Case T-110/07

Siemens AG

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 – Effects within the common market – Concept of continuous infringement – Duration of the infringement – Limitation period – Fines – Proportionality – Aggravating circumstances – Role of leader – Mitigating circumstances – Cooperation)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient

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

2. Community law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 81(1) EC; Art. 6(2) EU)

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

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Production by the Commission of statements of other incriminated undertakings – Lawfulness

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

5. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Evaluation of the probative value of a document – Criteria

(Art. 81(1) EC)

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

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

7. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Production of further evidence after sending the statement of objections – Lawfulness – Conditions

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 25)

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

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 25)

9. Competition – Administrative procedure – Observance of the rights of the defence – Scope of the principle – Limits – Right of the undertaking to cross-examine the witnesses – Not included

(Art. 81(1) EC)

10. Competition – Agreements, decisions and concerted practices – Participation of an undertaking in a cartel

(Art. 81(1) EC)

11. Competition – Agreements, decisions and concerted practices – Infringement – Single infringement – Criteria for assessment

(Art. 81(1) EC; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 25(2))

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

(Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1A, fourth and sixth paras)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – No binding or exhaustive list of criteria

(Council Regulation No 1/2003, Art. 23(2))

14. Competition – Fines – Amount – Determination – Criteria – Commission’s margin of discretion – Raising of the general level of fines

(Council Regulation No 1/2003, Art. 23(2))

15. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Art. 253 EC; Council Regulation No 1/2003, Art. 23(2))

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader or instigator of an infringement

(Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 2, third indent)

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader of the infringement

(Art. 81(1) EC)

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

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Communication 2002/C 45/03, Sections 22 and 29)

1. In deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.

(see para. 40)

2. The principle of the presumption of innocence, as it results in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, is one of the fundamental rights which, according to the settled case-law of the Court of Justice, also reaffirmed in Article 6(2) EU, constitute general principles of Community law.

Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies to the procedures relating to infringement of competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. In that context, 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.

(see paras 44-45)

3. In competition matters, the Commission must show precise and consistent evidence in order to establish the existence of the infringement and to support the firm conviction that the alleged infringements constitute appreciable restrictions of competition within the meaning of Article 81(1) EC. 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 set of indicia 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, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

Where the Commission relies solely on the conduct of the undertakings in question on the market in finding that an infringement has been committed it suffices for those undertakings to show 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. Therefore, the existence of an alternative explanation for the facts is relevant only where the Commission relies solely on the conduct of the undertakings on the relevant market. Thus, such an explanation is irrelevant from the moment when the existence of the infringement is not merely presumed, but is established by proof. In addition, pursuant to the principle of the unfettered evaluation of evidence, referred to in the previous paragraph, all types of evidence are admissible for proving an infringement, with the result that the existence of an alternative explanation is irrelevant where an infringement is proved to the requisite legal standard by evidence other than documentary evidence.

(see paras 46-49, 51)

4. As regards the type of evidence which can be relied on to establish an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), the prevailing principle of Community law is the unfettered evaluation of evidence. In particular, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the Treaty.

(see para. 50)

5. In competition matters, the sole criterion relevant for evaluating freely adduced evidence is the reliability of that evidence. According to the generally applicable rules on evidence, the reliability and, therefore, 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 the reputed and reliable nature of its content. In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events or by a direct witness of those events. Furthermore, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence.

Therefore, the testimony of a person who, for almost the entire duration of the cartel, was one of the representatives of one of the main players in the cartel in that context and was therefore a direct witness of the circumstances he set out in his testimony, must in principle be classified as evidence with a high probative value.

(see paras 54, 75)

6. In competition matters, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine in competition matters does not necessarily create an incentive to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice.

None the less, in so far as the statements of an undertaking are disputed by other undertakings which are also alleged to have agreed upon the common understanding, they must be supported by other evidence in order to constitute adequate proof of the existence and the scope of that common understanding.

(see paras 65-66)

7. The statement of objections must allow those concerned to have effective knowledge of the conduct in respect of which they are accused by the Commission, that requirement being met when the final decision does not find that the undertakings concerned have committed infringements different from those referred to in the statement of objections and upholds only facts on which the persons concerned have had the opportunity to give an explanation. While it is therefore true that infringements of which an undertaking is accused in a decision cannot be different than those in the statement of objections, the same does not go for the facts upheld, since it is sufficient, in respect of those facts, that the undertakings concerned were able to make their views known in relation to facts held against them. As has been held, there is no provision which prevents the Commission from sending to the parties after the statement of objections fresh documents which it considers support its argument, subject to giving the undertakings the necessary time to submit their views on the subject.

(see paras 86-87)

8. It is for the party or the authority alleging an infringement of the competition rules to prove its existence by establishing, to the requisite legal standard, the facts constituting an infringement. Furthermore, it is for the undertaking invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for that defence are satisfied, so that the authority will then have to resort to other evidence.

The general principle that the Commission is required to prove every constituent element of the infringement, including its duration, that is likely to have an effect on its definitive findings as regards the gravity of the infringement is not called into question by the fact that the undertaking concerned raised a defence of limitation, in respect of which the burden of proof rests, in general, with the latter.

Reliance on such a defence plea necessarily requires that the duration of the infringement and the date on which it came to an end be established. Those circumstances cannot alone provide justification for transferring the burden of proof in this regard to the applicant. First, the duration of the infringement, which requires that the date on which it ended be known, is one of the essential elements of the infringement, which must be proved by the Commission, irrespective of the fact that the disputing of those elements also forms part of the defence of limitation. Second, that conclusion is also justified in light of the fact that the non-limitation of a Commission proceeding under Article 25 of Regulation No 1/2003 constitutes an objective legal criterion, pursuant to the principle of legal certainty, and, thus, is a condition for the validity of any decision imposing a penalty. The Commission is required to comply with this condition even if the undertaking concerned has raised no defence in this regard.

However, that apportionment of the burden of proof is likely to vary, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged. In particular, where the Commission has adduced evidence of the existence of an agreement, it is for an undertaking which has taken part in that agreement to adduce evidence that it distanced itself from that agreement, evidence which must demonstrate a clear intention, brought to the notice of the other participating undertakings, to withdraw from that agreement.

(see paras 173-176)

9. The fundamental principle of observance of the rights of the defence requires that the undertakings and associations of undertakings concerned by the Commission’s investigation be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission. Thus, an undertaking’s reply to the Commission’s statement of objections cannot be relied on against another undertaking concerned by the investigation where the latter has not had access to the reply prior to the adoption of the decision by the Commission.

However, that principle does not require that that undertaking is given the opportunity to question, during the administrative procedure, the witnesses heard by the Commission.

(see paras 189, 199)

10. The fact that an undertaking does not publicly distance itself from an infringement in which it participated or does not report it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery, with the result that such tacit acceptance can constitute complicity or a passive mode of participation in the infringement.

(see para. 222)

11. A number of criteria are relevant for assessing the single nature of an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘EEA’), namely the fact that the objectives of the practices at issue were identical or different, the identical nature of the relevant goods or services, the fact that the undertakings which took part were identical, and the identical nature of the means of implementing the cartel. The fact that the physical persons involved on behalf of the undertakings are identical and that the geographical scope of the practices at issue is identical are other relevant criteria.

As regards, in particular, the concept of ‘common objective’ of anticompetitive practices, the issue whether a complex of the agreements and practices contrary to Article 81 EC constitutes a single and continuous infringement is an issue which depends solely on objective factors, including the common objective of those agreements and practices. That latter criterion is one which must be assessed in the light only of the content of those agreements and practices, which must not be confused with the subjective intention of the various undertakings to participate in a single and continuous infringement. By contrast, that subjective intention can and must be taken into account only in the context of assessing individual participation of an undertaking in a single and continuous infringement. In that regard, it is sufficient that, when the undertaking concerned recommences after withdrawing participation in the cartel, it is aware that it is participating in the same cartel as before. It even suffices that that undertaking is aware of the essential criteria, which justify finding a single infringement, even if it did not itself infer its existence from them.

