Case T-113/07

Toshiba Corp.

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 – Statement of reasons – Starting amount – Reference year)

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 a 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)

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 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))

10. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof

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

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Infringement committed by several undertakings

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

12. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Discretion of the Commission

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3))

13. Competition – Fines – Amount – Determination – Respect for the principle of equal treatment

(Council Regulation No 1/2003, Art. 23(2); 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 document for its defence, in the sense that, had it been able to rely on it 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 41, 46-47)

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 of the other undertakings which participated in the cartel to the statement of objections 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 in 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 42-44)

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 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.

(see para. 58)

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 79-80)

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.

Moreover, 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 of Article 81(1) EC, 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 also applies where the evidence which the Commission relies on is insufficient. In that case, the evidence does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

By contrast, that rule does not apply to all cases in which the infringement is established by deduction from other facts, by indirect or 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.

(see paras 81-82, 85-87)

6. In the context of infringement 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 high 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.

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 90-93)

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 its chances of benefiting fully under the Leniency Notice.

As regards the particular case of witness statements, 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 94, 111)

8. For the Commission to be able to reduce a fine under point 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.

Similarly, in the light of the wording of point 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 146-147)

9. 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 and Article 53(1) of the EEA Agreement which were 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 218-222)

10. When there is a dispute concerning the existence of an infringement, the requirement of legal certainty, on which economic operators are entitled to rely, means that the Commission, which bears the burden of proving infringements which it finds, must adduce evidence which will sufficiently establish the existence of the facts constituting the infringement. With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

In addition, the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement.

(see paras 235-236)

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 258, 260-262)

12. In the context of proceedings concerning infringement of Article 81(1) EC, the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules.

The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements.

(see paras 280-281)

13. Each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the Community Courts. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

Thus, the extent to which reliance is to be placed on the turnover of undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. In that regard, when the Commission relies on different years to determine the value of the worldwide sales of certain undertakings and calculates the starting amount of the fines to be imposed on them for the period of their participation in a cartel as individual undertakings on the basis of their turnover made in different years, it does not treat those undertakings equally. Although the objective referred to by the Commission is legitimate since it makes it possible to compare the capacity of the shareholders of a joint venture to harm competition during the period prior to the creation of the joint venture, it does not justify, however, such unequal treatment where it is evident that the Commission could have used other methods to achieve its objective without treating the undertakings unequally in its choice of reference year.

(see paras 282-283, 286-287, 290-292)

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 – Statement of reasons – Starting amount – Reference year)

In Case T‑113/07,

Toshiba Corp., established in Tokyo (Japan), represented initially by J. MacLennan, Solicitor, A. Schulz and J. Borum, lawyers, and subsequently by J. MacLennan and A. Schulz,

applicant,

v

European Commission, represented initially by F. Arbault and J. Samnadda, then by X. Lewis, and subsequently by J. Bourke and F. Ronkes Agerbeek, and finally by F. Ronkes Agerbeek and N. Khan, acting as Agents,

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 applicant and, in the alternative, for the amendment of Articles 1 and 2 of that decision so as to cancel or reduce the fine imposed on the applicant,

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 11 December 2009,

gives the following

Judgment

Background to the dispute

1. Applicant

1 The applicant, Toshiba Corp., is a Japanese company active in various sectors, in particular the sector for gas-insulated switchgear (‘GIS’). Between October 2002 and April 2005, its GIS business was carried on within a joint venture, TM T & D Corp., jointly owned in equal shares with Mitsubishi Electric Corp. (‘Melco’) and dissolved in 2005.

2. Goods

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 substations or as separate equipment which has to be integrated into a turnkey power substation.

3. 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 connection with 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 request 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 applicant. The Commission held hearings on 18 and 19 July 2006 for the companies to which the statement of objections had been sent.

4. 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 that the applicant had participated in the infringement from 15 April 1988 to 11 May 2004.

13 For the infringement found in Article 1 of the contested decision, the applicant was fined, in Article 2 of the contested decision, EUR 90 900 000, of which EUR 4 650 000, corresponding to the infringement committed by TM T & D, to be paid jointly and severally with Melco.

Procedure and forms of order sought by the parties

14 By application lodged at the Court Registry on 18 April 2007, the applicant brought the present action. The defence and reply were lodged on 27 August and 22 October 2007.

15 By document lodged at the Court Registry on 29 November 2007, the applicant requested that judgment by default be delivered in its favour, pursuant to Article 122 of the Rules of Procedure of the General Court. That application was rejected by decision of the Second Chamber of the Court of 11 December 2007.

16 The written procedure closed with the lodging of the rejoinder on 17 December 2007.

17 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, it 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.

18 In response to the Court’s request, the Commission forwarded the documents concerned on 26 October 2009. The applicant submitted its observations on those documents on 19 November 2009. The Commission replied to the applicant’s observations on 2 December 2009.

