Parties

Grounds

Operative part



Parties

In Cases T‑56/09 and T‑73/09,

Saint-Gobain Glass France SA, established in Courbevoie (France),

Saint-Gobain Sekurit Deutschland GmbH & Co. KG, established in Aix-la-Chapelle (Germany),

Saint-Gobain Sekurit France SAS, established in Thourotte (France),

represented initially by B. van de Walle de Ghelcke, B. Meyring, E. Venot and M. Guillaumond, and subsequently by B. van de Walle de Ghelcke, B. Meyring and E. Venot, lawyers,

applicants in Case T‑56/09,

Compagnie de Saint-Gobain SA, established in Courbevoie, represented by P. Hubert and E. Durand, lawyers,

applicant in Case T‑73/09,

v

European Commission, represented initially by A. Bouquet, F. Castillo de la Torre, M. Kellerbauer and N. von Lingen, and subsequently by A. Bouquet, F. Castillo de la Torre, M. Kellerbauer and F. Ronkes Agerbeek, acting as Agents,

defendant,

supported by

Council of the European Union, represented by E. Karlsson and F. Florindo Gijón, acting as Agents,

intervener in Case T‑56/09,

APPLICATIONS for annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009 and also by Commission Decision C(2013) 1118 final of 28 February 2013, in so far as it concerns the applicants, and also, in the alternative, an application for annulment of Article 2 of that decision in that it imposes a fine on the applicants or, further in the alternative, applications for reduction of that fine,

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2012,

gives the following

Judgment

Grounds

Background to the dispute

1. The present actions were brought in order to secure the annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union (OJ 2003 C 173, p. 13). In the contested decision, the Commission of the European Communities, in particular, found that a number of undertakings, including the applicants, had infringed those provisions by participating, for various periods between March 1998 and March 2003, in a set of anti-competitive agreements and concerted practices in the carglass sector of the EEA (Article 1 of the contested decision).

2. Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG and Saint-Gobain Sekurit France SAS (together ‘Saint-Gobain’), the applicants in Case T‑56/09, are companies active in the manufacture, processing and distribution of materials, including carglass. They are wholly-owned subsidiaries of Compagnie de Saint-Gobain SA, the applicant in Case T‑73/09. Pilkington Group Ltd consists, inter alia, of Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA (together ‘Pilkington’). Pilkington, which has also brought an action for annulment of the contested decision (Case T‑72/09), is one of largest manufacturers of glass and glazing products in the world, in particular in the automobile sector. Soliver NV, which has brought an action for annulment of the contested decision (Case T‑68/09), is a smaller glass manufacturer, active in, among other areas, the carglass sector.

3. Asahi Glass Co. Ltd (‘Asahi’) is a manufacturer of glass, chemical products and electronic components, established in Japan. Asahi holds all the shares in the Belgian glass manufacturer Glaverbel SA/NV, which itself holds 100% of AGC Automotive France (‘AGC’). Before 1 January 2004 AGC was known as Splintex Europe SA (‘Splintex’). Asahi, which is one of the addressees of the contested decision, has not brought an action against that decision.

4. The investigation which led to the adoption of the contested decision was initiated after the Commission received letters from a German lawyer, acting on behalf of an unidentified client, containing information relating to agreements and concerted practices between various undertakings active in the production and distribution of carglass.

5. In February and March 2005 the Commission carried out inspections at various premises of the applicants and also of Pilkington, Soliver and AGC. The Commission seized several documents and files in the course of those inspections.

6. Following those inspections, Asahi and Glaverbel and their relevant subsidiaries (together ‘the leniency applicant’) submitted an application for immunity from or a reduction of the amount of the fine, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). The application for conditional immunity from a fine was rejected by the Commission on 19 July 2006, although the Commission informed the leniency applicant that, pursuant to point 26 of the 2002 Leniency Notice, it intended to apply to it a reduction of 30 to 50% of the fine which would normally have been imposed on it.

7. Between 26 January 2006 and 2 February 2007 the Commission sent various requests for information to the applicants and also to Pilkington, Soliver, Asahi, Glaverbel and AGC, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). The undertakings concerned replied to those various requests.

8. In addition, the Commission sent requests for information, on the same basis, to a number of car manufacturers, to an Italian coach manufacturer and also to two glass industry trade associations, which also replied to those requests.

9. On 18 April 2007 the Commission adopted a statement of objections relating to a single and continuous infringement consisting in agreements or concerted practices between carglass manufacturers with a view to the allocation of contracts for the supplies to car manufacturers. That statement of objections was served on the applicants and also on Pilkington, Soliver, Asahi, Glaverbel and AGC. Each of the undertakings to which that statement of objections was addressed was invited by the Commission to submit comments in that respect. A hearing, in which the addressees of the statement of objections took part, was held at the Commission’s premises on 24 September 2007.

Contested decision

10. The Commission adopted the contested decision on 12 November 2008. It found, in particular, that Saint-Gobain and Compagnie de Saint-Gobain had participated in the agreements and concerted practices referred to at paragraph 1 above from 10 March 1998 to 11 March 2003 (Article 1(b) of the contested decision) and initially imposed on them, ‘jointly and severally’, a fine of EUR 896 million (Article 2(b) of the contested decision).

11. The leniency applicant, which was found to have participated in the infringement from 18 May 1998 to 11 March 2003, was ordered to pay a fine of EUR 113.5 million (Article 1(a) and Article 2(a) of the contested decision).

12. As regards, Pilkington, the Commission decided that that undertaking had participated in the agreements and concerted practices from 10 March 1998 to 3 September 2002 (Article 1(c) of the contested decision). It initially imposed on that undertaking a fine of EUR 370 million (Article 2(c) of the contested decision).

13. As regards, last, Soliver, the Commission considered that it had participated in the infringement from 19 November 2001 to 11 March 2003 (Article 1(d) of the contested decision). The Commission imposed a fine of EUR 4 396 000 on that undertaking (Article 2(d) of the contested decision).

14. In the contested decision, the Commission proceeds on the basis that the characteristics of the carglass market, namely, in particular, significant technical requirements and a high degree of innovation, favour large integrated suppliers with a global reach. AGC, Pilkington and Saint-Gobain are among the main carglass manufacturers in the world and, at the time of adoption of the contested decision, covered around 76% of world demand for glass for the original equipment market (carglass fitted in the factory while the vehicle is being assembled). The Commission also found a significant volume of trade in carglass between Member States and the EFTA Member States forming part of the EEA. Furthermore, car manufacturers negotiate contracts for the purchase of carglass at EEA level.

15. It follows from the contested decision that the carglass suppliers investigated by the Commission maintained their respective market shares during the infringement period, not only per ‘vehicle account’, that is to say, on the basis of the amount of glass per vehicle model, but also globally, all vehicle accounts together.

16. Pilkington, Saint-Gobain and AGC participated in trilateral meetings, sometimes called ‘club meetings’. Those meetings, organised by each of those undertakings in turn, were held in hotels in various towns in Europe, in the private homes of employees of those undertakings and also at the premises of the trade association Groupement européen de producteurs de verre plat (European Flat Glass Producers’ Group) (GEPVP) and at the premises of the Associazione Nazionale degli Industriali del Vetro ([Italian] National Association of the Glass Industries) (Assovetro).

17. Bilateral meetings or contacts were also arranged between those competitors, in order to discuss supplies of carglass for current or future models. Those various contacts or meetings concerned the evaluation and monitoring of market shares, the allocation of deliveries of carglass to manufacturers and the exchange of information on prices, as well as the exchange of other commercially sensitive information and the coordination of the pricing and supply strategies of those various competitors.

18. The first of those bilateral meetings, attended by Saint-Gobain and Pilkington, took place on 10 March 1998 at the Hyatt Regency hotel at Charles de Gaulle Airport, in Paris (France). The first trilateral meeting took place in the spring of 1998, in Königswinter (Germany), at the private home of the account manager of Splintex (AGC). Those meetings were preceded, in 1997, by exploratory contacts between Saint-Gobain and Pilkington, the aim of which was the technical harmonisation of the privacy glass manufactured by those undertakings, in terms of colour, thickness and light transmission. The Commission did not include those contacts in the cartel, however, since they essentially related to an advanced stage in the manufacture of flat glass, before it is transformed into carglass.

19. The Commission identifies in the contested decision almost 90 meetings and contacts between the spring of 1998 and March 2003. The last trilateral contact took place on 21 January 2003, while the last bilateral contact was during the second fortnight of March 2003, between Saint-Gobain and AGC. The participants used abbreviations or code names to identify themselves at those meetings and contacts.

20. Soliver’s participation in the cartel did not begin until 19 November 2001 and lasted until 11 March 2003. Soliver was contacted by Saint-Gobain in 2000 in an attempt to involve it in the cartel. The initial participants in the cartel, Saint-Gobain, Pilkington and AGC, exploited, for that purpose, the fact that Soliver was dependent on the producers of the raw material, as it did not produce the flat glass necessary for the manufacture of carglass.

