JUDGMENT OF THE GENERAL COURT (Second Chamber)

28 June 2016 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Portuguese and Spanish telecommunications markets — Non-compete clause with respect to the Iberian market inserted in the contract for the acquisition by Telefónica of Portugal Telecom’s share in the Brazilian mobile telephone operator Vivo — Legal safeguard ‘to the extent permitted by law’ — Infringement by object — Ancillary restriction — Autonomy of the applicant’s conduct — Potential competition — Infringement by effects — Calculation of the amount of the fine — Request for examination of witnesses’

In Case T‑216/13,

Telefónica, SA, established in Madrid (Spain), represented by J. Folguera Crespo, P. Vidal Martínez and E. Peinado Iríbar, lawyers,

applicant,

v

European Commission, represented by C. Giolito and C. Urraca Caviedes, acting as Agents,

defendant,

APPLICATION for, primarily, annulment of Commission Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 [TFEU] (Case COMP/39.839 — Telefónica/Portugal Telecom) and, in the alternative, reduction of the fine,

THE GENERAL COURT (Second Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Gervasoni and L. Madise, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 19 May 2015,

gives the following

Judgment

Background to the dispute

1 The present dispute, which concerns Commission Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 [TFEU] (Case COMP/39.839 — Telefónica/Portugal Telecom) (‘the contested decision’), originated in a clause (‘the clause’) inserted in Article 9 of the share purchase agreement (‘the agreement’) signed by the applicant, Telefónica, SA (‘Telefónica’) and Portugal Telecom SGPS, SA (‘PT’) on 28 July 2010, whereby Telefónica was to acquire exclusive control of the Brazilian mobile network operator Vivo Participações, SA (‘Vivo’). The clause is worded as follows (recital 1 of the contested decision): ‘Ninth — Non-compete To the extent permitted by law, each party shall refrain from engaging or investing, directly or indirectly through any affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market for a period starting on [the date of the definitive conclusion of the transaction of 27 September 2010] until [31 December] 2011.’

2 The European Commission considered, in accordance with its preliminary conclusion in the statement of objections of 21 October 2011, that, in the light of the clause and the circumstances (the economic and legal context of the case and the parties’ conduct), the clause amounted to a market-sharing agreement with the object of restricting competition in the internal market and thus infringed Article 101 TFEU (recitals 2 and 434 of the contested decision).

I – Presentation of Telefónica and PT

3 Telefónica is the Spanish State’s former telecommunications monopoly; it was fully privatised in 1997 and is the main telecommunications operator in Spain. It has developed an international presence in several countries in the European Union, Latin America and Africa and is one of the major European telecommunications groups (recitals 12 and 16 of the contested decision).

4 At the time of the adoption of the decision at issue in the present proceedings, Telefónica held 2% of PT’s share capital. At the time of the facts forming the subject matter of that decision, Telefónica held a minority stake in Zon Multimedia (‘Zon’), a competitor of PT in the electronic communications sector, resulting from the spin-off, in November 2007, of PT Multimedia from its parent company, PT. In addition to its shareholdings in a number of Portuguese companies, Telefónica began to develop a direct presence in Portugal through two of its subsidiaries and the Portuguese branch of one of those subsidiaries (recitals 18 to 20 and 215 of the contested decision).

5 In addition, Telefónica designated, depending on the date, one or two members of PT’s board of directors. At the time of the definitive conclusion of the transaction relating to the purchase of Vivo, namely on 27 September 2010 (see paragraph 25 below), two of the members of PT’s board of directors had been designated by Telefónica (footnote 67 of the contested decision).

6 The Portugal Telecom group was formed in 1994 following the merger of three public companies and privatised in five phases between 1995 and 2000. Following the fifth and final privatisation phase, in 2000, the Portuguese State held 500 class-A shares (‘golden shares’) which conferred on it certain special rights, including a right of veto over amendments to the company’s by-laws and other important decisions. On 12 December 2000, Portugal Telecom, SA adopted the structure of a holding company and the denomination PT (recitals 21, 22 and 23 of the contested decision).

7 PT is the largest telecommunications operator in Portugal and has a strategic presence in other countries, notably in Brazil and in Sub-Saharan Africa. In Brazil, PT’s main shareholdings consisted in 50% of the shares in the joint venture controlling Vivo until Vivo was acquired by Telefónica. Following the sale of its stake in Vivo on 28 July 2010, PT entered into a strategic partnership with Oi, one of the main providers of electronic communications in Brazil (recitals 24 and 25 of the contested decision).

8 PT sold its 0.20% stake in Telefónica in 2010 and does not control any Spanish company. It provides telecommunications services to its Portuguese multinational customers active on the Spanish market by using other operators’ networks and, in particular, Telefónica’s network (recitals 27, 28 and 233 of the contested decision).

II – Negotiation and signature of the agreement

9 Vivo is one of the major mobile telecommunications operators in Brazil. At the time when the agreement was signed (28 July 2010), Vivo was jointly controlled by Telefónica and PT through Brasilcel NV (‘Brasilcel’), an investment vehicle company incorporated in the Netherlands (recital 33 of the contested decision).

10 On 6 May 2010, Telefónica launched a hostile takeover offer of EUR 5.7 billion for the 50% shareholding in Brasilcel then owned by PT. That offer contained, inter alia, a provision that ‘Telefónica would not require any non-compete or non-solicitation commitment from Portugal Telecom’. That first offer was unanimously rejected by the members of PT’s board of directors (recitals 35 and 36 of the contested decision).

11 On 1 June 2010, at 2.53 a.m., following a meeting between the parties on 31 May 2010, PT sent Telefónica an email with a draft relating to a second offer to purchase its shareholding in Vivo. The clause was introduced for the first time in that draft (recital 38 of the contested decision).

12 The first draft of the clause was worded as follows (recital 39 of the contested decision): ‘Non-compete Each party shall refrain from engaging or investing, directly or indirectly through any Affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services) that can be deemed to be in competition with the other within the Iberian market for a period starting on the date of Acceptance of the Offer until the latest of (i) 31 December 2011 or (ii) the date of consummation of the transfer of the last portion of Alternative B Put Shares’.).

13 In an email sent to PT on 1 June 2010 at 12.21 p.m., Telefónica suggested an amendment to the clause in the form of the addition of the phrase ‘excluding any investment or activity currently held or performed as of the date [of signature of the agreement]’, in order to exclude from the scope of the agreement the existing activities of each party in the other party’s national market. That amendment was incorporated in the second offer, dated 1 June 2010 (recital 40 of the contested decision).

14 In addition to the first draft of the clause, the second offer provided for an increased price of EUR 6.5 billion, a call option in favour of PT, under which PT could buy back its shares owned by Telefónica, and a commitment by Telefónica to buy PT’s shares in Dedic SA, a Brazilian call centre operator. Furthermore, the second offer still included Telefónica’s commitment not to require any ‘non-compete or non-solicitation commitments by Portugal Telecom’ that had already appeared in the first offer (recitals 41 and 42 of the contested decision).

15 On the evening of 1 June 2010, PT’s board of directors announced that it considered that Telefónica’s second offer did not reflect the real value of Vivo. However, it decided to submit its decision to the general assembly of the company on 30 June 2010 (recital 45 of the contested decision).

16 The second offer was made public by the parties by being posted on their respective websites and being notified to the Spanish and Portuguese Stock Exchange Authorities. In addition, the content of the clause inserted into the second offer was also made public in a brochure distributed by PT’s board of directors to its shareholders on 9 June 2010 in connection with the general shareholders’ meeting to be held on 30 June 2010 (recitals 128 and 129 of the contested decision).

17 On 29 June 2010, Telefónica presented a third offer of EUR 7.15 billion, containing the same terms and conditions as the second offer (recital 46 of the contested decision).

18 On 30 June 2010, PT’s ordinary general assembly approved Telefónica’s third offer. However, the Portuguese Government exercised the right attached to its golden shares in PT (see paragraph 6 above) to block the transaction and Telefónica extended the third offer until 16 July 2010 (recitals 47 and 48 of the contested decision).

19 In its judgment of 8 July 2010, Commission v Portugal (C‑171/08, ECR, EU:C:2010:412), the Court of Justice considered that, by maintaining special rights in PT such as those provided for in PT’s statutes in favour of the State and other public bodies, conferred in connection with the State’s golden shares in PT, the Portuguese Republic had failed to fulfil its obligations under Article 56 EC (recital 50 of the contested decision).

20 On 16 July 2010, PT asked Telefónica to extend its offer until 28 July 2010, but Telefónica refused to do so and the offer lapsed (recital 51 of the contested decision).

21 On 27 July 2010, a new meeting took place between PT and Telefónica and Telefónica proposed to PT that the words ‘to the extent permitted by law’ should be added at the beginning of the clause and that the duration of the clause should be from ‘the date [of the definitive conclusion of the transaction on 27 September 2010] until 31 December 2011’ (recitals 52 and 53 of the contested decision).