(see paras 241, 246, 253)

12. The fourth and sixth paragraphs of Section 1A of the Guidelines on the method of setting fines provide that the effective economic capacity of offenders to cause significant damage to other operators must be taken into account, as must the specific weight of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. On the other hand, the Guidelines do not provide that the effective economic capacity of undertakings or the specific weight of their conduct must be assessed in the light of a particular criterion, such as their market share as regards the product in question within the European Economic Area (EEA) or the common market. Therefore, the Commission is free to apply, in that regard, a criterion which is suitable in the light of the circumstances of each particular case.

(see para. 279)

13. The gravity of the infringements of Community competition rules must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, even though no binding or exhaustive list of the criteria to be applied has been drawn up. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community.

It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure.

The list of factors which are likely to be involved in the assessment of the gravity of an infringement, is neither binding nor exhaustive. Therefore, the Commission is free to take other factors into account, or to attach less weight to one of the factors, or even not take account of it at all, if that seems appropriate to it in the light of the circumstances of a particular case.

Furthermore, the notion of ‘value of the goods concerned’, must be understood as a measure indicating the share of the worldwide turnover of the undertakings in question which comes from the goods which are the subject‑matter of the cartel and not as referring to the size of the market for those goods within the European Economic Area (EEA).

(see paras 286-288)

14. The Commission’s earlier decision‑making practice does not serve as a legal framework for fines in competition matters. In the context of Regulation No 1/2003, the Commission possesses a wide margin of discretion when setting fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules. Therefore, the fact that the Commission may have applied fines of a certain level in the past to certain types of infringement does not mean that it is stopped from raising that level, within the limits set out in Regulation No 1/2003, if that is necessary in order to ensure the implementation of Community competition policy. The proper application of Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation from the fact that the Commission will not exceed the level of fines previously imposed. Consequently, those undertakings must take account of the possibility that the Commission may decide at any time to raise the level of the fines in relation to that applied in the past.

(see paras 290-291)

15. As regards the calculation of the amount of fines imposed by the Commission for the infringement of Community competition law, the essential procedural requirement to state reasons is satisfied where the Commission sets out in its decision the factors which enabled it to measure the gravity and duration of the infringement and it is not required to set out a more detailed account or the figures relating to the method of calculating the fine.

In particular, the indication of the figures which influenced the exercise of the Commission’s discretion when setting the fines, especially in regard to the desired deterrent effect is an option which is desirable for the Commission to use, but which goes beyond the requirements deriving from the obligation to state reasons.

(see paras 311-312)

16. In order to be classified as a ‘leader’ in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for the operation of the cartel. That factor must be assessed in the light of the overall context of the case. The classification as ‘leader’ has been established when the undertaking carried out the duties of coordinator within the cartel and, in particular, organised and staffed the secretariat responsible for the actual implementation of the cartel, or when that undertaking played a central role in the actual operation of the cartel, for example by organising numerous meetings, by collecting and distributing information within the cartel, by taking responsibility to represent certain members within the cartel or most often formulating proposals relating to the operation of the cartel. Moreover, it is entirely possible that two or more undertakings be attributed the role of leader, in particular in the context of a cartel implicating a high number of participants.

Furthermore, as is clear from the wording of the third indent of Section 2 of the Guidelines on the method of setting fines, it is necessary to distinguish between the concept of leader in and that of instigator of an infringement. Whereas instigation is concerned with the establishment or enlargement of a cartel, leadership is concerned with its operation. Therefore, the leader in the infringement and the instigator of that infringement are not in comparable situations, with the result that, the fact that a company classified as an instigator of the cartel from the leader is treated differently does not constitute a breach of the principle of equal treatment.

(see paras 337, 345, 348)

17. Even if the Commission mistakenly did not classify an undertaking as leader of the cartel, despite the significant role which it played in the cartel, such an unlawful act, in favour of a third party, would not justify upholding a plea for annulment. Respect for the principle of equal treatment or non‑discrimination must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party.

(see para. 358)

18. The reduction in the amount of fines in the event of cooperation from undertakings which have participated in infringements of Community competition law is based on the consideration that such cooperation facilitates the Commission’s task of establishing an infringement and, where relevant, of bringing it to an end.

As mentioned in Point 29 of the Leniency Notice, that notice has created legitimate expectations on which undertakings may rely when disclosing the existence of a cartel to the Commission. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are able to derive from the notice, the Commission must therefore adhere to the notice when, for the purpose of determining a fine to be imposed on an undertaking, it assesses that undertaking’s cooperation.

Within the limits laid down by the Leniency Notice, the Commission has however a wide discretion in assessing whether or not the evidence provided by an undertaking brings added value within the meaning of Point 22 of the Leniency Notice and whether a reduction should be granted to that undertaking under that notice.

(see paras 374-376)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

3 March 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 – Effects within the common market – Concept of continuous infringement – Duration of the infringement – Limitation period – Fines – Proportionality – Aggravating circumstances – Role of leader – Mitigating circumstances – Cooperation)

In Case T‑110/07,

Siemens AG, established in Berlin (Germany) and in Munich (Germany), represented initially by I. Brinker, T. Loest and C. Steinle, and subsequently by I. Brinker and C. Steinle, lawyers,

applicant,

v

European Commission, represented initially by F. Arbault and O. Weber, and subsequently by X. Lewis and R. Sauer, and lastly by M. Sauer and A. Antoniadis, acting as Agents,

defendant,

APPLICATION, in the first place, for the partial 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) and, in the alternative, for a reduction in the amount of fine imposed on the applicant,

THE GENERAL COURT (Second Chamber),

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

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 16 December 2009,

gives the following

Judgment

Background to the dispute

1 The applicant, Siemens AG, is a publicly traded company active in electrical engineering and electronics. It has its seat in Berlin (Germany) and in Munich (Germany).

2 Gas insulated switchgear (‘GIS’) is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations. Substations are auxiliary power stations where electrical current is converted. In addition to the transformer, other essential components for substations are control systems, relays, batteries, chargers and switchgear. The function of switchgear is to protect the transformer from overload and/or insulate the circuit and a faulty transformer.

3 Insulation of switchgear may be through gas, air or some combination of the two (‘hybrid switchgear’). GIS is sold across the world both as forming part of turnkey power substations or as loose equipment which has to be integrated into a turnkey power substation. It accounts for 30 to 60% of the total price of a substation.

4 On 3 March 2004, ABB Ltd (‘ABB’) informed the Commission of anti‑competitive practices in the GIS sector and submitted 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’).

5 The practices reported by ABB entailed coordination on a worldwide scale for the award of GIS projects, involving market sharing, allocation of market quotas and maintenance of respective market shares, the allocation of GIS projects to designated producers and manipulation of the bidding procedure for those projects (bid-rigging) in order to ensure that the assigned producers were awarded the contract in question, the fixing of prices by means of complex price arrangements for GIS projects which were not allocated, the termination of licence agreements with non‑cartel members and the exchange of sensitive market information.

6 The oral application for immunity made by ABB was supplemented with oral statements and documentary evidence. On 25 April 2004, the Commission granted conditional immunity to ABB.

7 On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of Areva T&D SA, Siemens AG, the VA Tech Group, Hitachi Ltd and Japan AE Power Systems Corp (‘JAEPS’).

8 On 20 April 2006, the Commission adopted a statement of objections which was addressed to 20 companies, including Siemens.