21. According to the contested decision, the cartel’s overall plan was to allocate supplies of carglass between the participants, with respect to both existing supply contracts and new contracts. That plan was designed to maintain the stability of the participants’ market shares. In order to achieve that objective, the participants, during the meetings and contacts referred to at paragraphs 16 to 20 above, exchanged price information and other sensitive information. In addition, they coordinated their pricing and supply policies. In particular, they co-ordinated their replies to requests for price quotations from car manufacturers, in such a way as to influence the car manufactures’ choice of a glass supplier, or indeed of more than one in the event of multiple supplies. The participants had two means of favouring the award of a supply contract to the agreed manufacturer, namely by not quoting at all or by quoting higher prices than the agreed manufacturer. Where necessary, correcting measures, taking the form of compensation granted to one or more participants, were decided on in order to ensure that the global supply situation at EEA level was in accordance with the agreed allocation. Where correcting measures would affect current supply contracts, the process used by competitors to adjust the balance of market shares consisted in warning car manufacturers that a technical problem or shortage of raw materials would disrupt deliveries of items ordered and suggesting a replacement supplier.

22. In order to maintain the agreed allocation of contracts, the participants in the cartel agreed on several occasions on price reductions to be granted to car manufacturers by reference to increased productivity, or even on price increases applied to car models where production was lower than forecast. They also agreed, where necessary, to limit the disclosure of information on their actual production costs to car manufacturers, in order to avoid too frequent requests for price reductions from those manufacturers.

23. The coordination aimed at the stability of market shares was made possible, notably, by the transparency on the carglass supply market. The evolution of market shares was calculated on the basis of production costs and sales forecasts, taking pre-existing supply contracts into consideration.

24. The Commission states in the contested decision that the leniency applicant confirmed that from 1998 at the latest representatives of Splintex participated, with certain competitors, in activities that were unlawful from the aspect of competition law. In addition, the fact that Saint-Gobain did not substantially contest the facts set out in the statement of objections must be understood to be an endorsement by that undertaking of the Commission’s description of the impugned meetings and contacts.

25. Last, Pilkington, Saint-Gobain and AGC agreed at a meeting held on 6 December 2001 on a new calculation method for the purpose of allocating and re-allocating supply contracts.

26. It was on the basis of that body of evidence that the Commission held Saint-Gobain, Compagnie de Saint-Gobain, Pilkington, Soliver and the leniency applicant liable for a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement.

27. The arrangements concluded between those parties constitute, according to the Commission, agreements or concerted practices within the meaning of those provisions which distorted competition on the carglass market. That infringement, moreover, was single and continuous, since the participants in the cartel expressed their joint intention to behave on the market in a certain way and adopted a common plan to limit their individual commercial autonomy by allocating supplies of carglass for cars and light commercial vehicles and also by distorting glass prices with the aim of ensuring overall stability and maintaining artificially high prices on the market. According to the contested decision, the frequency and the uninterrupted nature of those meetings and contacts, over a period of five years, had the consequence that all large manufacturers producing passenger cars and light commercial vehicles in the EEA were affected by the cartel.

28. The Commission also considered that there was no indication that the agreements and concerted practices between carglass suppliers resulted in efficiency benefits or promoted technical or economic progress in the carglass sector. The Commission therefore precluded the application of Article 81(3) EC in the present case.

29. As regards the identification of the addressees of the contested decision, the Commission considered, in particular, that Compagnie de Saint-Gobain indirectly held 100% of the shares in Saint-Gobain. In those circumstances, it considered that Compagnie de Saint-Gobain was presumed to have had a decisive influence on Saint-Gobain’s commercial policy. Other factors, such as the business structure of the group controlled directly or indirectly by Compagnie de Saint-Gobain (‘the Saint-Gobain group’) and the composition of Saint-Gobain’s board of directors, confirmed that decisive influence. As Compagnie de Saint-Gobain had not been in a position to rebut that presumption, the Commission concluded that it formed, together with Saint-Gobain, a single undertaking that had participated in the infringement and, accordingly, imposed on Compagnie de Saint-Gobain and Saint-Gobain a fine for which they are jointly and severally liable.

30. As regards the duration of the infringement, the Commission considered that Saint-Gobain and Compagnie de Saint-Gobain had participated in the infringement from 10 March 1998 to 11 March 2003. Pilkington’s participation was found to have lasted from 10 March 1998 to 3 September 2002, while Soliver was found to have participated in the infringement between 19 November 2001 and 11 March 2003.

31. As regards the calculation of the fines, the Commission first of all determined the value of each participating undertaking’s carglass sales within the EEA that were directly or indirectly connected with the infringement. In doing so, it drew a distinction between several periods. For the period beginning in March 1998 and ending on 30 June 2000, described as the ‘roll-out’ period, the Commission considered that it had evidence of the infringement for only a proportion of European car manufacturers. It therefore took into account, for that period, only carglass sales to manufacturers for which it had direct proof of the cartel. As regards the period between 1 July 2000 and 3 September 2002, the Commission observed that the accounts having formed the object of the cartel concerned at least 90% of sales within the EEA. It therefore concluded that, for that period, total sales of carglass within the EEA by the addressees of the decision should be taken into consideration. Last, at the end of the infringement period, between 3 September 2002 and March 2003, the cartel’s activities slowed down following the departure of Pilkington. Consequently, the Commission decided to take into account, for that period, only sales to car manufacturers for which it had direct proof of the cartel. A weighted annual average of those figures was then determined for each carglass supplier concerned, by dividing the values of sales referred to above by the number of months during which each of the suppliers had participated in the infringement and multiplying the result of that division by 12.

32. The Commission then observed that the infringement in question, which consisted in customer allocation, was among the most serious restrictions of competition. In the light of the nature of the infringement, its geographic scope and the combined market share of the undertakings which had participated, the Commission, when calculating the basic amount of the fine, took a proportion of 16% of the value of sales of each undertaking involved, multiplied by the number of years of its participation in the infringement. Furthermore, the basic amount of the fines was increased, for the purposes of deterrence, by an additional amount (or ‘entry fee’) fixed at 16% of the value of sales.

33. The basic amount of the fine imposed jointly and severally on Saint-Gobain and Compagnie de Saint-Gobain was increased by 60% to reflect the fact that this constituted a repeat infringement. As for the amount of the fine imposed on Soliver, it was reduced to 10% of that undertaking’s turnover, in accordance with Article 23(2) of Regulation No 1/2003. A reduction of 50% of the amount of the fine was granted to the leniency applicant, to take account of the evidence which it had submitted to the Commission and which had enabled the Commission to have a better understanding of the documents collected during the inspections.

34. On 11 February 2009 the Commission adopted Decision C(2009) 863 final, correcting the contested decision on a small number of points.

35. On 28 February 2013 the Commission adopted Decision C(2013) 1118 final, amending the contested decision with respect, inter alia, to the way in which Saint-Gobain’s sales to [confidential] before 31 May 1999 had been taken into account (‘the amending decision of 28 February 2013’). By that decision, the Commission amended the fine imposed on the applicants and set it at EUR 880 million.

Procedure and forms of order sought

36. By application lodged at the Court Registry on 13 February 2009, Saint-Gobain brought an action in Case T‑56/09. By application lodged at the Court Registry on 18 February 2009, Compagnie de Saint-Gobain brought an action in Case T‑73/09.

37. After the written procedure had been closed, and following a request from Compagnie de Saint-Gobain in Case T‑73/09 that the written procedure be re-opened, Compagnie de Saint-Gobain submitted an additional pleading, which arrived at the Registry on 6 September 2010. By a document received at the Registry on 22 October 2010, the Commission submitted its comments on that additional pleading.

38. The composition of the chambers of the Court was altered and the Judge-Rapporteur was assigned to the Second Chamber, to which this case was, consequently, assigned.

39. By order of 23 April 2012, the President of the Second Chamber, after hearing the parties, decided to join Cases T‑56/09 and T‑73/09 for the purposes of the oral procedure.

40. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 December 2012. The parties were asked on that occasion to submit their comments on the possible joinder of Cases T‑56/09 and T‑73/09 for the purposes of the judgment and stated that they had no comments in that regard.

41. In Case T‑56/09, Saint-Gobain claims that the Court should:

– annul the contested decision in so far as it concerns Saint-Gobain;

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

– further in the alternative, reduce the fine imposed on it in the contested decision to an appropriate amount;

– order the Commission to pay the costs.

42. The Commission contends that the Court should:

– dismiss the action in Case T‑56/09 as unfounded;

– order Saint-Gobain to pay the costs.

43. By letter received at the Court Registry on 19 February 2009, Saint-Gobain adjusted its claim for annulment, in order to seek, first, annulment of the version of the contested decision as amended by Decision C(2009) 863 final of 11 February 2009 and, second, and in the alternative, a reduction of the amount of the fine imposed in Article 2 of the amended decision.