19 The parties presented oral argument and submitted their replies to the Court’s written and oral questions at the hearing on 11 December 2009.

20 By order of 11 June 2010, the Court decided to reopen the oral procedure, ordered the Commission to produce certain documents by way of a measure of inquiry pursuant to Article 65 of the Rules of Procedure and determined the arrangements by which the applicant could consult them.

21 The Commission complied with those measures of organisation within the deadline set.

22 The oral procedure was closed on 28 July 2010.

23 In its application, the applicant claims that the Court should:

– annul the contested decision;

– in the alternative, annul the contested decision in so far as it relates to the applicant;

– in the further alternative, amend Articles 1 and 2 of the contested decision so as to annul or substantially reduce the fine imposed on the applicant;

– order the Commission to pay the costs, including the costs incurred in connection with the bank guarantee.

24 At the hearing, the applicant withdrew its first head of claim, seeking annulment of the contested decision in its entirety.

25 The Commission contends that the Court should:

– dismiss the action as unfounded;

– order the applicant to pay the costs.

Law

26 In support of its action, the applicant puts forward four pleas in law. The first plea alleges that, in the contested decision, the Commission did not establish to the requisite standard the existence of a common understanding. The second plea alleges that the Commission did not establish a single and continuous infringement. The third plea alleges that its rights of defence were infringed. The fourth plea alleges that the Commission wrongly imposed a fine on it.

27 The Commission considers the applicant’s pleas to be unfounded.

28 It should be noted, at the outset, that the applicant has not specified which of its pleas support the various claims which it has made. In that regard, it should be considered, first of all, that the first, second and third pleas have been raised by the applicant in support of its claim seeking annulment of the contested decision in so far as it concerns it. If one of those pleas is upheld, it will be necessary, in principle, to annul the contested decision in its entirety in so far as it concerns the applicant. Secondly, the fourth plea concerns the calculation of the fine imposed on the applicant and is, consequently, raised by the applicant in support of its application for the annulment or a substantial reduction of the fine imposed on it.

1. The application seeking annulment of Articles 1 and 2 of the contested decision in so far as they concern the applicant

29 In so far as the annulment of the contested decision for infringement of the applicant’s rights of defence would render the examination of the substance of that decision devoid of purpose, it is appropriate to analyse the third plea first of all. The first and second pleas will then be examined.

The third plea, alleging that the Commission infringed the applicant’s rights of defence

30 The applicant considers that its rights of defence were infringed. In the context of the first part of the third plea, it claims that there was a fundamental procedural error in relation to the identification of the infringement in the operative part of the contested decision. In the context of the second part of the third plea, it alleges an infringement of the right of access to the file. In the context of the third part of the third plea, it submits that the Commission distorted evidence in the file.

31 The Commission considers the applicant’s arguments to be unfounded.

The first part of the third plea, alleging that the infringement was insufficiently identified in the operative part of the contested decision

– Arguments of the parties

32 According to the applicant, in Article 1 of the operative part of the contested decision, the Commission merely referred to the applicant’s participation in a complex of agreements and concerted practices, without identifying the infringement of Article 81 EC and Article 53 of the EEA Agreement, which constitutes a fundamental procedural error.

33 The Commission considers the applicant’s arguments to be unfounded.

– Findings of the Court

34 It is apparent from Article 1 of the contested decision that the Commission found that the companies concerned had participated in a complex of agreements and concerted practices in the GIS sector contrary to Article 81 EC and Article 53 of the EEA Agreement and stated the periods concerned. Thus, the operative part of the contested decision does not specify the nature of the alleged agreements and practices.

35 However, it must be remembered that the operative part of a decision is to be understood in the light of the grounds supporting it (Joined Cases T‑305/94, T‑306/94, T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II‑931, paragraph 761). In the present case, a summary of the elements of the infringement is provided, in particular, in recital 2 of the contested decision and those elements are detailed in other recitals of the contested decision. Accordingly, it must be found that, in the light of the grounds supporting it, the Commission identified, in the operative part of the contested decision, the infringement concerned in a sufficiently precise manner. Consequently, this part of the plea must be rejected.

The second part of the third plea, alleging an infringement of the right of access to the file

– Arguments of the parties

36 The applicant considers that the Commission did not grant it access to all the incriminating and exculpatory evidence.

37 As regards the incriminating evidence, the applicant submits that it had only partial access to Hitachi’s reply to the statement of objections and did not have access to Fuji’s statements allegedly corroborating ABB’s statements, referred to in recital 125 of the contested decision. Consequently, it considers that it was not able to express its view and be heard in relation to that evidence, which, in its view, could thus not be relied on in the contested decision.