22 On 28 July 2010, Telefónica and PT entered into the agreement whereby Telefónica acquired exclusive control over Vivo by acquiring 50% of the share capital of Brasilcel for EUR 7.5 billion (recital 54 of the contested decision).

23 The agreement included, in clause 9, the following clause (recital 55 of the contested decision): ‘Ninth — Non-compete To the extent permitted by law, each party shall refrain from engaging or investing, directly or indirectly through any affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market for a period starting on [the date of the definitive conclusion of the transaction of 27 September 2010] until [31 December] 2011.’

24 Unlike the second offer (paragraph 14 above), the agreement no longer included the call option in favour of PT, whereby PT could buy back the PT shares owned by Telefónica. On the other hand, the agreement made provision, in particular, for, in the first place, the resignation of the members of PT’s board of directors designated by Telefónica (Clause 3.6 of the agreement); in the second place, an industrial partnership programme between the two undertakings (Clause 6 of the agreement), on condition that they did not compete in Brazil (Clause 7 of the agreement); and, in the third place, the possible acquisition by Telefónica of the Brazilian company Dedic, which specialises in the provision of call centre services (Clause 10 of the agreement) (recitals 56 to 61 of the contested decision).

25 The transaction was definitively concluded on 27 September 2010, by means of a ‘deed of transfer of shares’ and a ‘confirmatory deed’ (recital 63 of the contested decision).

26 On the date of signature of the agreement, on 28 July 2010, PT had also announced that it had entered into, on the same date, a memorandum of understanding setting out the principles for the implementation of a strategic partnership with Oi (see paragraph 7 above) and that it expected to acquire 22.38% of the shares of the Oi group in order to have an important role in its management (recital 62 of the contested decision).

27 The Vivo transaction was notified, on 29 July and 18 August 2010, to the Agência National de Telecommunicações (Anatel, the Brazilian telecommunications regulatory authority) and the Conselho Administrativo de Defesa Econômica (CADE, the Brazilian competition authority) and, in an article published in the press on 23 August 2010, Telefónica confirmed that the agreement included a non-compete clause (recitals 103, 130 and 491 of the contested decision).

III – Events following the conclusion of the agreement

28 On 26 and 29 October 2010, two telephone conversations took place between Telefónica and PT (recitals 113 and 124 of the contested decision).

29 On 4 February 2011, after the Commission had initiated the proceedings on 19 January 2011 (see paragraph 31 below), Telefónica and PT signed an agreement deleting the clause (recital 125 of the contested decision), worded as follows: ‘Recitals: Whereas [PT] and Telefónica entered into an agreement (the “Agreement”) on 28 July 2010 in relation to the sale from [PT] to Telefónica of 50% (fifty) percent of the outstanding share capital of the Dutch company [Brasilcel] (“Brasilcel” or ‘the Company”). Whereas Section Ninth of the Agreement included a Non-compete clause whereby, to the extent permitted by law, each Party would refrain from engaging in competition with the other in the Iberian market since Closing (as defined in the Agreement) until 31 December 2011. Whereas Section Ninth of the Agreement was first discussed between the parties in relation to PT’s right to call the shares held by Telefónica in PT and eventually kept in the final agreement despite the fact that the said right was dropped, subject therefore to its conformity with law. Whereas the Parties wish to confirm in writing their understanding that Section Ninth is not enforceable, and has not at any time been enforced, and therefore it has not affected their respective commercial decisions; Whereas Telefónica and PT were notified on 24 January and 21 January 2011 respectively of the opening by the European Commission of formal proceedings in relation to the aforesaid Section Ninth. In light of the above, the Parties agree as follows: First. Amendment of the Agreement and Withdrawal of Rights The Agreement shall be amended by deleting Section Ninth in its entirety, which will be deemed not to have had content at any time. The Parties irrevocably and definitively confirm that Section Ninth has not and may not have conferred any rights or imposed any obligations on them or on any third party. Second. Governing Law This Agreement, and any question or dispute related to it or to its performance or consequences of any breach of it, shall be governed by and construed in accordance with the laws of Portugal.’

IV – Procedure before the Commission

30 The clause was detected in September 2010 by the Spanish Competition Authority, which informed the Portuguese Competition Authority and the Commission, and it was decided that the investigation should be entrusted to the Commission (recital 3 of the contested decision).

31 On 19 January 2011, the Commission initiated proceedings against Telefónica and PT pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) and Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18) (recital 5 of the contested decision).

32 In the context of the investigation, in application of Article 18(2) of Regulation No 1/2003, the Commission sent requests for information to the parties on 5 January, 1 April, 25 May, 10 and 24 June 2011 and 5 September 2012 and to certain of their multinational customers on 20 April 2011. In addition, meetings were held with PT on 17 March and 8 September 2011 and on 27 September 2012 and with Telefónica on 21 March and 7 September 2011 and on 27 September 2012 (recital 6 of the contested decision).

33 On 21 October 2011, the Commission adopted a statement of objections; on 4 November 2011, the parties had access to the file; and on 7 November 2011, they received the relevant documents. On 13 January 2012, Telefónica and PT replied to the statement of objections, but did not request an oral hearing (recitals 7, 8 and 9 of the contested decision).

34 On 23 January 2013, the Commission adopted the contested decision.

Contested decision

35 The Commission stated that the case giving rise to the contested decision concerned the clause in the agreement (paragraphs 1, 22 and 23 above) (recital 1 of the contested decision).

36 The Commission explained that it had considered in the statement of objections that, in the light of the clause and the circumstances (the economic and legal context of which the clause formed part and the behaviour of the parties), the clause amounted to a market-sharing agreement with the object of restricting competition in the internal market and constituted an infringement of Article 101 TFEU, and that it confirmed that conclusion in the contested decision (recital 2 of the contested decision).

37 In the first place, the Commission analysed the factual background to the negotiations between the parties that led to the introduction of the clause of the final version of the agreement, the events subsequent to the signature of the agreement (see paragraphs 10 to 29 above) and the parties’ arguments relating to that background and those events (recitals 29 to 130 of the contested decision).

38 In the second place, the Commission considered, in the light of the scope of the clause and the relevant markets, that, in view of its wording (paragraphs 1 and 23 above), the clause covered any project regarding electronic communications services, on condition that the other party rendered or might render that service. Consequently, and as is apparent from its wording, the clause referred to fixed and mobile telephone services, internet access and television services and also broadcasting transmission services, which are considered to be communications services although they are not mentioned in the clause. On the other hand, the Commission stated that, in accordance with the wording of the clause, any investment or activity carried out before the date of signature of the agreement, namely 28 July 2010, was excluded from the scope of the clause (recitals 132 to 136 and 185 of the contested decision).

39 In the latter regard, the Commission noted that global telecommunication services and wholesale international carrier services were excluded from the scope of the clause because each of the parties was present in the market for such services within the Iberian peninsula at the time of signature of the agreement (recitals 173, 174, 184 and 185 of the contested decision).

40 As regards the geographic scope of the clause, the Commission interpreted the expression ‘Iberian market’ as referring to the Spanish and Portuguese markets. Having regard to the parties’ commercial activities, which consisted of a presence on most of the electronic communications markets in the country of origin of each of them and little or no presence in the country of origin of the other party (paragraphs 3 to 7 above), the Commission considered that the geographic scope of the clause corresponded to Portugal for Telefónica and to Spain for PT (recitals 137 to 140 of the contested decision).

41 The Commission therefore concluded that the clause applied to all markets for electronic telecommunications services and television services in Spain and Portugal, with the exception of the markets for global telecommunication services and wholesale international carrier services (recital 185 of the contested decision).

42 In the third place, according to the Commission, there is no doubt that the clause constitutes an agreement within the meaning of Article 101(1) TFEU, since it is an agreement in written form, entered into and signed by the parties, the existence of which is undeniable and since, moreover, the clause was included in a public deed executed before a notary, the recitals to which state that a copy of the agreement is annexed to the deed (recital 237 of the contested decision).

43 First, in the light of the case-law on restriction of competition by object, the Commission, after analysing the parties’ arguments, considered that the clause constituted a restriction by object having regard to the content of the agreement, the objectives which the clause sought to attain, the legal and economic context of which the clause formed part, the actual conduct and behaviour of the parties and, last, their intention (recitals 238 to 242 and 243 to 356 of the contested decision).

44 The Commission thus concluded, as regards the object of the clause, that, taking into account its scope, the clause prevented PT from entering into any of the Spanish telecommunications markets and prevented Telefónica from expanding its limited presence in the Portuguese telecommunications markets while the clause was in force, so that, instead of competing with each other and behaving as rivals, as normally expected in an open and competitive market, Telefónica and PT had deliberately agreed to exclude or limit competition on their respective markets and the clause thus amounted to a market-sharing agreement (recital 353 of the contested decision).

