and continuous infringement. The fourth plea alleges that the Commission committed errors in calculating the fines imposed on them. The fifth plea alleges that the Commission calculated their fines by means of a method which infringed the principles of equal treatment and proportionality.

24 The Commission considers the applicants’ pleas to be unfounded.

25 It should be noted, at the outset, that the applicants have not specified which of their pleas support the various claims which they have made. In that regard, it should be considered, first of all, that the first, second and third pleas have been raised by the applicants in support of their main claim. If one of those pleas is upheld, it will be necessary to annul both Articles 1 and 2 of the contested decision in so far as they concern the applicants. Next, it must be considered that the fourth and fifth pleas have been raised by the applicants in support of their application in the alternative, since they concern the calculation of the fines imposed on the applicants. Finally, the Court notes that no autonomous plea has been raised by the applicants in support of their claim in the further alternative.

A – The main application, seeking annulment of the contested decision in so far as it concerns the applicants

1. The first plea, alleging that the Commission infringed the applicants’ rights of defence

a) Arguments of the parties

26 The applicants submit that the Commission infringed their rights of defence since it failed to provide them with all the relevant information in its file.

27 In the context of the first part of the first plea, concerning incriminating evidence, the applicants claim that the Commission failed to send them Fuji’s observations of 21 November 2006, allegedly confirming the raison d’être of the common understanding and the economic reasons specific to Fuji which explain its absence from the European GIS market. Given the probative value attributed by the Commission to the evidence submitted by Fuji in relation to the existence of a common understanding, it is highly probable that the administrative procedure could have had a different outcome if the observations in question had been disclosed.

28 In the context of the second part of the first plea, the applicants submit that their rights of defence were infringed as a result of the Commission’s failure to provide them with the following exculpatory evidence:

– the agreement entitled ‘General Rules for GE Agreement’ (‘the GE Agreement’) and the observations made by other undertakings which participated in the cartel concerning that agreement; according to the applicants, that information is relevant as proof of the existence of a European cartel in the GIS sector which predates the GQ Agreement;

– the observations made by other undertakings which participated in the cartel which undermine the reliability of Mr H’s witness statement, submitted to the Commission by Fuji, regarding the existence of a common understanding, which might taint the other evidence submitted by Fuji in relation to the existence of a common understanding;

– the witness statements of other undertakings which participated in the cartel concerning the non-existence of a common understanding and, in particular, the witness statements provided by Siemens AG on 7 August 2006, which are likely to cast doubt on the plausibility of the Commission’s arguments relating to the existence of a common understanding;

– the observations of the other Japanese undertakings concerning their alleged participation in the European projects referred to in recital 164 of the contested decision, which may establish that the Japanese undertakings never participated in the discussions on those projects;

– the statements of Mr S of 15 September 2006, submitted by Areva, concerning the breakdown of the cartel in 1999, from which it is apparent that the structure of the cartel put in place from 2002 was different from that of the earlier cartel.

29 The Commission contests the applicants’ arguments.

b) Findings of the Court

30 Respect for the rights of the defence requires that the person concerned must have been afforded the opportunity, during the administrative procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (Joined Cases C-204/00 P, C-205/00 P, C‑211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 66).

31 A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (Aalborg Portland and Others v Commission, paragraph 30 above, paragraph 68).

32 In this respect, it should be recalled that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies to the statement of objections of the other undertakings alleged to have participated in the cartel are not, in principle, included in the documents of the investigation file that the parties may consult (Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 163).

33 However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement (see Hoechst v Commission, paragraph 32 above, paragraph 164, and the case‑law cited).That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.

34 By analogy, if a passage in a reply to a statement of objections or on a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon.

35 However, the mere fact that other undertakings put forward the same arguments as the undertaking concerned and that they may have used more resources for their defence is not sufficient for those arguments to be regarded as exculpatory evidence (see, to that effect, Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 353 and 355).

36 As regards the consequences of granting access to the file contrary to those rules, the failure to communicate a document on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different if the document which was not communicated had to be disallowed as incriminating evidence (Aalborg Portland and Others v Commission, paragraph 30 above, paragraphs 71 and 73).

37 Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine (Aalborg Portland and Others v Commission, paragraph 30 above, paragraphs 74 and 75).

38 The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded (Aalborg Portland and Others v Commission, paragraph 30 above, paragraph 76).

– The first part, alleging a failure to communicate the incriminating evidence

39 The Commission admits that it was not able to rely on Fuji’s observations of 21 November 2006 in support of the grounds of complaint raised against the applicants in the contested decision, but disputes actually having used them as incriminating evidence.

40 It must be noted, none the less, that, as submitted by the applicants, the Commission referred to Fuji’s observations of 21 November 2006 in recitals 125 and 255 of the contested decision to corroborate the existence of a common understanding.

41 Accordingly, the outcome of this part of the plea depends on the result of the examination of the arguments relating to the proof of the existence of a common understanding raised by the applicants in the context of the first part of the second plea. If the existence of such an understanding is established to the requisite legal standard even after dismissing Fuji’s observations of 21 November 2006 as incriminating evidence, it will be necessary to reject this part of the plea. By contrast, if it is found that those observations constitute necessary evidence in support of the findings made in the contested decision in relation to the existence of a common understanding, it will be necessary to uphold this part of the plea.