9 The Commission held hearings on 18 and 19 July 2006.

10 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’). Siemens was notified of that decision on 8 February 2007.

11 In addition to Siemens, the contested decision was addressed to ABB, Alstom, SA, Areva, SA, Areva T&D AG, Areva T&D Holding SA and Areva T&D SA, Fuji Electric Holdings Co., Ltd and Fuji Electric Systems Co., Ltd (together ‘Fuji’), Hitachi Ltd and Hitachi Europe Ltd (together ‘Hitachi’), JAEPS, Mitsubishi Electric System Corp. (‘Melco’) and Nuova Magrini Galileo SpA, Schneider Electric SA, Siemens AG Österreich, Siemens Transmission & Distribution Ltd (‘Reyrolle’), Siemens Transmission and & Distribution SA, Toshiba Corp. and VA Tech Transmission & Distribution GmbH & Co. KEG.

12 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 European producers and to set their value against the corresponding quota.

13 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 (‘the 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. 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, it applied across the world, 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.

14 According to the Commission, the sharing of GIS projects among 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.

15 In recital 142 of the contested decision, the Commission stated that, in the GQ Agreement and in the EQ Agreement, and for the purpose of the organisation and good functioning of the cartel, different members of the cartels were identified by a code, consisting of numbers for the European members and letters for the Japanese members. The initial codes were replaced by numbers from July 2002.

16 In Article 1(o) of the contested decision, the Commission found that Siemens had participated in the infringement for the periods from 15 April 1988 to 1 September 1999 and from 26 March 2002 to 11 May 2004.

17 In respect of the infringements referred to in Article 1 of the contested decision, a fine in the amount of EUR 396 562 500 was imposed on Siemens, in Article 2(m) of the contested decision.

Procedure and forms of order sought

18 By application lodged at the Registry of the General Court on 16 April 2007, Siemens brought the present application.

19 Upon hearing the Report of the Judge-Rapporteur, the General Court (Second Chamber) decided to open the oral procedure

20 In the context of measures of organisation of procedure, laid down in Article 64 of the Rules of Procedure of the General Court, the parties were invited to reply to the written questions of the Court. The parties replied within the prescribed time‑limits.

21 At the hearing on 16 December 2009, the parties presented oral argument and their answers to the questions put by the Court.

22 Siemens claims that the Court should:

– annul the contested decision inasmuch as it relates to the applicant;

– in the alternative, reduce the amount of the fine imposed on the applicant;

– order the Commission to pay the costs

23 The Commission contends that the Court should:

– dismiss the application;

– order Siemens to pay the costs.

Law

24 In support of its application for annulment, Siemens raises three pleas in law. The first alleges infringement of Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’). The second plea alleges infringement of Article 25 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). The third plea alleges errors of law in the calculation of the amount of the fine.

I – The first plea, alleging infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement

25 The first plea is divided into two parts. In the context of the first part, Siemens claims an ‘inadequate description of the alleged infringements’. In the context of the second part, it claims ‘incorrect analysis of the alleged agreements and their effects on the common market’.

A – The first part of the first plea, alleging ‘inadequate description of the alleged infringements’

1. Arguments of the parties

26 Siemens claims that the Commission has not accurately described and adequately proved the infringement for which it is criticised. It claims, in essence, that, first, the Commission did not prove the single and continuous nature of the conduct which is criticised, second, that the Commission neglected to describe the actual effects of the cartel on the common market and, third, that the Commission did not adduce evidence of Siemens overall intention to participate, on two occasions, in the same infringement.

27 The Commission contends that that plea should be rejected as not adequately substantiated. It contends, in addition, that Siemens’ assertions are unfounded.

2. Findings of the Court

28 It must be stated that the first part of the first plea contains only grounds of complaint which are either also raised in other parts of the application, or must also be examined when assessing other pleas raised by Siemens that also concern Article 1 of the contested decision, finding the alleged infringement. Thus, the ground of complaint alleging a lack of evidence of the single and continuous nature of the criticised conduct is also raised in the context of the second part of the second plea, and the ground of complaint based on Siemens’ overall intention to participate in the infringement must also be addressed in that context. Likewise, the ground of complaint based on the failure to describe the actual effects of the cartel on the common market is also contained, in a much more detailed fashion, in the context of the second part of the first plea. It is therefore evident that the first part of the first plea is not an autonomous ground of complaint.

29 Therefore, it is not necessary to rule on the first part of the first plea.

B – The second part of the first plea, alleging ‘incorrect analysis of the alleged agreements and their effects on the common market’

30 In the context of the second part of the first plea, Siemens raises three grounds of complaint alleging, respectively, that there was no cartel which had effects within the EEA, that there was no geographical sharing of the markets between Japanese producers and European producers, and that there was no protection of ‘home countries’.

31 Those three grounds of complaint are closely linked. First, the second and third grounds of complaint concern findings of the Commission which, if proved, show the existence of a cartel having effects within the EEA, an issue which is the subject‑matter of the first ground of complaint. Second, the three grounds of complaint are also connected to the extent that they concern the same evidence relied on by the Commission. Therefore, they should be examined together.

1. Arguments of the parties

32 Siemens claims that, in relation to the first phase of its participation, corresponding to the period from 1988 to 1999, the infringement which it is alleged to have committed is not sufficiently substantiated in the contested decision. In particular, the Commission wrongly considered that the GQ Agreement and the EQ Agreement prove an infringement which entailed effects within the EEA, although the EEA was explicitly excluded from the scope of those agreements. Such an infringement has also not been proved by the other evidence put forward by the Commission.

33 Siemens takes the view, in that regard, that the Commission has not proved that the European and Japanese producers had decided, in the common understanding, not to intervene in the markets of their respective countries. Such a geographical division of markets is proved neither by the explicit exclusion of the 17 European countries from the scope of the GQ Agreement, nor by the alleged allocation of GIS projects in Europe to the global quota, nor even by the statements of Hitachi or Fuji upon which the Commission relies. By contrast, the fact that the participants in the GQ Agreement refrained from marketing their products on certain European markets was a result, exclusively, of technical and economic barriers to access to those markets.

34 Siemens disputes both the existence of a geographical division of the European markets under the principle of ‘home countries’ or ‘home markets’ and its participation in the alleged ‘prior arrangements in Europe’, relied on by the Commission to substantiate its view that markets in the EEA were shared. The evidence adduced by the Commission in that regard is inadequate. Lastly, the fact that some producers were not active on certain national markets can be explained other than by way of the existence of an unlawful cartel.

35 The Commission disputes the arguments put forward by Siemens.

2. Findings of the Court

36 It must be pointed out, at the outset, that in its written pleadings, Siemens explicitly accepts the facts, as set out in the contested decision, relating to the second phase of its participation in the infringement, corresponding to the period from 2002 to 2004. The first plea raised by Siemens thus concerns solely the first phase of its participation in the infringement, corresponding to the period from 1988 to 1999. Accordingly, the evidence relied on by the Commission needs to be examined, in the context of the first part of the first plea only, to the extent that it allows conclusions to be drawn in relation to that first period.

37 In that regard, the Court must reject the Commission’s argument that it is legitimate to project the observations relating to the period from 2002 to 2004 on to the earlier period, since they relate to one and the same infringement. It being unnecessary, at this stage, to rule on the existence of a single infringement covering the two periods of Siemens’ participation in the cartel, the Court must first assess on a case‑by‑case basis the extent to which the evidence concerning one particular period of the infringement is capable of providing indicia that are also valid in relation to the first phase of its participation in the infringement.