45 In the latter regard, the Commission stated that the clause was, in addition, liable to delay integration in the electronic communications sector, since the market integration process would be seriously jeopardised if incumbents such as Telefónica and PT could reinforce their already very strong market position by participating in collusive practices with the aim of protecting their home markets and avoiding the entry of other operators to those markets (recitals 354 and 355 of the contested decision).

46 Second, after recalling that, according to the case-law, there was no need to take into account the actual effects of an agreement if it was shown that the agreement constituted a restriction of competition by object, which, according to the Commission, was the case here, the Commission nonetheless stated, in response to the parties’ arguments, that, first of all, the clause had been adopted by two competitors and was therefore capable of producing anti-competitive effects; that, next, even if the clause were considered to be incapable of producing any effects, that would not preclude its being regarded as constituting a restriction by object, since, if an agreement had as its object the restriction of competition, it was irrelevant, as regards the existence of the infringement, whether the agreement was or was not in the commercial interest of its participants, the fact that the clause having as its object the restriction of competition might have proved to be incapable of producing any effects in the commercial interest of Telefónica or PT thus being irrelevant; and that, last, the parties had wholly failed to show that they had engaged in new activities in Spain or Portugal that might disprove that the clause had been implemented, which did not in itself show that the clause had been implemented, but was a sign that it might have been implemented (recitals 240 and 357 to 365 of the contested decision).

47 The Commission considered that it must be concluded that, in this case, there was no need to show any negative effects on competition, since the anti-competitive object of the clause had been established and it was thus not necessary to carry out a detailed assessment of each telecommunications market concerned and of the effects of the clause within those markets (recital 366 of the contested decision).

48 Third, the Commission stated that the clause could not be analysed as a restriction ancillary to the Vivo transaction, since it related to the Iberian market whereas the Vivo transaction concerned an operator whose activity was confined to Brazil and the clause could not be considered to be necessary for the implementation of the operation (recitals 367 to 433 of the contested decision).

49 The Commission concluded that the clause imposed a non-compete obligation on the parties and constituted a market-sharing agreement with the object of restricting competition within the internal market and that it thereby infringed Article 101 TFEU, in view of the content of the agreement (and, in particular, the wording of the clause, which left little, if any, doubt as to its nature) and of the economic and legal context of which the agreement formed part (for example, the electronic communications markets, which were liberalised) and the actual conduct and behaviour of the parties (in particular, the fact that the agreement was terminated by the parties only on 4 February 2011, following the initiation of proceedings by the Commission on 19 January 2011 (and not as a result of the telephone conversations of October 2010, contrary to the parties’ claims) (recital 434 of the contested decision).

50 Fourth, the Commission stated that the clause did not fulfil the conditions laid down in Article 101(3) TFEU (recitals 436 to 446 of the contested decision) and that it might affect trade between Member States (recitals 447 to 453 of the contested decision).

51 Fifth, as regards the duration of the infringement, the Commission concluded that the infringement covered the period from the date of the definitive conclusion of the transaction, namely 27 September 2010 (see paragraph 25 above), until the date on which the clause had been terminated, namely 4 February 2011 (see paragraph 29 above) (recitals 454 to 465 of the contested decision).

52 Sixth, as regards the calculation of the amount of the fines, the Commission applied, in the contested decision, the provisions of 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’).

53 In order to determine the basic amount of the fine to be imposed, the Commission took into account the value of sales of the services covered by the clause as defined in section 5 of the contested decision (see paragraphs 38 to 40 above) and, in particular, for each party, only the value of its own sales in its country of origin (recitals 478 to 483 of the contested decision).

54 The Commission also recalled that it normally took into account the sales made by the undertakings during the last full business year of their participation in the infringement, but that, in this instance, the infringement had lasted for less than one year and had taken place between 2010 and 2011. Consequently, the Commission used the undertakings’ sales in 2011, which were lower than the sales recorded by the parties in 2010 (recital 484 of the contested decision).

55 As regards the gravity of the infringement, which determines the percentage of the value of sales to be taken into consideration when setting the basic amount of the fine, the Commission observed that the infringement consisted of an agreement not to compete and to share the Spanish and Portuguese electronic communications and television markets and that Telefónica and PT were the incumbent telecommunications operators in their respective countries. In addition, the Commission noted that it took into account the fact that the clause had not been kept secret by the parties (see paragraphs 16 and 27 above). In the light of those factors, the Commission considered that the value of sales to be taken into consideration should be 2% for the two undertakings concerned (recitals 489 to 491 and 493 of the contested decision).

56 So far as the duration of the infringement was concerned, the Commission took account of the fact that it had covered the period from 27 September 2010 (date of the notarised deed and thus of the definitive conclusion of the transaction) until 4 February 2011 (date of the agreement whereby the parties terminated the clause) (recital 492 of the contested decision).

57 The Commission did not take any aggravating circumstance into account and considered that the date of termination of the clause, 4 February 2011, constituted a mitigating circumstance, since the clause was terminated only 16 days after the Commission initiated the proceedings and 30 days after it sent the first request for information to the parties. As, moreover, the clause had not been kept secret, the Commission considered that the basic amount of the fines to be imposed on the parties should be reduced by 20% (recitals 496, 500 and 501 of the contested decision).

58 The final amount of the fines came to EUR 66894000 for Telefónica and EUR 12290000 for PT (recital 512 of the contested decision). The Commission pointed out that those amounts did not exceed 10% of the total turnover of each of the parties concerned (recitals 510 and 511 of the contested decision).

59 The operative part of the contested decision reads as follows: ‘Article 1 [Telefónica] and [PT] have infringed Article 101 [TFEU] by participating in a non-compete agreement, included as clause nine of the Stock Purchase Agreement entered into by them on 28 July 2010. The duration of the infringement was from 27 September 2010 until 4 February 2011. Article 2 For the infringement referred to in Article 1, the following fines are imposed: (a) [Telefónica]: EUR 66894000 (b) [PT]: EUR 12290000 …’

Procedure and forms of order sought

60 By application lodged at the Court Registry on 9 April 2013, the applicant brought the present action.

61 On hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure of 2 May 1991, put a written question to the Commission to be answered at the hearing.

62 On 31 March 2015, the applicant lodged a request for the examination of witnesses, thus reiterating the request for examination of witnesses submitted in the application as an ‘additional head of claim’. On 24 April 2015, the Commission submitted its observations on that request.

63 The parties presented oral argument and answered the oral questions and the written question put by the Court at the hearing on 19 May 2015.

64 The applicant claims that the Court should: — annul Articles 1 and 2 of the contested decision insofar as they relate to it; — in the alternative, declare Article 2 of the contested decision null and void in part and reduce the amount of the penalty imposed, ‘for the reasons set out in the present document or for other reasons which the Court may accept’; — order the Commission to pay the costs incurred by the applicant in these proceedings.

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

66 At the hearing, the applicant explained that by the expression ‘declare Article 2 of the contested decision null and void in part’ in its second head of claim, it sought annulment in part of the contested decision. In addition, it stated that it was merely seeking annulment in part of the contested decision for the reasons set out in the application, as the expression ‘or for other reasons which the Court might take into account’ corresponded to a form of words habitually used in Spanish law.

Law

I – Admissibility

67 By way of preliminary point, the Commission disputes the admissibility of certain annexes to the application, while the applicant disputes the admissibility of certain references which the Commission makes in its pleadings to the parallel action brought by PT against the contested decision in Case T‑208/13 Portugal Telecom v Commission.

A – Admissibility of certain annexes to the application

68 The Commission claims that certain annexes which the applicant attaches to its application were not supplied during the administrative procedure and must therefore be declared inadmissible. It refers in that regard to Annexes A.25, A.37, A.55, A.56, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.69, A.70, A.71, A.72, A.74, A.75, A.76, A.77, A.78, A.79, A.80, A.81, A.82 and A.83 and to the press articles listed in Annex A.70 which did not yet appear in the administrative file, namely Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53, and to parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52.

69 As regards the annexes put forward in support of the pleas disputing the establishment of the infringement, the Commission maintains that they are inadmissible because the legality of a European Union measure is in principle to be assessed on the basis of the elements of fact and of law to which the parties made reference during the administrative procedure.

70 As regards the annexes put forward in support of the pleas disputing the amount of the fine, the Commission claims that, while the Court, in the exercise of its unlimited jurisdiction, may, when assessing the amount of the fine, take into consideration additional information that was not mentioned in the contested decision, in the light of the principle of legal certainty the only information that may be taken into account is, in principle, information predating that decision that the Commission might have been aware of at the time when it adopted the decision. That does not apply to Annexes A.76 (a report dating from 4 April 2013), A.77, A.80, A.81 (a report and documents dating from 5 April 2013) and, last, A.82 (a document dating from 8 April 2013).

71 Last, the Commission asserts, with respect to the legal reports, namely Annexes A.69 and A.76, that the elements of law which they contain should be in the actual text of the applicant’s pleadings or, at least, be sufficiently identified in those pleadings. As for the economic reports, namely Annexes A.75 and A.77, the case-law shows that they are irrelevant in the case of agreements which are shown beyond dispute to have a restrictive object.