– The second part, alleging a failure to communicate the exculpatory evidence

42 First, the parties do not dispute that the GE Agreement was communicated to the applicants. The applicants merely submit that they were granted only a very brief period to study it, without specifying how that made their defence more difficult. In addition, the applicants admit in their observations of 18 November 2009 that they had the opportunity to express their views on that agreement and that they took advantage of that opportunity. Consequently, their argument relating to that agreement cannot be upheld.

43 Second, as regards the observations made by the other undertakings which participated in the GE Agreement cartel, the applicants state, in their observations of 18 November 2009, that Toshiba Corp. and Mitsubishi Electric System Corp. (‘Melco’) also acknowledged the value of that agreement as exculpatory evidence for the same reasons as those given by the applicants to the Commission. Thus, the applicants merely state that Toshiba and Melco raised the same arguments as them, which means that Toshiba’s and Melco’s observations cannot be regarded as exculpatory evidence.

44 Third, the same finding applies to the observations of the other undertakings which participated in the cartel which dispute the reliability of Mr H’s witness statement regarding the existence of a common understanding. In their observations of 18 November 2009, the applicants state that Toshiba and Melco also criticised the probative value of that witness statement for the same reasons as those submitted to the Commission.

45 Fourth, the observations and witness statements submitted by Melco and Siemens and the witness statements submitted by Fuji refer to ‘high’ barriers to entry on the European market and the fact that that market was ‘mature’, which made it very difficult, if not impossible, for the Japanese producers to enter. In addition, Siemens and Melco, and their employees, explicitly disputed the existence of a common understanding or discussions relating thereto, and the witness statement of Mr T, submitted by Siemens, states that the GQ Agreement cartel focused on the Middle East and did not apply to Europe.

46 However, the applicants have not disputed the Commission’s claim that the witness statements of Fuji’s employees were communicated to them. Consequently, no infringement of the right of access to the file can be found in relation to those statements.

47 Moreover, in their reply to the statement of objections, the applicants raised the same arguments as those set out in paragraph 45 above, which means that the observations of Melco and Siemens cannot be regarded as exculpatory evidence whose communication could have influenced the course of the proceedings and the content of the contested decision.

48 The same conclusion applies to the witness statements of Melco’s employees and those of Siemens’ employees since the written witness statements of the employees of a company, drawn up under the supervision of that company and submitted by it in its defence in the administrative procedure carried out by the Commission cannot, in principle, be classed as evidence which is both different from, and independent of, the statements made by that same company. Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based, primarily, on the knowledge and opinions of its employees and management.

49 In so far as the applicants submit that the witness statements of Siemens’ employees call into question the Commission’s claim that the European producers did not dispute the existence of a common understanding, it should be noted that it has not been established that the Commission based its findings in the statement of objections or at a subsequent stage on such a general claim. In that regard, it is apparent, at best, from recital 125 of the contested decision that the Commission found that the existence of that understanding had not been challenged by Alstom and Areva and had not been openly contested by the undertaking belonging to the group of which VA TECH Transmission & Distribution & Distribution GmbH & Co. KEG (‘VA Tech’) forms part. By contrast, the Commission did not provide any details of Siemens’ position or that of the European producers in general. Consequently, the applicants’ argument is based on a false premiss. Moreover, the position of the European producers in relation to the existence of a common understanding and the relevance thereof will be addressed in paragraphs 197 to 203 below.

50 Fifth, in response to the Court’s request concerning the observations of the other Japanese undertakings as to their alleged participation in the GIS projects in the European Economic Area (EEA) referred to in recital 164 of the contested decision, the Commission produced an extract from Melco’s reply to the statement of objections, from which it is apparent that Melco disputes having participated in the sharing of such projects.

51 However, in its reply to the statement of objections, Melco merely adopted the same position as the applicants, which the latter admit in their observations of 18 November 2009. Consequently, the extract from Melco’s reply to the statement of objections does not constitute exculpatory evidence whose disclosure might have influenced the course of the proceedings and the content of the contested decision.

52 Sixth, it is apparent from the statements of Mr S of 15 September 2006 that he considered, first, that the cartel was dissolved when Siemens discontinued its participation in 1999 and, second, that the cartel set up as of 2002 was fundamentally different from the one which existed until 1999.

53 In their reply to the statement of objections, the applicants raised the same arguments to dispute the existence of a single and continuous infringement. Accordingly, and in the light of what was stated in paragraph 48 above in relation to the classification of the witness statements of the employees of a company, it must be found that the statements of Mr S also do not constitute exculpatory evidence whose disclosure might have influenced the course of the proceedings and the content of the contested decision.

54 In the light of all of the foregoing, the second part of the first plea must be rejected.

2. The second plea, alleging that the Commission failed to prove the existence of a common understanding or the resulting infringement

55 The applicants submit, in the context of the first part of the second plea, that the Commission failed to establish to the requisite legal standard the existence of a common understanding and submit that it did not make an effort to dispel doubts which had arisen in the context of an independent enquiry. They consider that, in the present case, the Commission was required to accept the alternative explanation of the facts proffered by them. In the context of the second part of the second plea, the applicants submit that the Commission did not establish that the common understanding constituted a restrictive agreement or a concerted practice.

56 The Commission considers the applicants’ arguments to be unfounded.

a) The first part, alleging that the Commission failed to establish the existence of a common understanding

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

58 In that regard, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (Dresdner Bank and Others v Commission, paragraph 57 above, paragraph 60).

59 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of Community law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Dresdner Bank and Others v Commission, paragraph 57 above, paragraph 61, and the case-law cited).