38 In addition, the Commission’s contention that Siemens disputes only the cartel’s impact on competition in the EEA, whereas, in the contested decision, it criticised Siemens for concluding an agreement with the aim of distorting competition within the common market, cannot result in a limitation of the examination of the facts disputed by Siemens. It is apparent from all of Siemens’ arguments in its written pleadings that it disputes not only the allegation that the cartel complained of had effects within the common market and the EEA (excluding Liechtenstein and Iceland), but also the fact that the aim of that cartel was to distort competition within the common market and the EEA.

39 The parties therefore disagree, in essence, on the issue whether the Commission established, for the period between 1988 and 1999, the existence of a cartel which could have had effects within the common market and the EEA.

40 It is thus necessary to determine whether the GQ Agreement and the EQ Agreement, as documentary evidence, prove the existence of a cartel which could have had effects within the common market and the EEA. In that regard, it is not necessary to distinguish between the two alternatives in Article 81(1) EC. According to settled case‑law, in deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market (see Case C‑8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 29, and the case‑law cited). That case‑law is applicable, by analogy, to Article 53(1) of the EEA Agreement.

41 In the event of a reply in the negative, it will then be necessary to determine whether the common understanding relied on by the Commission is sufficiently substantiated by a body of other evidence.

42 However, before making those determinations, the rules relating to the burden of proof should be recalled, since the parties also disagree in relation to them.

a) The burden of proof

43 It should be borne in mind, first, that the Commission must prove the infringements of Article 81(1) EC found by it and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86).

44 In that context, 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 (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 60).

45 In that latter situation, it is necessary to take account of the presumption of innocence, as it results in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), which is one of the fundamental rights which, according to the settled case-law of the Court of Justice, also reaffirmed in Article 6(2) EU, constitute general principles of Community law. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies, inter alia, 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, Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 149 and 150, and Case C‑235/52 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 175 and 176).

46 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement (Dresdner Bank and Others v Commission, paragraph 44 above, paragraph 62) and to support the firm conviction that the alleged infringements constitute appreciable restrictions of competition within the meaning of Article 81(1) EC (Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47).

47 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 set of indicia relied on by the institution, viewed as a whole, meets that requirement (see Dresdner Bank and Others v Commission, paragraph 44 above, paragraph 63, and the case‑law cited).

48 Moreover, as anti-competitive agreements are known to be prohibited, and are known as a result to be implemented clandestinely, 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, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Dresdner Bank and Others v Commission, paragraph 44 above, paragraphs 64 and 65, and Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).

49 However, where the Commission relies solely on the conduct of the undertakings in question on the market in finding that an infringement has been committed it suffices for those undertakings to show 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).

50 As regards the type of evidence which can be relied on to establish an infringement of Article 81 EC and Article 53 of the EEA Agreement, it should be observed that 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). In particular, no provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (JFE Engineering and Others v Commission, paragraph 49 above, paragraph 192).

51 Therefore, the existence of an alternative explanation for the facts is relevant only where the Commission relies solely on the conduct of the undertakings on the relevant market. Thus, such an explanation is irrelevant from the moment when the existence of the infringement is not merely presumed, but is established by proof. In addition, pursuant to the principle of the unfettered evaluation of evidence, referred to in the previous paragraph, all types of evidence are admissible for proving an infringement, with the result that the existence of an alternative explanation is irrelevant where an infringement is proved to the requisite legal standard by evidence other than documentary evidence (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 727 and 728).

52 In the present case, it is therefore necessary, in relation to the evidence disputed by Siemens, to ascertain whether the conduct for which it is criticised by the Commission in the contested decision is established by evidence or whether it has been inferred solely from the conduct of the undertakings in question on the market. Only if the latter is the case will it then be necessary to examine whether there are alternative explanations for the conduct of the undertakings in question on the market, which are sufficiently plausible to undermine the findings made in the contested decision.

53 However, according to the case‑law, as anti-competitive agreements are known to be prohibited, and are known to be implemented clandestinely, the proof of the existence of a cartel may be inferred from a set of consistent indicia (see paragraph 48 above). Therefore, Siemens cannot claim that such evidence should be excluded by relying on the fact that, taken in isolation, the individual pieces of evidence adduced by the Commission are not sufficient to prove the conduct for which it is criticised. By definition, the individual pieces of evidence which are part of that consistent set of indicia put forward by the Commission cannot, when taken in isolation, constitute complete proof of that conduct.

54 As regards the probative value which should be attached to the various pieces of evidence, it must be noted that the sole criterion relevant for evaluating freely adduced evidence is the reliability of that evidence (see Case T‑44/00 Mannesmannröhren‑Werke v Commission [2004] ECR II‑2223, paragraph 84, and the case‑law cited; Dalmine v Commission, paragraph 50 above, paragraph 72, and JFE Engineering and Others v Commission, paragraph 49 above, paragraph 273). According to the generally applicable rules on evidence, the reliability and, therefore, 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 the reputed and reliable nature of its content (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 1053; Opinion of Judge Vesterdorf, acting as Advocate General, in Case T‑1/89 Rhône‑Poulenc v Commission [1991] ECR II‑867, II‑869, at II‑956). In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events (Case T‑157/94 Ensidesa v Commission [1999] ECR II‑707, paragraph 312, and Joined Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II‑5761, paragraph 181) or by a direct witness of those events (JFE Engineering and Others v Commission, paragraph 49 above, paragraph 207). Furthermore, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (JFE Engineering and Others v Commission, paragraph 49 above, paragraphs 207, 211 and 212).

b) The probative value of the GQ Agreement and the EQ Agreement

55 As regards, first, the GQ Agreement, the parties agree on the fact that that agreement provides for the implementation of a cartel in GIS projects worldwide, including, inter alia, for the exchange of information on bids and on contracts concluded, with the help of standardised forms, the allocation of a quota for the groups of European manufacturers and Japanese manufacturers respectively, the allocation of markets within the cartel, bid‑rigging, the fixing of minimum prices and action against those undertakings outside the cartel. However, it must be pointed out that, as Siemens asserts, the wording of the GQ Agreement excludes its application in Europe. Annex 2 to that agreement, relating to its geographical scope, defines five groups of territories. The first group is described as covering Europe and the Mediterranean excluding the 12 Member States of the Community at that time, as well as Austria, Sweden, Switzerland, Finland and Norway. As regards the EEA, therefore, only Liechtenstein and Iceland come within the scope of that agreement; a fact which is relevant only after the entry into force of the EEA Agreement on 1 January 1994. The second group is described as covering Asia excluding Japan.

56 The wording of the GQ Agreement is not therefore, in and of itself, evidence of a cartel which had effects within the common market and the EEA.

57 As regards, next, the EQ Agreement, it must be noted that it constitutes merely an agreement implementing the GQ Agreement, a fact which is confirmed by its title and the provisions contained in its preamble, according to which, in particular, the EQ Agreement applies in the context of the implementation of the GQ Agreement and the rules of the GQ Agreement take precedence over those of the EQ Agreement. In essence, the EQ Agreement contains rules concerning the redistribution of the joint ‘European’ quota between the European producers. That redistribution was carried out according to the procedure laid down in Article 4 of the EQ Agreement and in accordance with the quotas set out in Article 8 of that agreement.

58 Since the EQ Agreement thus, in principle, only apportions the joint ‘European’ quota provided for in the GQ Agreement, which excludes, as has been explained, the common market and the majority of the EEA, the wording of the EQ Agreement does not constitute proof of a cartel which had effects within the common market and the EEA. Therefore, as has already been explained in paragraph 39 above, it must be assessed whether the Commission has succeeded in proving the existence of such effects in another way. As regards the conclusions which it is possible to draw, beyond their wording, from the GQ Agreement and the EQ Agreement, they will be considered in paragraphs 140 et seq. below, relating to documentary evidence.

c) Proof of the common understanding

59 It must be noted, at the outset, that the fact that the clauses of the GQ Agreement, to which the EQ Agreement also refer, explicitly exclude the European and Japanese markets from their scope cannot be considered automatically as proof that the cartel did not have effects on the European markets, nor as proof that there was no geographical sharing or that there were no ‘home countries’. While that exclusion may mean that the implicated undertakings pursued undistorted competition on those markets, it may also mean that the allocation and supervision of quotas between the European and Japanese groups was not necessary in respect of those markets, since those markets were, in any event, reserved exclusively to one of the two groups, which is the Commission’s interpretation.

