Case T-343/08

Arkema France

v

European Commission

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Action for annulment – Admissibility – Imputability of the unlawful conduct – Fines – Aggravating circumstance – Repeated infringement – Attenuating circumstance – Cooperation during the administrative procedure – Significant added value)

Summary of the Judgment

1. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence

(Council Regulation No 1/2003, Art. 27)

2. Competition – Fines – Amount – Determination – Rights of the defence – Judicial review – Unlimited jurisdiction of the European Union judicature

(Council Regulation No 1/2003, Art. 31)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances

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

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

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

5. Competition – Fines – Amount – Determination – Criteria – Discretion of the Commission – Taking into consideration specific characteristics of a repeated infringement – Included – No setting of a limitation period

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

6. Competition – Administrative procedure – Decision finding an infringement and imposing a fine – Taking into account, for the purposes of establishing the conduct of an undertaking constituting repeated infringement, of earlier infringements committed by the same undertaking and already penalised by the Commission

(Charter of Fundamental Rights of the European Union, Art. 50)

7. Competition – Administrative procedure – Commission decision finding an infringement adopted after another Commission decision referring to the same undertaking – New increase in the fine for repeated infringement

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

8. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Possibility of raising the level of fines in order to increase their deterrent effect

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

9. Competition – Fines – Amount – Determination – Principle of equal treatment

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

10. Competition – Fines – Amount – Determination – Criteria – Discretion of the Commission

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

11. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation by the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement

(Council Regulation No 1/2003, Art. 18; Commission Notice 2002/C 45/03)

12. Competition – Fines – Amount – Determination – Guidelines on the method of setting fines for infringements of the competition rules – Reduction of the fine for cooperation by the undertaking concerned, outside the scope of the Leniency Notice – Conditions

(Commission Notices 2002/C 45/03, Section 1, and 2006/C 210/02, Section 29, fourth indent)

13. Competition – Fines – Amount – Determination – Reduction of the fine for cooperation by the undertaking concerned – Conditions

(Commission Notices 2002/C 45/03, Section 21, 2006/C 210/02, Section 29, fourth indent, and 2008/C 167/01, Section 5)

14. Competition – Fines – Amount – Determination – Judicial review – Unlimited jurisdiction of the European Union judicature

(Art. 229 EC; Council Regulation No 1/2003, Art. 31)

1. Where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines.

(see para. 54)

2. So far as the setting of the amounts of the fines imposed for breach of the competition rules is concerned, the rights of defence of the undertakings to which the statement of objections relates are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003.

(see para. 55)

3. As regards the aggravating circumstance consisting in repeated infringement, the mere fact that the Commission considered, in its previous practice in taking decisions, that certain factors did not constitute an aggravating factor for the purpose of determining the amount of the fine does not imply that it must make the same assessment in a subsequent decision. The opportunity afforded to an undertaking in another case to make known its views on the intention to make a finding of repeated infringement on its part does not mean that the Commission is obliged to do the same in all cases, or that, where such a possibility is not afforded, the undertaking concerned is prevented from fully exercising its right to be heard.

(see para. 56)

4. The principle of proportionality requires that the measures adopted by European Union institutions must not exceed what is appropriate and necessary for attaining the objective pursued. When it comes to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In this context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

(see para. 63)

5. The Commission has a discretion as regards the choice of factors to be taken into account for the purpose of determining the amount of fines, such as, inter alia, the particular circumstances of the case, its context and the deterrent effect of fines, without the need to refer to a binding or exhaustive list of the criteria which must be taken into account.

The finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and the Commission cannot be bound by any limitation period when making such a finding.

Repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a tendency, including the time that has elapsed between the infringements in question. However, while no limitation period precludes a finding by the Commission of repeated infringement, the fact none the less remains that, in accordance with the principle of proportionality, the Commission cannot take one or more previous decisions penalising an undertaking into account without limitation in time.

(see paras 64-66, 68)

6. The principle non bis in idem is a fundamental principle of European Union law which precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected.

The fact that the Commission took into consideration, in a decision finding that an undertaking had participated in agreements of an anti-competitive nature and imposing on that undertaking a fine, a number of earlier infringements committed by the same undertaking and penalised by the Commission, does not amount to a breach of the principle non bis in idem in so far as the Commission, in taking those earlier infringements into consideration, did not seek to punish those infringements again but only to prove that the undertaking concerned had carried out repeated infringements, with a view to establishing the amount of the fine penalising the new infringement.

Secondly, and in any event, the abovementioned cumulative conditions of the applicability of the principle non bis in idem are not satisfied, since the condition of identity of the facts is absent.

(see paras 80-84)

7. It would be contrary to the deterrent objective of the fine if the fact that the Commission took a first infringement into consideration in a previous decision for the purpose of establishing repeated infringement were to be taken into account as a ground for precluding it from increasing the basic amount of the fine imposed in a subsequent decision on the basis of that infringement. Such a solution would lead to the situation, which would be counterproductive from the aspect of the deterrent objective of the fine, in which an undertaking responsible for a large number of repeated infringements did not have the amount of the fine imposed on it gradually increased according to the number of infringements which it has committed, but in which, on the contrary, the marginal amount of the fine that could be imposed on it reduced gradually according to the increasing number of decisions penalising it.

Moreover, it has no bearing that earlier decisions penalising the undertaking at issue relate to facts concomitant with those to which the contested decision relates, since the Commission relied exclusively on other earlier decisions, adopted before the beginning of the infringement penalised, in order to establish in the contested decision that that undertaking’s conduct constituted repeated infringement.

(see paras 88-89)

8. Under Article 23(2) and (3) of Regulation No 1/2003 the Commission may by decision impose fines on undertakings which have infringed Article 81 EC and have regard, in that context, to the gravity and duration of the infringement. Those provisions constitute the relevant legal basis for taking repeated infringement into consideration in calculating the fine.

Furthermore, the Guidelines which the Commission adopts for the purpose of setting fines ensure legal certainty on the part of undertakings, since they determine the method which the Commission has bound itself to use for the purpose of setting fines. The administration may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment.

Moreover, the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters. In that regard, the Commission enjoys a wide discretion in setting the amount of fines. It is not bound by assessments made by it in the past and it is not required to apply specific mathematical formulae.

That wide discretion enables it to direct the conduct of undertakings towards compliance with the competition rules.

In that context, the fact that the Commission, in the past, imposed fines of a certain level for particular types of infringement does not mean that it is stopped from raising that level within the limits indicated in Regulation No 1/2003, if that is necessary to ensure the implementation of Community competition policy.

The proper application of the competition rules in fact requires that the Commission may at any time adjust the level of fines to the needs of that policy. Thus, an increase of a certain level applied to an undertaking can be justified by the additional need to deter that undertaking, on account of its tendency towards infringing the competition rules, while an increase of a different level applied to another undertaking can be justified by the need to ensure that the fine imposed on that undertaking has a deterrent effect, in view of the fact that, because its global turnover is much larger than that of the other members of the cartel, it is more readily able to raise the necessary funds to pay its fine.

(see paras 96, 98-101, 106)

9. The principle of equality requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

The sole fact that the Commission, in its previous practice in adopting decisions, applied a certain rate of increase of the basic amount of the fine imposed on an undertaking for infringement of the competition rules does not mean that, in another decision, it is deprived of the power to increase that rate within the limits which it has set itself in the Guidelines, in order to encourage the undertaking concerned to alter its anti-competitive conduct.

(see paras 108-109)

10. In cases where the European Union institutions have a power of appraisal in order to be able to fulfil their tasks, respect for the rights guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

(see para. 111)

11. The Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned.

In assessing the cooperation given by members of a cartel, only a manifest error of assessment by the Commission is open to censure, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings.

The reduction of fines in cases where the undertakings which participated in infringements of competition law have offered cooperation is justified only where it is considered that the cooperation made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it. In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession.

Whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under a Leniency Notice constitutes a contribution which does or does not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that, in the absence of such information provided voluntarily by the undertakings, the Commission would not have been in a position to prove the essential elements of the infringement and therefore adopt a decision imposing fines.

Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that provided by the undertaking which was the first to provide that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine for cooperation. Last, the cooperation of an undertaking in the investigation does not entitle it to a reduction of its fine where that cooperation went no further than the cooperation incumbent upon it under Article 18 of Regulation No 1/2003.

(see paras 134-138)

12. At the fourth indent of point 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission undertook, within the framework of its discretion regarding the attenuating circumstances which it is required to take into account when setting fines, to grant a reduction of the fine when an undertaking has effectively cooperated with the Commission outside the scope of the Notice on immunity from fines and reduction of fines in cartel cases and beyond its legal obligation to do so.

However, the application of the fourth indent of point 29 of the Guidelines cannot have the consequence of depriving the Leniency Notice of its practical effect.

Section 1 of the Leniency Notice provides that that notice ‘sets out the framework for rewarding cooperation in the Commission investigation by undertakings which are or have been party to secret cartels affecting the Community’. It therefore follows from the wording and the structure of that notice that undertakings can, in principle, obtain a reduction of the fine for cooperation only where they satisfy the strict conditions laid down in that notice.

Therefore, in order to maintain the practical effect of the Leniency Notice, it can only be in exceptional situations that the Commission is required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the Guidelines. That is the case, in particular, where cooperation provided by an undertaking, which goes beyond its legal obligation to cooperate, but does not give rise to the right to a reduction of the fine under the Leniency Notice, is of objective use to the Commission. It must be found to be of such use where the Commission relies in its final decision on evidence which an undertaking has submitted to it in the context of its cooperation, without which the Commission would not have been in a position to penalise the infringement concerned in whole or in part.

(see paras 168-170)

13. By replacing the 1996 Notice on the non-imposition or reduction of fines in cartel cases by the 2002 Notice on immunity from fines and reduction of fines in cartel cases, which makes no provision for a reduction of the fine in a simple case of non-contestation of the facts, the Commission unambiguously precluded the grant of a reduction of the fine on that basis in the context of the 2002 Leniency Notice or of the fourth indent of point 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Only where an undertaking supplies either evidence having significant added value, within the meaning of point 21 of the 2002 Leniency Notice, or evidence in the absence of which the Commission would not have been able to penalise the infringement in question in whole or in part in its final decision, is the Commission required to grant it a reduction of the fine. Thus, the grant of a reduction of the fine depends on the objective usefulness which the Commission derives from an undertaking’s cooperation.

In any event, according to point 5 of the Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Regulation No 1/2003 in cartel cases, the Commission has a broad margin of discretion to determine which cases may be suitable to explore the parties’ interest to engage in settlement discussions and it is only where the participating undertakings satisfy the conditions of that notice that they are granted a 10% reduction of the fine.

Accordingly, under the settlements notice, it is for the Commission alone, and not for the undertakings, to decide, in the light of the circumstances of each particular case, whether the use of that procedure may make it easier to penalise the infringement in question and, in that context, to grant a 10% reduction of the fine to an undertaking which satisfies its conditions.

Lastly, even if the national competition law of a number of Member States of the European Union provides that non-contestation of the facts gives entitlement to a reduction of the fine, those rules, which are not binding on the Commission, do not constitute the relevant legal framework for examining whether the Commission breached the principle of proportionality by not granting an undertaking any reduction of its fine for its cooperation.

(see paras 189-192)

14. As regards the review carried out by the European Union judicature in respect of Commission decisions on competition matters, more than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises the Court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine.

In this connection, it is not necessary to vary either the rate of increase of 90% of the basic amount of a fine imposed by the Commission on an undertaking, on account of that undertaking’s participation in agreements of an anti-competitive nature, taking into account that undertaking’s strong tendency towards infringing the competition rules, or the amount of the fine imposed, in so far as that undertaking’s cooperation was not such as to enable the Commission to penalise the cartel in whole or in part.

(see paras 203-205)

JUDGMENT OF THE GENERAL COURT (Second Chamber)

17 May 2011 ( )

(Competition – Agreements, decisions and concerted practices – Sodium chlorate market – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Action for annulment – Admissibility – Imputability of the unlawful conduct – Fines – Aggravating circumstance – Repeated infringement – Attenuating circumstance – Cooperation during the administrative procedure – Significant added value)

In Case T‑343/08,

Arkema France, established in Colombes (France), represented initially by A. Winckler, S. Sorinas and H. Kanellopoulos, and subsequently by S. Sorinas, E. Jégou and M. Sabeva, lawyers,

applicant,

v

European Commission, represented by X. Lewis, É. Gippini Fournier and R. Sauer, acting as Agents,

defendant,

APPLICATION for, principally, annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 – Sodium chlorate), in so far as it concerns the applicant, and, in the alternative, annulment or reduction of the fines imposed on the applicant in that decision,

THE GENERAL COURT (Second Chamber),

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

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 2 June 2010,

gives the following

Judgment

Background to the dispute

1 By Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 – Sodium chlorate) (‘the contested decision), the Commission of the European Communities imposed sanctions on, among other undertakings, the applicant, Arkema France (formerly Atochem SA, then Elf Atochem SA, then Atofina SA and Arkema SA) and its parent company until 2006, Elf Aquitaine SA, on account of their participation in a complex of agreements and concerted practices affecting the sodium chlorate market in the EEA for the period 11 May 1995 to 9 February 2000 so far as the applicant and Elf Aquitaine were concerned (recitals 12 to 15 to and Article 1 of the contested decision).

2 Sodium chlorate is a strong oxidising agent manufactured by the electrolysis of a sodium chloride water solution in a diaphragm-less cell. Sodium chlorate can be produced as a crystal product or as a solution product. Its largest application is for the manufacturing of chlorine dioxide, which is used in the pulp and paper industry for the bleaching of chemical pulp. Other applications include, to a lesser extent, drinking water purification, textile bleaching, herbicides and uranium refining (recital 2 to the contested decision).

3 The main competitors on the sodium chlorate market in the EEA were, in 1999, the following undertakings: EKA Chemicals AB (‘EKA’), whose share capital was wholly owned by the Akzo Nobel group, and which held 49% of the market; Finnish Chemicals Oy, whose share capital was indirectly and wholly owned by Erikem Luxembourg SA (‘ELSA’), and which held 30% of the market; the applicant, 97.55% of whose share capital was owned by Elf Aquitaine between 1992 and 2000, and which had a 9% market share; Aragonesas Industrias y Energia SAU (‘Aragonesas’), whose share capital was wholly owned between 1992 and 2000, directly or indirectly, by Uralita SA, had, as did Solvay SA/NV, a 5% share of the market, while other producers jointly had 2% of the market (recitals 13, 14, 25 to 30, 42 and 46 to the contested decision).

4 On 28 March 2003 EKA lodged an application with the Commission for immunity under 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 2002 Leniency Notice’) concerning the existence of a cartel on the sodium chlorate market (‘the cartel’). EKA supported that application by documentary evidence and an oral statement (recitals 54 and 55 to the contested decision).

5 On 30 September 2003 the Commission granted EKA conditional immunity in accordance with point 15 of the 2002 Leniency Notice (recital 55 to the contested decision).

6 On 10 September 2004 the Commission sent requests for information to Finnish Chemicals, the applicant and Aragonesas, pursuant to Article 18(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recital 56 to the contested decision).

7 On 18 October 2004 the applicant, in its response to the Commission’s request for information referred to at paragraph 6 above, submitted an application under the 2002 Leniency Notice (recital 57 to the contested decision).

8 On 29 October 2004 Finnish Chemicals lodged an application under the 2002 Leniency Notice with the Commission and provided the Commission orally with information relating to the cartel. Finnish Chemicals confirmed that application by letter of 2 November 2004 and at the same time provided documentary evidence relating to its participation in the infringement in question (recital 58 to the contested decision).

9 Between 4 November 2004 and 11 April 2008 the Commission sent requests for information pursuant to Article 18(2) of Regulation No 1/2003 to, among other undertakings, the applicant, Elf Aquitaine, Aragonesas, EKA and Finnish Chemicals. The Commission also met EKA and Finnish Chemicals (recitals 59 to 65 to the contested decision).