60 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others v Commission, paragraph 57 above, paragraphs 62 and 63, and the case‑law cited).

61 In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see Dresdner Bank and Others v Commission, paragraph 57 above, paragraphs 64 and 65, and the case‑law cited).

62 However, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another, plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed (see, to that effect, Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 186, and the case‑law cited).

63 Contrary to what the applicants claim, that rule does not apply to all cases in which the infringement is established solely on the basis of non‑documentary evidence.

64 As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence (Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.

65 Consequently, even if the lack of documentary evidence may be relevant in the global assessment of the set of indicia relied on by the Commission, it does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative version of the facts. That is only the case where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission [2007] not published in the ECR, paragraph 74).

66 For the same reason, even if there is no documentary evidence, the Commission is not required to carry out independent investigations to verify the facts.

67 In addition, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions (JFE Engineering and Others v Commission, paragraph 62 above, paragraph 192). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.

68 However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue (JFE Engineering and Others v Commission, paragraph 62 above, paragraphs 219 and 220).

69 As regards the probative value of the various items of evidence, the sole criterion relevant in evaluating the evidence adduced is its reliability (Dalmine v Commission, paragraph 64 above, paragraph 72).

70 According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (Joined Cases T‑25/95, T-26/95, T-30/95, T-31/95, T-32/95, T-34/95, T-35/95, T-36/95, T‑37/95, T-38/95, T-39/95, T-42/95, T-43/95, T-44/95, T-45/95, T-46/95, T‑48/95, T-50/95, T-51/95, T-52/95, T-53/95, T-54/95, T-55/95, T-56/95, T‑57/95, T-58/95, T-59/95, T-60/95, T-61/95, T-62/95, T-63/95, T-64/95, T‑65/95, T-68/95, T-69/95, T-70/95, T-71/95, T-87/95, T-88/95, T-103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 1053 and 1838).

71 As regards statements, particularly great probative value may be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection (see, to that effect, JFE Engineering and Others v Commission, paragraph 62 above, paragraphs 205 to 210).

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

73 It must also be noted, in that regard, that the potential consequences of the submission of distorted evidence are even more serious since, as is apparent from paragraph 68 above, a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings involved of detecting the inaccurate nature of those statements is increased.

74 As regards the application of those rules to the present case, it should be noted, at the outset, that, according to the findings made in the contested decision, the common understanding was an unwritten understanding which encompassed, first, the commitment of the Japanese undertakings not to enter the market for GIS projects in the EEA, second, the commitment of the European undertakings not to enter the Japanese market for GIS projects and, third, the commitment of the European undertakings to notify the Japanese undertakings of the GIS projects in the European countries other than the ‘home countries’ and to load those projects in the joint ‘European’ quota laid down in the GQ Agreement. According to the Commission, the purpose of the notification and project loading mechanism was to offer compensation to the Japanese undertakings, viewed by the European undertakings as potential competitors on the EEA market.

75 In that respect, it is necessary to dismiss from the outset the applicants’ claim that the content of the notion of common understanding is not consistent throughout the contested decision. Although minor differences may be noted between the various formulations used in the contested decision, those differences do not affect the fundamental characteristics of that notion as set out in the preceding paragraph.

76 Among the various components of the common understanding listed in paragraph 74 above, it is the alleged commitment of the Japanese undertakings not to enter the EEA market which constitutes the basis of the Commission’s complaint against the applicants. Consequently, it is the existence of that commitment which needs to be established to the requisite legal standard. However, the other components of the common understanding, if proven, may also serve as indirect evidence from which the existence of the corresponding commitment on the part of the Japanese undertakings may be inferred.

77 The applicants dispute the existence of a common understanding and submit that their absence from the European market for GIS projects can be explained by the fact that the Japanese undertakings were not regarded as credible competitors on the European market for various reasons, in particular of a commercial and technical nature. They dispute the probative value of the various items of evidence relied on by the Commission in the contested decision and refer to other items of evidence which, in their view, suggest that there was no common understanding. In addition, they submit a report prepared by consultants (‘the external report’), which they claim supports their alternative version of the facts.

78 The Commission submits that the existence of a common understanding, and in particular the commitment of the Japanese undertakings not to enter the EEA market, is established to the requisite legal standard by a body of evidence comprising documentary evidence, statements from undertakings, witness statements and evidence relating to the actual operation of the cartel.

79 It is therefore necessary to assess the reliability and the content of the various items of evidence concerned in order to assess whether, taken as a whole, the evidence relied on by the Commission establishes a firm conviction that a common understanding existed which is not able to be called into question by the evidence adduced by the applicants.

The GQ and EQ Agreements

– Arguments of the parties

80 The applicants submit, first, that the GQ and EQ Agreements do not make any reference to a common understanding, even though the rules of the cartel are set out in those agreements in a detailed manner. In that regard, Annex 2 to the GQ Agreement reflects not the existence of a common understanding but the exclusion of the countries of Western Europe from the scope of the agreement.

81 Second, the applicants contest the existence of an intimate relationship between the GQ Agreement and the EQ Agreement. They observe that, notwithstanding its detailed nature, the GQ Agreement does not refer to the EQ Agreement. In addition, the Japanese producers were not parties to the EQ Agreement and they were not aware of its content.