72 However, at the hearing the Commission stated that the legal reports were not inadmissible if the points of law which those reports were supposed to illustrate were identified with sufficient precision in the pleadings and acknowledged, in answer to a question from the Court, that that was the case here, since the applicant referred to quite specific points in the reports in question in support of clearly identified elements of its argument in paragraphs 78, 83, 85, 90 and 94 and in footnote 167 to the application. In addition, the Commission stated that it was relying on the case-law to the effect that economic reports are irrelevant in the case of agreements which are shown beyond dispute to have a restrictive object not in order to challenge the admissibility of the reports, but in order to assert that those reports did not have to be taken into account when analysing the substance of the infringement.

73 In the applicant’s submission, the Commission misreads the case-law: only elements of fact or of law subsequent to the date of adoption of the decision are considered inadmissible, which does not apply to the annexes which the Commission would exclude, which related to circumstances preceding the decision. In addition, economic and legal reports which are specially drawn up for the purposes of challenging the decision are also admissible.

74 It is necessary to distinguish, among the annexes alleged to be inadmissible, those produced in order to challenge the establishment of the infringement and those produced in order to challenge the amount of the fine.

75 In the first place, first, it should be noted that, among the annexes alleged to be inadmissible, the following annexes were produced in order to challenge the establishment of the infringement: Annexes A.25, A.37, A.55, A.56, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.69, A.70, A.71, A.72, A.74, A.75, A.76, A.77, A.78 and A.79 and the press articles cited in Annex A.70.

76 Second, it should first of all be noted that Annexes A.56 (a summary table containing details of contacts between the counsel and representatives of Telefónica and PT during the negotiation of the operation), A.69 (an opinion of Portuguese law by Mr M.P.), A.70 (a summary table of the press articles cited in the application), A.71 (a statement from the Bar of Madrid (Spain) concerning disciplinary penalties), A.75 (a PWC report), A.76 (a report concerning Brazilian law drawn up by D.W.C.A.) and A.77 (a report by S.&R.) were drawn up specifically in order to challenge the contested decision. In fact, it is clear from its argument in the rejoinder that the Commission does not dispute the admissibility of the evidence postdating the contested decision but prepared specifically in order to challenge or defend that decision.

77 Nor, as the Commission itself acknowledged at the hearing, can it challenge the admissibility of the legal reports drawn up specifically in order to challenge the contested decision, namely Annexes A.69 (an opinion relating to Portuguese law by Mr M.P.) and A.76 (a report relating to Brazilian law drawn up by D.W.C.A.), on the ground that, insofar as the annexes contain elements of law on which certain pleas set out in the application are based, such elements must appear in the actual text of the pleading to which the annexes are attached or, at least, be sufficiently identified in that pleading. In fact, in the present case, the elements of law in the legal reports are sufficiently identified in the applicant’s pleadings (see paragraph 72 above). In those circumstances, Annexes A.69 and A.76 must be declared admissible.

78 Last, the same applies, as the Commission also acknowledged at the hearing (see paragraph 72 above), to the economic reports prepared in order to challenge the contested decision, namely Annexes A.75 (a PWC report) and A.77 (a report by S.&R.), since the question of the relevance of those reports in the case of agreements which are shown beyond dispute to have a restrictive object, raised by the Commission, manifestly relates to the substance of the dispute, with the consequence that, irrespective of the answer to that question, it cannot be decisive for the admissibility of the annexes.

79 Third, in order to determine precisely the remaining annexes, produced in order to challenge the establishment of the infringement, the admissibility of which the Commission disputes on the ground that they were not produced during the administrative procedure, it should be noted that the Commission claims that certain of those annexes (see paragraph 75 above) are in whole or in part complementary to the evidence put forward during the administrative procedure, and was not contradicted on that point by the applicant.

80 In order to determine precisely the annexes or parts of annexes which in the present case are among the annexes put forward in order to challenge the legality of the contested decision which in the Commission’s submission are inadmissible, and apart from those drawn up specifically in order to challenge the contested decision (see paragraph 76 above), it is necessary to distinguish the press articles listed in Annex A.70 from the other annexes put forward in order to challenge the establishment of the infringement which the Commission claims are inadmissible.

81 As regards the press articles listed in Annex A.70, namely Annexes A.8, A.9, A.10, A.11, A.12, A.13, A.14, A.16, A.17, A.18, A.19, A.20, A.21, A.22, A.23, A.24, A.26, A.27, A.28, A.29, A.30, A.35, A.36, A.38, A.39, A.40, A.41, A.43, A.44, A.45, A.46, A.47, A.48, A.49, A.51, A.52, A.53 and A.54, it should be noted that the Commission acknowledged at the hearing that Annex A.70 correctly stated which of those annexes were already in whole or in part in the file and which were complementary, which was recorded in the minutes of the hearing. It follows that it must be considered that Annexes A.8, A.10, A.17, A.24, A.26, A.35, A.36 and A.54 in their entirety and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 which are stated to be already in the file were already in the administrative file relating to the present case, so that their admissibility is not disputed. On the other hand, Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53 and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 that were stated to be complementary were not put forward during the administrative procedure, so that their admissibility is disputed.

82 As regards, moreover, the other annexes put forward in order to challenge the legality of the contested decision which in the Commission’s submission are inadmissible (see paragraph 75 above), and apart from those drawn up specifically in order to challenge the contested decision (see paragraph 76 above), namely Annexes A.25, A.37, A.55, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.72, A.74, A.78 and A.79, it is apparent from the file that only those annexes containing correspondence the authenticity of which is attested by a notary, with the exception of Annex A.58, namely Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and 67 and also Annex A.37, contain parts which were already in the administrative file.

83 In that regard, first of all, it should be noted that the Commission asserts, in footnote 11 to the defence, that the notarised acts included as Annexes A.25, A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67 are sometimes accompanied by correspondence which is already in the administrative file, as is the case, for example, of Annex A.65. That assertion is confirmed by the applicant, which states in footnote 6 to the reply that Annexes A.55 to A.63, A.65 and A.67 contain exchanges between the parties during the negotiations which were already in the administrative file, but the date of which is now certified by a notary, and also other exchanges that reinforce the evidence of a fact of which the Commission was already aware, namely the fact that the Portuguese Government participated in the negotiations. It follows from those assertions that where the annexes thus mentioned by the parties contain correspondence, that correspondence was already in the administrative file, so that its admissibility is not disputed, whereas the notarised acts accompanying that correspondence are complementary, so that their admissibility is disputed.

84 Next, it should be pointed out that Annexes A.25 and A.59 do not contain correspondence but (i) a certified copy of the annual accounts of PT and of C.G. de D. and (ii) extracts from the Diário da República concerning the appointment and resignation of the principal private secretary of the Portuguese Prime Minister; that the applicant itself acknowledged that it had not produced Annex A.58 during the administrative procedure; and, last, that Annex A.37 was already in the Commission’s file, since PT had attached it to its reply to the statement of objections.

85 Last, it should be inferred upon reading footnotes 11 to the defence and 6 to the reply (paragraph 83 above) in conjunction with the findings made in the preceding paragraph that Annex A.37 and the correspondence in Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67 were already in the file, so that their admissibility is not disputed. On the other hand, the notarised acts in those annexes and Annexes A.25, A.58, A.59, A.72, A.74, A.78 et A.79 were not put forward during the administrative procedure, so that their admissibility is disputed.

86 It follows from all of the preceding considerations that, among the annexes produced in order to challenge the establishment of the infringement, only the admissibility of the following annexes is disputed: in the first place, Annexes A.25, A.58, A.59, A.72, A.74, A.78 and A.79; in the second place, the notarised acts in Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67; and, in the third place, Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53 and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 that are described as complementary in the table in Annex A.70.

87 As regards the admissibility of those annexes, it should be borne in mind that, as the Court of Justice has had occasion to make clear on many occasions, the scope of the review of legality provided for in Article 263 TFEU extends to all aspects of Commission decisions relating to proceedings for the application of Articles 101 TFEU and 102 TFEU, in respect of which this Court carries out an in-depth review, as regards questions of both fact and law, in the light of the pleas in law put forward by the applicants (see, to that effect, judgments of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, ECR, EU:C:2011:810, paragraphs 102 and 109, and Chalkor v Commission, C‑386/10 P, ECR, EU:C:2011:815, paragraphs 62 and 82, and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, ECR, EU:C:2014:2062, paragraphs 56 and 59) and taking into account all the evidence adduced by the applicants, whether predating or postdating the contested decision, whether submitted in the context of the administrative procedure or for the first time in the context of the action brought before the Court, insofar as that evidence is relevant to the review of the legality of the Commission’s decision (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, ECR, EU:C:2010:389, paragraphs 87 to 92), it being borne in mind, however, that the Courts of the European Union cannot, in the context of the review of legality provided for in Article 263 TFEU, substitute their own reasoning for that of the institution which adopted the measure at issue (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission, C‑73/11 P, ECR, EU:C:2013:32, paragraph 89 and the case-law cited).