38 In respect of the exculpatory evidence, the applicant states that, in so far as it was not granted access to the complete file, it was not in a position to determine whether further relevant evidence had been produced by other parties. It considers, in any event, that it should have gained access to the supplementary reply of Hitachi Ltd to the statement of objections, which contradicts the conclusions drawn in the contested decision from Hitachi’s statements concerning project loading. It also refers to the statements of employees of Melco and Hitachi which deny the existence of a common understanding. Finally, it refers to the statements of Mr S, submitted by Areva, which apparently contradict the theory concerning the duration of the GQ agreement.

39 The Commission considers the applicant’s arguments to be unfounded.

– Findings of the Court

40 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).

41 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 40 above, paragraph 68).

42 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 of the other undertakings which participated in the cartel to the statement of objections 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).

43 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 42 above, paragraph 164, and the case‑law cited). That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.

44 By analogy, if a passage in a reply to a statement of objections or in 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.

45 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).

46 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 40 above, paragraphs 71 and 73).

47 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 document for its defence, in the sense that, had it been able to rely on it 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 40 above, paragraphs 74 and 75).

48 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 40 above, paragraph 76).

49 In the present case, it is necessary to dismiss from the outset the applicant’s arguments relating to its lack of full access to the Commission’s file. It is apparent from the case‑law cited in paragraph 41 above that the protection of the rights of defence of persons involved in an administrative procedure does not imply that full access to the file must be granted.

50 As regards the incriminating evidence, it must be noted that the applicant does not state which evidence held against it in the contested decision was contained in the part of Hitachi’s reply to the statement of objections to which it did not have access. The applicant also does not state the reasons why the fact of having only partial access to that document did not enable it to give its view on Hitachi’s statements relating to project loading, which constitute the main item of incriminating evidence. Accordingly, the applicant’s argument relating to its partial access to Hitachi’s reply to the statement of objections must be rejected.

51 Moreover, the Commission admits that it was not able to rely on Fuji’s observations, which were not communicated to the applicant, in support of the grounds of complaint raised against the applicant in the contested decision, but disputes actually having used them as incriminating evidence.

52 It must be noted, none the less, that, in recitals 125 and 255 of the contested decision, the Commission referred to Fuji’s supplementary observations, in particular those of 21 November 2006, to corroborate the existence of a common understanding.

53 Accordingly, the outcome of the applicant’s argument depends on the result of the examination of the first plea, relating to the proof of the existence of a common understanding. If it is found that the existence of such an understanding has been established to the requisite legal standard even after disallowing Fuji’s observations as incriminating evidence, it will be necessary to reject the applicant’s claims. 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 the applicant’s argument and, consequently, to annul the contested decision in so far as it concerns it.

54 In so far as concerns the exculpatory evidence, the Court requested the Commission to produce all the documents which the applicant identified with a modicum of precision. Since the request made to the Commission was based on indications provided by the applicant itself, its request set out in its observations of 19 November 2009 to the effect that the Commission provide it with all the documents produced in response to the similar requests made by the Court in Case T‑112/07 Hitachi and Others v Commission and Case T‑133/07 Mitsubishi Electric v Commission, cannot be upheld.

55 As regards the various documents produced by the Commission in the present case, it should be noted, first, that, contrary to the applicant’s claim, Hitachi’s supplementary reply to the statement of objections does not call into question the factual content of the latter’s statements concerning the notification and project loading mechanism. In that supplementary reply, Hitachi merely disputed the Commission’s interpretation of those statements, in particular in relation to their relevance as evidence of the common understanding and of the existence of a single infringement involving both the common understanding and the GQ Agreement. Hitachi had already raised those same arguments in the extract from its first reply to the statement of objections, which the Commission sent to the applicant. Consequently, Hitachi’s supplementary reply to the statement of objections cannot be regarded as exculpatory evidence whose communication could have influenced the course of the proceedings and the content of the contested decision.

56 It should also be pointed out that, in its observations of 19 November 2009, the applicant wrongly complains that, following the invitation which the Court made to the Commission, it had only partial access to Hitachi’s supplementary reply to the statement of objections. The partial nature of the access to that document results from the fact that, in its pleadings, the applicant identified it as constituting potential exculpatory evidence only in so far as it concerns the notification and project loading mechanism.

57 Second, it should be noted that, in their written statements of November 2006, Melco’s and Hitachi’s employees dispute the existence of a common understanding and of discussions relating thereto and refer to the existence of ‘high’ barriers to entry on the European market. In addition, one of Melco’s witnesses notes that Fuji did not participate in the negotiations prior to the signing of the GQ Agreement, whereas the other notes that, in his view, the exclusion of certain European countries from the scope of the GQ Agreement was due to the risk of application of competition law. Hitachi’s witnesses give details of a proposal made by Alstom in July 2002 relating to an understanding between European and Japanese producers and of Hitachi’s rejection of that proposal.

58 In that regard, it should be noted that 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 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.