82 Consequently, the applicants consider that the GQ and EQ Agreements do not constitute documentary evidence of the existence of a common understanding. In so far as those agreements do not refer to the common understanding, in spite of the alleged fundamental importance of that understanding in the worldwide cartel, their content even proves that no such understanding existed.

83 The Commission considers the applicants’ arguments to be unfounded.

– Findings of the Court

84 It is common ground between the parties that the GQ Agreement sets out the organisation of a cartel for worldwide GIS projects. However, first, as the applicants submit, that agreement does not refer to a common understanding and, second, according to Annex 2 to that agreement, Japan, the twelve Member States of the European Community at that time and five other Western European countries were excluded from its scope of application.

85 Accordingly, the GQ Agreement cannot be regarded as constituting documentary evidence of the existence of a common understanding. The Commission’s interpretation, according to which the exclusion of the European countries and Japan was due to the existence of that understanding is no more plausible, a priori, than the interpretation to the contrary offered by the applicants.

86 The EQ Agreement, for its part, is an agreement implementing the GQ Agreement, which concerns, inter alia, the distribution of the joint ‘European’ quota provided for in the GQ Agreement. To that extent, there was a certain relationship between those agreements. However, the EQ Agreement was concluded solely by the European undertakings. The applicants were thus not parties to it. In addition, that agreement does not explicitly mention the common understanding.

87 In that regard, it should also be noted that, in accordance with point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, the European producers ‘decide about notification of [E]uropean projects to [the group of Japanese producers]’. It is apparent from the context of Annex 2 that the information was to be communicated prior to the allocation of the GIS projects concerned.

88 This makes it possible to dismiss, to a certain extent, the applicants’ arguments, since it suggests that the European producers considered that the Japanese producers might have been interested, at the very least, in the allocation process of certain GIS projects in the EEA, and that they were therefore potential competitors for such projects.

89 However, nothing in the EQ Agreement or in the other evidence adduced by the Commission proves that the mechanism concerned was implemented by the European producers or that the Japanese producers were aware of its existence.

90 Therefore, the EQ Agreement constitutes merely an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA, as claimed by the Commission.

91 Moreover, it should be noted that the commitment of a group of producers not to enter a market reserved to the other group, such as the commitment alleged by the Commission against the Japanese producers, is based on a simple concept which may be implemented easily. Similarly, its implementation does not require, in principle, interaction between the undertakings concerned. Consequently, such a commitment is perfectly capable of existing as an unwritten understanding, which also reduces the likelihood of its discovery. In that regard, the Commission stated in recitals 170 to 176 of the contested decision that, in the present case, the participants to the cartel put a series of organisational and technical precautions in place to prevent its discovery.

92 Although it is true that the notification and project loading mechanism implemented after the distribution of the GIS projects concerned, as referred to by the Commission, required certain measures for its implementation, those measures were not particularly complicated, since they essentially consisted of the disclosure of certain information by the European group to the Japanese group, a disclosure which, in addition, took place in parallel with the information disclosed under the GQ Agreement concerning GIS projects outside of the EEA. Consequently, it is not apparent that such measures necessarily required written rules.

ABB’s statements

– Arguments of the parties

93 At the outset, the applicants state that the evidence adduced by ABB in the context of its application for immunity from fines and, in particular, the statements which it made after conditional immunity was granted by the Commission, must be assessed in the light of the pressure on ABB, since it sought to maintain the benefit of its immunity, while minimising the gravity of its own conduct and overstating the gravity of that of the other undertakings involved. In the present case, that pressure manifested itself in the partial statements by ABB at the hearing before the Commission and in parallel proceedings conducted by the Czech competition authority.

94 The applicants add that ABB’s statements do not date back to the material time, do not give sufficient clarity concerning the common understanding and changed over time, which reduces their probative value.

95 They state that, in its initial immunity application of 3 March 2004, ABB did not refer to the existence of the common understanding, which was mentioned only in its observations of 11 March 2004.

96 Regarding ABB’s observations of 11 March 2004, the applicants state, first, that when ABB refers to the participation of the Japanese undertakings in the common understanding it appears to be referring to JAEPS and to TM T&D Corp., a joint venture between Toshiba and Melco carrying on the GIS business of those companies between October 2002 and April 2005. However, in the contested decision, the Commission interpreted ABB’s statements not only as referring to the entire period of infringement since 1988, even though neither TM T&D nor JAEPS existed at that time, but also as involving, in addition to those two companies, Hitachi and Hitachi Europe.

97 Second, the applicants submit that, in its observations of 11 March 2004, ABB merely made imprecise statements in relation to the duration of the cartel, focusing on the period between 1999 and 2002.

98 Third, the vague and contradictory nature of ABB’s observations of 11 March 2004 gives the impression, according to the applicants, that there was an assumption on the part of ABB’s business people concerning market conditions rather than evidence of any express agreement involving a true meeting of minds.

99 Fourth, the applicants consider that, in its observations of 11 March 2004, ABB confirmed from the outset that the undertakings concerned considered that, because of legal, technical and commercial barriers, entry into the European market was difficult, if not impossible. They maintain that, in such circumstances, it would clearly be pointless to establish any express agreement to stay out of the market in question.

100 Finally, the applicants claim that in ABB’s observations of 4 October 2005, following the lodging of their own observations and those of the other Japanese producers explaining the existence of the abovementioned barriers, ABB contradicted its earlier statements concerning the common understanding since it stated in particular that the barriers to entry to the European market could be overcome and that, consequently, the entry of Japanese producers was economically feasible. However, the value of such a statement, which was submitted late and which radically changed the earlier statements raises doubts, in the applicants’ view.