88 It follows that the plea of inadmissibility raised by the Commission against the annexes produced in order to challenge the establishment of the infringement and identified in paragraph 86 above must be rejected and that those annexes must be declared admissible.

89 In the second place, it should be noted, as regards the annexes produced for the purposes of the claim for a reduction of the amount of the fine, the admissibility of which is challenged, and with the exception of Annexes A.75 and A.77, which were also put forward in order to challenge the legality of the contested decision, and which have already been declared admissible (see paragraphs 76 and 78 above), namely Annexes A.80, A.81, A.82 and A.83, that it has been held that the Court had power to assess, in the exercise of its unlimited jurisdiction, whether or not the amount of fines is appropriate and that that assessment might justify the production and taking into account of additional information which was not mentioned in the contested decision (judgments of 16 November 2000, SCA Holding v Commission, C‑297/98 P, ECR, EU:C:2000:633, paragraphs 53 to 55, and of 9 July 2003, Cheil Jedang v Commission, T‑220/00, ECR, EU:T:2003:193, paragraph 100). It follows that the admissibility of the annexes produced with a view to securing a reduction of the amount of the fine imposed on the applicant cannot be challenged on the ground that that information had not yet been produced during the administrative procedure.

90 It follows from the foregoing that the plea of inadmissibility raised by the Commission must be rejected and that all the annexes produced by the applicant are admissible.

B – Admissibility of the references to the parallel action brought by PT against the contested decision

91 The applicant claims that, in referring, in paragraphs 10, 39, 67 and 75 of the defence, to the parallel action brought against the contested decision by PT, the Commission fails to have regard to the fundamental principle of adversarial proceedings and breaches the applicant’s rights of defence. It submits that the Commission cannot rely on arguments raised by a third party in separate proceedings, since the applicant has not had access to the documents in question and cannot defend itself against the arguments which they contain. In addition, it cannot be precluded that the Commission is applying a biased interpretation of PT’s assertions that serves its own interests, as, in the applicant’s submission, it did during the administrative procedure. Last, the Commission is partial insofar as it mentions only those of PT’s arguments that support the Commission’s case, without reference to the paragraphs, which must presumably exist, on which the parties are in agreement.

92 The Commission contends that, insofar as it refers in its pleadings to PT’s assertions, the applicant is able to challenge them and that there is thus no breach of its rights of defence. At the hearing, the Commission explained that the references to PT’s written pleadings merely reiterated matters already put forward during the administrative procedure and that in any event it referred to those pleadings only by way of illustration.

93 In any event, it should be observed that it follows from the case-law that, in order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, ECR, EU:C:2009:742, paragraph 56).

94 While the applicant was indeed able to be apprised of the matters put forward by the Commission in its defence, and while it was able to comment on those matters in the reply and to express its views at the hearing on the matters put forward by the Commission in the rejoinder, the fact nonetheless remains that, by not having had access to the text of PT’s pleadings to which the Commission refers, the applicant was not in a position to ascertain the reality of the references on which the Commission relied or the context in which they were formulated. The applicant claims that it cannot be precluded that the Commission cites the extracts from PT’s pleadings selectively and in a biased manner.

95 It follows that the references which the Commission makes to PT’s pleadings in the parallel case are inadmissible.

II – Substance

96 In support of its action, the applicant puts forward eight pleas in law, the first five of which seek annulment of the contested decision, while the last three seek a reduction of the amount of the fine imposed on the applicant. The first plea alleges infringement of Article 101 TFEU, owing to the incorrect application to the clause of the case-law on restrictions by object, and breach of the principles of presumption of innocence and of the burden of proof and of the principle in dubio pro reo. The second plea alleges infringement of Article 101 TFEU owing to a manifest error of assessment of the facts and breach of the principle that the evidence relating to the context, to the conduct of the parties and to the purpose of the clause must be appraised as a whole. The third plea alleges breach of the principles of the burden of proof and sound administration, the rights of the defence and the presumption of innocence concerning proof of the Portuguese Government’s involvement in the negotiations of the operation and of the clause in particular. The fourth plea alleges infringement of Article 101 TFEU, insufficient reasoning and incorrect assessment of the ability of the practice to restrict competition. The fifth plea alleges infringement of Article 101 TFEU in that the clause is not a restriction by effect and breach of the rules on the burden of proof and of the principle in dubio pro reo. The sixth plea alleges a manifest error in the calculation of the initial value of Telefónica’s sales for the purposes of establishing the basic amount of the fine and breach of the principles of proportionality and the obligation to state reasons. The seventh plea alleges a manifest error of assessment in the calculation of the basic amount of the fine according to gravity and breach of the principle of proportionality. Last, the eighth plea alleges infringement of Article 101 TFEU and breach of the principle of proportionality and a manifest error owing to the refusal to take other mitigating circumstances into account.

A – The claims seeking annulment of the contested decision

1. The first three pleas, alleging, in essence, infringement of Article 101 TFEU in that the clause does not constitute a restriction of competition by object.

97 By its first three pleas, which should be examined together, the applicant disputes the Commission’s finding that the clause constitutes a restriction by object. The applicant takes issue with the Commission for having regarded the clause as a non-compete agreement independent of the Vivo transaction and for having considered that the expression ‘to the extent permitted by law’ served no useful purpose and had been inserted only for purely aesthetic ends, in order to disguise a restriction of competition. In the applicant’s submission, it would be impossible to apprehend the clause independently of the Vivo transaction and of the process of negotiating the agreement relating to that transaction, which was characterised by the permanent involvement of the Portuguese Government, which wished to ensure, through the clause, in particular, the continuity of PT as an independent leading undertaking on the Portuguese market. In those circumstances, the clause was an essential factor in making the transaction workable and the legal safeguard ‘to the extent permitted by law’ transformed the non-compete obligation initially provided for into a self-assessment obligation concerning the legality and the scope of a restriction ancillary to the transaction in question in the form of a commitment not to compete.

a) Preliminary observations

98 It should be borne in mind that an agreement within the meaning of Article 101(1) TFEU arises from an expression, by the participating undertakings, of their joint intention to conduct themselves on the market in a specific way (see, with respect to Article 81(1) EC, judgment of 8 July 1999, Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 130; concerning Article 65(1) CS, judgment of 11 March 1999, Thyssen Stahl v Commission, T‑141/94, ECR, EU:T:1999:48, paragraph 262). That concept therefore centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention (judgments of 26 October 2000, Bayer v Commission, T‑41/96, ECR, EU:T:2000:242, paragraph 69, and of 19 May 2010, IMI and Others v Commission, T‑18/05, ECR, EU:T:2010:202, paragraph 88).

99 Furthermore, it should be borne in mind that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.

100 In that regard, it is apparent from the case-law of the Court of Justice that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see judgment of 11 September 2014, CB v Commission, C‑67/13 P, ECR, EU:C:2014:2204, paragraph 49 and the case-law cited).

101 That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraph 50 and the case-law cited).

102 Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraph 51).

103 Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraph 52 and the case-law cited).

104 According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraph 53 and the case-law cited).

105 In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraph 54 and the case-law cited).

106 It is in the light of that case-law that the Court must consider whether, in the present case, the Commission was correct to conclude that, in the light of the clause and of the circumstances (the economic and legal context of which the case formed part and the conduct of the parties), the clause amounted to a market-sharing agreement having as its object the restriction of competition within the internal market, contrary to Article 101 TFEU (recitals 2 and 434 of the contested decision).

b) The assessment of the clause as a possible restriction ancillary to the Vivo transaction

107 It should be noted that the applicant takes issue with the Commission for having merely claimed that the clause did not satisfy the criteria of a restriction ancillary to the Vivo transaction although, if it were possible to discuss the question whether the clause was an ancillary restriction stricto sensu, it would be undeniable, in the light of the context in which it was negotiated, that it was subject to the ultimate objective of concluding a much more complex transaction, since it was a ‘condition sine qua non’ in order for PT and, especially, the Portuguese Government not to block the transaction. In addition, Telefónica did its utmost to limit the anti-competitive content of the clause, notably by the insertion of the phrase ‘to the extent permitted by law’.

108 The Commission claims that the question is not whether the clause was independent of the transaction, but whether it could be described as ancillary to the transaction.

109 At the hearing, the applicant made clear that it did not dispute the Commission’s finding, in recitals 367 to 433 of the contested decision, that the clause could not be characterised as a restriction ancillary to the Vivo transaction. That assertion was recorded in the minutes of the hearing.