44. By document lodged at the Court Registry on 7 May 2009, the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission in Case T‑56/09. The President of the Seventh Chamber of the Court granted that application by order of 7 July 2009.

45. The Council claims that the Court should:

– dismiss the action in Case T‑56/09 as unfounded;

– make the appropriate order as to costs.

46. In Case T‑73/09, Compagnie de Saint-Gobain claims that the Court should:

– annul the contested decision, in so far as it concerns Compagnie de Saint-Gobain, and draw all the necessary inferences as regards the amount of the fine;

– in the alternative, reduce the amount of the fine imposed on it, jointly and severally with Saint-Gobain, in the contested decision;

– order the Commission to pay the costs.

47. The Commission contends that the Court should:

– dismiss the action in Case T‑73/09 as unfounded;

– order Compagnie de Saint-Gobain to pay the costs.

48. Following the adoption of the amending decision of 28 February 2013, the Commission, by letter dated 7 March 2013, asked the Court to re-open the oral procedure.

49. After hearing the parties’ views on the matter, the Second Chamber of the Court, by order of 23 Apri l 2013, decided to re-open the oral procedure.

50. By letter dated 30 July 2013, Saint-Gobain informed the Court, in particular, that it had adjusted the form of order sought in order to take account of the amending decision of 28 February 2013. Saint-Gobain, claiming that its action for annulment continued to be well founded and confirming its request that the Commission be ordered to pay the costs, submitted, however, in the alternative, a request that the Commission be ordered to pay part of its costs. The Commission submitted its comments on that amending decision and also on Saint-Gobain’s withdrawal of one part of one of its pleas, in a letter dated 30 July 2013. By letters dated 22 July and 1 August 2013 respectively, the Council and Compagnie de Saint-Gobain informed the Court that they had no comments in that regard.

51. The oral procedure was then closed on 11 September 2013.

Law

52. It is appropriate, after hearing the parties, to join the present cases for the purposes of the judgment, in application of Article 50 of the Rules of Procedure of the Court.

I – The subject-matter of the action

53. In accordance with the comments submitted by the applicants both at the hearing and following the re-opening of the oral procedure, and also with the comments submitted by Saint-Gobain in its letter to the Court of 11 March 2013, the present actions must be deemed to have been brought against the contested decision as amended most recently by the amending decision of 28 February 2013, both in so far as the actions seek annulment of the contested decision and also in so far as they ask the Court to reduce the fine imposed jointly and severally on the applicants.

II – The principal claims, seeking annulment of the contested decision

54. It is appropriate, in the first place, to examine the pleas for annulment raised in Case T‑56/09. As some of the pleas and arguments put forward by Saint-Gobain coincide with those put forward by Compagnie de Saint-Gobain in Case T‑73/09, they will be examined together. It is appropriate, in the second case, to examine the specific arguments in the pleas for annulment put forward by Compagnie de Saint-Gobain which do not relate to any of the pleas put forward by Saint-Gobain.

A – Case T‑56/09

55. Saint-Gobain relies, in essence, on six pleas, alleging, first, illegality of Regulation No 1/2003; second, breach of the rights of the defence; third, insufficiency of the reasons on which the contested decision is based and an error in the calculation of the fine; fourth, an error of law in the imputation to Compagnie de Saint-Gobain of liability for the unlawful conduct of Saint-Gobain, breach of the principle that penalties should be applied solely to the offender and the principle of the presumption of innocence, and also misuse of powers; fifth, breach of the principles of non-retroactivity of penalties and protection of legitimate expectations; and, sixth and last, the disproportionate nature of the fine imposed on Saint-Gobain.

1. First plea: illegality of Regulation No 1/2003

56. By its first plea, Saint-Gobain raises a plea of illegality against Regulation No 1/2003, in that it entrusts the Commission with the power to conduct investigations and the power to impose penalties for infringements of Article 81 EC. As this plea is, in essence, identical to the plea raised by Compagnie de Saint-Gobain in Case T‑73/09, it is appropriate to examine the two pleas together.

57. This plea is divided into two parts. In the first place, the applicants submit that such a combination of functions on the Commission’s part constitutes a breach of the right to an independent and impartial tribunal. In the second place, they maintain that the power conferred on the Commission to adopt decisions imposing penalties pursuant to Article 81 EC is not consistent with the principle of the presumption of innocence.

a) First part: breach of the right to an independent and impartial tribunal

Arguments of the parties

58. Saint-Gobain and Compagnie de Saint-Gobain maintain, in essence, that the fact that the Commission combines the functions of investigation and imposition of penalties in the implementation of Article 81 EC, as organised by Regulation No 1/2003, constitutes a breach of the right to an independent and impartial tribunal, which is an essential guarantee of the right to a fair hearing laid down in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and also in Article 47(2) of the Charter of Fundamental Rights of the European Union.

59. Saint-Gobain claims, first of all, that the penalties imposed by the Commission in that context are criminal in nature, not only because the prohibition in Article 81 EC is addressed to every undertaking and not to a specific category of undertakings, but also on account of the deterrent and punitive objective of such penalties. The statement by the legislature, in Article 23(5) of Regulation No 1/2003, that those penalties are not of a criminal law nature is irrelevant in that regard. The right to an independent and impartial tribunal therefore applies without restriction in the present case.

60. In Saint-Gobain’s submission, it follows from the case-law that the Commission cannot be described as an independent and impartial tribunal.

61. The ensuing invalidity of Regulation No 1/2003 is not contradicted by the fact that the addressee of a decision imposing a penalty adopted by the Commission under that regulation has the option to bring an action for annulment of that decision before the General Court. It follows from the case-law of the European Court of Human Rights that the principles of independence and impartiality must be respected at the actual stage at which the penalty is ordered.

62. On the latter point, Saint-Gobain observes that it is only in exceptional circumstances, characterised by particular requirements of efficiency and by the insignificant nature of the infringements, that the power to take a decision on the merits of a criminal charge falling within the scope of Article 6(1) of the ECHR may be delegated to an administrative authority whose decisions are amenable to appeal before a tribunal exercising unlimited jurisdiction. Those circumstances do not apply in this case.

63. Even if the penalties at issue had to be regarded as not coming within the ‘hard core’ of criminal law, the limitation placed on the right to an independent and impartial tribunal by the system for the prosecution and penalising of infringements of European Union competition law would have to be found to constitute a breach of the principles of legitimacy and proportionality. Thus, there is no risk of overloading the judicial system that would justify the combination of functions organised by that system. In addition, the limitation of the right to an independent and impartial tribunal is disproportionate by reference not only to the gravity of the penalties imposed on the basis of Article 81 EC and Regulation No 1/2003, but also to the characteristics of the review carried out by the General Court where an action is brought.

64. In that regard, Saint-Gobain and Compagnie de Saint-Gobain maintain that when the Court adjudicates on an action for annulment of a decision imposing a penalty adopted by the Commission pursuant to Article 81 EC, it does not undertake a review involving the exercise of unlimited jurisdiction within the meaning of Article 6(1) of the ECHR. When carrying out such a review, the Court, as a general rule, confines itself to ascertaining whether there have been any manifest errors of assessment or misuse of powers. It should also be borne in mind that an action brought before the Court does not have suspensory effect vis-à-vis the contested decision.

65. Saint-Gobain further objects to the Commission’s argument that the plea of illegality raised against Regulation No 1/2003 amounts to calling into question the validity of Article 83(2) EC. That provision of the Treaty does not state that the Commission is to combine the functions of investigating and penalising infringements of the competition rules, as that choice was made by the legislature.

66. Last, Compagnie de Saint-Gobain maintains that the problem posed by the combination, on the part of the Commission, of the functions of prosecuting and penalising infringements of competition law is confirmed by the judgment of the European Court of Human Rights Dubus S.A. v. France , no. 5242/04, 11 June 2009.

67. The Commission and the Council reject that analysis.

68. While it does not deny that undertakings involved in an administrative procedure relating to competition matters law are entitled to an independent and impartial tribunal, the Commission disputes the viewpoint that Article 6(1) of the ECHR applies in the same way in respect of criminal law in the strict sense and in respect of administrative penalties.

69. The Commission observes in that regard that, as stated in Article 23(5) of Regulation No 1/2003, penalties adopted pursuant to Article 81 EC are not of a criminal law nature. It also claims that, as is clear from the case-law of the Courts of the European Union, the Commission cannot be regarded as a ‘tribunal’ which imposes criminal penalties. It follows that Article 6 of the ECHR does not apply to the Commission when it adopts decisions pursuant to Article 81(1) EC. In its judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission , not published in the ECR, the General Court thus held that the combination by the Commission of functions of investigation and the imposition of penalties in competition matters was not contrary to the protection of fundamental rights.