101 The Commission considers the applicants’ arguments to be unfounded.

– Findings of the Court

102 As regards the reliability of ABB’s statements made in the context of its application for immunity, it has been stated in paragraphs 72 and 73 above that the mere fact of seeking to benefit from the application of the Leniency Notice in order to obtain immunity does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel.

103 The specific circumstances which allegedly prove that ABB was under pressure are not such as to influence that finding. At the hearing before the Commission, ABB merely set out the factual nature of the cartel and claimed that the factual elements which it had provided to the Commission justified that it be granted immunity from fines. In the proceedings carried out by the Czech competition authority, ABB’s intervention included, in addition to those two parts, a part on the legal assessment of the facts and observations on the statement of objections. It is not apparent that, in those two cases, ABB went beyond what might be expected of an undertaking which has sought immunity from fines and which seeks to maintain, by cooperating fully with the authority concerned, the conditional immunity granted to it. Consequently, it cannot be held that the reliability of ABB’s statements is called into question by the fact that ABB sought to benefit from immunity.

104 The applicants’ argument that ABB’s statements do not date back to the material time can also not be upheld. First, the statements made to the Commission by an undertaking in the context of an application for immunity cannot, by definition, be contemporaneous with the entire duration of the alleged infringement, but that does not deprive them of any probative value at all. Second, in the present case, ABB claimed that the common understanding existed from 11 March 2004, that is before the infringement concerned by the contested decision had ceased.

105 As regards the content of the various statements of ABB, first, particular importance cannot be attached to the fact that the common understanding is not referred to in the initial application, namely the application for immunity of 3 March 2004. When first entering into contact with the Commission in the context of an application for immunity, it is normal for the undertaking in question not to describe in detail all the aspects of the infringement whose existence it intends to reveal.

106 In addition, although, in its initial application, ABB did not mention the common understanding explicitly, it did state, none the less, that JAEPS and TM T & D were among the participants in the cartel and that the cartel covered all Member States of the European Union. That statement implies that, in ABB’s view, the two companies concerned participated in the common understanding.

107 Second, in its observations of 11 March 2004, before being granted conditional immunity, ABB explicitly referred to the existence of a common understanding, pursuant to which the two Japanese companies would not bid for European projects and the European companies would not bid for Japanese projects.

108 In that respect, it is normal that ABB referred to two Japanese companies, namely JAEPS and TM T & D, since, at the time when it submitted its statements, the GIS activities of Hitachi, Fuji, Toshiba and Melco were grouped within those joint ventures. None the less, the Commission was entitled to interpret that statement as indicating that those undertakings themselves participated in the common understanding. In its initial application, ABB had already stated that, to its knowledge, the cartel had been in existence for over 10 years, which implies that it came into being well before JAEPS and TM T & D were created.

109 Similarly, on a joint reading of ABB’s observations of 11 March 2004 and its initial application, the applicants’ argument that ABB did not provide information regarding the duration of the cartel can be rejected. In its initial application, ABB stated that the cartel operated from at least 1994 and its observations of 11 March 2004 do not contradict that finding.

110 In addition, it is true that ABB stated that the common understanding was based on the fact that the Japanese producers were not well accepted by European customers and had to face certain obstacles on the European market. However, it is absolutely clear from its observations of 11 March 2004 that, in its view, the Japanese undertakings involved not only noted the existence of those obstacles, but made a commitment to their European partners not to enter the EEA market. Thus, rather than rendering the existence of the common understanding pointless, the barriers to entry on that market constitute a factor which led to the conclusion of that understanding. It needs to be pointed out, in addition, that such a finding is not paradoxical since it is natural for a producer, when markets are being divided in the way alleged by the Commission in the present case, to leave to its competitors the markets in which its own position is weak.

111 Third, the applicants’ claim that ABB’s observations of 4 October 2005 contradict its earlier statements must be dismissed. In those observations, ABB confirmed the existence of a common understanding. Although it stressed on that occasion that the obstacles which the Japanese producers faced if they wanted to enter the EEA market were surmountable, that finding does not, however, contradict the statements of 11 March 2004, which did not state that it was impossible to enter that market, but merely that such entry was difficult.

112 Consequently, contrary to what the applicants claim, ABB’s observations of 4 October 2005 clarify its previous statements in a coherent manner.

113 In the light of all the above, it must be concluded that ABB’s statements are capable of proving the common understanding since they refer to its existence, describe the essential content of the understanding and provide information as to its duration and those involved.

114 In addition, ABB’s statements are coherent, they were provided on behalf of an undertaking and it is apparent from their content that they are founded on internal research and on discussions with ABB’s employees. Consequently, a certain degree of probative value must be attributed to them. However, in accordance with the case‑law set out in paragraph 68 above, their content must, in any event, be corroborated by further evidence.

The witness statements of the employees and of a former employee of ABB

– Arguments of the parties

115 The applicants reiterate, at the outset, their argument that the probative value of the evidence submitted by ABB is reduced as a result of the fact that ABB applied to benefit from immunity.

116 In that regard, the applicants state that the witness statements of the employees and of a former employee of ABB were given in interviews held in September 2005, namely 18 months after the first application for immunity, at the request of the Commission and in the presence of its staff and of ABB’s legal counsel, who even intervened actively in the interview with Mr M.