10 By letter of 11 July 2007 the Commission informed the applicant that it intended to reject its application under the 2002 Leniency Notice (recital 563 to the contested decision).

11 By letter of the same date the Commission also informed Finnish Chemicals that it intended to grant it, under the 2002 Leniency Notice, a reduction of 30 to 50% of the amount of any fine imposed (recital 583 to the contested decision).

12 On 27 July 2007 the Commission adopted a statement of objections, addressed to, in addition to the applicant, EKA, Akzo Nobel NV, Finnish Chemicals, ELSA, Elf Aquitaine, Aragonesas and Uralita. The addressees responded to the statement of objections within the prescribed period (recitals 66 and 67 to the contested decision).

13 On 20 November 2007 the applicant and Elf Aquitaine, among others, exercised their right to be heard orally at a hearing before the hearing officer (recital 68 to the contested decision).

14 On 11 June 2008 the Commission adopted the contested decision, which was notified to the applicant two days later.

15 In the contested decision, the Commission observes, in substance, that the applicant, EKA, Finnish Chemicals and Aragonesas pursued a strategy of stabilising the sodium chlorate market, the ultimate aim of which was to allocate sales volumes of that product among themselves, to coordinate the pricing policy towards their customers and thus to maximise their margins. The functioning of the cartel was based on frequent contacts between competitors in the form of bi- or multilateral meetings and telephone conversations, but without following a fixed pattern. According to the Commission, those collusive practices took place from 21 September 1994 for EKA and Finnish Chemicals, from 17 May 1995 for the applicant, from 16 December 1996 for Aragonesas and from 13 February 1997 for ELSA. The practices continued until 9 February 2000, at least so far as the applicant, EKA, Finnish Chemicals and Aragonesas are concerned (recitals 69 to 71 to the contested decision).

16 As regards, in particular, the unlawful conduct of the applicant, the Commission observes that the facts set out in the contested decision show that that undertaking participated directly in the anti-competitive practices in question. The Commission also observes that throughout the infringement period Elf Aquitaine held more than 97% of the shares in the applicant. For that reason, the Commission maintains that there are reasonable grounds for considering that Arkema France was required to follow the policy defined by its parent company and it was therefore unable to act autonomously. The Commission therefore concludes that it may be presumed that Elf Aquitaine exercised decisive influence over the applicant, which is borne out by the additional indicia which it sets out (recitals 384 and 386 to the contested decision).

17 As regards the calculation of the amounts of the fines imposed on, in particular, the applicant and Elf Aquitaine, the Commission relied on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’) (recital 498 to the contested decision).

18 First of all, the Commission states that, in order to determine the basic amount of the fine imposed on the applicant, an amount corresponding to 19% of the value of the sales of the products affected by the cartel should be taken into account. First, since the applicant participated in the infringement for at least four years and eight months, the Commission considers that that amount should be multiplied by five in order to take account of the duration of the infringement. Second, in order to deter the undertakings concerned, and in particular the applicant, from participating in horizontal price-fixing agreements, the Commission considers it necessary to impose an additional amount corresponding to 19% of the value of those sales. The Commission therefore concludes that a fine of EUR 22 700 000 should be imposed, for which the applicant and Elf Aquitaine are to be jointly and severally liable (recitals 510 and 521 to 523 to the contested decision).

19 Furthermore, as regards the adjustment of the basic amount of the fine, the Commission observes, with respect to aggravating circumstances, that on the date of adoption of the contested decision it had already imposed sanctions on the applicant in three decisions in which that undertaking had been held liable for earlier cartel activities. The Commission states that those decisions are Decision 85/74/EEC of 23 November 1984 relating to a proceeding under Article [81 EC] (IV/30.907 – Peroxygen products) (OJ 1985 L 35, p. 1; ‘the Peroxygen Products decision’); Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article [81 EC] (IV/31.149 – Polypropylene (OJ 1986 L 230, p. 1; ‘the Polypropylene decision’); and Decision 94/599/EC of 27 July 1994 relating to a proceeding under Article [81 EC] (IV/31.865 – PVC) (OJ 1994 L 239, p. 14; ‘the PVC decision’). On the one hand, the Commission considers, in substance, that the applicant’s conduct consisting in repeated infringement justifies an increase of 90% of the basic amount of the fine imposed on it. On the other hand, the Commission finds no attenuating circumstance in favour of the applicant or Elf Aquitaine that would justify a reduction of the fine. In particular, the Commission considers that, when all the facts of the case are taken into account, there are ‘no exceptional circumstances’ that could justify granting the applicant a reduction of the fine outside the scope of the 2002 Leniency Notice (recitals 525, 526, 538 and 544 to the contested decision).

20 Next, the Commission states, in substance, that in order to ensure that fines have a sufficiently deterrent effect, and in the light of the fact that Elf Aquitaine has a particularly large turnover beyond the sales of goods to which the infringement relates and, last, that that turnover is in absolute terms much larger than the turnover of the other undertakings involved, it is appropriate to apply to Elf Aquitaine an increase of 70% of the basic amount of the fine (recitals 545, 548 and 559 to the contested decision).

21 In addition, the Commission finds that the fines to be imposed on the applicant and Elf Aquitaine, in particular, are below 10% of their respective total turnovers in 2007 and that the fines that can be imposed on them before the application of the 2002 Leniency Notice come to EUR 43 130 000 for the applicant and to EUR 38 590 000 for Elf Aquitaine (recitals 551 and 552 to the contested decision).

22 Last, the Commission considers that the applicant must not benefit from any reduction of the fine under the 2002 Leniency Notice, since the information which it supplied to the Commission did not constitute significant added value within the meaning of point 21 of that notice. Conversely, the Commission considers that Finnish Chemicals provided it with evidence representing significant added value for the purposes of point 21 of that notice and therefore granted that undertaking a reduction of 50% of the fine that would otherwise have been imposed on it (recitals 580, 588 and 591 to the contested decision).

23 Articles 1 and 2 of the operative part of the contested decision are worded as follows:

‘Article 1

The following undertakings infringed Article 81 [EC] and Article 53 of the EEA Agreement by participating, for the periods indicated, in a complex of agreements and concerted practices with a view to allocating sales volumes, fixing prices, exchanging commercially sensitive information on prices and sales volumes and monitoring the execution of the anti-competitive arrangements for sodium chlorate in the EEA market:

(a) [EKA], from 21 September 1994 until 9 February 2000;

(b) Akzo Nobel …, from 21 September 1994 until 9 February 2000;

(c) Finnish Chemicals …, from 21 September 1994 until 9 February 2000;

(d) [ELSA], from 13 February 1997 until 9 February 2000;

(e) [the applicant], from 17 May 1995 until 9 February 2000;

(f) Elf Aquitaine …, from 17 May 1995 until 9 February 2000;

(g) Aragonesas …, from 16 December 1996 until 9 February 2000;

(h) Uralita …, from 16 December 1996 until 9 February 2000.

Article 2

For the infringement referred to in Article 1, the following fines are imposed:

(a) EKA … and Akzo Nobel …, jointly and severally, EUR 0;

(b) Finnish Chemicals …: EUR 10 150 000, of which jointly and severally with [ELSA] (in liquidation): EUR 50 900;

(c) [the applicant] and Elf Aquitaine …, jointly and severally: EUR 22 700 000;

(d) [the applicant]: EUR 20 430 000;

(e) Elf Aquitaine …: EUR 15 890 000;

(f) Aragonesas … and Uralita …, jointly and severally: EUR 9 900 000.

…’

24 In Article 3 of the operative part of the contested decision, the Commission orders the undertakings referred to in Article 1 of that decision, first, to bring an immediate end to the infringement, in so far as they have not already done so, and, second, to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.

25 Article 4 of the operative part of the contested decision lists the addressees of the contested decision, which are the undertakings referred to in Article 1 of that decision.

Procedure and forms of order sought

26 By application lodged at the Registry of the General Court on 19 August 2008, the applicant brought the present action.