59 In addition, during the administrative procedure, the applicant itself disputed the existence of a common understanding and of discussions relating thereto and referred to the existence of ‘high’ barriers to entry on the European market. Consequently, the fact that other undertakings raised those arguments cannot be regarded as exculpatory evidence.

60 Similarly, the details of Alstom’s proposal of July 2002 were disclosed in the statement of objections, whereas Fuji’s absence from the negotiations related to the GQ Agreement was referred to in Mr M’s witness statement, to which the applicant does not dispute having had access. Consequently, that evidence does not constitute exculpatory evidence.

61 By contrast, it does not appear that the argument relating to the reason why certain European countries were excluded from the scope of the GQ Agreement was raised by the applicant, nor that the applicant had access to a document reproducing it. Thus, the passage concerned of the witness statement of one of Melco’s employees could be regarded as exculpatory evidence. However, it is a statement made by an employee of one of the undertakings involved, in which that employee merely disputes the existence of unlawful conduct and which is not substantiated. Accordingly, the communication of that evidence cannot be regarded as capable of influencing the course of the proceedings and the content of the contested decision.

62 Third, it should be noted that the applicant itself admits, in its observations of 19 November 2009, that Mr S’s statements, submitted by Areva, confirm its own arguments in relation to the alleged suspension of the implementation of the GQ Agreement between 1999 and 2002. Also, contrary to what the applicant maintains, the claim that it was necessary to approach TM T & D in 2002 with a view to resuming cartel activity was set out in Areva’s explanatory note concerning the operation of the cartel, to which the applicant had access.

63 The only potential item of exculpatory evidence contained in Mr S’s statements is the claim that the GQ Agreement could not work without a major producer such as Siemens. However, that claim, made by an employee of an undertaking which is accused of having participated in an infringement, is not substantiated and is contradicted by both the statements of the other undertakings involved and the documentary evidence gathered by the Commission and set out in recitals 191 to 198 of the contested decision. Consequently, the communication of that evidence was not capable of influencing the course of the proceedings and the content of the contested decision.

64 In the light of all of the foregoing, the applicant’s arguments relating to access to the exculpatory evidence must be rejected. However, as is apparent from paragraph 53 above, the outcome of this part of the third plea depends on the result of the examination of the arguments raised by the applicant in the context of its first plea.

The third part of the third plea, alleging a distortion of the evidence in the file

– Arguments of the parties

65 The applicant maintains that the Commission distorted the evidence in the file, thereby infringing both its rights of defence and the obligation to deal with the file fairly and accurately.

66 In the applicant’s view, first, contrary to what is stated in recital 255 of the contested decision, the undertaking belonging to the group including VA TECH Transmission & Distribution GmbH & Co. KEG (‘VA TECH’) did not remain silent as to the existence of a common understanding, but disputed it explicitly at the hearing.

67 Second, the applicant denies that, at the hearing, it was not able to answer the questions concerning the projects loaded in the quota provided for by the GQ Agreement and ABB’s list of projects allegedly notified. It states, referring to an extract of the transcription of the hearing, that its reply was that it was not aware of the project loading.

68 Third, the applicant claims that, in the contested decision, the Commission wrongly stated that it had confirmed that the GQ Agreement had continued after 24 April 1999, although it had always maintained that the worldwide cartel had ceased after Siemens and Hitachi discontinued their participation.

69 Fourth, contrary to the Commission’s assertion in recital 306 of the contested decision, the applicant claims it did not corroborate Hitachi’s statements concerning the existence of notification and denied both notification and project loading.

70 Fifth, the applicant maintains that, in so far as it had no access to the statements of the other parties on which the Commission based its findings, it cannot rule out the possibility that their content was also distorted in the contested decision, which is very probable in view of the complaints set out above.

71 The Commission considers the applicant’s arguments to be unfounded.

– Findings of the Court

72 The Court notes, first, that the principle of respect for the rights of the defence, as set out in paragraph 40 above, can be infringed as a result of a distortion of the facts only if it affected the interested party’s ability to understand the extent of the complaints held against it by the Commission or to assess the evidence relied on in support of those complaints.

73 In the present case, the applicant does not state the extent to which the alleged distortions of the facts committed by the Commission made its defence more difficult.

74 Consequently, the complaint alleging an infringement of the principle of the respect for the rights of the defence must be rejected.

75 Second, the duty to deal with the file fairly and diligently, which falls under the principle of good administration, is infringed each time a fact is distorted. However, such an infringement permits a finding that the contested decision was unlawful only in so far as the Commission would not have been able to arrive at the same conclusions if it had correctly interpreted the facts at issue.

76 Accordingly, the interpretation of the various facts which were allegedly distorted and the consequences of any possible distortions will be examined in the context of the applicant’s pleas calling those facts into question.

77 In the light of all the above, the third part of the third plea must be rejected.

The first plea, alleging that the Commission did not establish the existence of the common understanding to the requisite legal standard

78 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).

79 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 78 above, paragraph 60).