60 It must be pointed out that an understanding which seeks to respect the traditional privileged positions of parties to the cartel on the European and Japanese markets respectively, if established, would constitute, in itself, a cartel having effects on the common market, inasmuch as it suppresses the potential competition which Japanese producers would have provided in the common market. That would be the case even in the event that the Commission did not succeed in showing that the European producers had, in addition, shared the European market among themselves. However, as is explained below, the Commission has proved, to the requisite legal standard, those facts disputed by Siemens in the context of the first plea.

61 In order to prove the existence and the scope of the common understanding, the Commission referred, in the contested decision, to a number of pieces of evidence, including the statements of ABB, Mr M., Fuji and Hitachi, the fact that neither Alstom, nor the companies comprising the Areva group, or the group of which VA Technology was the parent company (‘the VA Tech Group’) openly disputed the common understanding, a list of GIS projects which were discussed within the cartel provided by ABB, and some documentary evidence. It is therefore necessary to examine the full significance and the probative value of each of those pieces of evidence.

The statements of ABB and Mr M.

62 In its statements, ABB indicated that the western‑European and Japanese territories were protected and that certain cases, in which the Japanese producers had envisaged, contrary to that arrangement, responding to European tenders, had caused problems within the cartel but had eventually been resolved. In addition, in its statement of 3 February 2005, ABB stated that the results of the allocation of GIS projects in the common market – excluding the ‘home countries’ – were then attributed to the world quotas of the European producers in the cartel. Lastly, in its statement of 4 October 2005, ABB admitted the existence of a system of ‘home countries’, according to which, if there was only one producer in those countries, it was the sole owner of the projects and, if there were a number of producers, they shared the projects among themselves.

63 Siemens claims, in that regard, that ABB’s statements are mere assertions made for the benefit of that company and are devoid of probative value unless they are supported by precise and corroborated evidence. The Commission takes the view, for its part, that a statement from an undertaking seeking to obtain immunity has a particular probative value on account of the simple fact that it runs counter to the normal interests of the author of that statement.

64 As regards the level of credibility to attribute to ABB’s statements, it must be observed that, in the present case, as the first whistleblower on the cartel, ABB could reasonably have expected to benefit from the absolute immunity from fines provided for in point 8 of the Leniency Notice. Therefore, it cannot be ruled out that it might have felt inclined to maximise the significance of the infringing conduct which it was revealing, in order to harm its competitors on the market.

65 That does not however mean that ABB’s statements are to be regarded as devoid of all credibility. In that regard, it has been held that the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70).

66 None the less, in so far as those statements from ABB are disputed by other undertakings which are also alleged to have agreed upon the common understanding, they must be supported by other evidence in order to constitute adequate proof of the existence and the scope of the common understanding (see, to that effect, Case T‑337/94 Enso‑Gutzeit v Commission [1998] ECR II‑1571, paragraph 91, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285).

67 It must therefore be ascertained to what extent ABB’s statements relating to the sharing of the market between European and Japanese producers, and the existence of ‘home countries’, are supported by the other evidence relied on by the Commission.

68 In that respect, it must be noted that the Commission refers in the contested decision, inter alia, to the statements of Mr M., a former employee of ABB who had represented that undertaking at the operational level of the cartel from 1988 to April 2002.

69 As regards the nature of the statements of Mr M., it must be stated, as a preliminary remark, that his testimony cannot be classified as different than or independent from that of ABB. Not only was he employed by that company during his entire professional life – a fact which cannot guarantee that they do not have differing interests, as the Commission rightly points out – but also spoke to the Commission as a representative of ABB in the context of the obligation on the latter to cooperate for the purposes of obtaining immunity from fines, in accordance with point 11 of the Leniency Notice, and was assisted by ABB’s lawyer, as is clear from the introduction to the transcript of what was said during his hearing on 23 September 2005. In addition, the Commission assimilated Mr M.’s testimony with ABB’s statements, for example in footnotes 90 and 91 of the contested decision.

70 It follows that Mr M.’s statements cannot be considered to constitute other evidence supporting ABB’s statements, within the meaning of the case‑law cited in paragraph 66 above, but must be regarded as forming part of ABB’s evidence. That does not deprive them of all probative value. They may, in particular, serve to make ABB’s statements more precise. However, it is necessary to corroborate the information gleaned from Mr M.’s testimony with other evidence in order to have sufficient evidence of the existence and the scope of the common understanding, in the same way as the information gleaned from ABB’s statements, despite the fact that Mr M. cannot have, in contrast to ABB, a personal interest in maximising the infringing conduct of ABB’s competitors. The same considerations apply, as well, to the statements of Mr V.‑A., an employee of ABB, who was interviewed by the Commission under the same conditions as those described in the previous paragraph for Mr M.

71 As regards the content of the statements of Mr M., it should be noted that he indicated that the principle of protecting home markets was of the utmost importance for the conclusion of the cartel and that the cartel could not have functioned without compliance with that principle.

72 According to Mr M., that is the reason why, during the determination of the quotas for the various undertakings implicated at the time when the cartel was created in 1988, the respective home markets of the European and Japanese producers – that is to say, on the one hand, Japan as the home market for the Japanese undertakings and, on the other, Germany, France, Sweden, Switzerland and Italy as the home markets for the European undertakings – were excluded from the assessment of the market share held by each undertaking.

73 Mr M. also stated that European countries other than the ‘home countries’ were excluded from the system of project sharing provided for in the GQ Agreement, in order not to affect the functioning of certain collusive practices which had developed at a local level between different producers throughout the years. By contrast, the volume of contracts obtained by each producer was taken into account for the purposes of supervising compliance with the global quotas of the European and Japanese groups and the quotas of each undertaking.

74 Mr M., in addition, considered that there were no insurmountable technical or commercial barriers to entry on to the European market for the Japanese undertakings and that such entry would have been possible, in the medium term, by way of certain investments. Therefore, in his opinion, the Japanese undertakings refrained from entering the European market in order to comply with the rules of the cartel rather than for technical reasons.

75 As regards the credibility of Mr M.’s testimony, account must be taken of the fact that, for almost the entire duration of the cartel, namely from 1988 to 2002, he was one of ABB’s representatives in the context of that cartel, while ABB itself was one of the main players in the cartel. He was therefore a direct witness of the circumstances which he set out. Therefore, his testimony must, in principle, be classified as evidence with a high probative value.

76 In addition, Mr M.’s statements are coherent and clear, albeit that he does not recall all the factual details of the implementation of the cartel in which he participated, on behalf of ABB, for 14 years. In a testimony covering such a long period, the fact that there may be some slight inaccuracies in those statements must be considered to be normal.

77 Therefore, a high level of credibility must be attached to Mr M.’s statements, notwithstanding the fact, referred to above, that they must be assessed as statements made on behalf of ABB.

78 Doubt is not cast on that assessment by the arguments put forward by Siemens to dispute the credibility of Mr M.’s testimony and, in particular, by the alleged inconsistencies between that testimony and the testimony of Mr V.‑A. The claims from Siemens that, first, Mr V.‑A. stated that the Member States of the EEA, like the countries of North America, were excluded from the scope of the GQ Agreement and, second, that the Commission had not shown in what way Mr V.‑A.’s testimony was less reliable than that of Mr M., cannot succeed since Mr V.‑A.’s testimony does not contradict that of Mr M.