27 Upon hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure. The Court also put certain questions to the Commission and requested it to provide certain documents. The Commission replied within the prescribed period, but refused to produce the transcript of EKA’s oral application for immunity.

28 The parties presented oral argument and answered the questions put by the Court at the hearing on 2 June 2010.

29 By order of 11 June 2010 in Case T‑343/08 Arkema France v Commission, not published in the ECR, the Court ordered the Commission to produce the transcript of EKA’s oral application for immunity and gave leave for that document to be consulted by the applicant’s lawyers at the Court Registry. The Commission produced that document within the prescribed period and the applicant’s lawyers consulted it at the Court Registry. Conversely the applicant did not respond within the prescribed period to the written question from the Court asking whether that document corresponded to the document to which it had been given access during the administrative procedure before the Commission.

30 The oral procedure was closed on 27 July 2010.

31 The applicant claims that the Court should:

– principally, annul, on the basis of Article 230 EC, the contested decision, in so far as it concerns the applicant;

– in the alternative, annul or reduce, on the basis of Article 229 EC, the amount of the fines imposed on the applicant in the contested decision;

– order the Commission to pay the costs.

32 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

A – The principal claims, seeking annulment in part of the contested decision

33 In support of its application for annulment of the contested decision in so far as it concerns the applicant, the applicant puts forward four pleas in law. The first plea alleges errors of law and of fact in connection with the imputation of the applicant’s unlawful conduct to Elf Aquitaine. The second plea alleges errors of law in connection with the increase of the basic amount of the fine imposed on the applicant for repeated infringement. The third plea alleges that the Commission was wrong to take the view that the applicant was not entitled to a reduction of the fine under the 2002 Leniency Notice. The fourth plea alleges that the Commission made errors of law and of fact in not granting the applicant any reduction of the fine outside the scope of the 2002 Leniency Notice.

1. Admissibility

34 The Commission raises two objections to admissibility, alleging that, first, the applicant’s first head of claim and, second, its first plea are inadmissible.

a) First objection to admissibility, alleging that the applicant’s first head of claim is inadmissible

35 The Commission claims that the applicant’s first head of claim is inadmissible. It maintains that none of the pleas referred to at paragraph 33 above is capable of entailing the annulment of the contested decision in its entirety.

36 While it is true that the applicant puts forward in its written pleadings no argument contesting the Commission’s first objection to admissibility, it must be emphasised that, in answer to the questions put by the Court at the hearing, the applicant stated that, by its first head of claim, it sought annulment of Article 2(c) and (d) of the contested decision, which was duly noted in the minutes of the hearing.

37 The Court finds that, by its second to fourth pleas referred to at paragraph 33 above, the applicant disputes, in substance, the amount of the fines which the Commission imposed on it in Article 2(c) and (d) of the contested decision. Those pleas therefore, in accordance with Article 44(1) of the Rules of Procedure of the General Court, support its application for annulment in part of that article.

38 It must therefore be held that the applicant’s first head of claim, in so far as it seeks exclusively the annulment of Article 2(c) and (d) of the contested decision, is admissible. Accordingly, the Commission’s first objection to admissibility must be rejected as unfounded.

b) Second objection to admissibility, alleging that the applicant’s first plea is inadmissible

39 The Commission claims that the first plea raised by the applicant, alleging that the Commission was wrong to impute liability for the infringement committed by the applicant to Elf Aquitaine, is inadmissible, since the imputation of such liability does not adversely affect the applicant. The Commission maintains, in particular, that the imputation of liability to Elf Aquitaine has no impact on the amount of the fines which it imposed on the applicant. In answer to the questions put by the Court at the hearing, the Commission observed, first, that if the Court should annul the imputation of liability there would be no advantage for the applicant, since it would then be solely liable to pay the fine provided for in Article 2(c) of the contested decision. Second, the applicant’s argument that it is because Elf Aquitaine took over its activity on the polypropylene market after the adoption of the Polypropylene decision that the fine imposed on it was increased to take account of a repeated infringement in the contested decision is unfounded.

40 The applicant puts forward in its written submissions no argument contesting the Commission’s second objection to admissibility. In answer to the questions put by the Court at the hearing, the applicant stated that it maintained that the imputation of its unlawful conduct to Elf Aquitaine had an impact on the amount of the fine imposed on it for repeated infringement in the contested decision, since Elf Aquitaine took over the applicant’s activity on the polypropylene market after the adoption of the Polypropylene decision.

41 In the present case, it must be observed, first of all, that, according to consistent case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure. Such an interest presupposes that the annulment of the measure must of itself be capable, by its result, of procuring an advantage for the party who brought it (see, to that effect, Case C‑174/99 P Parliament v Richard [2000] ECR I‑6189, paragraph 33; Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 33 and the case-law cited; and Case T‑310/00 MCI v Commission [2004] ECR II‑3253, paragraph 44 and the case-law cited).

42 The Court must therefore consider whether the applicant’s first plea is capable of procuring an advantage for the applicant within the meaning of the case-law cited at paragraph 41 above.

43 First, as regards the claim for annulment or reduction of the fine provided for in Article 2(c) of the contested decision, it should be observed, first of all, that that fine is in the sum of EUR 22 700 000 and that it was imposed jointly and severally on the applicant and Elf Aquitaine. Next, it follows from recitals 510 and 521 to 523 to the contested decision, the terms of which are summarised at paragraph 18 above, that the amount of that fine was determined in accordance with the provisions of the Guidelines and corresponds to 19% of the value of the applicant’s sales, multiplied by five owing to the duration of its involvement in the infringement in question and to which an additional amount of 19% of the value of the applicant’s sales was added for deterrence. Accordingly, as the Commission observes in its written pleadings, without, moreover, being contested by the applicant, that fine was determined by reference to what were solely the applicant’s figures and Elf Aquitaine’s figures were not taken into account by the Commission in the determination of the fine.

44 Accordingly, even if the Court were to find that the Commission was wrong to impute liability for the unlawful conduct of the undertaking concerned to Elf Aquitaine, such a finding would not have any consequences either for the actual principle of the imposition of the fine imposed on the applicant in Article 2(c) of the contested decision for its participation in the cartel or on the calculation of the amount of that fine; and, as the Commission correctly observed in answer to the questions put by the Court at the hearing, such a finding, in so far as it would lead the Court to annul the fines imposed on Elf Aquitaine in the contested decision, would have the consequence that the applicant would be solely liable for the fine provided for in Article 2(c) of the contested decision.

45 Second, as regards the fine provided for in Article 2(d) of the contested decision, it should be observed, first of all, that it follows from recitals 525 and 526 to the contested decision, the terms of which are summarised at paragraph 19 above, that the Commission considered that, in accordance with point 28 of the Guidelines, the basic amount of the fine of EUR 22 700 000 imposed jointly and severally on the applicant and Elf Aquitaine should be increased by 90%. In addition, it was on the basis of the Peroxygen Products decision, the Polypropylene decision and the PVC decision, of which the applicant was an addressee, that the Commission imposed on it the fine of EUR 20 430 000 provided for in Article 2(d) of the contested decision.

46 Accordingly, even if the Court were to find that the Commission was wrong to impute liability for the unlawful conduct of the undertaking concerned to Elf Aquitaine, such a finding would have no impact, first, on the actual principle of the applicant being ordered to pay a fine of EUR 20 430 000 for a repeated infringement and, second, on the calculation of the amount of that fine. That amount corresponds to 90% of the amount of the fine of EUR 22 700 000 provided for in Article 2(c) of the contested decision, which, as stated at paragraph 43 above, was calculated solely on the basis of the applicant’s own figures.

47 In that regard, the argument which the applicant raised in answer to the questions put by the Court at the hearing (see paragraph 40 above) must be rejected as ineffective. In so far as, as follows from Article 1 of the Polypropylene decision, the applicant was an addressee of that decision, on which, among other decisions, the Commission relied as a basis for its finding in the contested decision that the applicant’s conduct constituted a repeat infringement, any finding by the Court that the Commission was wrong to impose a penalty on Elf Aquitaine in the contested decision would have no impact on the actual principle of the imposition on the applicant of the fine provided for in Article 2(d) of the contested decision or on the calculation of the amount of that fine.