80 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 78 above, paragraph 61, and the case-law cited).

81 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 78 above, paragraphs 62 and 63, and the case‑law cited).

82 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 78 above, paragraphs 64 and 65, and the case‑law cited).

83 The applicant submits, in that regard, that there is no longer any justification for applying a more lenient evidential standard because of the difficulties faced by the Commission when trying to prove an infringement. In its view, first, Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1) has strengthened the Commission’s powers in this area. Second, in the present case the Commission received a large number of evidential submissions as a result of its leniency programme. Third, because of the use of modern technology, documents incriminating members of a cartel exist in multiple copies, created on various computers. In the applicant’s view, the relevant documents can thus be searched for more easily and identified and they can even be reconstituted after being deleted.

84 However, those arguments of the applicant cannot be upheld. First, although, according to recital 25 in the preamble to Regulation No 1/2003, the strengthening of the Commission’s powers aims to enable it to detect, in particular, infringements of Article 81 EC, that strengthening does not guarantee in itself that probative evidence will actually be able to be gathered more easily by the Commission in a given case. The same finding is applicable, second, to the leniency programme. In order for the Commission to be able to validly rely on it as evidence of an infringement, the evidence received from interested undertakings must, in any event, satisfy the applicable criteria in the case‑law. Thus, the existence of leniency applications per se does not simplify the Commission’s role. Third, the impact of the proliferation of forms of modern technology is counterbalanced by the technical measures adopted in that regard by the members of the cartel. In the present case, it is apparent from recitals 173 to 175 of the contested decision that the parties encrypted the relevant documents by means of a computer programme and that anonymous mailboxes were used for all communications related to the unlawful conduct. It has not been established that the applicant systematically refused to adhere to those measures, since the evidence in the file does not show that there was long-term opposition. Moreover, it is apparent from that same evidence that, when the applicant did not encrypt its messages and use anonymous mailboxes, communication with it took place by telephone or by fax, and not by email or another digital medium.

85 Moreover, 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).

86 As the applicant submits, that rule also applies where the evidence which the Commission relies on is insufficient. In that case, the evidence 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, not published in the ECR, paragraph 74).

87 By contrast, contrary to what the applicant claims, that rule does not apply to all cases in which the infringement is established by deduction from other facts, by indirect or 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 (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.

88 Consequently, even if the circumstances referred to by the applicant, supposing that they were proven, may be relevant in the global assessment of the set of indicia relied on by the Commission, they do not, in themselves, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative explanation of the facts.

89 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 85 above, paragraph 192). That case-law is applicable, by analogy, to Article 53 of the EEA Agreement.

90 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 85 above, paragraphs 219 and 220).

91 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 87 above, paragraph 72).

92 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).

93 As regards statements, particularly high 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 85 above, paragraphs 205 to 210).

94 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 applicant, 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 its chances of benefiting fully under it (see, to that effect, Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70).

95 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 90 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.

96 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 European Economic Area (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.

97 Among the various components of the common understanding listed in paragraph 96 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 applicant. 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.

98 The applicant disputes the existence of a common understanding and its participation therein. It criticises the probative value of the various items of evidence relied on by the Commission in the contested decision and refers to other evidence which, in its view, suggests that there was no common understanding. Consequently, the applicant considers that the Commission was required to accept the alternative explanation for the absence of Japanese producers on the GIS market in the EEA, related to the existence of legal, technical and commercial barriers to entry on that market. Accordingly, in the applicant’s view, in adopting the contested decision the Commission reversed the burden of proof, infringed the principle of the presumption of innocence and went beyond the limits of its powers.

99 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.

100 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 applicant.

101 The applicant’s complaints alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers are based on the premiss that the Commission did not prove that a common understanding existed and that the applicant participated therein. Consequently, if the applicant’s arguments relating to the evidence of the existence of the infringement and of the applicant’s participation therein must be rejected, that necessarily implies that the complaints alleging an infringement of the principle of the presumption of innocence and that the Commission went beyond its powers will also have to be rejected. By contrast, if it is concluded that the applicant’s participation in the alleged infringement has not been shown in the contested decision, that finding would justify, in itself, the annulment of that decision in so far as it concerns the applicant.

The evidence furnished by ABB

– Arguments of the parties

102 The applicant disputes that the various items of evidence furnished by ABB prove the existence of a common understanding.

103 The applicant submits, at the outset, that in general the evidence furnished by ABB is of weak probative value since ABB benefited from conditional immunity. In its view, ABB’s statements were no longer self-incriminating. On the other hand, ABB could have been pressurised to answer the Commission’s questions in a manner that confirmed the existence of the cartel, given that it still ran the risk of losing its immunity if it did not show itself to be sufficiently cooperative. Consequently, it is appropriate to adopt a critical approach to evidence from ABB.