70. Saint-Gobain was wrong, moreover, to believe that it could infer from the case-law of the European Court of Human Rights three cumulative conditions for the delegation of the power to impose penalties to an administrative authority in matters falling outside the ‘hard core’ of criminal law. First, even fines of a high amount might fall outside the ‘hard core’ of criminal law. Second, the guarantees afforded by Article 6 of the ECHR do not prevent an administrative authority from being able to exercise the power to impose penalties in areas which are not characterised by a large number of infringements, provided that the objective pursued is lawful. It is clear that the efficiency of the prosecution and penalising of infringements of the competition rules is a lawful objective.

71. The Commission claims, furthermore, that the judicial review exercised by the Court has all the characteristics of review involving the exercise of unlimited jurisdiction within the meaning of the case-law of the European Court of Human Rights. That is the case, a fortiori, in relation to fines imposed in connection with cartels, the appropriate nature of which the Court may ascertain pursuant to Article 31 of Regulation No 1/2003. It is immaterial, in that regard, that the Court has thus far made only limited use of its unlimited jurisdiction to reduce the amount of fines imposed by the Commission.

72. Last, since this plea implies that it must be recognised that Commission decisions finding and penalising infringements of competition law are neither binding nor enforceable, it is contrary to the principle that Commission decisions benefit from a presumption of validity so long as they have not been annulled or withdrawn and also to the principle laid down in Article 242 EC that an action for annulment is not in principle to have suspensory effect vis-à-vis the contested measure.

73. The Council develops a line of argument which is essentially similar to the Commission’s. It claims, in particular, that the system of penalties established by Regulation No 1/2003 does not come within criminal law and that, accordingly, Article 6(1) of the ECHR is not applicable in the present case. The Council contends, moreover, that, by its plea of illegality, Saint-Gobain seeks in reality to call into question the validity of Article 83(2) EC, in that that provision states that it is for the legislature to define the respective roles of the Commission and the Court of Justice of the European Union in prosecuting and penalising infringements of the competition rules; and the Courts of the European Union do not have jurisdiction to rule on the validity of a provision of primary law.

74. Last, as regards the argument which Compagnie de Saint-Gobain derives from the judgment of the European Court of Human Rights in Dubus SA v. France , paragraph 66 above, the circumstances that gave rise to that judgment are different from those of the present case. That judgment concerned the exercise of the functions of prosecution and the imposition of penalties by the Banking Commission in France, whose decisions are in the nature of judicial decisions. However, the Commission cannot be considered to be a ‘tribunal’ within the meaning of Article 6 of the ECHR.

Findings of the Court

75. The Court considers, without there even being any need to rule on the plea of inadmissibility of the present plea submitted by the Commission in Case T‑73/09, that the first part of the first plea is unfounded, as follows, by analogy, from the case-law in which, in essence, the validity of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) was challenged (see, to that effect, Case T‑348/94 Enso Española v Commission [1998] ECR II‑1875, paragraphs 55 to 65; Case T‑156/94 Aristrain v Commission [1999] ECR II‑645, paragraphs 23 to 40; and Lafarge v Commission , paragraph 69 above, paragraphs 36 to 47).

76. It should be borne in mind, first of all, that the right to a fair hearing, guaranteed in Article 6(1) of the ECHR, is a general principle of EU law, now enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights.

77. Furthermore, according to consistent case-law, the Commission is not a ‘tribunal’ within the meaning of Article 6 of the ECHR (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 7) or within the meaning of the second paragraph of Article 47 of the Charter of Fundamental Rights. In addition, Article 23(5) of Regulation No 1/2003 expressly states that Commission decisions imposing fines for infringements of competition law are not to be of a criminal law nature.

78. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the right to a fair hearing applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraphs 20 and 21, and Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 143).

79. Thus, the European Court of Human Rights had occasion to state, in A. Menarini Diagnostics S.R.L. v. Italy , no. 43509/08, 27 September 2011, the conditions in which a fine which, taking into account the amount of the fine and the preventive and punitive objective which it pursues, constitutes a criminal matter may be imposed by an administrative authority which does not satisfy all the requirements of Article 6(1) of the ECHR. That case concerned the Italian system of penalising infringements of competition law. The European Court of Human Rights stated, in essence, that compliance with Article 6(1) of the ECHR did not preclude a ‘penalty’ from being imposed by an administrative authority with the power to impose penalties in competition law matters, provided that the decision adopted by that authority is amenable to subsequent review by a judicial body exercising unlimited jurisdiction. Among the characteristics of a judicial body of that type is the power to vary in all respects, in fact and in law, the decision taken by the body below. Thus, review by the court or tribunal, in such cases, cannot be limited to verifying the ‘procedural’ legality of the decision for review, as it must be in a position to assess the proportionality of the choices of the competition authority and to verify its technical assessments.

80. It must be held that judicial review by this Court of decisions whereby the Commission imposes infringements in the event of infringement of EU competition law satisfies those requirements.

81. It should first of all be emphasised, in that regard, that EU law confers on the Commission a supervisory role which includes the task of investigating infringements of Article 81(1) EC and Article 82 EC, while the Commission is required, in the context of that administrative procedure, to observe the procedural guarantees provided for by EU law. Furthermore, Regulation No 1/2003 empowers the Commission to impose, by decision, fines on undertakings and associations of undertakings which have infringed those provisions either intentionally or negligently.

82. In addition, the requirement for effective judicial review of any Commission decision that finds and punishes an infringement of the competition rules is a general principle of EU law which follows from the common constitutional traditions of the Member States ( Enso Española v Commission , paragraph 75 above, paragraph 60). That principle is now enshrined in Article 47 of the Charter of Fundamental Rights (Case C‑279/09 DEB [2010] ECR I‑13849, paragraphs 30 and 31, and Case C‑69/10 Samba Diouf [2011] ECR I‑7151, paragraph 49).

83. It follows from the case-law that the judicial review of the decisions adopted by the Commission in order to penalise infringements of competition law that is provided for in the Treaties and supplemented by Regulation No 1/2003 is consistent with that principle (see, to that effect, Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑12789, paragraph 106, and Case C‑386/10 P Chalkor v Commission [2011] ECR I‑13085, paragraph 67).

84. In the first place, the General Court is an independent and impartial court, established by Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1, corrected version in OJ 1989 L 241, p. 4). As is apparent from the third recital in the preamble to that decision, the General Court was established in order particularly to improve the judicial protection of individual interests in respect of actions requiring close examination of complex facts.

85. In the second place, the General Court has jurisdiction, under Article 3(1)(c) of Decision 88/591, to exercise the jurisdiction conferred on the Court of Justice by the Treaties and the acts adopted in implementation thereof in, inter alia, ‘actions brought against an institution by natural or legal persons pursuant to the second paragraph of Article [230 EC] relating to the implementation of the competition rules applicable to undertakings’. In the context of actions based on Article 230 EC, the review of the legality of a Commission decision finding an infringement of the competition rules and imposing a fine in that respect on the natural or legal person concerned must be regarded as effective judicial review of the measure in question. The pleas on which the natural or legal person concerned may rely in support of his application for annulment are of such a nature as to allow the General Court to assess the correctness in law and in fact of any accusation made by the Commission in competition proceedings.

86. In the third place, in accordance with Article 31 of Regulation No 1/2003, the review of legality provided for in Article 230 EC is supplemented by unlimited jurisdiction to review decisions, which enables the Courts, in addition to reviewing the legality of the penalty, to substitute their assessment for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 692).

87. It follows that the argument put forward by Saint-Gobain and Compagnie de Saint-Gobain that the contested decision is unlawful on the sole ground that it was adopted in the context of a system under which the Commission combines the functions of investigating and imposing penalties in respect of infringements of Article 81 EC is unfounded and that, accordingly, the first part of the plea must be rejected.

b) Second part, alleging breach of the principle of the presumption of innocence

Arguments of the parties

88. In the second part of this plea, Saint-Gobain and Compagnie de Saint-Gobain maintain that the contested decision fails to have regard to the principle of the presumption of innocence, enshrined in Article 6(2) of the ECHR and also in Article 48 of the Charter of Fundamental Rights, since it was adopted by an administrative authority which does not have the quality of an independent and impartial tribunal and since, in addition, any action brought against that decision before this Court does not have suspensory effect.

89. In Saint-Gobain’s submission, that breach, the source of which lies in an illegality in Regulation No 1/2003, cannot be disregarded solely because the General Court concludes, wrongly, that that regulation does not breach the right to an independent and impartial tribunal owing to the possibility afforded to addressees of a Commission decision finding an infringement of Article 81 EC to challenge that decision before the Court. Even in such a situation, the guilt of the addressees is established in law, if at all, only from the date on which that decision is upheld by the Court in an action for annulment.

90. Last, the Commission is wrong to rely on the right of the addressees of a decision finding an infringement of competition law who seek annulment of that decision to provide a bank guarantee to the Commission instead of making immediate payment of the fine. Apart from the fact that it is wholly a matter for the Commission’s discretion, such a possibility does not in any way alter the fact that the decision begins to produce its effects before the Court has determined the matter.