48 In the light of all the foregoing considerations, it must be concluded that the applicant’s first plea is not capable of procuring an advantage for the applicant within the meaning of the case-law cited at paragraph 41 above.

49 Accordingly, the Commission’s second objection to admissibility must be upheld and the applicant’s first plea must be rejected as inadmissible.

2. Substance

a) Second plea, alleging errors of law in connection with the increase of the basic amount of the fine imposed on the applicant for repeated infringement

50 The applicant claims, in substance, that the Commission was wrong to increase the basic amount of the fine imposed on it by 90% for repeated infringement. This plea is divided into three parts.

First part, alleging breach of the rights of the defence and of the principle of proportionality, on the ground that the Peroxygen Products decision was taken into account in the contested decision for the purpose of establishing repeated infringement

– Arguments of the parties

51 In the first place, the applicant contends that the Commission breached its rights of defence, in so far as it took the Peroxygen Products decision into account for the purpose of establishing repeated infringement, in spite of the fact that it had not mentioned that decision in the statement of objections. Although the applicant does not dispute that, in accordance with Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, ‘the judgment of this Court in Groupe Danone v Commission’, paragraphs 56 and 57, the Commission is able to take the aggravating circumstance of repeated infringement into account in the final decision without stating in the statement of objections that it intends to do so, it maintains that, in so far as the Commission chose to identify in the statement of objections the decisions taken against the applicant on which it proposed to rely for the purpose of establishing repeated infringement, it could not rely on the Peroxygen Products decision in the contested decision. By mentioning only the Polypropylene decision and the PVC decision at footnote 361 to the statement of objections, the Commission misled the applicant as to the scope of the aggravating circumstance that it eventually took into consideration in the contested decision, thereby preventing it, at the statement of objections stage, from submitting observations on the period of 11 years that elapsed between the adoption of the Peroxygen Products decision and the beginning of the infringement penalised in the contested decision.

52 In the second place, the applicant submits that the Commission breached the principle of proportionality by taking the Peroxygen Products decision into account in the contested decision for the purpose of establishing repeated infringement. It maintains that the time which elapsed between the adoption of the Peroxygen Products decision and the beginning of the infringement penalised in of the contested decision is manifestly excessive. It follows from the Commission’s practice when taking decisions and from Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, ‘the judgment of the Court of Justice in Groupe Danone v Commission’, paragraph 39, that a period of more than 10 years between the finding of a first infringement and the commission of a second infringement cannot be taken to demonstrate that an undertaking has a tendency towards infringing the competition rules. The fact that the Peroxygen Products decision was taken into consideration in the contested decision is all the more disproportionate because it dealt with facts dating back more than 30 years. The applicant observes, moreover, that seven years elapsed between the end of the infringement penalised in the PVC decision and the adoption of that decision.

53 The Commission contests the applicant’s arguments.

– Findings of the Court

54 In the first place, as regards the applicant’s complaint that its rights of defence were breached because the Commission did not mention the Peroxygen Products decision in the statement of objections, it must be borne in mind first of all that, according to consistent case-law, where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 21, and the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 50).

55 Next, so far as the setting of the amounts of the fines is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003 (see, to that effect, the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 51 and the case-law cited).

56 Last, as regards, more particularly, the aggravating circumstance consisting in repeated infringement, it must be emphasised that, according to the case-law, first, the mere fact that the Commission considered, in its previous practice in taking decisions, that certain factors did not constitute an aggravating factor for the purpose of determining the amount of the fine does not imply that it must make the same assessment in a subsequent decision. Second, the opportunity afforded to an undertaking in another case to make known its views on the intention to make a finding of repeated infringement on its part does not mean that the Commission is obliged to do the same in all cases, or that, where such a possibility is not afforded, the applicant is prevented from fully exercising its right to be heard (see the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 57 and the case-law cited).

57 In the present case, it must be stated that, as the Commission observed in its written pleadings, it indicated in the statement of objections that it intended to impose fines on the undertakings concerned (see paragraph 345 of the statement of objections) and that it would take account of the gravity and duration of the infringement, making reference to the Guidelines (see paragraph 346 of the statement of objections). Furthermore, the Commission indicated that it would take into consideration any attenuating circumstances, such as those provided for at point 29 of the Guidelines, and also of any aggravating circumstances, such as those provided for at point 28 of the Guidelines, which expressly refer to repeated infringement (see paragraph 350 of the statement of objections). Last, the Commission noted that certain of the undertakings concerned ‘had already been the subject of decisions relating to a similar infringement’ (see paragraph 351 of the statement of objections) which refers specifically in the applicant’s case to the applicant by referring to the Polypropylene decision and the PVC decision (see footnote 361 to the statement of objections).

58 Accordingly, on the basis of the elements which the Commission set out in the statement of objections and which are reproduced at paragraph 57 above, it did not breach the applicant’s rights of defence when, in accordance with the case-law set out at paragraphs 54 to 56 above, it applied the aggravating circumstance of repeated infringement in the contested decision.

59 In that regard, the applicant’s argument that its rights of defence have been breached in so far as the Commission misled it as to the scope of the aggravating circumstance of repeated infringement that would be applied in the contested decision and, moreover, prevented it, at the stage of the statement of objections, from submitting its arguments on the period of 11 years that elapsed between the Peroxygen Products decision and the beginning of the applicant’s participation in the infringement penalised in the contested decision must be rejected as unfounded.

60 First, in so far as the Commission expressly mentioned in the statement of objections its intention to take the aggravating circumstance of repeated infringement into consideration, notably with regard to the applicant, and in so far as it did not in any way indicate that it would confine itself to relying in that regard on the Polypropylene decision and the PVC decision, to which it referred at footnote 361 to the statement of objections, the applicant could not preclude the possibility that the Commission would apply that aggravating circumstance on the basis of any previous decision capable of establishing repeated infringement on its part, such as the Peroxygen Products decision.

61 Second, and in any event, since the Commission was not required, in accordance with the case-law set out at paragraph 56 above, to indicate in the statement of objections the decisions in which the applicant had previously been penalised for its participation in cartels and on which the Commission proposed to rely for the purpose of establishing repeated infringement in the contested decision, the mere failure to mention the Peroxygen Products decision in the statement of objections cannot have prevented the applicant from exercising its right to be heard in full or to have misled the applicant as to the scope of the aggravating circumstance which the Commission applied in the contested decision.

62 Accordingly, it must be held that, contrary to the applicant’s contention, its rights of defence have not been breached.

63 In the second place, as regards the applicant’s complaint that the Commission breached the principle of proportionality in taking the Peroxygen Products decision into consideration for the purpose of establishing repeated infringement, it must be borne in mind that, according to the case-law, the principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued. When it comes to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In that context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraphs 226 to 228 and the case-law cited, and Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II-0000, paragraph 264).

64 In addition, the Commission has a discretion as regards the choice of factors to be taken into account for the purpose of determining the amount of fines, such as, inter alia, the particular circumstances of the case, its context and the deterrent effect of fines, without the need to refer to a binding or exhaustive list of the criteria which must be taken into account (see the judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 37 and the case-law cited).

65 It must be emphasised, moreover, that the finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and that the Commission cannot be bound by any limitation period when making such a finding (see the judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 38, and Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 141).

66 Indeed, repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a tendency, including, for example, the time that has elapsed between the infringements in question (judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 39, and Hoechst v Commission, paragraph 65 above, paragraph 141).

67 The Court of Justice has thus considered the repetition of infringements of the competition rules by an undertaking separated by a relatively short time, namely less than 10 years, showed a tendency on its part not to draw the appropriate conclusions from a finding that it had infringed those rules (judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 40).

68 It therefore follows from the case-law set out at paragraphs 63 to 67 above that, while no limitation period precludes a finding by the Commission of repeated infringement, the fact none the less remains that, in accordance with the principle of proportionality, the Commission cannot take one or more previous decisions penalising an undertaking into account without limitation in time.