104 In addition, the applicant questions the probative value of each of the individual items of evidence furnished by ABB. First, the applicant maintains that ABB’s statement of 11 March 2004, confirming the existence of the common understanding is ambiguous, since ABB also admitted that no explicit agreement existed and that the common understanding was based on the factual background, that is to say on the fact that the Japanese undertakings were accepted by European customers only to a limited extent and that they faced certain technical and legal difficulties if they wished to enter the European market. Similarly, according to ABB, the Japanese producers participated in the cartel only to the extent to which it related to territories outside the EEA.

105 Second, the applicant raises questions about the witness statement provided by Mr M, a former ABB employee, at the interview of 23 September 2005. It submits, in that regard, that ABB’s willingness to support the Commission’s theory manifested itself by the efforts of its external counsel to guide Mr M’s statements to show that the Japanese producers’ entry into the European market could become profitable after some time.

106 The applicant adds that Mr M was no longer an ABB employee at the time of the interview, which means that he was not under an obligation to act in the company’s interests. Similarly, the fact that Mr M revised his statements illustrates the pressure brought to bear on him, rather than his wish to provide accurate information.

107 The applicant also submits that Mr M’s statements as to the existence of the common understanding are hearsay evidence carrying little conviction. In its view, Mr M stated that he was not present when the common understanding was entered into and that the understanding was not referred to at the meetings in which he took part. Therefore, those statements were based on Mr M’s personal view as to the existence of a cartel. The applicant observes in that connection that, even supposing the common understanding existed, it might be expected, given its alleged importance, that contemporaneous evidence of the alleged events would be produced by the undertakings which made leniency applications.

108 As regards the content of Mr M’s statements, the applicant submits that, although Mr M stated that the conclusion of an agreement covering foreign markets presupposed the existence of an agreement covering the home countries of the various participants, he also stated that, whilst it might have been possible for Japanese producers to enter the European market, such an endeavour would nevertheless not have been profitable. Subsequently, on 4 October 2005, ABB’s external counsel made a new statement purporting to clarify Mr M’s earlier statements and formally recording the existence of the common understanding. According to the applicant, those two elements are contradictory and cannot therefore be relied on.

109 Third, the applicant maintains that the statements of Mr W and Mr P, ABB employees, are vague unsubstantiated speculation based on personal opinions. Thus, when Mr W was asked about the reasons why Japanese producers were not allowed to take part in European GIS tenders, he did not refer to the common understanding. In earlier statements, he explained, on the other hand, that the existence of ‘high’ barriers made entry on to the European market difficult.

110 The Commission considers the applicant’s arguments to be unfounded.

– Findings of the Court

111 First of all, it is apparent from paragraphs 94 and 95 above that it is not necessary to treat evidence automatically with caution when provided by an undertaking which has sought to benefit from immunity from fines. As regards the particular case of witness statements, 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.

112 As regards Mr M, the applicant rightly points out that a former employee 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.

113 In addition, it cannot be considered that the evidence furnished by ABB was not capable of damaging ABB. In so far as that evidence was furnished 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.

114 As regards the various items of evidence furnished by the applicant, first, in its observations of 11 March 2004, namely before being granted conditional immunity, ABB explicitly referred to the existence of a common understanding, pursuant to which the Japanese companies would not bid for European projects and the European companies would not bid for Japanese projects.

115 It is true that ABB stated that the common understanding was based on the fact that 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, the barriers to entry on that market constitute a factor which led to the conclusion of that understanding. It should be pointed out, in addition, that such a finding is not paradoxical since it is natural for a producer, when markets are being divided such as 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.

116 In addition, it is true that ABB stated that no explicit agreement with Japanese producers existed in relation to the manipulation of tenders, price fixing and the distribution of EEA projects. However, read in its context, that statement refers to the distribution of national markets between European producers or the distribution of GIS projects in the EEA. It thus does not contradict the existence of the general commitment of the Japanese undertakings not to enter the EEA market, to which ABB made explicit reference. Furthermore, ABB’s statements are not incoherent. In so far as, in ABB’s view, the Japanese undertakings committed not to enter the EEA market, it would not have been necessary for them to conclude detailed agreements with the European producers in relation to the distribution of GIS projects on that same market.

117 In the light of all the above, it must be concluded that ABB’s statements of 11 March 2004 are not ambiguous and that they constitute indicia of the existence of the common understanding.

118 Second, 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 applicant does not explain how the intervention of ABB’s outside counsel affects the reliability of Mr M’s witness statement in other respects.

119 In addition, the applicant rightly submits that Mr M’s witness statement does not appear to result from studied reflection and that it was also not revised after reflection and additional verifications. The witness statement was made orally and there are no indications that written questions were put beforehand to Mr M 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 Mr M.

120 None the less, the applicant does not submit any evidence indicating that any revision of Mr M’s statements might be motivated by any form of pressure exerted on him.