110 It follows that it is no longer necessary to examine the applicant’s arguments from the aspect of the question whether the clause might have been characterised as a restriction ancillary to the Vivo transaction.

c) The autonomy of the applicant’s conduct

111 At the hearing, the Court also questioned the applicant as to whether its argument alleging influence on the part of the Portuguese Government should be taken to mean that, owing to that influence, Telefónica had lost all autonomy in implementing the decisions of the public authorities, which could remove its conduct from the scope of Article 101(1) TFEU (see, to that effect, judgment of 18 September 1996, Asia Motor France and Others v Commission, T‑387/94, ECR, EU:T:1996:120, paragraphs 65 and 69).

112 In answer to that question, the applicant confirmed that it had continued to be an independent player in the sense that it could have not signed the agreement. As regards, more specifically, the clause, the applicant stated that, in accordance with its written pleadings, its argument concerning Telefónica’s autonomy during the negotiation process should be understood as follows: Telefónica remained independent, in the sense that it was able to ensure that the phrase ‘to the extent permitted by law’ was inserted into the clause, but it could not have excluded the clause, as thus amended, in its entirety without being in danger of jeopardising the transaction as a whole.

113 In those circumstances, it is appropriate to observe that, in so far as the applicant’s statements may be taken to mean that it claims that it would have lost all autonomy in implementing the decisions of the public authorities, which should remove its conduct from the application of Article 101(1) TFEU, such an argument cannot in any event be upheld.

114 In that regard, it should be borne in mind that it follows from the case-law that Articles 101 TFEU and 102 TFEU apply only to anti-competitive conduct engaged in by undertakings on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 101 TFEU and 102 TFEU do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (see judgment of 10 April 2008, Deutsche Telekom v Commission, T‑271/03, ECR, EU:T:2008:101, paragraph 85 and the case-law cited).

115 The possibility of excluding particular anti-competitive conduct from the scope of Articles 101 TFEU and 102 TFEU, on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has eliminated any possibility of competitive conduct on their part, has been only partially accepted by the Court of Justice (see judgment in Deutsche Telekom v Commission, cited in paragraph 114 above, EU:T:2008:101, paragraph 86 and the case-law cited).

116 In fact, although the conduct of an undertaking may escape the application of Article 101(1) TFEU on account of a lack of autonomy on its part, it does not follow, however, that all conduct sought or directed by the national authorities falls outside the scope of that provision. Thus, if a State measure encompasses the elements of an agreement concluded between traders in a given sector or is adopted after consulting the traders concerned and with their agreement, those traders cannot rely on the binding nature of the rules in order to escape the application of Article 101(1) TFEU (see judgment in Asia Motor France and Others v Commission, cited in paragraph 111 above, EU:T:1996:120, paragraph 60 and the case-law cited).

117 In the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission can therefore conclude that there was a lack of autonomy on the part of the traders in question only if it appears on the basis of objective, relevant and consistent evidence that that conduct was imposed on them by the national authorities through the exercise of irresistible pressures, such as the threat to adopt State measures likely to cause them to sustain substantial losses (judgments in Asia Motor France and Others v Commission, cited in paragraph 111 above, EU:T:1996:120, paragraph 65; of 11 December 2003, Minoan Lines v Commission, T‑66/99, ECR, EU:T:2003:337, paragraph 179; and of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission, T‑357/06, ECR, EU:T:2012:488, paragraph 44).

118 In addition, in order to escape the application of Article 101(1) TFEU, such pressures must be applied in such a way as to deprive the traders concerned of any autonomy in implementing the decisions of the public authorities (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph 111 above, EU:T:1996:120, paragraphs 65 and 69). In the absence of such a loss of autonomy, the fact that anti-competitive conduct was favoured or encouraged by the public authorities has in itself no impact from the aspect of the applicability of Article 101 TFEU (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph 111 above, EU:T:1996:120, paragraph 71 and the case-law cited).

119 In the present case, the applicant cannot claim that the alleged actions of the Portuguese Government caused it to lose all autonomy. It is apparent from the file, and in particular from Telefónica’s internal email of 6 July 2010 (see paragraphs 152 and 338 below), that the final agreement is the outcome of a joint arrangement between the parties. Nor is there any evidence to show that those provisions were imposed unilaterally by the Portuguese Government (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph 111 above, EU:T:1996:120, paragraphs 65 and 69).

120 Although the arguments put forward by the applicant with regard to Telefónica’s autonomy when concluding the agreement cannot therefore lead the Court to conclude that Telefónica lost all autonomy in implementing the decisions of the public authorities, which could remove its conduct from the application of Article 101(1) TFEU, it is nonetheless necessary to examine the other factors put forward by the applicant in relation to the context in which the clause was introduced and the agreement was negotiated, in accordance with the principle that, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition to be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part, while the intention of the parties must also, where appropriate, be taken into account (see judgment in CB v Commission, cited in paragraph 100 above, EU:C:2014:2204, paragraphs 53 and 54 and the case-law cited).

d) The context of the introduction of the clause in the agreement relating to the Vivo transaction and the conduct of the parties

121 The applicant claims that the fact that the clause was linked to the Vivo transaction and required by the Portuguese Government, and the fact that Telefónica did its utmost to limit the anti-competitive content of the clause, must be taken into account when analysing the clause and the practical purposes of the safeguard ‘to the extent permitted by law’ and show that that safeguard changed the clause into an obligation to undertake a self-assessment of the possibility of a restriction of competition.

The alleged pressure exercised by the Portuguese Government

122 The arguments put forward by the applicant in order to show that the clause was a ‘condition sine qua non’ of the completion of the Vivo transaction may be summarised, in essence, as alleging that the clause was a necessary condition in order for the Portuguese Government not to block that transaction.

– The principles relating to the burden of proof

123 It should be noted that in the present case the dispute does not concern the existence of the clause, which is common ground. However, the parties are disagreed on whether the evidence put forward by the applicant is capable of showing that the clause was a necessary condition in order for the Portuguese Government not to block the Vivo transaction. In addition, in the applicant’s submission, recognition of that alleged influence exercised by the Portuguese Government would establish that the clause did not contain a non-compete obligation but a self-assessment obligation and therefore did not constitute an infringement of Article 101 TFEU.

126 In the assessment of the evidence adduced by the Commission, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in the context of an action for annulment of a decision imposing a fine (judgments in JFE Engineering and Others v Commission, cited in paragraph 125 above, EU:T:2004:221, paragraph 177; of 27 September 2006, Dresdner Bank and Others v Commission, T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP, ECR, EU:T:2006:271, paragraph 60; and in E.ON Energie v Commission, cited in paragraph 124 above, EU:T:2010:516, paragraph 51).

127 In the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is now laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union and which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (judgments of 8 July 1999, Hüls v Commission, C‑199/92 P, ECR, EU:C:1999:358, paragraphs 149 and 150; Montecatini v Commission, C‑235/92 P, ECR, EU:C:1999:362, paragraphs 175 and 176; in E.ON Energie v Commission, cited in paragraph 124 above, EU:C:2012:738, paragraphs 72 and 73; and in JFE Engineering and Others v Commission, cited in paragraph 125 above, EU:T:2004:221, paragraph 178).

128 In addition, it follows from the case-law of the Court of Justice that it is for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraph 78, and of 17 June 2010, Lafarge v Commission, C‑413/08 P, ECR, EU:C:2010:346, paragraph 29).

129 Although according to those principles the burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (judgments in Aalborg Portland and Others v Commission, cited in paragraph 128 above, EU:C:2004:6, paragraph 79, and in Lafarge v Commission, cited in paragraph 128 above, EU:C:2010:346, paragraph 30).

130 It should also be pointed out that an undertaking cannot transfer the burden of proof to the Commission by relying on circumstances which it is not in a position to establish. In other words, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission (see judgment in E.ON Energie v Commission, cited in paragraph 124 above, EU:T:2010:516, paragraph 56 and the case-law cited).

131 It is in the light of those principles that the arguments put forward by the applicant should be assessed.

– Contested decision

132 In the present case, the Commission stated, in recital 71 of the contested decision, that it did not dispute that the Portuguese Government had followed the negotiations of the Vivo transaction, made public statements and blocked the third offer by exercising the special rights attached to the golden shares that it held in PT. The Commission acknowledged in that recital that, as submitted by the parties and shown in the numerous press articles placed on the file, the Vivo transaction was particularly sensitive in Portugal, from a political viewpoint.

133 In recital 72 of the contested decision, the Commission noted that the parties seemed to have a different interpretation of the Portuguese Government’s position during the negotiations. According to Telefónica, the protection afforded to PT (by means of the clause) allowed the Portuguese Government not to oppose the Vivo transaction. According to PT, the Portuguese Government was particularly concerned that PT would maintain a presence in Brazil. On that point, and according to PT, the signature of the draft agreement ensuring PT’s presence in Brazil was essential in order to reassure the Portuguese Government and thus to unblock the situation.