79 In that regard, it must be stated that Mr V.‑A. himself confirmed, in his statement of 21 September 2005, that he participated in only six to ten operational meetings between 1997 and 1998, had limited knowledge and was dependent, in that respect, on Mr M., who was the only person to have certain information, in particular concerning the exclusion of North America and Europe from the scope of the GQ Agreement.

80 Moreover, Mr V.‑A. noted a difference between the exclusion of North America and that of Europe, stating that the United States was excluded for fear of exposure to the severe penalties which threaten cartel participants in that country, whereas he assumed that the European projects were actually handled by the undertakings participating in the cartel, but not in the course of the meetings in which he himself participated.

81 Lastly, Mr V.‑A. indicated that he had witnessed, during the meetings in which he had participated, disputes between the representatives of the group of Japanese producers and those of the group of European producers in relation to alleged attempts by Japanese producers to penetrate European markets, infringing an agreement which prohibited them from competing against European producers in Western Europe. He also stated that he saw no insurmountable technical or commercial barrier to Japanese producers entering the European markets.

82 On the basis of the limited knowledge which he, in his own words, had of how the cartel functioned, Mr V.‑A.’s statements are therefore consistent with those of Mr M. and even corroborate them in certain respects, in particular in relation to the sharing of markets between European and Japanese producers. Even if the Commission did not explicitly state it in the contested decision, Mr V.‑A.’s testimony thus constitutes evidence against Siemens rather than evidence in its favour. Therefore, Siemens’ argument alleging that the testimonies of Mr M. and Mr V.‑A. are contradictory must be rejected.

83 In conclusion, Mr M.’s statements, which have a high degree of credibility, constitute evidence of the existence of the principle of protecting ‘home countries’, of reserving European markets outside ‘home countries’ for the benefit of European producers and of taking account of their volume of sales for the purposes of compliance with the global quotas. However, as has been stated in paragraph 70 above, Mr M.’s statements must be substantiated by other evidence, in the same way as those of ABB, in order to be able to constitute sufficient evidence of the existence and scope of the common understanding.

Fuji’s statements

84 Fuji stated that it was aware of the common arrangement under which the Japanese producers had to refrain from entering the European market. However, it claims that its own decision to refrain was mainly due to the fact that it could not realistically expect to provide GIS in Europe for other reasons, in particular because of its limited share of the world market did not justify incurring the sunk costs necessary to develop a European base. As regards the sole GIS project which Fuji had carried out in Europe, namely a project in the Czech Republic in 1995, it claims that it acted, in that instance, as a sub‑contractor for another Japanese company to which it provided the GIS in question in Japan. Therefore, it considers that project to be like a GIS project in Japan and takes the view that it does not show its general capacity to supply in Europe.

85 Siemens claims, in that regard, that that statement from Fuji was submitted only after the hearing referred to in paragraph 9 above, that is to say at a time when Fuji was no longer in a position to provide impartial and objective testimony. According to the case‑law, only documents cited or mentioned in the statement of objections constitute valid evidence (see Case C‑62/86 AKZO v Commission [1991] ECR I-3359, paragraph 21, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission, paragraph 54 above, paragraph 34, and the case‑law cited).

86 That objection cannot succeed. The statement of objections must allow those concerned to have effective knowledge of the conduct in respect of which they are accused by the Commission. That requirement is met when the final decision does not find that the undertakings concerned have committed infringements different from those referred to in the statement of objections and upholds only facts on which the persons concerned have had the opportunity to give an explanation (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 94; Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 138, and Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 47).

87 While it is therefore true that infringements of which an undertaking is accused in a decision cannot be different than those in the statement of objections, the same does not go for the facts upheld, since it is sufficient, in respect of those facts, that the undertakings concerned were able to make their views known in relation to facts held against them. As has been held, there is no provision which prevents the Commission from sending to the parties after the statement of objections fresh documents which it considers support its argument, subject to giving the undertakings the necessary time to submit their views on the subject (Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 190; see also, to that effect, Case 107/82 AEG‑Telefunken v Commission [1983] ECR 3151, paragraph 29).

88 In the present case, it is undisputed that by letter of 25 August 2006 the Commission sent Fuji’s statements to Siemens and invited it to submit its observations on those statements. Furthermore, those statements did not set out criticisms of Siemens which were new with regard to those set out in the statement of objections, but contained only one new piece of evidence which served to substantiate a criticism which had already been made in the statement of objections, namely the fact that there was a common understanding between the Japanese and European producers under which the Japanese producers were not to enter the European market.

89 Therefore, Fuji’s statements can be held to be evidence against Siemens.

90 As regards the credibility which should be attached to Fuji’s statements, it must be pointed out that, in so far as Fuji admitted, at least indirectly, that its absence from the European market was due in part to the common understanding, it acknowledged a fact which could be held against it by the Commission. It has already been held that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (JFE Engineering and Others v Commission, paragraph 49 above, paragraph 211).

91 That remains the case even if, in the present case, Fuji applied to benefit from the Leniency Notice. In the first place, Fuji’s statements were not drawn up in the context of that application, but in reply to the statement of objections, even if the two documents were drawn up almost simultaneously. In the second place, Fuji’s acknowledgement of the fact that it had been aware of the division of European and Japanese markets is not accusatory exclusively as regards the other undertakings – a circumstance which would result in that statement being handled with caution – but also contains an acknowledgement of an infringement on its part. In those circumstances, it must be held that, in the present case, a high level of credibility must be attached to Fuji’s statement.

92 As regards, lastly, the content of Fuji’s statement, it must be observed that, in that statement, Fuji does not merely admit to a sharing of markets between the European and Japanese producers but also gives details of the respective objectives of undertakings which participated in the cartel, which allows other conclusions to be drawn. Fuji states that, in so far as it was concerned, the common understanding was not the main reason for which it refrained from entering the European market and gives a whole range of reasons which, according to it, were more significant for its decision. In particular, its assertion that its share of the world market was too small to justify incurring the sunk costs necessary to develop a European base allows the conclusion to be drawn that those Japanese producers – and, conversely, the European producers – which held a greater market share would have been able to overcome the technical and commercial barriers to entry on to the protected markets of the respective groups of producers and to make such an investment profitable. From that perspective, the greater the market share a given undertaking held, the less the argument relating to technical and commercial barriers mattered for that undertaking and, conversely, the more significant becomes the prohibition on entering the markets of the other group of producers, agreed on in the context of the common understanding.

93 If the market shares – which were based on sales figures given by the undertakings themselves and have not been disputed in the present case – established by the Commission in recitals 484 to 488 of the contested decision are considered, it appears that Fuji was by far the smallest GIS producer participating in the cartel, with a maximum of 2% of the worldwide turnover of the undertakings participating in the cartel, in relation to GIS projects. The market shares of the other Japanese producers were clearly greater and included between 15 and 20% for Melco, between 8 and 12% for Toshiba, and between 4 and 7% for Hitachi. Siemens, for its part, held a market share situated between 23 and 29%. Therefore, the conclusion can be drawn from Fuji’s statement that protection of the European and Japanese markets for the benefit of the European and Japanese producers respectively was of interest for the majority of the undertakings in question, since their clearly greater market share than Fuji’s enabled them more easily to bear the costs of entering the markets of the other group of producers.

94 In addition, it must be observed that the Commission does not dispute the existence of technical and commercial barriers to entry on to the respective markets of the European and Japanese groups, but rather it disputes the consideration that those barriers could not be overcome in a profitable manner. In that regard, it relied on two GIS projects in the Czech Republic. The first was carried out by Fuji and the second was subject to a bid from Melco, which has not been disputed by Siemens. They show that there were not insurmountable technical and commercial barriers to the entry of the Japanese producers on to the European markets, which tends to support the Commission’s argument that the undertakings which participated in the cartel had a subjective interest in the producers of the other group not trying to overcome those barriers.