121 The applicant’s claim that Mr M’s witness statement is merely hearsay evidence must be rejected. 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.

122 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. 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.

123 In that regard, 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. Also, 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.

124 As regards the content of 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.

125 As noted in paragraph 118 above, Mr M was not convinced of the commercial interest for the Japanese undertakings in entering the European GIS market. None the less, the position of Mr M, which was shared by Mr P, does not affect the fact that, according to both ABB’s four witnesses and ABB itself, the Japanese undertakings were committed to not entering the EEA market even though they were capable of doing so at a technical level.

126 It should also be noted in that regard that 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.

127 In the light of all the above, it must be concluded that Mr M’s witness statement constitutes evidence of the existence of the common understanding.

128 Third, contrary to what the applicant claims, 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. Similarly, 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. Thus, Mr Wi’s and Mr P’s witness statements cannot be regarded as unsubstantiated speculation; on the contrary, they constitute evidence confirming the existence of the common understanding.

129 The same finding also applies to the last witness statement submitted at ABB’s initiative and given by Mr V.-A. When asked about the existence of a common understanding between European and Japanese producers, 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.

130 It must be concluded that the statements and witness statements produced by ABB 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.

131 Similarly, the evidence furnished by ABB is coherent in relation to the existence and fundamental content of the common understanding. Although a difference exists so far as concerns the commercial interest of the Japanese undertakings in entering the European market, that is irrelevant in this case in the light of the statements concerning the existence of a common understanding, as stated in paragraph 125 above.

132 In addition, ABB’s statements 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.

133 The statements made by the four witnesses concerned 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. Thus, they must be regarded as being of high probative value.

134 However, in accordance with the case‑law set out in paragraph 90 above, the content of the statements and witness statements provided by ABB must, in any event, be corroborated by further evidence.

The corroboration of ABB’s evidence

– Arguments of the parties

135 The applicant maintains that, in the contested decision, the Commission does not sufficiently corroborate the evidence furnished by ABB and, in particular, does not refer to any evidence which is contemporaneous with the material events.

136 First, Fuji’s claim that it was aware of the common understanding, made in its response to the statement of objections, is not supported or explained and thus reflects only Fuji’s unilateral view. In addition, that view does not specify whether Fuji alone was a party to the alleged understanding, whether it was an understanding of European producers or indeed whether the Japanese producers were also involved. Furthermore, in its leniency application of 11 July 2006, Fuji did not mention the existence of the common understanding. That understanding was also not mentioned in the five witness statements of Fuji’s employees submitted by that undertaking.

137 In the applicant’s view, the subsequent statements by Fuji allegedly confirming the existence of the common understanding, and in particular its statement of 21 November 2006, were not communicated to it and can thus not be taken into account.

138 In addition, the low probative value of the information provided by Fuji is confirmed by the fact that the latter was granted no leniency by the Commission in exchange for its disclosure.

139 Second, as regards the finding that Alstom and Areva did not contest the existence of the common understanding and that VA TECH did not deny it openly, the applicant submits that equating silence to acceptance constitutes a clear infringement of the right against self-incrimination and of fundamental evidential principles. In addition, from a practical point of view, the existence of the common understanding was, to a large extent, irrelevant to the European producers and their silence was to be expected. From a procedural point of view, the applicant observes that, since it had no access to the documents concerned, it was unable to verify the Commission’s allegation. Furthermore, the applicant considers that VA TECH in fact contested the existence of the common understanding.

140 Third, the applicant submits that its mere participation in the meetings with European producers in the context of the GQ Agreement is irrelevant in so far as concerns the existence of the common understanding.

141 The Commission considers the applicant’s arguments to be unfounded.

– Findings of the Court

142 As regards, first, the evidence furnished by Fuji, it is apparent from paragraphs 51 to 53 above that the observations which were not communicated to the applicant, and in particular Fuji’s observations of 21 November 2006, cannot be relied on as incriminating evidence. Consequently, those observations cannot corroborate the content of the evidence furnished by ABB.

143 By contrast, in its reply to the statement of objections, the relevant passage of which was communicated to the applicant, Fuji stated that it was aware of the common understanding, pursuant to which the Japanese producers would not attempt to enter the European market, while stating that the main reason for Fuji’s absence from the EEA market was that it was not a credible significant GIS supplier in Europe.

144 It must be admitted that that statement is relatively vague since Fuji merely refers to the commitment of the Japanese producers not to enter the European market. However, in doing so, Fuji corroborated the key element resulting from the evidence submitted by ABB and imputed to the Japanese producers by the Commission. Thus, that statement is not irrelevant in this case. That is even more so since the limited extent of Fuji’s knowledge can be explained by its secondary role within the cartel and, in particular, by the fact that, as is apparent from recital 150 of the contested decision, Fuji was the only Japanese undertaking which was not a member of the committee of the group of Japanese producers responsible, in particular, for the coordination of the two groups of producers within the context of the GQ Agreement.