69 In the present case, it should be borne in mind that the applicant did not dispute, either during the administrative procedure or before the Court, the Commission’s finding, at Article 1(e) of the contested decision, that it had participated in the cartel from 17 May 1995 until 9 February 2000.

70 Nor, moreover, does the applicant dispute either the dates of the decisions in which the Commission previously penalised it for its participation in cartels or the periods during which it participated in the cartels which the Commission previously penalised. In that regard, it should be observed, first of all, that, in the Peroxygen Products decision, the Commission found that the infringement had lasted from 1961 until 13 December 1980 (Article 1 of that decision). Next, in the Polypropylene decision, the Commission found that the infringement had taken place from November 1977 until the end or 1982 or the beginning of 1983 (first indent of Article 1 of that decision). Last, in the PVC decision, the Commission found that the infringement had been committed from August 1980 until May 1984 (recitals 8 and 54 to that decision).

71 It therefore follows from the findings set out at paragraphs 69 and 70 above that the applicant infringed the competition rules by participating in cartels continuously from 1961 until May 1984, for which it was penalised first in 1984, then in 1986 and finally in 1994, and that, in spite of that series of decisions, it repeated its unlawful conduct by participating in a new cartel, penalised in the contested decision, from 17 May 1995 until 9 February 2000.

72 The Commission was therefore correct to take the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account for the purpose of establishing that the applicant had committed a repeated infringement, since that series of decisions, the adoption of which was separated by short intervals and the last of which was adopted one year before the applicant participated in the infringement penalised in the contested decision, demonstrated its tendency towards infringing the competition rules. Accordingly, the Commission did not breach the principle of proportionality in taking that series of decisions into consideration when assessing the applicant’s conduct from the aspect of repeated infringement.

73 As regards the applicant’s arguments, first, that it follows from the judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 40, that the Commission was not entitled to take the Peroxygen Products decision into account for the purpose of establishing repeated infringement, because an excessive period, namely 11 years, had elapsed between the adoption of that decision and the beginning of the infringement penalised in the contested decision; second, that the Peroxygen Products decision relates to facts going back more than 30 years; and, third, that seven years elapsed between the end of the infringement penalised in the PVC decision and the adoption of that decision, they must be rejected as ineffective. Those arguments do not, in any event, call in question the conclusion set out at paragraph 72 above.

74 Accordingly, the applicant’s complaint that the Commission breached the principle of proportionality in taking the Peroxygen Products decision into account for the purpose of establishing repeated infringement, and therefore the first part of the plea in its entirety, must be rejected as unfounded.

Second part, alleging breach of the principle non bis in idem and the principle of proportionality, owing to the fact that the Commission had already taken the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account, for the purpose of establishing repeated infringement, in four other decisions penalising the applicant

– Arguments of the parties

75 In the first place, the applicant maintains that the Commission breached the principle non bis in idem, under which, according to the case-law, a person who has already been tried can no longer be prosecuted or punished for the same acts. In the present case, the Commission ought to have found that it had already taken the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account in four decisions which it had adopted between 2003 and 2006 and in which it had penalised the applicant (‘the four decisions adopted between 2003 and 2006’). Those decisions are: Decision C(2003) 4570 final and corrigendum C(2004) 4 of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides) (OJ 2005 L 110, p. 44; ‘the Organic Peroxides decision’); Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 – MCAA) (OJ 2006 L 353, p. 12); Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate (OJ 2006 L 353, p. 54; ‘the Hydrogen Peroxide decision); and Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (OJ 2006 L 322, p. 20; ‘the Methacrylates decision’). The applicant contends, in substance, that a decision in which the Commission has taken a previous decision into account for the purpose of establishing repeated infringement precludes it from taking the same infringement into account for the purpose of applying the aggravating circumstance of repeated infringement in a new decision.

76 In the second place, the applicant claims that, in applying an increase in the basic amount of the fine for repeated infringement, on the basis of the same facts as in five different cases, the Commission breached the principle of proportionality. The applicant maintains that that increase is ineffective and disproportionate by reference to the objective of deterrence.

77 First, the increase of the basic amount of the fine for repeated infringement in the contested decision would have been valid only if the facts found in the contested decision had been committed after the facts that gave rise to the four decisions adopted between 2003 and 2006, and not concomitant with those facts. Since the infringements penalised in the four decisions adopted between 2003 and 2006 were contemporaneous with those found in the contested decision, but since those decisions had not been adopted at the time of the facts penalised in the contested decision, the applicant did not have the opportunity to adjust its conduct on the sodium chlorate market.

78 Second, in the applicant’s submission, an increase for repeated infringement corresponding to 50% of the basic amount of the fine, like that imposed in the four decisions adopted between 2003 and 2006, would have adequately satisfied the objective of deterrence pursued in the contested decision.

79 The Commission contests the applicant’s arguments.

– Findings of the Court

80 In the first place, as regards the applicant’s complaint that the Commission breached the principle non bis in idem owing to the fact that it took the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account, first, in the four decisions adopted between 2003 and 2006 and, second, in the contested decision, it must be borne in mind that, according to consistent case‑law, the principle non bis in idem, which is a fundamental principle of Community law also enshrined in Article 50 of the Charter of Fundamental Rights of the European Union proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1), precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision (Joined Cases 18/65 and 35/65 Gutmann v Commission [1966] ECR 103, 119; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 59; and the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 184).

81 The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 338, and the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 185).

82 In the present case, first it must be observed that in taking previous infringements into consideration in the contested decision the Commission did not seek to punish those infringements again, but only to penalise the applicant for its participation in the cartel in the contested decision, by taking account of its conduct constituting repeated infringement. Accordingly, the fact that the Commission took the same infringements into consideration in the four decisions adopted between 2003 and 2006 does not amount to a breach of the principle non bis in idem.

83 Second, and in any event, it must be observed that the cumulative conditions of the applicability of the principle non bis in idem set out at paragraph 81 above are not satisfied, since the condition of identity of the facts is absent. In the contested decision, the Commission penalises the applicant on account of its participation in the cartel, in respect of which it had not previously initiated proceedings or adopted penalties, which the applicant, moreover, does not claim to be the case.

84 The Commission therefore did not breach the principle non bis in idem by taking the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account in finding that the applicant’s conduct constituted repeated infringement in the contested decision, although it had already taken those three first decisions into account in the four decisions adopted between 2003 and 2006.

85 Accordingly, the applicant’s complaint must be rejected as unfounded.

86 In the second place, in so far as the applicant maintains that the Commission breached the principle of proportionality in applying, in the contested decision, an increase of the basic amount of the fine on account of repeated infringement, first, the applicant’s argument that, because the Peroxygen Products decision, the Polypropylene decision and the PVC decision were taken into account in the four decisions adopted between 2003 and 2006 for the purpose of establishing repeated infringement, the objective of deterrence was already satisfied, must be rejected as unfounded.

87 In fact, since it is when considering the gravity of the infringement which it proposes to penalise that the Commission must take repeated infringement by an undertaking into account (judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 26), the fact that the Commission had already taken the Peroxygen Products decision, the Polypropylene decision and the PVC decision into account in the four decisions adopted between 2003 and 2006 did not prevent it from correctly taking the latter three decisions into account in the contested decision for the purpose of deterring the applicant from repeating its unlawful conduct in the future.

88 Moreover, it must be observed that it would be contrary to the objective of deterrence if the fact that the Commission took a first infringement into consideration in a previous decision for the purpose of establishing repeated infringement were to be taken into account as a ground for precluding it from increasing the basic amount of the fine imposed in a subsequent decision on the basis of that infringement. Such a solution would lead to the situation, which would be counterproductive from the aspect of the deterrent objective of the fine, in which an undertaking responsible for a large number of repeated infringements did not have the amount of the fine imposed on it gradually increased according to the number of infringements which it has committed, but in which, on the contrary, the marginal amount of the fine that could be imposed on it reduced gradually according to the increasing number of decisions penalising it.