117 Similarly, some of the observations made in those interviews show, according to the applicants, that preparatory meetings were held earlier and that at least one written statement had been prepared. In particular, the statements of Mr M appear to have been initiated by a briefing conversation with ABB’s outside counsel earlier in the day of the hearing. Notwithstanding that fact, there were inconsistencies between the various witness statements.

118 Furthermore, the witnesses had been advised of the importance of the interviews for the outcome of ABB’s application for immunity. Consequently, in the applicants’ view, those witnesses had a personal interest in providing the Commission with evidence to corroborate its thesis as to the existence of the common understanding. In particular, the only reason for Mr M’s participation in the proceedings was to keep the retirement benefits afforded to him by ABB.

119 By contrast, according to the applicants, there was no risk that the witness statements would harm ABB, since they would be considered favourably when assessing the application for immunity.

120 In addition, the witness statements were not written or reviewed by them to assess their accuracy. They were thus not formulated as a result of studied reflection. The witnesses made their statements in their capacity as employees or former employees and not as official representatives of ABB.

121 The applicants add that, in many cases, the persons questioned had not been direct witnesses of the events to which they referred. In particular, Mr M was not a direct witness of the origin of the common understanding or even its alleged adoption on 15 April 1988, since he indicated that the understanding existed when maybe he was not even born.

122 Moreover, on numerous occasions, Mr M’s witness statement of September 2005 contradicted earlier observations of ABB based on the earlier statements of Mr M, and the language that he used was imprecise and prompted by the Commission or by ABB’s outside counsel. Furthermore, the fact that he did not recall the existence of the GE Agreement before November 2006 raises further doubts as to the reliability of his witness statement.

123 The applicants claim that the Commission itself acknowledged the limited probative value of Mr M’s witness statement, since it was selective in terms of what evidence it went on to use.

124 As regards the content of the witness statements, none of the witnesses was in a position to confirm the duration of the common understanding, since Mr M considered that the mechanism of the GQ Agreement and therefore, by implication, the understanding itself, ended in 2002, whilst the other witnesses claim that the understanding was in force in varying periods between 2002 and 2004. Similarly, no witness used the term ‘common understanding’ and the references to the existence of a cartel were solicited by the Commission rather than volunteered by the witnesses.

125 The applicants state, in that regard, that, even though the Commission had introduced the concept of a common understanding when interviewing Mr Wi, the latter was in a position to make observations only for the period from July 2002 to January 2004. Mr P’s comments on the common understanding were equally vague, which prompted the Commission to attempt to persuade him to replace imprecise language by more specific wording confirming the Commission’s point of view. Mr V-A, for his part, initially informed the Commission, in his interview, that Europe and North America were excluded from the cartel. As in Mr P’s case, the Commission introduced the concept of a common understanding later in the interview. Therefore, the three witness statements at issue are imprecise, inconsistent and thus not the result of studied reflection.

126 As regards Mr M’s witness statement, the applicants claim that his initial statement regarding mutual protection of home markets relates more broadly to the concept of home countries rather than the common understanding as defined by the Commission. Similarly, his statements on the common understanding were vague.

127 The applicants also state that Mr M did not confirm that the Japanese producers were able to sell GIS products on the European market. Even after the intervention of ABB’s outside counsel, who attempted to redirect the witness, the latter maintained that any involvement of Japanese producers in the European market was very rare.

128 The Commission considers the applicants’ arguments to be unfounded.

– Findings of the Court

129 It should be noted, at the outset, that the witness statements of the employees and of the former employee of ABB do not constitute evidence which is distinct and independent from ABB’s statements, since the witnesses made them before the Commission on ABB’s initiative and in the context of the latter’s duty to cooperate under the Leniency Notice, while benefiting from the presence of ABB’s outside counsel. Consequently, the witness statements concerned are not such as to corroborate ABB’s statements for the purposes of the case‑law cited in paragraph 68 above. Rather, they are complementary to those statements and can explain them and express them in concrete form. Consequently, they must also be corroborated by other evidence.

130 In so far as the applicants raise the issue of the reliability of witness statements provided by employees and by a former employee of an undertaking which has applied for immunity, it is apparent from paragraphs 72 and 73 above that it is not necessary to treat such evidence automatically with caution. As regards the individual motivation of the witnesses, it is indeed possible that the employees of such an undertaking, who are required to act in the interests of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the requirement for corroboration.

131 As regards Mr M, a former employee of ABB, he is no longer required, in principle, to act in the interests of his former employer when it comes to voluntary cooperation in administrative proceedings. However, that also implies that, in principle, he has no interest in providing inaccurate evidence in that respect. It should be noted, in that regard, that when he submitted his witness statement Mr M was already retired. Accordingly, it is not apparent that a failure on his part to cooperate in the administrative procedure would have had unfavourable consequences for him, in particular in respect of the benefits which were allegedly afforded to him by ABB.

132 The fact that a period of time elapsed between the submission of the application for immunity and the interviews with the witnesses also does not call into question, as such, the probative value of the witness statements compiled. It is justified for the Commission to obtain additional evidence during its investigation, in order to have at its disposal all the information necessary to assess whether there was an infringement, in particular in the light of the observations of the undertakings concerned.