91. In those circumstances, the Commission has not lawfully established an infringement of competition law by Saint-Gobain and Compagnie de Saint-Gobain and the contested decision should therefore be annulled in so far as it concerns those undertakings.

92. The Commission and the Council reject that analysis.

93. The Commission observes that, according to well-established case-law, an undertaking which is investigated for infringing the EU competition rules is presumed to be innocent until the Commission demonstrates its involvement in such an infringement. The Council adds that there cannot be a breach of the presumption of innocence in the present case, since there is no final decision as to the existence of the infringement and its imputability to Saint-Gobain until the Court has determined the matter.

94. In addition, in the Commission’s submission, Saint-Gobain’s argument amounts to raising a plea of illegality in respect of Article 242 EC, which provides that actions brought before the Court of Justice are not to have suspensory effect; and the Courts of the EU do not have jurisdiction to adjudicate on the validity of a provision of primary law.

95. The Commission relies, last, on the fact that, notwithstanding that the present action does not have the effect of suspending the contested decision, the applicant was in a position to lodge a bank guarantee instead of making provisional payment of the fine. That option derives, inter alia, from the fact that the existence of an infringement of the competition rules has not yet been established by an independent and impartial tribunal before the decision of the Court marking the end of the proceedings is taken and that the amount of the fine cannot be taken to be definitively fixed before the judicial proceedings have been closed.

Findings of the Court

96. By this second part of the plea, Saint-Gobain and Compagnie de Saint-Gobain maintain, in essence, that since the Commission is not an independent and impartial tribunal it cannot lawfully establish the guilt of the undertakings which it has found to have participated in an infringement of Article 81 EC. The penalties which it imposes on the basis of Article 81(1) EC are therefore adopted in breach of the principle of the presumption of innocence.

97. It has consistently been held that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence, now enshrined in Article 48(1) of the Charter of Fundamental Rights, applies, in particular, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 149 and 150; Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 175 and 176; and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 216).

98. A well-established line of cases has defined the scope of that principle.

99. The presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of the defence in the normal course of proceedings resulting in a decision on the merits of the case (Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraph 106).

100. Accordingly, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Joined Cases T‑44/02 OP, T‑54/02 OP, T 56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraph 59 and the case-law cited). The Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraphs 43 and 72 and the case-law cited, and Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 129)

101. The requirements relating to respect for the presumption of innocence must also guide the action of the Courts of the EU where they are required to review the decisions whereby the Commission finds an infringement of Article 81 EC. Thus, any doubt on the Court’s part must benefit the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine ( Dresdner Bank and Others v Commission , paragraph 100 above, paragraph 60).

102. It thus follows from paragraphs 99 to 101 above that the principle of the presumption of innocence does not preclude the liability of a person accused of a given infringement of EU competition law being established following a procedure carried out wholly in accordance with the procedures laid down in the provisions arising from Article 81 EC, Regulation No 1/2003 and also Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) and in the context of which the rights of the defence could thus be fully exercised.

103. Since the power to impose sanctions conferred on the Commission in the event of an infringement of Article 81 EC does not, as a matter of principle, breach the presumption of innocence, the complaint based on the fact that an action before the Court against a decision penalising an infringement of EU competition law does not have suspensory effect is ineffective. In those circumstances, there is no further need to adjudicate on whether, as the Council maintains, such a complaint amounts to a plea of illegality raised against Article 242 EC.

104. In any event, it should be observed that the European Court of Human Rights, in Janosevic v. Sweden , no. 34619/97, §§ 106 to 110, ECHR 2002-VII, p. 1), held that the right to the presumption of innocence did not preclude, in principle, penalties of a criminal nature adopted by an administrative authority being enforceable before they had become final following an appeal before a court, provided that such enforcement remains within reasonable limits that strike a fair balance between the interests involved and that the person on whom the penalty is imposed can be reinstated in his initial situation where his appeal is successful. In fact, the applicants have put forward no argument from which it might be concluded that the system of prosecution and penalising of infringements of EU competition law, as organised by Regulation No 1/2003 and implemented initially by the Commission, is not consistent with those requirements.

105. In the light of the foregoing analysis, and without prejudice to a review of compliance with the requirements referred to at paragraphs 97 to 101 above in the present case in the context of other pleas, the second part and, accordingly, the first plea, based on a plea of illegality, in its entirety must be rejected, without there being any need to adjudicate on its admissibility.

2. Second plea, alleging breach of the rights of the defence

a) Arguments of the parties

106. By its second plea, Saint-Gobain maintains that its rights of defence were breached by the Commission, since the Commission adopted the contested decision without providing Saint-Gobain with the opportunity to submit its comments on the method of calculating the fine that was eventually applied. When calculating the fine, the Commission thus used a number of factors which had not been brought to Saint-Gobain’s attention, in particular the value of sales relating to the infringement. The information in the statement of objections did not enable Saint-Gobain properly to make known its viewpoint in that regard, even though the value of sales is a decisive factor in the calculation of the fine, on which, in accordance with Article 6(1) of the ECHR, the parties concerned must be given the opportunity to make known their views. The statement of objections contained no information relating to the sales applied in calculating the basic amount of the fine and the method which the Commission intended to use in order to identify the relevant sales. Nor did the statement of objections contain any indication as to the degree of gravity that the Commission would apply or of the way in which repeated infringement might be taken into account.

107. None of the supplementary requests for information sent to Saint-Gobain at a later stage, relating to the determination of the value of sales, made up for those shortcomings. As for the reference in the statement of objections to the fact that the sales affected would be determined in application of point 13 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 2006 Guidelines’), it is irrelevant in the present case, since the calculation method was still uncertain at the time when the contested decision was drafted. Those uncertainties are reflected, in particular, in the lack of consistency in the various requests for information which the Commission sent to Saint-Gobain concerning the matter.

108. In those circumstances, Saint-Gobain maintains that it was not in a position properly to put forward its point of view on the method of calculating the fine before the contested decision was adopted.

109. Saint-Gobain also criticises the case-law in which it has been held that the Commission, in the context of proceedings for the purpose of investigating infringements of competition law and imposing penalties, is required only to inform the addressees of its decisions of the main elements of fact and law capable of leading to the imposition of a fine, without those addressees being able to claim a right to anticipate such decisions. In Saint-Gobain’s submission, such case-law cannot ensure respect for fundamental rights. In addition, it is necessary to take account of the fact that the communication of more precise information during the investigation procedure would not necessarily enable the undertakings concerned to anticipate the Commission’s decision, since the Commission would not be bound by such indications when adopting the decision.

110. Saint-Gobain further claims that, by adopting the 2006 Guidelines, the Commission limited its discretion in relation to the basis of the calculation of the fine, as the concept of ‘affected sales’ is an objective and verifiable factor. It follows that the Commission cannot in any event rely in the present case on the case-law which seeks to preclude the risk of an inappropriate anticipation of future decisions of the College of Commissioners.

111. The Commission observes, first of all, that, in accordance with well-established case-law, to give an indication as to the level of proposed fines, at the stage of the statement of objections, would amount to anticipating its decisions in an inappropriate manner. Undertakings do not need to be in a position to foresee precisely the level of fines in order to exercise their rights of defence. Accordingly, the right to be heard is observed provided that the Commission indicates, in the statement of objections, that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out therein the principle elements of fact and of law capable of leading to the adoption of a decision imposing such fines.

112. The Commission emphasises, next, that the statement of objections sent to Saint-Gobain stated clearly that the calculation method set out in the 2006 Guidelines would be applied in this case. It also claims that it sent the undertakings concerned various requests for information about the value of sales of relevance for the calculation of the fine. Given the discretion which it enjoys when calculating fines in the event of an infringement of Article 81 EC, the Commission therefore maintains that Saint-Gobain’s rights of defence were fully respected in the contested decision.

113. The Commission also disputes Saint-Gobain’s argument that that undertaking was not in a position properly to make known its viewpoint on the fact that repeated infringement would be taken into account as an aggravating circumstance. The Commission claims, in that regard, that it specifically drew Saint-Gobain’s attention, in the statement of objections, to the aggravating circumstance of repeated infringement and also to various earlier findings of infringement of Article 81 EC. The Commission thus went even further than it was required to do in accordance with Groupe Danone v Commission , paragraph 97 above (paragraph 50). The fact that Saint-Gobain received sufficient information in the statement of objections with respect to repeated infringement is borne out by the arguments put forward by that undertaking in order to dispute that aggravating circumstance in its reply to the statement of objections.

b) Findings of the Court

114. Saint-Gobain’s argument contains two separate complaints, alleging breach of its rights of defence.

115. By its first complaint, Saint-Gobain takes issue with the Commission for not having informed it, before adopting the contested decision, of the value of sales that it would take into account when calculating the fine imposed on Saint-Gobain, of the calculation method used for that purpose and also of the rate of gravity that would be applied.