95 In conclusion, Fuji’s statements constitute evidence, with a high level of credibility, of the existence of a division of the European and Japanese markets in favour of the respective groups of producers.

Hitachi’s statements

96 Hitachi stated that the GIS projects in Europe, which were shared among the European producers, were set against the joint ‘European’ quota in the context of the GQ Agreement and that, for that reason, the Japanese producers were informed, afterwards, until 1999, of the outcome of the sharing of GIS projects in Europe between the European producers. In its reply to the statement of objections, Hitachi indicated as follows:

‘Hitachi confirms that prior to 1999 the European GIS suppliers would disclose to the Japanese GIS suppliers details of GIS projects that they would be supplying in Europe. Hitachi further confirms that the purpose of such reports was to ensure that the value of European projects was taken into account when agreeing the quota of projects to be allocated between the European suppliers and Japanese suppliers outside of Europe pursuant to the GQ Agreement …

In terms of understanding the substantive irrelevance of this mechanism when it was in operation (i.e. prior to 2002), it must be emphasised that the reporting of the details of projects in Europe under the GQ cartel was not linked to, or evidence of, any acquiescence by the Japanese suppliers to stay out of the European market since no “common understanding” existed. Perhaps more importantly, however, the allocation of European GIS projects pursuant to the European cartel in no way “resulted from” any communications between the European GIS suppliers and the Japanese GIS suppliers as alleged by the Commission. Any communications between European and Japanese GIS suppliers occurred after the allocation of European GIS projects had taken place.’

97 That statement is instructive in a number of respects. First, by explicitly confirming that GIS projects in Europe carried out by European producers were set against their global quotas in the context of the GQ Agreement, Hitachi confirms the Commission’s contention that the European producers, including Siemens, reached agreements on projects within the common market (during the early years of the operation of the cartel, Eastern Europe was still not accessible as a market) and that, therefore, the cartel did have effects within the common market and the EEA.

98 Second, Hitachi’s statement also constitutes, irrespective of the intention of its author, an indication which supports the Commission’s contention that the European markets were reserved at a worldwide level to European producers. Hitachi insists, on a number of occasions, on the fact that the Japanese producers were informed a posteriori. First, Hitachi draws the conclusion that the Japanese producers were not implicated in the collusive practices of the European producers. Second, it considers that that information had no link with an obligation on the Japanese producers to remain outside the European markets nor did it prove such an obligation, and it disputes the existence of the common understanding.

99 However, there is no logical explanation for the fact – also acknowledged by Hitachi – that the GIS projects in Europe, which were shared among the European producers, were set against their global quotas, if, in any event, the European markets were not accessible to Japanese producers for technical and commercial reasons. In such a situation, European producers would have had no reason to accept that those projects be set against their global quota, which greatly reduces the number and value of GIS projects on the world markets which they could claim in the context of the cartel. On the contrary, the fact that the European producers consented to that consideration shows that the fact that the Japanese producers refrained from entering the European markets had, for the European producers, a value which could justify that consideration.

100 As regards the credibility of Hitachi’s statement, it must be noted that Hitachi applied to benefit from the Leniency Notice. Therefore, its statements must be considered carefully in so far as such statements are, by nature, exclusively accusatory with regard to the other undertakings. However, that is not the situation here. The inference which can be drawn from Hitachi’s statement, that the Japanese producers had accepted that they would not enter the European markets, runs counter both to Hitachi’s interests and those of the other participants in the cartel, inasmuch as it confirms a fact which could be held against it. Moreover, Hitachi was clearly unaware of all of the conclusions which could be drawn from the content of its statement, notably in relation to the reserving of the European markets for the benefit of the European producers, which tends to increase the credibility of its statement.

101 In conclusion, a high level of credibility must be attached to Hitachi’s statement.

The failure of Areva, Alstom and the VA Tech Group to dispute the common understanding

102 Concerning the failure of Areva, Alstom and the VA Tech Group to dispute the common understanding, it must be held that the evidence on the case‑file does not allow a high probative value to be attached to that fact, and does not substantiate the Commission’s allegations.

103 As regards, first, Areva and Alstom, the Commissions states, in recital 125 of the contested decision, that those two companies did not challenge the common understanding as referring to respect for the traditional privileged positions on the home markets of undertakings participating in the cartel in their final statements of 21 and 26 November 2006 respectively, following receipt of Fuji’s reply acknowledging the common understanding. However, neither Siemens nor the Commission made reference to the failure of Areva and Alstom in their written pleadings before the Court. In those circumstances, it must be held that that issue does not form part of the present dispute.

104 Concerning, second, the VA Tech Group, the Commission states, in recital 125 of the contested decision, that that company did not openly challenge, in its reply to the statement of objections, details relating to the common understanding. In that regard, first, it must be stated that that reply does not figure in the case‑file and the Court has available to it only footnote 79 in the contested decision, worded as follows ‘also without the presumed common understanding, the Japanese suppliers [would] have stayed away from the European market because of the high barriers to entry, as will be explained below.’ Second, it must be held that the mere fact that a company did not openly challenge certain facts can have only a very limited probative value, all the more so since it is not possible to ascertain the context of the absence of a challenge on the sole basis of such an isolated quote. Third, it must be observed that, even taken in isolation, that quote does not have the content which the Commission lends to it. In that regard, it is necessary to emphasis the use of the word ‘presumed’, by the VA Tech Group to describe the common understanding. It follows from the use of that word that, while the VA Tech Group did not explicitly challenge the existence of that understanding, it did not all the same admit it, even implicitly. On the contrary, the passage quoted must be interpreted as an implicit challenge to the existence of the common understanding.

105 Therefore, the alleged failure of Areva, Alstom and the VA Tech Group to dispute the common understanding cannot be held to be evidence confirming the Commission’s contention regarding the reservation of the European markets for European producers and the protection of ‘home countries’.

The list of GIS projects in Europe

106 The list of 11 GIS projects relied on by the Commission in recital 164 of the contested decision relates to an extract of a list of GIS projects, discussed within the cartel during the period between 1988 and 1999, entitled ‘Enquirylist1’ and produced by ABB (‘the global list’), which contains information, inter alia, in relation to cut‑off dates for each of the projects for the submission of bids from undertakings which had shown an interest, and in relation to the outcome of the discussions within the cartel (that is to say, the allocation to a member of the cartel or the fixing of a minimum price).

107 According to that information, in respect of the 11 GIS projects in Europe on the global list, the order was obtained, for six of those projects, by the undertaking to which the project had been allocated within the cartel, which was the case on three occasions for ABB and Siemens respectively. In respect of the five other projects, the global lists explains that they were not allocated to one of the undertakings which participated in the cartel, but were subject to an understanding on the minimum price level, that is to say, the European undertakings participating in the cartel agreed on the minimum price which they would propose in the context of their possible responses to the tender at issue.

108 Siemens first tried, generally, to cast doubt on the reliability of the information contained in the global list, without however explicitly contesting either the existence of the projects which were on the list or, in particular, the existence of 11 GIS projects in Europe which are mentioned in the list, or even the fact that those projects were discussed within the cartel.

109 In that context, Siemens contended, inter alia, that a certain number of projects are mentioned on several occasions, that numerous projects were never implemented and that, at no point, does the global list indicate that a GIS project within the EEA was allocated to it. In two cases where it obtained the project in question, that was the result of competitive practices. In addition, Siemens refers to an analysis of the global list carried out by an independent company, which shows, inter alia, that the GIS projects within the EEA were not the subject of a sharing system operating in a manner comparable to that laid down in the GQ and EQ Agreements.