133 By contrast, the period of time which elapsed between the submission of the witness statement and the facts to which it relates may be relevant in the assessment of its reliability, given that witnesses may provide, as a general rule, more detailed and more reliable evidence in respect of recent events. However, in the present case, the period of time which elapsed between the submission of the witness statements in September 2005 and the end of the involvement of the various witnesses in the cartel, namely May 2004 for Mr V.-A, Mr W and Mr P, and June 2002 for Mr M, is not sufficiently long to influence their reliability.

134 The reliability of the witness statements in general is also not affected by the presence of ABB’s outside counsel at the interviews, since the witness statements were given in the context of ABB’s cooperation under the Leniency Notice and the witnesses expressly stated, at the start of their respective interviews, that they wished to be assisted by that counsel.

135 It is true that ABB’s outside counsel intervened at a particular moment during Mr M’s interview in order to suggest to him that it could be beneficial for the Japanese producers to enter the European market, of which Mr M did not appear to be convinced. Consequently, it should be held that Mr M expressed doubts as to the commercial interest of such a step and account needs to be taken of that fact when assessing the content of his witness statement. However, the applicants do not explain how the intervention of ABB’s outside counsel affects the reliability of Mr M’s witness statement in other respects.

136 As regards the drafting of a statement in advance and the holding of preparatory meetings, it is not surprising that an undertaking which sought to benefit from immunity identified in advance the facts relevant to its application and the witnesses capable of commenting on them and analysed the extent of their knowledge with them.

137 In addition, it cannot be considered that the witness statements concerned were not capable of damaging ABB. Since the interviews took place before the statement of objections was sent, neither ABB, nor its employees nor its former employee could be certain of the extent and exact content of the objections which were going to be raised against ABB.

138 By contrast, the applicants rightly submit that the witness statements concerned do not appear to result from studied reflection and that they were also not revised after reflection and additional verifications. The witness statements were made orally and there are no indications that written questions were put beforehand to the witnesses by the Commission nor that the statements relating to the common understanding and the barriers to entry on the EEA market were subsequently verified and revised by their authors.

139 Similarly, it is not apparent that the witnesses made their statements as official representatives of ABB. First of all, that role appears to have been assumed, for the main part, by ABB’s outside counsel, who made the statements examined in paragraphs 102 to 114 above. Next, as noted in paragraph 131 above, when giving his witness statement Mr M was no longer required, a priori, to act in the interests of his former employer and there is also no indication that either he or any other witness systematically prepared for the interview by consulting other employees of ABB and documents held by that company. Finally, the questions put by the Commission at the interviews did not concern ABB’s official position on the subjects addressed, but rather the individual knowledge of the various witnesses.

140 The applicants’ claim that the persons interviewed were often not direct witnesses of the events at issue must be dismissed. It is apparent from the witness statements that the four witnesses participated in person in the workings of the cartel. In particular, Mr M was one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators. Mr M was thus a direct and privileged witness of the facts which he disclosed.

141 In that regard, it must be conceded that, in his witness statement, Mr M confirmed that he was not present when the common understanding was concluded, which, he believes, took place prior to the signing of the GQ and EQ Agreements. Similarly, when asked whether the issue of the common understanding had been raised at meetings which he had attended, Mr M responded that it was not necessary to refer to it since the common understanding went without saying. However, this does not call into question the probative value of Mr M’s witness statement. First, a witness is perfectly able to furnish evidence of a long-standing phenomenon even if he was not present at its inception. Second, although Mr M stated that the issue of the common understanding had not been referred to explicitly at the meetings which he had attended, it is apparent from his witness statement that, in his view, this was so because the content of the common understanding was understood, accepted and implemented by the participants to the cartel without the need for an explicit discussion. Since the commitment of the Japanese undertakings, alleged by the Commission, consisted of a mere commitment not to act rather than a positive action, such a situation is indeed envisigeable.

142 The applicants do not provide details of the alleged incoherencies in the various witness statements. In addition, a comparison of the witness statements, both with one another and with the other evidence submitted by ABB, does not reveal any inconsistencies capable of affecting the reliability of the statements concerning the existence of a common understanding. The only discrepancy of any importance is related to the existence of the commercial interests of the Japanese undertakings in entering the European market. However, as stated in paragraphs 156 to 158 below, the position of certain witnesses in that regard does not affect their statements concerning the existence of a common understanding.

143 As regards the alleged incomplete nature of Mr M’s witness statement, it should be noted that it is not surprising that a witness is not able to recall, at an interview, all the documents relating to a cartel. Moreover, although Mr M did not refer explicitly to the GE Agreement at the interview, he none the less made reference to the allocation of GIS projects in the EEA, pursuant to agreements which predated the GQ Agreement, one of which was the GE Agreement.

144 Similarly, the fact that the Commission does not make use of all the information contained in a witness statement does not imply that that statement is of weak probative value. It is normal that some information is irrelevant or that certain information is supported more convincingly by other evidence.

145 As regards the content of the witness statements, the statements made in relation to the duration of the cartel are coherent with one another as well as with the Commission’s allegations, contrary to what the applicants claim.

146 Mr M clearly stated that the rule of mutual respect for domestic markets by the groups of European and Japanese producers existed for quite some time and even predated the GQ Agreement.