134 The Commission proceeded, in recital 73 of the contested decision, to point out that Telefónica had not placed on the file any statement of the Portuguese Government referring to its desire or the need to insert the clause in the context of the Vivo transaction, even if it were considered that the Portuguese Government had suggested that it would oppose any takeover of PT by Telefónica, in order to preserve PT’s Portuguese dimension.

135 In conclusion, the Commission noted, in recital 74 of the contested decision, that even if Telefónica was convinced that the clause was regarded as essential or even desired by the Portuguese Government, no statement of that Government supported that position, and that Telefónica had never shown that the clause constituted a response to a requirement of the Portuguese Government in the context of the negotiations relating to the Vivo transaction.

– The evidence adduced by the applicant

136 The applicant claims that the Portuguese Government had two linked objectives, namely to protect PT in Brazil and to protect PT in Portugal, and that the instruments whereby those two objectives were to be achieved were separate. In order to safeguard PT’s dimension and role on the Brazilian market, the solution was to increase Vivo’s selling price as much as possible and to replace the investment in that operator with the investment in another operator of similar size in Brazil, which explains the pressure applied to increase the price of the transaction and the fact that the agreement was not signed before a preliminary agreement had been secured for the acquisition of a significant shareholding in Oi. Furthermore, in order to ensure that PT continued as a leading undertaking in the Portuguese market, independent of non-Portuguese undertakings, the solution was the clause. The Government no doubt thought that the collaboration with Telefónica that had thus far existed through Vivo should be replaced by a contractual non-aggression protection on the Iberian market. The clause thus became an essential element in order to avoid the Government veto and to ensure the success of the transaction.

137 The limited and decontextualised references in the contested decision to the actions of the Portuguese Government do not permit a proper understanding of the scope of that Government’s intervention to protect PT both in Brazil and in Portugal, which consisted in ‘direct and indirect interlocution’ with Telefónica throughout the negotiation of the transaction.

138 Although the applicant accepts that it is not easy to follow the documentary trail of those contacts, it claims that there is a series of indicia and consistent factors which, taken together, demonstrate the Portuguese Government’s influence.

139 In that regard, first, the applicant refers to the numerous public messages which the Portuguese Government conveyed via the press and the harmony between PT, the Government and the hard core of PT’s shareholders, which was covered in the press; the conduct of the Portuguese Government during the negotiation of the extension of the third offer on the morning of 17 July 2010, attested by an email from the Portuguese Prime Minister’s principal private secretary, and, last, the pressure applied by that Government on the occasion of the fourth offer, which was subject to its approval, as PT acknowledged in paragraph 136 of its observations on the statement of objections.

140 Second, the applicant claims that it expressly asked PT, on 27 July 2010, to exclude any non-compete agreement, but that PT refused to do so, no doubt owing to the pressure exercised by the Portuguese Government. In order to demonstrate that point, the applicant asks the Court to take witness evidence by inviting Telefónica’s representatives who took part in the negotiations to testify before it.

141 Third, the applicant submits that the actual origin of the clause in PT’s counter-offer (see paragraph 11 above) is clear proof of the pressure exercised by the Portuguese Government, since the clause papered among the messages from that Government concerning the protection of the national strategic asset that was PT, at the very time when the rumours of a possible takeover of PT by Telefónica as a means of acquiring Vivo began to spread. The non-compete agreement clearly appeared as a response to the Portuguese Government’s requirement that PT must be protected against a possible takeover by Telefónica.

142 Fourth, the applicant asserts that the Portuguese Government consistently threatened Telefónica that it would block the transaction by exercising its veto, and recalls that the Portuguese Government blocked the transaction at PT’s general assembly on 30 June 2010; that that Government took issue with PT’s shareholders and its board of directors for not having served the national interests by accepting the third offer at the meeting on 30 June 2010 and closely followed the ensuing negotiations, which is the only explanation for the fact that PT’s offers systematically referred to the interests of ‘all the parties’; that the Government sent personal messages to Telefónica in its public statements, quoted in press articles, such as ‘Telefónica should listen to us’ or ‘I am thinking about the strategic interests of PT and of my country’; that it sent messages to PT’s board of directors via C.G. de D., a public financial entity forming part of PT’s shareholders; and, last, that Telefónica’s internal email of 6 July 2010 is particularly revealing of the pressure exercised by the Portuguese Government.

143 As a preliminary point, it is appropriate to note that Telefónica stated at the hearing, in answer to a question from the Court, that the evidence adduced in order to demonstrate the alleged pressure exercised by the Portuguese Government in order to have the clause inserted in the agreement were press articles annexed to the application, correspondence with the Office of the Portuguese Prime Minister supplied in Annex A.58, the Telefónica internal email supplied in Annex A.50, PT’s reply to the Commission’s request for information of 5 January 2011 and PT’s reply to the statement of objections.

144 Next, it should be pointed out that the evidence and indicia adduced by the applicant are not capable of demonstrating that the Portuguese Government imposed the clause. It appears appropriate to distinguish the Portuguese Government’s interest in the Vivo transaction as a whole and its actions in order to protect PT during that transaction from the assertion that that Government imposed the clause. Although it relies on the alleged actions of the Portuguese Government in connection with the Vivo transaction, the applicant does not refer to any measure or any action that might have related to the clause. Although the evidence on which the applicant relies shows that the Portuguese Government followed the negotiations relating to the Vivo transaction and was concerned to protect PT’s position, which, moreover, the Commission acknowledges in the contested decision, that evidence is not capable of demonstrating that the Portuguese Government imposed the clause: none of that evidence shows any action on the part of the Portuguese Government in connection with the clause; and, moreover, and in any event, as the Commission points out, even if the Portuguese Government’s interest had been to protect PT against a takeover by Telefónica, the clause would not be capable of preventing such a takeover.

145 In the first place, it should be stated that the evidence adduced by the applicant does not contain indicia capable of showing that the Portuguese Government imposed the clause.

146 First, as regards the public messages that the Portuguese Government distributed in the press and the harmony between PT, the Government and the hard core of PT’s shareholders, which was covered in the press, it must be stated that the applicant does not refer to any press article that mentions that the Government desired the clause and that the applicant acknowledged at the hearing that none of the articles which it had submitted contained an express statement by the Portuguese Government asserting that it required or desired the clause or that it would not sign the agreement in the absence of the clause or, at the very least, an express reference to the clause. That absence of any statements relating to the clause or, more generally, to a non-compete commitment relating to the Iberian market is all the more striking because the Portuguese Government clearly asserted elsewhere that its main requirement as regards the agreement was to protect PT’s position in Brazil.

147 Second, as regards the correspondence supplied as Annex A.58 to the application, namely a series of SMS sent, in particular, by Mr A.V., Telefónica’s external counsel and representative in the contacts and negotiations with the Portuguese Government, during July 2010, which concerned an alleged agreement of the Portuguese Prime Minister concerning the agreement relating to the Vivo transaction, and an email sent by the principal private secretary of the Portuguese Prime Minister to Mr A.V. on 17 July 2010, it is sufficient to note, without there being any need to examine further whether the person mentioned in the exchange of SMS was indeed the Portuguese Prime Minister, which the Commission doubts, that, while that exchange of SMS and that email may attest to the Portuguese Government’s interest in the Vivo transaction, they make no mention of the clause, as the applicant confirmed at the hearing, in answer to a question from the Court.

148 Third, concerning the fact that the fourth offer was submitted to the Portuguese Government for its approval, it must be stated that, in paragraph 136 of its reply to the statement of objections, PT merely asserts that it consulted its shareholders, including the State, which appears to be the procedure. In any event, as the Commission correctly states, even if the offer was subject to the approval of the Portuguese Government, which was one of PT’s shareholders, that would neither prove nor suggest that that Government required or desired the clause.

149 Fourth, as regards the assertion that Telefónica expressly asked PT on 27 July 2010 to exclude any non-compete agreement and, moreover, that PT refused to do so, even on the assumption that there was a genuine attempt on Telefónica’s part to have the clause deleted, it cannot be inferred from PT’s alleged refusal — on the assumption that it is true — to delete the clause that the Portuguese Government had any interest in the clause, so that the request for examination of witnesses on that point (see paragraph 140 above) is ineffective in the present context: in fact, the applicant does not claim that the witnesses which it requests the Court to examine would be capable of confirming that PT stated that its alleged refusal to delete the clause was attributable to any action whatsoever on the part of the Portuguese Government.

150 Fifth, as regards the assertion that the actual origin of the clause in PT’s counter-offer (see paragraph 1 above) is clear proof of the pressure exercised by the Portuguese Government, since the clause appeared among the messages from that Government relating to the protection of the national strategic asset that was PT and therefore constitutes the response to the requirement to protect PT against a possible takeover by Telefónica, it must be stated that that is a hypothesis which finds no support whatsoever in the messages from the Portuguese Government and must therefore be rejected.