89 Second, the applicant’s argument that the Commission breached the principle of proportionality in imposing on it a new increase to reflect repeated infringement, when the four decisions adopted between 2003 and 2006 related to facts concomitant with those of the contested decision and when, consequently, that gave it no opportunity to adjust its conduct on the sodium chlorate market, must be rejected as ineffective. It has no bearing on the present case that the four decisions adopted between 2003 and 2006 relate to facts concomitant with those to which the contested decision relates, since the Commission relied exclusively on the Peroxygen Products decision, the Polypropylene decision and the PVC decision, which the applicant does not deny were adopted before the beginning of the infringement penalised in the contested decision, in order to establish in the contested decision that the applicant’s conduct constituted repeated infringement.

90 In the light of all the foregoing considerations, the applicant’s complaint that the Commission breached the principle of proportionality, as defined at paragraph 63 above, and, accordingly, the second part of the present plea in its entirety, must be rejected as unfounded.

Third part, alleging breach of the principles of proportionality, equal treatment and sound administration owing to the increase by 90% of the basic amount of the fine imposed on the applicant for repeated infringement

– Arguments of the parties

91 The applicant claims, in the alternative, that even if the Commission had been entitled to increase, in the contested decision, the basic amount of the fine for repeated infringement, the fact would none the less remain that the Commission breached the principles of proportionality, equal treatment and sound administration in setting the rate of that increase at 90%.

92 First of all, the applicant maintains that nothing in the present case justifies an increase of 90% of the basic amount of the fine for repeated infringement when that increase was 50% in the four decisions adopted between 2003 and 2006. The Court should therefore reduce that increase to 50% in the present case.

93 In addition, the applicant submits that an increase of 90% of the basic amount of the fine for repeated infringement is disproportionate in so far as, in the contested decision, Elf Aquitaine’s fine was also increased by 70% of the basic amount of the fine for deterrence.

94 Last, the applicant observes that, while it is not unaware of the discretion which the Commission enjoys when setting fines, or of the severity of the Guidelines, the infringements penalised in the Peroxygen Products decision and the Methacrylates decision are contemporaneous with that penalised in the contested decision. In addition, the application of the Guidelines, which provide that the fine may be increased in a case of repeated infringement, results solely from the abnormally long periods during which the Commission investigated the present case. The applicant should not suffer the adverse consequences of the Commission’s lack of diligence in investigating the present case.

95 The Commission contests the applicant’s arguments.

– Findings of the Court

96 In the first place, as regards the applicant’s complaint that the Commission breached the principle of proportionality on the ground that the 90% increase of the basic amount of the fine for repeated infringement is disproportionate in the present case, it should be borne in mind, first of all, that under Article 23(2) and (3) of Regulation No 1/2003 the Commission may by decision impose fines on undertakings which have infringed Article 81 EC and, in that context, have regard to the gravity and duration of the infringement.

97 In addition, the first indent of point 28 of the Guidelines provides as follows:

‘The basic amount may be increased where the Commission finds that there are aggravating circumstances, such as:

– Where an undertaking continues or repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the undertaking infringed Article 81 [EC] or 82 [EC]; the basic amount will be increased by up to 100% for each infringement established …’

98 Next, it must be noted that Article 23(2) and (3) of Regulation No 1/2003 constitutes the relevant legal basis for taking repeated infringement into consideration in calculating the fine (see, by analogy, judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraphs 27 to 29).

99 Furthermore, the Guidelines which the Commission adopts for the purpose of setting fines ensure legal certainty on the part of undertakings, since they determine the method which the Commission has bound itself to use for the purpose of setting fines (see, to that effect, judgment of the Court of Justice in Groupe Danone v Commission, paragraph 52 above, paragraph 23). The administration may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I-4429, paragraph 91).

100 It follows from the case-law, moreover, that the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters (Case T‑203/01 Michelin v Commission [2003] ECR II-4071, paragraph 292). The Commission enjoys a wide discretion in setting the amount of fines and is not bound by assessments made by it in the past (see Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 123 and the case-law cited). This wide discretion enables it to direct the conduct of undertakings towards compliance with the competition rules (see, to that effect, 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 216). In that context, it is not required to apply specific mathematical formulae (Michelin v Commission, paragraph 292).

101 Last, the fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean that it is stopped from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of competition policy. The proper application of the competition rules in fact requires that the Commission may at any time adjust the level of fines to the needs of that policy (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 169, and the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraph 395).

102 In the present case, it must be held, first of all, that in setting at 90%, in the contested decision, the rate of increase of the basic amount of the fine for repeated infringement, the Commission acted in application of Article 23(2) and (3) of Regulation No 1/2003 and the first indent of point 28 of the Guidelines, which the applicant does not dispute. Contrary to the applicant’s contention, moreover, and in accordance with the case-law cited at paragraphs 100 and 101 above, the fact that the Commission imposed an increase of 50% of the basic amount of the fine in previous decisions did not restrict its discretion, in the contested decision, as to the setting of the rate of increase of the basic amount of the fine.

103 Second, it should be observed that the applicant puts forward no argument capable of establishing that, having regard to the circumstances of the case that show its strong tendency towards infringing the competition rules, the Commission exceeded its discretion in this case by increasing the basic amount of the fine by 90%.

104 Accordingly, the applicant has not succeeded in establishing that the Commission breached the principle of proportionality, as defined at paragraph 63 above, by increasing the basic amount of the fine imposed on the applicant by 90% for repeated infringement.

105 Furthermore, in so far as the applicant maintains that an increase of 90% of the basic amount of the fine for repeated infringement is disproportionate, since Elf Aquitaine’s fine was increased by 70% of the basic amount of the fine for deterrence, that argument must be rejected as ineffective.

106 It should be observed, first of all, that since it is common ground that the increase of 70% of the basic amount of the fine was not imposed on the applicant, but solely on Elf Aquitaine, with which the applicant no longer formed a single undertaking for the purposes of Article 81 EC at the time of adoption of the contested decision, that increase cannot be taken into consideration in the assessment of whether the fine imposed on the applicant alone for repeated infringement is disproportionate. Furthermore, and in any event, those two increases meet two separate objectives of deterrence. While the 90% increase of the basic amount of the fine, imposed on the applicant in Article 2(d) of the contested decision, is justified by the additional need to deter the applicant, in view of its tendency towards infringing the competition rules, the 70% increase of the amount of the fine, imposed in Article 2(e) of that decision on Elf Aquitaine, meets the need to ensure that the fine imposed on that undertaking has a deterrent effect, in view of the fact that, because its global turnover is much larger than that of the other members of the cartel, it is more readily able to raise the necessary funds to pay the fine.

107 Accordingly, the applicant’s complaint alleging breach of the principle of proportionality must be rejected as unfounded in part and as ineffective in part.

108 In the second place, as regards the applicant’s complaint that the Commission breached the principle of equal treatment in so far as it was able to impose on the applicant, in the contested decision, a different rate of increase of the basic amount of the fine from the rate of 50% which it had imposed in the four decisions adopted between 2003 and 2006, it must be borne in mind that, according to the case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 56 and the case-law cited).

109 In the present case, it must be observed that the sole fact that the Commission, in its previous practice in adopting decisions, applied a certain rate of increase of the basic amount of the fine does not mean, in accordance with the case-law cited at paragraphs 100 and 101 above, that, in the light of the circumstances of the case, it was deprived of the power to increase, in the contested decision, that rate within the limits which it has set itself in the Guidelines in order to encourage the applicant to alter its anti-competitive conduct.

110 Accordingly, the applicant’s complaint alleging breach of the principle of equal treatment resulting from the application of an increase of 90% of the basic amount of the fine imposed on it for repeated infringement must be rejected as unfounded.

111 In the third place, as regards the applicant’s complaint that the Commission breached the principle of sound administration by applying an increase of 90% of the basic amount of the fine for repeated infringement, it must be borne in mind that, according to the case-law, in cases where the institutions have a power of appraisal in order to be able to fulfil their tasks, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86; and Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 99).