116. It should be borne in mind, in that regard, that, according to well-established case-law, at the stage of the statement of objections, to give indications of the level of the contemplated fines, when the undertakings have not been in a position to put forward their observations on the objections against them, would be tantamount to anticipating inappropriately the Commission’s decision (see Musique Diffusion française and Others v Commission , paragraph 77 above, paragraph 21, and Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 434 and the case-law cited).

117. The fact that a trader cannot, in advance, know precisely the level of the fines which the Commission will impose in each individual case appears to be justified in the light of the objectives of punishment and deterrence pursued by the policy of penalties in competition matters. Those objectives would be jeopardised if the undertakings concerned were in a position to assess the benefits which they would derive from their participation in an infringement by taking account, in advance, of the amount of the fine which would be imposed on them on account of that unlawful conduct (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 83).

118. Thus, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see Dansk Rørindustri and Others v Commission , paragraph 116 above, paragraph 428 and the case-law cited, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 181).

119. Furthermore, the Commission is not required to inform the undertakings which are the subject of proceedings for infringement of Article 81 EC, in the statement of objections, of the extent of any increase in the fine in order to ensure that it would act as a deterrent (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 62).

120. It follows that, as regards the determination of the amount of the fines, the rights of defence of the undertakings concerned are guaranteed before the Commission through the possibility of presenting their observations on the duration, the gravity and the anti-competitive nature of the impugned acts, but, on the other hand, do not require that that possibility cover the way in which the Commission proposes to employ the imperative criteria of gravity and duration when making that determination ( Dansk Rørindustri and Others v Commission , paragraph 116 above, paragraph 439). The undertakings concerned have, in that regard, an additional guarantee, as regards the setting of the amount of the fines, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine (see Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 200 and the case-law cited).

121. In the present case, it should be stated, first of all, that the Commission presented in detail, in the statement of objections, of which Saint-Gobain was an addressee, the factual framework on which it proposed to rely in order to find an infringement of Article 81(1) EC. It set out, moreover, at pages 129 to 131 and also at pages 132 to 135 of the statement of objections, the reasons why it considered that the contacts in which Saint-Gobain had participated constituted agreements or concerted practices within the meaning of that provision.

122. Next, the Commission also set out, at pages 132 to 135 and 152 to 155, the evidence on which it had relied in order to assess, inter alia, the duration of Saint-Gobain’s participation in the infringement. It also described, at pages 156 and 157 of the statement of objections, the main factors which it would take into account in order to assess the gravity of the infringement, namely, in particular, the fact that collusive arrangements of the type of those at the heart of the present case are among the most serious infringements of Article 81(1) EC, that those arrangements had repercussions throughout the entire carglass sector, to the detriment not only of car manufacturers but also of the general public, that the cartel participants were aware of the unlawful nature of their actions and that the cartel activities covered the whole of the EEA.

123. At paragraph 489 of the statement of objections, the Commission, moreover, stated that it proposed to take account of Saint-Gobain’s role as a potential ringleader in the cartel, since it had, on various occasions, represented the interests of other undertakings at the club meetings and had, in addition, convened most of the meetings of that club. The Commission added that it would also calculate the amount of the fines by reference to the duration of the participation of each of the undertakings concerned in the cartel and also of any aggravating or mitigating circumstances.

124. Since it had thus indicated the main elements of fact and of law on which it would base its calculation of the amount of the fines, the Commission, as is clear from the case-law cited at paragraph 120 above, was not required to specify the way in which it would use each of those elements in determining the level of the fine. It is immaterial, in that regard, that the Commission eventually departed to some extent in the contested decision from the method of calculating the value of the relevant sales prescribed at point 13 of the 2006 Guidelines.

125. In any event, it should be observed that the Commission stated, at page 156 of the statement of objections, that the fine which it would impose in the present case would be calculated by reference to the principles laid down in the 2006 Guidelines. Although, as is apparent from recitals 664 to 667 to the contested decision, the Commission decided in the present case to derogate in part from that method of calculation with respect to the sales of flat glass taken into account, it did so specifically in order to respond to certain of the objections raised by the addressees of the statement of objections with respect to the method of calculating relevant sales prescribed at point 13 of those guidelines, in their observations on the statement of objections and also in their replies to various requests for information which had been sent to them by the Commission.

126. It follows that the Commission sufficiently informed Saint-Gobain, before adopting the contested decision, of the elements of fact and law on which it proposed to rely for the purposes of establishing Saint-Gobain’s participation in an infringement of Article 81 EC and that Saint-Gobain’s rights of defence were to that extent observed. Accordingly, the first complaint cannot succeed.

127. By its second complaint, Saint-Gobain maintains that the Commission did not put it in a position, during the administrative procedure, properly to put forward its point of view as regards the fact that repeated infringement would be taken into account as an aggravating circumstance.

128. In that regard, it is sufficient to state, without prejudice to consideration of the first part of the sixth plea, below, that at pages 157 and 158 of the statement of objections the Commission not only drew the attention of the undertakings concerned to the fact that it might apply the provisions relating to repeated infringement as an aggravating circumstance, but also identified, in the case of Saint-Gobain and Compagnie de Saint-Gobain, the three earlier decisions imposing penalties for infringements of Article 81(1) EC on which it proposed to rely in order to establish the aggravating circumstance of repeated infringement with respect to them. It is apparent from Saint-Gobain’s reply to the statement of objections, moreover, that it put forward various arguments against any increase in the fine for repeated infringement, based on any of those decisions.

129. The second complaint cannot therefore be upheld. Consequently, the second plea must be rejected as unfounded.

3. Third plea, alleging insufficient reasoning and an error in the calculation of the fine

130. It is appropriate to examine as a single plea the pleas which Saint-Gobain presents in the application as its third and fourth plea, in so far as they constitute two parts of the same plea, relating to the sales figures used by the Commission in calculating the basic amount of the fine imposed on Saint-Gobain.

a) First part, alleging insufficient reasoning

Arguments of the parties

131. In the first part of the present plea, Saint-Gobain maintains that the contested decision is vitiated by a failure to state reasons within the meaning of Article 253 EC and Article 41(2)(c) of the Charter of Fundamental Rights, since it does not specifically state the different sales figures on the basis of which the fine was calculated, in application of point 13 of the 2006 Guidelines. The obligation to state the reasons on which the contested decision is based on this point is all the more pressing since it is an area in which the Commission has discretion to impose heavy fines.

132. Saint-Gobain takes issue with the Commission more particularly for having provided no evidence of such a kind as to establish whether the sales figures used in its case are the result of an accurate and consistent calculation or whether, on the other hand, the calculation is flawed. The contested decision does not make it possible to identify the manufacturers which were taken into account during the ‘roll-out’ periods and the final period of the infringement, in respect of which the Commission claims to have direct evidence that they were the subject-matter of the impugned cartel. It also follows that Saint-Gobain is not in a position to ascertain whether such evidence exists. Nor does the decision state the amounts of sales per manufacturer during the three phases of the infringement. Last, the decision does not reveal the precise number of months of participation taken into account by the Commission for the purpose of calculating the annual average of the value of affected sales. In those circumstances, the Court is not in a position to carry out an appropriate judicial review and the contested decision is vitiated by flawed or insufficient reasoning.

133. The Commission’s obligation to state reasons is increased by the fact that in the contested decision it departed from the rules laid down in the 2006 Guidelines as concerns the sales that ought to serve as a basis for the calculation of the fine. Although those guidelines state that the value of the sale of the goods concerned during the last full year of the undertaking’s participation in the infringement is to be taken into account, in the present case the Commission used a figure representing a weighted annual average of sales throughout the entire infringement period.

134. Saint-Gobain adds that the insufficiency of the reasoning on which the contested decision is based, with regard to the value of sales used, cannot be made good by the information communicated during the judicial proceedings before the Court. In any event, the additional information put forward by the Commission in its pleadings in defence is not of such a kind as to constitute sufficient reasoning, since important questions remain unanswered.

135. The Commission rejects that analysis. It submits that the contested decision contains an explanation of the method which it used when determining the basic amount of the fine. It follows, in particular, from Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 56, that statements of figures are not essential in order for the reasoning on which a decision imposing a fine is based to appear to be sufficient.

136. In the Commission’s submission, the further explanations which it provided in its pleadings in defence could already be inferred from an attentive examination of the contested decision or at least were foreseeable.

137. Thus, contrary to Saint-Gobain’s assertion, the car manufacturers taken into account during the ‘roll-out’ and ‘run-down’ phases of the cartel are identified in the contested decision, in the presentation of the factual framework. The same applies to the fact that a manufacturer which was the subject of collusion during a specific year was also taken into account for the following years. The number of months concerned, for each participant in the infringement and for each period, could also be inferred from the grounds of the contested decision.