110 In addition, in the context of its replies to the written questions of the Court before the hearing, Siemens disputed whether the 11 GIS projects in Europe which were on the global list were the subject of agreement within the cartel.

111 Those claims will be examined in paragraphs 116 to 138 below.

– The origin of the list, the date on which the global list was established and the classification of the list as evidence

112 It must be stated, as Siemens has pointed out, that it has not been possible to determine with certainty the origin of the list and the date on which it was established.

113 In that regard, it is however necessary to note, as is apparent from recital 88 and footnote 21 of the contested decision, that the global list was produced by ABB on 7 May 2004, that is to say, one day after the date appearing on the top of its first page, 6 May 2004, a date which therefore is very probably either the date on which it was established or the date when it was printed. Furthermore, it must be observed that ABB benefited vis‑à‑vis the other members of the cartel from an additional coding on that list. The European members – with the exception of ABB – and the Japanese members appear in the column entitled ‘Member’ in that list, in two groups, under their respective codes, as used within the cartel. On the other hand, ABB is ‘hidden’, according to the expression used by Mr M. in the context of his hearing at the Commission, on 23 September 2005, in the column entitled ‘GCs’, generally intended for reference to possible general contracts. According to the information from Mr M., that was a precaution taken following an investigation carried out by the Swedish competition authorities in relation to ABB.

114 Those two facts allow the presumption that the global list was initially established by ABB for the purposes of its own internal following of the cartel and that it was reprinted in order to be produced before the Commission. It is therefore necessary to rely on that presumption, which is moreover the most favourable to Siemens, as it disputes being the author of the global list.

115 Therefore, it is appropriate, as Siemens claims, to classify the global list as being part of ABB’s statements. Given that, as has been shown, the global list was either established by ABB, or printed by it from an internal electronic form, at a time close to when it made its statements for the purposes of its application for immunity pursuant to the Leniency Notice, it cannot be held to be documentary evidence. It follows that the considerations, referred to in paragraphs 64 to 67 above, on the probative value of ABB’s statements are also valid in relation to the global list. In particular, the information gleaned from the global list cannot be used to support ABB’s statements but, on the contrary, must themselves be substantiated by other evidence, in accordance with the case‑law cited in paragraph 66 above.

– The contention that the GIS projects in Europe referred to on the global list were not discussed within the cartel

116 As has been indicated in paragraph 110 above, in the context of its reply to the written questions of the Court before the hearing, Siemens disputed, for the first time, whether the 11 GIS projects in Europe on the global list had been the subject of agreement within the cartel. Admittedly, it stated, following a question in that regard at the hearing, that it had already raised that challenge during the administrative procedure before the Commission and in the application. However, the application, in that regard, contains only those elements set out in paragraph 109 above and, even assuming Siemens had raised that challenge during the administrative procedure, that circumstance would not have compensated for the absence of that challenge before the Court at the application stage. Siemens’ contention that the 11 GIS projects in Europe, on the global list, were not the subject of agreement within the cartel must therefore be rejected as out of time, in accordance with Article 48(2) of the Rules of Procedure.

117 Moreover, it is important to emphasise the detailed nature of the information contained in the global list. That list contains, inter alia, information regarding the specifications of equipment supplied for the projects in question, the date for submission of offers, the dates for consideration within the cartel, the show of interest in the projects on the part of various members of the cartel, the identity of the undertaking which might be allocated the project or reference to the fact that a minimum price had been decided upon and, where appropriate, an indication that the project had actually been obtained by the undertaking to which it had been attributed. It cannot be accepted that information of such range and with such detail can be disputed by a mere contention that the 11 GIS projects in Europe were not the subject of agreement within the cartel.

118 It must be borne in mind, in that context, that Siemens does not dispute that it undertook the task of European secretary to the cartel during the period between 1988 and 1999. It must therefore automatically have been aware of all of the projects discussed within the group of European producers and, therefore, have been in a position to challenge in a detailed and individual manner the projects listed by ABB on the basis of its own files, in the event that there had been an error. The fact that Siemens neither used that opportunity, nor explained why it could not do so, enables it to be stated that Siemens has not properly contested the fact that the projects on the global list and, in particular, the 11 projects within the EEA were the subject of agreement within the cartel.

119 Siemens assertion, made in the context of its reply to the written questions of the Court before the hearing, according to which the 11 projects in question were to be undertaken outside the EEA at the material times, must be rejected as mistaken. Among those 11 projects, discussed within the cartel between 1992 and 1998, figured three projects in Spain, one project in Denmark, one project in Ireland and one project in Portugal, all of which had joined the Community before 1988. Likewise, the two projects in Finland, dating from 1994 and 1995, are unquestionably covered by the EEA Agreement and the EC Treaty respectively, as the Republic of Finland has been a member of the EEA since 1 January 1994 and a member of the Community since 1 January 1995. A similar finding must be made for the project in Iceland and the two projects in Norway, both dating from 1998, a date by which the Republic of Iceland and the Kingdom of Norway were members of the EEA. All those countries were thus, at the time when the project in question was discussed, part of the common market or the EEA.

120 In addition, it is necessary to reject Siemens’ contention that the global list is ‘obscure’. It is true that that list, which is created in the form of a table, uses different codes comprising numbers and/or letters. However, an explanation regarding those codes was provided to the Commission, in particular by Mr M. at his hearing on 23 September 2005, and it must be held, in the light of that explanation, that the global list gives a clear picture of the manner in which the GIS projects were handled within the cartel.

– The projects which were allegedly mentioned on several occasions or which were not implemented

121 Siemens claims that some of the projects on the global list were mentioned on several occasions. In that regard, it must be pointed out that, even if that allegation were substantiated, it would in no way affect the relevance and credibility of the global list and, therefore, its probative value. First, Siemens does not specify which projects it is referring to and does not indicate whether they are one of the 11 GIS projects in Western Europe; those projects being the only ones on which the Commission specifically relies in the contested decision and, therefore, the only relevant projects for the purposes of assessing the contested decision. On the other hand, the fact that a list comprising over 1 500 entries might contain some errors is not such as to undermine the entire list.

122 As regards Siemens’ allegation that some of the projects on the global list were never implemented, it must be noted that Siemens does not specify those projects to which it is referring. Moreover, even if such an allegation were substantiated, the fact that some of the projects were not implemented is not, on any reading, such as to preclude Article 81 EC and Article 53 of the EEA Agreement applying to undertakings which rigged the bids relating to those projects in the context of a cartel.

– The low number of GIS projects in Europe recorded on the global list

123 Siemens claims, without being challenged by the Commission, that, of the more than 1 500 GIS projects recorded on the global list, only 11 projects were to be carried out within the EEA. It is true that that low number does not reflect the importance of the European markets. However, it must be held that that circumstance does not justify not taking account of the information contained on that list.

124 First, neither ABB nor the Commission alleged that the global list included all of the projects earmarked by the cartel. In addition, the absence, to a large extent, of ‘European’ projects on that list tallies with the argument that there were ‘home countries’ which were automatically reserved for certain undertakings, without the projects carried out in those countries being set against the quotas under the cartel. Lastly, the Commission relied on the existence of additional cartels at a national level, within which projects could have been handled; projects which were also mentioned by Mr M. He explained that, in the majority of European countries which were not ‘home countries’, there were longstanding local cartels between different European producers, the functioning of which was not to be affected by the GQ Agreement and the EQ Agreement. Therefore, it was decided not to integrate those countries into the procedure for allocating projects established by those agreements, but simply to register the allocation of GIS projects to be carried out in those countries in order to set them against the global quota of the European undertakings.

125 Both in the case of ‘home countries’ and in the case of pre‑existing local cartels, it was not necessar