145 In so far as concerns Fuji’s employees, the Court points out that those employees did not dispute that the common understanding existed, but simply remained silent in that regard. Thus, the content of the statements of Fuji’s employees does not call into question the probative value of Fuji’s statement in its reply to the statement of objections.

146 In so far as concerns the content of the application for leniency, it is apparent from point 21 of the Leniency Notice that, for the Commission to be able to reduce a fine, 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.

147 Similarly, in the light of the wording of point 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.

148 Second, it is apparent from the extract of the transcription of VA TECH’s hearing that the latter explicitly contested the existence of the common understanding at that hearing. Consequently, the Commission’s claim that that is not the case is unfounded.

149 In so far as concerns Alstom’s and Areva’s allegedly neutral position, the Commission submits that it did not rely on that factor in concluding that the common understanding existed, but merely noted it. Although that interpretation is confirmed by the wording of recital 125 of the contested decision, in which no corroborative value is accorded to the position of Alstom, Areva and VA TECH, unlike Fuji’s statements confirming the existence of the common understanding, it is called into question in recital 255 of that decision, in which the Commission refers to the implicit acknowledgement of the existence of the common understanding by certain European producers. In any event, the neutral position of Alstom and Areva cannot be interpreted as evidence of the existence of the common understanding. Given that the burden of proof is on the Commission in proceedings under Article 81 EC and Article 53 of the EEA Agreement, an undertaking’s failure to challenge a fact does not mean that the fact in question is established.

150 Third, as submitted by the applicant, the mere fact that it participated in GQ Agreement meetings does not constitute evidence of the existence of the common understanding. The relevant question is whether, as the Commission claims, that understanding was implemented by the various participants at the same time as the GQ Agreement and in conjunction with it.

151 Fourth, it is apparent from recital 127 of the contested decision that, at the meeting of 10 July 2002 during which there was discussion of the development of the modes of operation of the cartel after Siemens and Hitachi had withdrawn from it, Alstom proposed that the European producers should stay in Europe and the Japanese producers should stay in Japan and not attempt to enter the European market. In addition, it is stated in that recital that, at the following meeting on 15 July 2002, the representative of Hitachi had stated that Hitachi rejected that proposal, that the European producers had reacted by stating that Europe, including Central and Eastern Europe, was their market and that they wanted to maintain the prices they were currently charging in Western Europe and had also said that the issue was to be raised again, even though that was not the case.

152 At first sight, that summary of the meetings of 10 and 15 July 2002, based on the evidence furnished by Hitachi, suggests that Alstom actually proposed that a new understanding be concluded, which was rejected by Hitachi and was not discussed subsequently, which implies that, at least as of July 2002, there was no understanding in existence relating to the conduct of the Japanese producers on the EEA market.

153 However, the summary of the meeting of 15 July 2002 shows, first, that Hitachi did not reject the very idea of allocating markets, but only Alstom’s concrete proposal. Second, it is stated in that summary that Hitachi had pointed out that the claims made by the European producers included Central and Eastern Europe, which suggests that its opposition was related to that specific aspect, but not to the situation in Western Europe.

154 It should also be noted that Alstom’s presentation of the proposal at issue calls into question the applicant’s arguments in relation to competition on the EEA market. If, as claimed by the applicant, the Japanese producers were not perceived as credible competitors on the EEA market because of the existence of insurmountable barriers to entry, an understanding relating to that very market would indeed not have served any purpose. In such a situation, the European producers, aware of that fact as a result of their privileged position in Europe, would have had no reason to propose such an understanding. However, it is apparent from the summary provided by Hitachi that Alstom’s proposal concerned the EEA market as well as the Central and Eastern European market.

155 Accordingly, it is necessary to uphold the interpretation that, at the meeting of 10 July 2002, Alstom proposed extending the common understanding, as alleged by the Commission, to include Central and Eastern European countries.

156 Fifth, as noted in recital 131 of the contested decision, the content of the EQ Agreement is relevant, to a certain extent, in so far as concerns the existence of the common understanding.

157 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.

158 This makes it possible to dismiss, to a certain extent, the applicant’s 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.

159 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. Accordingly, the EQ Agreement constitutes merely an indication of how the European undertakings perceived their Japanese counterparts.

160 In the light of all of the foregoing, it must be concluded, first, that the statement made by Fuji in its reply to the statement of objections tends to corroborate the evidence furnished by ABB in relation to the existence of a common understanding; its probative value is however limited. Similarly, the proposal made by Alstom at the meeting of 10 July 2002 constitutes evidence that the common understanding existed at the time of that meeting. Furthermore, the content of the EQ Agreement constitutes 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.

161 Second, neither VA TECH’s position as regards the existence of the common understanding, nor that of Alstom or Areva, nor the applicant’s mere participation in GQ Agreement meetings constitutes evidence wh