138. As for the turnover used for 1998, the Commission stated that, in the absence of sufficient information supplied by the undertakings concerned on that subject, it had been effectively forced to make an estimate on the basis of the figures for 1999, but taking into consideration only the manufacturers which had been the subject of collusion in 1998.

139. Furthermore, the Commission duly explained in the contested decision the reasons which led it to derogate in the present case from the principle that sales for the last full year of participation in the infringement are to be taken into account, as provided for in the 2006 Guidelines. That derogation is justified by the characteristics of the cartel forming the subject-matter of the contested decision, relating to contracts for the supply of carglass concluded after a tender procedure and intended to remain in force for long periods. That context made it necessary to take separate phases into account, reflecting in particular the ‘roll-out’ of the cartel and the ‘run-down’ period preceding its termination. That derogation was also favourable to the undertakings to which the decision was addressed, since, in the Commission’s submission, the fine would have been much higher if total turnover during the last year of the infringement had been used.

140. The Commission further submits that it was unable to disclose more precise turnovers in the contested decision, as they constitute business secrets.

Findings of the Court

141. By the first part of the third plea, Saint-Gobain takes issue with the Commission, in essence, first, for not having provided details in the contested decision of the calculation following which it established vis-à-vis Saint-Gobain a relevant turnover of EUR [confidential] million and, second, for not having explained the reasons that led it to derogate in the present case from the method of calculation set out at point 13 of the 2006 Guidelines.

142. Neither of those complaints can be upheld, however.

143. It should be borne in mind in that regard that, in accordance with Article 253 EC, now supplemented by Article 41(2)(c) of the Charter of Fundamental Rights, the Commission is required to state the reasons for the decisions which it adopts.

144. The purpose of the obligation to state reasons is to enable the Courts of the EU to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (see, to that effect, Case C‑196/99 P Aristrain v Commission , paragraph 135 above, paragraph 52 and the case-law cited).

145. The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraph 22).

146. The requirement to state reasons must be assessed according to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to the wording of the measure in question but also to the context in which the measure was adopted (Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63).

147. As regards the indication of figures relating to the calculation of the fines, it should be observed that the Commission did not in fact provide details in the contested decision of the specific Saint-Gobain sales figures which it took into account in order to calculate the fine imposed on that undertaking.

148. As regards the determination of fines for infringements of competition law, however, the Commission fulfils its obligation to state reasons where it indicates, in its decision, the factors on the basis of which the gravity and duration of the infringement were assessed, without being required to include in it a more detailed account or the figures relating to the method of calculating the fines (Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 66; see Case T‑110/07 Siemens v Commission [2011] ECR II‑477, paragraph 311 and the case-law cited, and Case T‑138/07 Schindler Holding and Others v Commission [2011] ECR II‑4819, paragraph 243 and the case-law cited).

149. Thus, however useful statements of figures relating to the calculation of fines may be, they are not essential to compliance with the duty to state reasons (Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraphs 75 to 77, and Joi ned Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 414).

150. As regards the reasons underlying the setting of the amount of fines in absolute terms, it must be borne in mind that, in providing, in particular, that the fine imposed on an undertaking which infringes the EU competition rules is to be set having regard to the duration and the gravity of the infringement, and that that fine is not to exceed 10% of the undertaking’s total turnover during the preceding business year, Article 23 of Regulation No 1/2003 confers a discretion on the Commission when it fixes the amount of fines in order that it may channel the conduct of undertakings towards compliance with the competition rules (see Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 335 and the case-law cited).

151. Moreover, it is important to ensure that fines are not easily foreseeable by economic operators. If the Commission were required to indicate in its decision the figures relating to the method of calculating the amount of fines, the deterrent effect of those fines would be undermined. If the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the competition rules ( BPB v Commission , paragraph 150 above, paragraph 336, and Degussa v Commission , paragraph 117 above, paragraph 83).

152. Contrary to Saint-Gobain’s contention, the mere fact that the method of calculating fines was adjusted in the context of the 2006 Guidelines is not such as to call those findings into question.

153. It follows from point 13 of those guidelines that, in determining the basic amount of the fine, the Commission is to take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA and that it will normally take into account the sales made by the undertaking during the last full business year of its participation in the infringement. Furthermore, in adopting such rules of conduct and announcing by publishing guidelines that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations ( Dansk Rørindustri and Others v Commission , paragraph 116 above, paragraph 211).

154. It follows that the Court must ascertain whether, on perusing the contested decision, Saint-Gobain was able to understand that the calculation of the amount of the fine imposed on it had been made on the basis of an alternative method to that set out at point 13 of the 2006 Guidelines and was aware of the Commission’s reasons for departing in this case from the course of conduct which it had set for itself in that provision.

155. It should first of all be observed, in that regard, that the Commission indicated, both in the statement of objections and in the contested decision, that the fine would be calculated by reference to the principles set out in the 2006 Guidelines. It referred, at recital 658 to the contested decision, to the rule on the calculation of relevant sales set out at point 13 of those guidelines. The Commission also stated the reasons why, in its view, the calculation of the value of relevant sales could not be made in this case solely by reference to the contracts in respect of which the Commission had direct evidence of an agreement or a concerted practice. In order to justify that approach, the Commission claimed, in particular, at recitals 660 to 662 to the contested decision, not only that agreements or concerted practices had been able to be established with regard to all main car manufacturers in the EEA, during the infringement period, but also that that cartel was intended to maintain the global stability of the participants’ market shares and that that stability was pursued, inter alia, by means of a compensation mechanism based on all individual accounts and involving all elements of glass.

156. The Commission then stated that it would depart in the present case from the calculation method consisting in taking only sales during the last full year of participation in the infringement into account. At recitals 664 to 667 to the contested decision, the Commission justified that derogation from the rule laid down at point 13 of the 2006 Guidelines, in essence, by the fact that the cartel in question had the particular feature of having been of variable intensity between March 1998 and March 2003. During an initial period, between March 1998 and the first half of 2000, described as the ‘roll-out’ period, the Commission had direct evidence of the infringement for only a part of European car manufacturers. During the period 1 July 2000 to 3 September 2002, on the other hand, the agreements or concerted practices affected at least 90% of original equipment carglass sales within the EEA. Last, the period between 3 September 2002 and the end of the infringement period, described as the ‘run-down’ period, was characterised by a slowing down of the cartel activities following Pilkington’s departure.

157. In the light of those circumstances, the Commission stated that it had taken a ‘more calibrated’ approach, consisting in reducing the weight of the ‘roll-out’ period, and also that of the ‘run-down’ period, when calculating the basic fine, by taking into account in that context only the value of sales to car manufacturers for which it had direct evidence that they had been the subject of collusion. On the other hand, the Commission stated that all EEA sales had been taken into account for the period 1 July 2000 to 3 September 2002. As noted at paragraph 155 above, the Commission justified that approach, in particular, at recitals 660 to 662 to the contested decision, by observing that agreements or concerted practices had been able to be established with respect to all large car manufacturers in the EEA, during the infringement period, but also that the cartel was intended to maintain the global stability of the participants’ market shares and that that stability was pursued, in particular, by means of a compensation mechanism based on all individual accounts and involving all elements of glass.

158. According to recital 667 to the contested decision, the sales taken into account for the purposes of calculating the fine were determined, for each participant in the cartel, on the basis of total sales weighted in the manner just explained, divided by the number of months of participation in the infringement and multiplied by 12 to obtain a weighted annual average. The Commission then stated that those calculations had been made on the basis of the figures supplied by the undertakings concerned in answer to the request for information which had been sent to them on 25 July 2008.

159. As the Commission rightly emphasises in its written pleadings, those explanations must be read in the light of other parts of the contested decision, relating in particular to the functioning of the cartel (recitals 120 to 428 to the contested decision), in which the Commission systematically identified the manufacturers which were the subject of illegal contacts during the various periods of the infringement.

160. In addition, the Commission provided various items of information, in the contested decision, on the method which it followed in order to calculate the fines which it imposed on each of the undertakings concerned in the present case, in particular the relevant sales figures, the proportion of the value of sales taken into account, the additional amount and also the adjustments of the basic amount of the fines.

161. Last, while it is true that the contested decision provides no explanation for the sales figures which were not taken into account for 1998, it must be observed that Saint-Gobain provided no sales figures per manufacturer for that year during the investigation. It follows that, as the Commission rightly claims, it was lawful and foreseeable, in that context, that the Commission should use the sales figures for the nearest year, in this instance 1999, in order to calculate the fine imposed on Saint-Gobain.

162. In the light of the foregoing, it must be concluded that the information in the contested decision enabled Saint-Gobain to understand not only the reasons that induced the Commission to derogate in part from the rules of conduct laid down at point 13 of the 2006 Guidelines in the present case, but also the evidence on the basis of which the Commission examined the gravity and duration of the infringement, and likewise the method of calculating the fine. Therefore, in spite of the fact that the details of that calculation do not appear in the contested decision, that decision is not vitiated by flawed or insufficient reasoning in that regard.