147 Mr M’s statement that the GQ Agreement mechanism ceased to exist in 2002 does not imply, in itself, that the common understanding also ceased to exist. First, during that period, the mode of operation of the cartel developed somewhat as a result, in particular, of the fact that Siemens and Hitachi reinitiated their participation in that cartel and Mr M was thus able to consider that the GQ Agreement, as signed in 1988 and subsequently revised, had ceased to be implemented. This is without prejudice to the fact that the mode of operation of the cartel from July 2002 could also have been based on the common understanding or on a similar understanding. ABB’s witnesses, other than Mr M, confirm explicitly that that was indeed so in this case, since it is apparent from their statements that the common understanding between the European and Japanese producers, on respecting domestic markets, existed during the period during which they were involved in the operation of the cartel, that is between July 2002 and 2004.

148 Second, in June 2002, Mr M was placed in early retirement, following the discovery of collusive activities by his new hierarchical superior. This explains why Mr M did not have any detailed knowledge of the mode of operation of the cartel put in place from July 2002.

149 Similarly, it cannot be submitted that the references made by the witnesses to the common understanding are vague and unspontaneous. Each of the witnesses referred, in his own words, to the existence of a particular situation, in relation to the European and Japanese markets, corresponding to the common understanding alleged by the Commission.

150 Contrary to what the applicants claim, Mr Wi stated that the absence of the Japanese undertakings on the European market was the result of a system in place to protect the Japanese and European markets, motivated by the fact that neither of the two groups of producers wanted the other group to enter its domestic market. Although, later in the interview, the Commission’s representative came back to the subject and actually introduced the concept of the common understanding, he merely clarified the concept introduced spontaneously by Mr Wi.

151 Mr P referred spontaneously to a common understanding with the Japanese undertakings pursuant to which the latter undertook not to participate in the European market and the European undertakings undertook not to participate in the Japanese market. In that case too, the Commission’s representative subsequently came back to that issue, but merely ascertained whether he had correctly understood the spontaneous statements made earlier.

152 In the case of Mr V.-A, the Commission did not introduce the concept of the common understanding but merely asked the witness whether he was aware of any form of understanding between European and Japanese producers. In response to that question, Mr V.-A referred to an understanding between Japanese and European producers pursuant to which the European undertakings agreed not to ‘attack’ the Japanese undertakings on the Japanese market and vice versa. Moreover, Mr V.-A stated that he had participated in a discussion between the European undertakings and the representative of a Japanese undertaking specifically regarding compliance with that understanding which was brought about by attempts on the part of the Japanese undertakings to enter the European market.

153 Furthermore, as regards the alleged exclusion of certain territories from the scope of the worldwide cartel, Mr V.-A stated, first, that North America was excluded for a specific reason, namely the risk of the penalties if the cartel were to be discovered. Second, he explained that the exclusion of Western European countries meant that the GIS projects concerned were not discussed by the European producers at meetings at which he was present, that is to say the meetings of the worldwide cartel previously governed by the GQ and EQ Agreements, but on other occasions. Those statements are fully in line with both those agreements and the Commission’s statements.

154 Finally, in his witness statement, Mr M stated that an understanding relating to the mutual protection of domestic markets, predating the GQ Agreement, existed between the Japanese and European producers, that that understanding was a prerequisite for the conclusion of agreements relating to other regions and that compliance with its rules implied that the Japanese producers were not to enter the domestic market of the European producers, even though they would have been able to do so at a technical level. Mr M also explained, in that context, the notification and project loading mechanism and the fact that the GIS projects in the home countries were not discussed between the two groups of producers and were not charged to the quotas set under the GQ Agreement.

155 Thus, the statements given by Mr M confirm the existence of the common understanding alleged by the Commission and cannot be regarded as vague since they provide information on the duration of that understanding, its content and its participants. The lack of information on the implementation of that understanding is hardly surprising given that the essential commitment of the parties was not to be active on certain markets. Moreover, Mr M described the part of the common understanding which required implementation measures, namely the notification and project loading mechanism.

156 However, as noted in paragraph 135 above, Mr M was not convinced of the commercial interest for the Japanese undertakings in entering the European market. His point of view was shared by Mr P, who considered that the Japanese producers probably considered that the operation was not justified in commercial terms. According to the other two witnesses, Mr Wi and Mr V.-A, there was a commercial interest in such an operation.

157 None the less, the position of Mr M and Mr P does not affect the fact that the four witnesses stated that the Japanese undertakings were committed to not entering the EEA market even though they were capable of doing so at a technical level, irrespective of a possible lack of immediate commercial interest in such a commitment.

158 It should also be noted in that regard that, contrary to what the applicants claim, the possible lack of commercial interest for the Japanese producers in entering the EEA market at a given point in time does not render the existence of an understanding, such as the common understanding, devoid of purpose. Such an understanding may serve, first of all, to eliminate the residual risk of a future entry on to the markets concerned in the event that competition changes and thereby to ensure long-term security for the two groups of producers by stabilising their respective privileged positions. Second, such an understanding may form the basis of mutual trust between the two groups. According to the statements made by Mr M, such confidence was necessary to be able to implement the cartel worldwide.

159 In conclusion, firstly, the statements made by the four witnesses concerned, and in particular Mr M’s statement, are credible since they were made by direct witnesses of the events to which they refer and it is not apparent from the circumstances of the case that those witnesses were encouraged to make inaccurate statements.

160 Next, the four witness statements are coherent, both in relation to one another and in relation to the other information submitted by ABB, in respect of the existence and fundamental content of the common understanding. Thus, the witnesses confirmed the existence of an understanding pursuant to which the Japanese undertakings committed not to enter the European market for GIS projects and the European undertakings committed not to enter the Japanese market for such projects. The fou