151 Nor, sixth, are the alleged indicia referred to in paragraph 107 capable of demonstrating that the Portuguese Government imposed the clause. The Government’s threat to block the transaction and the actual implementation of that threat by the exercise of the veto attached to the Government’s golden shares (see paragraphs 6 and 18 above) do indeed demonstrate its desire to protect PT, and in particular PT’s presence in Brazil, but do not demonstrate that it desired the clause. The same applies to the criticisms allegedly made of PT’s shareholders, the statements reported by the press and the messages allegedly sent to PT’s board of directors via C.G. de D., whereas the fact that PT’s offers systematically mentioned the interests of ‘all the parties’ is irrelevant so far as the clause is concerned.

152 As regards, last, the Telefónica internal email of 6 July 2010, it should be pointed out that, as the Commission observes (recitals 49, 68, 165 and 171 of the contested decision), the applicant transcribes that email inaccurately in paragraph 44 of the application. The options for amending the offer contemplated by Telefónica in that internal email — including the option of extending the term of applicability of the clause — do not respond solely to the objective of ‘including aspects which, without being able to harm us, would help the Portuguese Government to reconsider its radical position’, but also the objective of ‘recasting the offer, without increasing the price, in such a way that it can be discussed and approved by at PT board level’. The email does not distinguish, among the options, those which respond to one objective or to another. In addition, in that email, Telefónica stated that ‘it would be necessary to envisage a liturgy/scenario for any new conditions, giving the impression that, as was explained to us, we sat down at the negotiating table and new conditions were “imposed” on us (when in fact we proposed them)’. It cannot therefore be inferred from that email that the Portuguese Government forced Telefónica to include the clause in the agreement relating to the Vivo transaction.

153 Seventh, the applicant takes issue with the Commission for having refused to recognise that the clause constituted a ‘condition sine qua non’ of the implementation of the transaction, on the basis of an alleged difference between PT and Telefónica as to the assessment of the importance of the clause in the agreement, when such a difference did not exist. The Commission pointed to alleged inconsistencies between the approaches taken by PT and Telefónica with respect to secondary aspects of the facts, in order to deprive their assertions in their defence of all credibility. Yet the applicant does not refer to any statement indicating that PT acknowledged that the Portuguese Government imposed the clause, but merely relies on paragraphs 48 to 51 of PT’s reply to the statement of objections, where PT stated, in particular, that ‘the purchase [of its] main assets in Brazil and the possibility of a takeover by Telefónica … were scenarios that should be treated with the utmost caution’, that, ‘in addition, the State was a shareholder and held a [golden share] in the undertaking’ and that ‘the Portuguese Government [had] clearly stated that it was not prepared to yield an inch in [its] defence … publicly putting pressure on [its] board of directors’.

154 Eighth, and last, it should also be noted, as the Commission observes, that the applicant has not provided a satisfactory explanation of the fact that the clause imposed a bilateral non-compete obligation, that is to say, an obligation that also benefited Telefónica, or of the fact that the Portuguese Government wished to impose a non-compete obligation on PT for the benefit of Telefónica. Telefónica’s argument in that regard cannot succeed, without there being any need to settle the question, on which the parties are divided, whether the initiative for the bilateral nature of the clause lay with PT or with Telefónica.

155 In that regard, the applicant maintains that, since it was always its intention to deactivate the clause, it would have maintained the bilateral nature of the clause, since that allowed it to avoid any legal disputes that might arise and provided a simple and expeditious way to resolve the required test of legality. That argument cannot be upheld, since, in any event, the fact that such a test was applied cannot be taken to be established (see paragraphs 181 to 192 below).

156 Furthermore, the applicant claims that the non-compete obligation imposed on PT for the applicant’s benefit was introduced by PT for purely aesthetic reasons, in order to facilitate the negotiations with it, but were of no advantage to it, since PT was not a potential competitor in Spain. However, the applicant has not shown that any insurmountable barriers prevented PT from entering the Spanish market (see paragraphs 223 and 224 below), in such a way that a clause intended to prevent it from doing so would have been of no benefit to Telefónica. As the Commission correctly points out, moreover, the argument that ‘PT was the main beneficiary of the clause’ amounts in any event to recognition that there was potential competition between the parties in Portugal.

157 In the second place, as regards the applicant’s argument that the Portuguese Government wished to protect PT in Portugal by preventing a takeover of PT by Telefónica, that assertion is irrelevant in relation to the clause, since the clause does not prohibit Telefónica from buying PT. It must be stated that the clause prohibits the parties from competing (see paragraph 1 above) and purchasing PT is not the same as competing with it.

158 According to the applicant and its submissions at, in particular, the hearing, the wording of the clause would have allowed PT and the Portuguese Government to interpret the clause protectively in the event of a takeover, since the clause prevented Telefónica from entering the sector in which PT was present, and acquiring control of PT would mean entering the sectors in which PT was present. The applicant claims that that interpretation is consistent with the Commission’s, according to which the clause prohibited the parties from acquiring shareholdings or increasing such shareholdings in other undertakings, and also with the Portuguese Government’s intention of protecting the PT’s Portuguese character. In the latter regard, the applicant emphasises, in particular, that the introduction of a non-compete clause was the direct consequence of PT’s and the Portuguese Government’s concerns about a possible takeover of PT by Telefónica.

159 In addition, the applicant claims that ‘the drafting of the clause is not a legal model, but the result of tortuous negotiation on which the political and media-related objectives weighed heavily’. In the applicant’s submission, in order to satisfy the Government’s interest, it was sufficient that the existence of an intention to protect PT fully was clearly expressed for the benefit of the media and that that intention was reflected in the agreement.

160 The applicant’s argument lacks conviction. Even on the assumption that the Portuguese Government wished to protect PT, by means of the clause, from being taken over by Telefónica, it is not credible that it would validate the clause without concerning itself with the precise wording of the document; on the contrary, the expectation would have been that the Government would ascertain that the clause which it had imposed would really ensure that its objectives would be pursued.

161 Furthermore, it must be stated that there is nothing in the file that would undermine the finding that it is clear from the terms of the clause that it does not prohibit Telefónica from making a takeover bid for PT. The clause prohibits each of the parties from engaging in projects in the telecommunication business that could be deemed to be in competition with the other party within the Iberian market during the relevant period and a takeover of PT would not constitute engaging in a project that could be deemed to be in competition with PT, unlike the acquisition of shares in other undertakings.

162 Since the applicant has neither put forward any evidence capable of showing that the Portuguese Government had imposed the clause, nor shown that the Portuguese Government’s actions could be interpreted as meaning that it wished, by means of the clause, to prevent a takeover of PT by Telefónica, the applicant’s argument alleging that pressure was applied by the Portuguese Government in respect of the clause must be rejected.

– The alleged breach of the obligations associated with the investigation and of the principle of sound administration

163 Having regard to the fact that the applicant has not put forward any indicia apt to show that the Portuguese Government imposed the clause, the arguments whereby it takes issue with the Commission for having breached its obligations associated with the investigation and, accordingly, the principles relating to the burden of proof must be rejected. In application of the case-law cited in paragraph 130 above, it must be considered that the evidence adduced by the Commission is such as to require the applicant to provide an explanation or justification, failing which it is permissible to conclude that the Commission satisfied its obligations as regards the burden of proof. In so far as the applicant has merely adduced the evidence which has just been examined and from which it is in no way apparent that the Portuguese Government manifested any interest whatsoever in the clause, it must be concluded that the applicant has failed to adduce evidence in support of its assertion that the clause had been imposed by that Government or that it had in any event been a ‘condition sine qua non’ for it not to block the agreement relating to the Vivo transaction (see, to that effect, judgment in Lafarge v Commission, cited in paragraph 128 above, EU:C:2010:346, paragraph 32).

164 It follows that, in the absence of indicia to that effect, the applicant also cannot plead breach of the principle of sound administration owing to the Commission’s alleged failure to use the legal instruments available to it in order to investigate the pressure allegedly applied to Telefónica by the Portuguese Government. Although the principle of sound administration requires the Commission to play its part, using the means available to it, in establishing the facts and the relevant circumstances, and although it must examine carefully and impartially all the relevant aspects of the individual case (see judgment in E.ON Energie v Commission, cited in paragraph 124 above, EU:T:2010:516, paragraphs 75 and 76 and the case-law cited), in this instance the applicant has not shown that the Commission had not sufficiently examined the evidence adduced by the parties and the Commission cannot be required to use its powers of investigation in order to prove a matter which is only alleged, but which is not supported by any element of the evidence adduced by the parties (see, to that effect, judgment in E.ON Energie v Commission, cited in paragraph 124 above, EU:T:2010:516, paragraph 56 and the case-law cited).

165 In addition, the applicant’s assertion that to believe that there may be proof that a Government intervened in order to impose an illegal clause amounts to ‘naïveté’ and is ‘contrary to common sense’, and that to require such proof constitutes a breach of the principles applicable to the burden of proof, cannot be upheld. As the Commission correctly states, if, as the applicant maintains, the clause was an essential factor of the success of the transaction, it would then be unlikely that there