163. The first part of the plea is therefore unfounded.

b) Second part, alleging an error in the calculation

Arguments of the parties

164. Saint-Gobain, which maintains that it discovered on perusing the Commission’s defence that the Commission made a manifest error of assessment consisting in an error in calculating the fine, raises in that regard a new plea in its reply.

165. Saint-Gobain observes that the figure for affected sales initially taken into account by the Commission with respect to Saint-Gobain was EUR [confidential]. However, in scrupulously applying the calculation method recommended by the Commission, Saint-Gobain arrived at a figure of EUR [confidential], or an amount EUR [confidential] less than the amount taken into account by the Commission. That difference might be explained, in Saint-Gobain’s submission, by the fact that the basis for the calculation of the fines included figures corresponding to sales outside the EEA. In accordance with point 13 of the Guidelines, such figures cannot be taken into account in the calculation of a fine for an infringement of Article 81(1) EC.

166. The Commission expresses doubts as to the admissibility of this part of the plea and contends that Saint-Gobain could already have put this complaint forward in its application, since it is apparent from the contested decision that it was the sales figures supplied by Saint-Gobain that served as a basis for the calculation of the fine imposed on that undertaking.

167. As for the substance, the Commission claims that it took into account the sales figures supplied to it by Saint-Gobain. Admittedly, Saint-Gobain stated during the investigation that part of the sales corresponding to those figures was not affected by the cartel and that some of the sales concerned had been made outside the EEA. However, it did not specify the type of sales made outside the EEA, or the customers to which they were made, or even the amount of the turnover which they represented. In addition, the figures supplied by Saint-Gobain on that point were not certified.

168. The Commission puts forward several other circumstances which, it maintains, preclude the reduction of the relevant turnover sought by Saint-Gobain in respect of sales outside the EEA. First of all, Saint-Gobain has not explained whether any supplies made outside the EEA had been the subject of centralised discussions by the manufacturers or whether they were outside the scope of centralised management. Next, it could not be precluded, in the Commission’s submission, that those supplies were delivered to manufacturers’ warehouses in the EU, in order to be used by approved resellers outside the EEA. Furthermore, any reduction of sales figures in that sense would have required, for certain periods of the infringement, a precise breakdown of sales to each manufacturer concerned, which was not supplied by Saint-Gobain. Last, the Commission observes that Saint-Gobain has put forward no reliable evidence to show that sales had been made outside the EEA. It is apparent from the file relating to the investigation, moreover, that Saint-Gobain itself declined to undertake a detailed breakdown of that type, in the light of the small amount of the sales concerned.

Findings of the Court

169. The Court emphasises, as a preliminary point, that the Commission has confirmed Saint-Gobain’s theory that the fine imposed on it was calculated without deduction from the sales figures supplied of any amounts corresponding to sales alleged to have been made outside the EEA.

170. It should next be observed that, in the requests for information which it had sent to Saint-Gobain on 10 December 2007 and 25 July 2008, the Commission had asked Saint-Gobain to supply its turnover achieved in the EEA during a number of successive years. In each of those requests, the Commission had asked Saint-Gobain to supply, if possible, certified figures and to distinguish the turnover relating to each car manufacturer concerned.

171. In the replies which it sent to the Commission on 28 January and 22 August 2008, Saint-Gobain supplied the information relating to its overall turnover and for each manufacturer for the years 1999 to 2004, which were taken from its international business database. Conversely, Saint-Gobain stated in those replies that the figures supplied also included sales of carglass to customers outside the EEA, namely in Poland, the Czech Republic and Slovakia. Taking the view, however, that those sales accounted for a relatively low turnover and that it would have been difficult to extract them from the international business database, Saint-Gobain informed the Commission that it did not propose to adjust the database in that sense. However, it deducted from the overall turnover, for each year concerned, a percentage that was supposed to reflect sales outside the EEA.

172. Thus, it must be stated that the replies referred to in the preceding paragraph did not contain a specific calculation, for each manufacturer and each year, of sales to customers outside the EEA, in spite of the requests for information sent by the Commission to Saint-Gobain for that purpose. It is apparent from recital 667 to the contested decision that the Commission, with respect to the ‘roll-out’ and ‘run-down’ periods of the cartel, took into account only figures for sales to manufacturers in respect of which it was able to show that contracts for the supply of carglass had been the subject of agreements or concerted practices. It follows that the Commission could not determine, on the basis of the information supplied to it by Saint-Gobain, whether, and if so to what extent, the percentages of sales which Saint-Gobain claimed to have made outside the EEA related to those manufacturers.

173. More generally, it should be held that, as the Commission contends, Saint-Gobain did not submit during the investigation any evidence of such a kind as to show that the percentages of turnover which it would have deducted from the basis for the calculation of the fine did indeed correspond to sales outside the EEA.

174. Accordingly, even on the assumption that the present part of the plea is admissible even though it was submitted only at the stage of the reply, the Court considers that the Commission did not err in taking into account as turnover, for the calculation of the fine imposed on Saint-Gobain, the total turnover and turnover for each manufacturer communicated by Saint-Gobain, without deducting from those turnovers a flat-rate percentage alleged to correspond to sales outside the EEA.

175. It follows that the second part of the plea, in that it supports the claim for annulment of the contested decision, must be rejected as unfounded and, with it, the third plea in its entirety. It must be made clear, however, that this part is also examined at paragraphs 463 to 477 below, in so far as it supports the claim for variation of the contested decision.

4. Fourth plea, alleging an error in the imputation to Compagnie de Saint-Gobain of liability for Saint-Gobain’s unlawful conduct, a breach of the principle that penalties should be applied solely to the offender and the principle of the presumption of innocence, and misuse of powers

176. The present plea essentially corresponds to one of the pleas raised by Compagnie de Saint-Gobain in Case T‑73/09. They should therefore be examined together.

177. The third plea raised by Compagnie de Saint-Gobain in Case T‑73/09 contains an alternative plea, however, also alleging that the upper limit referred to in Article 23(2) of Regulation No 1/2003 was exceeded, but based on a different line of argument. Compagnie de Saint-Gobain maintains that, even if it must be held that the Commission was correct to hold Compagnie de Saint-Gobain liable for the actions of its subsidiary Saint-Gobain Glass France, it none the less erred in taking the total turnover of the Saint-Gobain group into account for the purposes of calculating the upper limit of the fine referred to in Article 23(2) of Regulation No 1/2003. As that complaint is separate from the complaint forming the subject-matter of the present plea, it is examined separately (see paragraphs 442 to 458 below).

a) Arguments of the parties

178. Saint-Gobain and Compagnie de Saint-Gobain take issue with the Commission for having imputed to Compagnie de Saint-Gobain the actions of Saint-Gobain Glass France, which it wholly owns, although it had not been shown that Compagnie de Saint-Gobain had exercised decisive influence over Saint-Gobain’s commercial policy.

179. Compagnie de Saint-Gobain claims in that regard that, owing both to the nature of the infringements of the competition rules and to the nature and the degree of severity of the penalties imposed, a legal person should not be penalised in that respect unless the Commission is able to adduce positive proof of its involvement in such an infringement. The imputation to a parent company of liability for an infringement, on account of the actions of one of its subsidiaries, is possible where it is established that the subsidiary did not act autonomously or merely applied the parent company’s instructions. Compagnie de Saint-Gobain maintains, on the other hand, that the Commission errs in law when, as in the present case, it imputes liability without having ascertained whether the parent company did in fact exercise decisive influence on its subsidiary’s commercial policy. The imputation of unlawful conduct in such circumstances is tantamount to confusing the concepts of legal person and undertaking and, accordingly, to failing to have regard to the principle that penalties should be applied solely to the offender.

180. In Compagnie de Saint-Gobain’s submission, although the element relating to ownership of all the capital of a subsidiary is a strong indication of the existence, on the part of the parent company, of a decisive power to influence the subsidiary’s conduct on the market, such a circumstance is not in itself sufficient to allow liability for the conduct of a subsidiary to be imputed to the parent company. A further body of evidence is necessary for that purpose, in spite of the case-law of the EU which has already decided to the contrary.

181. The Commission breached that principle, which is recognised in other legal orders, and also the principle of the presumption of innocence when it imputed to Compagnie de Saint-Gobain the infringement commit ted by Saint-Gobain Glass France, even though there is no evidence to show that the latter merely followed its parent company’s instructions when implementing its commercial policy. In particular, general directions given to a subsidiary or the fact that a senior employee of a subsidiary exercises non-executive functions within the parent company are not of such a kind as to establish the existence of such control. The Commission has thus established an irrebuttable presumption of decisive influence on the part of Compagnie de Saint-Gobain, in breach of the principles identified in Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237.

182. Compagnie de Saint-Gobain maintains that