112 In the present case, it must be emphasised that, as is clear from recitals 525 to 527 to the contested decision, the Commission, which, in accordance with the case-law cited at paragraph 100 above, is not required to apply specific mathematical formulae when setting fines, rightly considered that it was appropriate to impose a high rate of increase of the basic amount of the fine, in view of the fact ‘that the first penalties [imposed on the applicant] did not prompt it to change its conduct’ (recital 525 to the contested decision). Nor does the applicant put forward either argument or proof to support its assertion that the Commission did not undertake a careful and impartial examination of the circumstances of the present case that could justify imposing a rate of increase of 90% of the basic amount of the fine, given the applicant’s strong tendency towards infringing the competition rules.

113 Accordingly, the applicant has not established that the Commission breached the principle of sound administration in the present case.

114 In that regard, the applicant’s argument that it should not have to suffer the adverse consequences of the Commission’s lack of diligence in investigating the present case, which led the Commission to apply the Guidelines which, in substance, heavily penalised the conduct consisting in repeated infringement, must be rejected as unfounded. First, the applicant puts forward no argument or proof establishing that the Commission did not investigate the present case within a reasonable time. Second, since the effective application of the competition rules requires that the Commission be able at any time to adapt the level of the fines to its policy (see the judgment of this Court in Groupe Danone v Commission, paragraph 51 above, paragraphs 210 to 212 and the case‑law cited), the Commission cannot be criticised for having relied, in order to determine the rate of increase of the basic amount of the fine for repeated infringement, on the Guidelines, which the applicant does not assert were not applicable to the facts of the present case.

115 Accordingly, the applicant’s third complaint, and the second plea in its entirety, must be rejected as unfounded.

b) Third plea, alleging failure to grant the applicant a reduction of the fine under the 2002 Leniency Notice

Arguments of the parties

116 The applicant maintains, in substance, that the Commission erred in not granting it a reduction of the fine of 30 to 50% under the 2002 Leniency Notice. The applicant was the second undertaking to have submitted an application under that notice, on 18 October 2004. Furthermore, the evidence which it supplied represented significant added value, in view of the evidence which the Commission already had in its file at that time.

117 In the first place, the applicant observes that the approach taken by the Commission in the contested decision is inconsistent with the strictly chronological interpretation adopted in the Hydrogen Peroxide decision, in which the Commission, in spite of the very limited nature of the information supplied, granted a 40% reduction of the fine to the second undertaking to have submitted an application under the 2002 Leniency Notice.

118 In the second place, the applicant maintains that the information which it supplied to the Commission enabled the Commission to corroborate the information which was not in EKA’s application for immunity. The Commission was therefore wrong to consider, at recitals 565 to 577 to the contested decision, that the information supplied by the applicant represented no significant added value, in so far as it merely served to confirm the information which the Commission already had in its possession and which had been supplied by EKA in its application for immunity and also in Finnish Chemicals’ response to the Commission’s request for information of 10 September 2004.

119 First, the applicant observes that in its response to the Commission’s request for information of 10 September 2004 Finnish Chemicals merely answered the questions about its organisation and confirmed that the meetings listed by EKA had taken place and also the names of those taking part in those meetings. However, Finnish Chemicals neither stated the object of those meetings nor corroborated the information supplied by EKA indicating that a cartel existed on the sodium chlorate market.

120 Second, the applicant observes that it was the first undertaking to have corroborated EKA’s statements, and in particular the following five items. First of all, it confirmed that a system of customer and volumes allocation had been put in place in the 1990s and that it had ended early in 2000. Next, it corroborated EKA’s oral request for immunity, according to which there existed a compensation system which, where there was a positive gap between the volumes allocated to a participant in the cartel and the sales achieved by it, enabled the producers affected to increase their volumes the following year. Furthermore, the applicant stated that three price increases had been successful. In addition, it supplied much information about the conflict between the members of the cartel concerning the customer MODO. Last, the applicant stated that the cartel came to an end in 2000 following the adoption of competition law compliance programmes.

121 First, it follows from the foregoing that the information supplied by the applicant enabled the Commission to corroborate and supplement the evidence supplied by EKA concerning the nature and duration of the cartel, its mode of operation and also its impact on the relevant market, which Finnish Chemicals had not confirmed in its answer to the Commission’s request for information of 10 September 2004.

122 Second, the applicant’s contribution had significant added value, in so far as, in describing the infringement in terms similar to those employed by EKA, it enabled the Commission to corroborate the essential elements of the cartel and strengthen its capacity to establish the infringement. Taken in isolation, EKA’s application for immunity had only limited probative value, in so far as, as EKA acknowledged in its oral request for immunity, the information which it had supplied had not always been verifiable and could therefore have been contested by other members of the cartel. As the Commission has considered in a number of other decisions, the mere corroboration of factors already in its possession justifies a reduction of the fine under the 2002 Leniency Notice.

123 In the third place, the applicant maintains that the information which it supplied to the Commission shed light on a number of new factors which were not previously in the latter’s possession and which therefore significantly strengthened its ability to establish the facts in question. In that regard, the applicant also observes that it follows from the case-law that the Commission cannot give priority to certain documents supplied by one undertaking to the detriment of documents previously supplied by a different undertaking and that the assessment of the added value of the information supplied by an undertaking cannot depend on the Commission’s choice as to whether or not to use it.

124 First, as the applicant stated at paragraphs 210 and 211 of its observations in response to the statement of objections, it informed the Commission of the existence of a document, to which reference is made at recital 76 to the contested decision, of which it had not kept a copy, stating, for each common customer, the sales volumes which each sodium chlorate producer was allowed to supply to that customer in the context of the market-sharing agreement. The existence of such a document demonstrates the extent to which the cartel was structured.

125 Second, in its observations in response to the statement of objections, the applicant was the first undertaking to identify the customers in continental Europe which were affected by the allocation of sales volumes between sodium chlorate producers. The applicant maintains, consequently, that that information ought to have enabled the Commission to assess the geographic scope of the cartel and could thus serve as a basis for requests for information, for the purpose of ascertaining that the price increases had indeed been applied. The applicant states in that regard that, contrary to the Commission’s assertion, of the nine customers identified by the applicant’s representative, Mr L., only two had already been identified by EKA.

126 In the fourth place, the applicant claims, first, that the actual wording of the contested decision shows that the Commission relied on much of the information which it had supplied in order to establish the existence of the infringement and to corroborate certain evidence from other sources. The applicant refers in that regard to recitals 76, 98, 207, 254, 273 and 284 to the contested decision and also to footnotes 116, 118, 142, 259, 305, 325 and 337 to that decision.

127 Next, the applicant states that, contrary to the Commission’s assertion, recital 254 to the contested decision deals not with a meeting held in spring 2000, the existence of which was impossible to corroborate, but with a meeting held in 1999 with Finnish Chemicals, during which that undertaking declared that it ‘[had] become exclusive supplier of MODO, following an agreement of its parent company with MODO, thus breaching the existing agreement between EKA, Finnish Chemicals and [the applicant], in connection with this customer’.

128 The Commission contests the applicant’s arguments.

Findings of the Court

129 In its 2002 Leniency Notice, the Commission sets out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted a reduction of the fine which would otherwise have been imposed upon them.

130 According to point 20 of the 2002 Leniency Notice, ‘[u]ndertakings that do not meet the conditions [to obtain exemption from a fine] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’.

131 Point 21 of the 2002 Leniency Notice provides that, ‘[i]n order to qualify [for a reduction of its fine under point 20 of that notice], an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.

132 The first paragraph of point 23(b) of the 2002 Leniency Notice provides for three bands of reduction of the fine. The first undertaking to meet the condition laid down in point 21 of that notice is entitled to receive a reduction of the fine of between 30 and 50%; the second undertaking is entitled to a reduction of its fine of between 20 and 30%; and subsequent undertakings are entitled to a reduction of up to 20% of their fines.

133 The second paragraph of point 23(b) of the 2002 Leniency Notice states that, ‘[i]n order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 [of that notice] was submitted and the extent to which it represents added value’ and that ‘[i]t may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’.

134 According to the case-law, the Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 81, and Gütermann and Zwicky v Commission, paragraph 63 above, paragraph 219).

135 Furthermore, in assessing the cooperation given by members of a cartel, only a manifest error of assessment on the part of the Commission is open to censure, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, especially in comparison with the contributions made by