Case T-44/07

Kaučuk a.s.

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Participation in the cartel – Imputability of the offending conduct – Fines – Gravity and duration of the infringement – Attenuating circumstances)

Summary of the Judgment

Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered

(Art. 81(1) EC)

As regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place.

Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point.

Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

Even if the evidence accepted by the Commission may have a certain probative value, it is not sufficient to justify the finding that there was an infringement by the undertaking concerned, having regard to the contradictions in the Commission’s decision in relation inter alia to the meetings organised in connection with the cartel and the doubt which must operate to the advantage of the undertaking concerned; therefore, the Commission’s decision must be annulled.

(see paras 48-49, 66, 68)

JUDGMENT OF THE GENERAL COURT (First Chamber)

13 July 2011 ( )

(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Participation in the cartel – Imputability of the offending conduct – Fines – Gravity and duration of the infringement – Attenuating circumstances)

In Case T‑44/07,

Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic), represented initially by M. Powell and K. Kuik, and subsequently by M. Powell, Solicitors,

applicant,

v

European Commission, represented initially by M. Kellerbauer, V. Bottka and O. Weber, and subsequently by M. Kellerbauer, V. Bottka and V. Di Bucci, acting as Agents,

defendant,

APPLICATION for annulment, so far as Kaučuk a.s. is concerned, of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or, in the alternative, annulment or reduction of the fine imposed on Kaučuk,

THE GENERAL COURT (First Chamber),

composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska-Białecka and N. Wahl, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 14 October 2009,

gives the following

Judgment

Background to the dispute

1 By Decision C(2006) 5700 final of 29 November 2006 (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the market for those products.

2 The undertakings to which the contested decision is addressed are:

– Bayer AG, established in Leverkusen (Germany);

– The Dow Chemical Company, established in Midland, Michigan (United States) (‘Dow Chemical’);

– Dow Deutschland Inc., established in Schwalbach (Germany);

– Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG), established in Schwalbach;

– Dow Europe, established in Horgen (Switzerland);

– Eni SpA, established in Rome (Italy);

– Polimeri Europa SpA, established in Brindisi (Italy) (‘Polimeri’);

– Shell Petroleum NV, established in The Hague (Netherlands);

– Shell Nederland BV, established in The Hague;

– Shell Nederland Chemie BV, established in Rotterdam (Netherlands);

– Unipetrol a.s., established in Prague (Czech Republic);

– Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic);

– Trade-Stomil sp. z o.o., established in Łódź (Poland) (‘Stomil’).

3 Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe are wholly controlled, directly or indirectly, by Dow Chemical (collectively ‘Dow’) (recitals 16 to 21 to the contested decision).

4 Eni’s business in the relevant products was initially carried out by EniChem Elastomeri Srl, indirectly controlled by Eni through its subsidiary EniChem SpA (‘EniChem SpA’). On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its butadiene rubber and emulsion styrene butadiene rubber business) to its wholly-owned subsidiary Polimeri. Eni has had direct and full control of Polimeri since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial SpA (recitals 26 to 32 to the contested decision). The Commission uses the name ‘EniChem’ in the contested decision to refer to any company owned by Eni (‘EniChem’) (recital 36 to the contested decision).

5 Shell Nederland Chemie is a subsidiary of Shell Nederland, which is itself wholly controlled by Shell Petroleum (recitals 38 to 40 to the contested decision).

6 Kaučuk was created in 1997, following a merger between Kaučuk Group a.s. and Chemopetrol Group a.s. On 21 July 1997, Unipetrol acquired all assets, rights and obligations of the merged undertakings. Unipetrol owns 100% of the shares in Kaučuk (recitals 45 and 46 to the contested decision). Furthermore, according to the contested decision, Tavorex s.r.o. (‘Tavorex’), established in the Czech Republic, represented Kaučuk (and its predecessor Kaučuk Group) for exports between 1991 and 28 February 2003. Still according to the contested decision, from 1996 Tavorex represented Kaučuk at meetings of the European Synthetic Rubber Association (recital 49 to the contested decision).

7 Stomil, according to the contested decision, represented the Polish producer Chemical Company Dwory SA (‘Dwory’) in its export business for around 30 years, until at least 2001. Still according to the contested decision, between 1997 and 2000 Stomil represented Dwory at meetings of the European Synthetic Rubber Association (recital 51 to the contested decision).

8 The period taken to be the duration of the infringement is from 20 May 1996 to 28 November 2002 (for Bayer, Eni and Polimeri), from 20 May 1996 to 31 May 1999 (for Shell Petroleum, Shell Nederland and Shell Nederland Chemie), from 1 July 1996 to 28 November 2002 (for Dow Chemical), from 1 July 1996 to 27 November 2001 (for Dow Deutschland), from 16 November 1999 to 28 November 2002 (for Unipetrol and Kaučuk), from 16 November 1999 to 22 February 2000 (for Stomil), from 22 February 2001 to 28 February 2002 (for Dow Deutschland Anlagengesellschaft) and from 26 November 2001 to 28 November 2002 (for Dow Europe) (recitals 476 to 485 to and Article 1 of the operative part of the contested decision).

9 Butadiene rubber (‘BR’) and emulsion styrene butadiene rubber (‘ESBR’) are synthetic rubbers used essentially in tyre production. The two products are substitutable for each other and also for other synthetic rubbers and for natural rubber (recitals 3 to 6 to the contested decision).

10 In addition to the producers referred to in the contested decision, other producers located in Asia and in Eastern Europe sold limited quantities of BR and ESBR in the EEA. Moreover, a considerable amount of BR is produced directly by large tyre manufacturers (recital 54 to the contested decision).

11 On 20 December 2002 Bayer approached the Commission and expressed its desire to cooperate pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) with regard to BR and ESBR. As regards ESBR, Bayer provided an oral statement describing the activities of the cartel. That oral statement was recorded on tape (recital 67 to the contested decision).

12 On 14 January 2003 Bayer made an oral statement describing the activities of the cartel with respect to BR. That oral statement was recorded on tape. Bayer also provided minutes of meetings of the BR committee of the European Synthetic Rubber Association (recital 68 to the contested decision).

13 On 5 February 2003 the Commission notified Bayer of its decision to grant it conditional immunity from a fine (recital 69 to the contested decision).

14 On 27 March 2003 the Commission carried out an inspection pursuant to Article 14(3) 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) at the premises of Dow Deutschland & Co. (recital 70 to the contested decision).

15 Between September 2003 and July 2006 the Commission sent the undertakings to which the contested decision is addressed a number of requests for information pursuant to Article 11 of Regulation No 17 and 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) (recital 71 to the contested decision).

16 On 16 October 2003 Dow Deutschland and Dow Deutschland & Co. met Commission staff and expressed their desire to cooperate pursuant to the Leniency Notice. At that meeting, an oral presentation of the cartel’s activities with respect to BR and ESBR was given. That oral presentation was recorded. A file containing documents relating to the cartel was also handed over (recital 72 to the contested decision).

17 On 4 March 2005 Dow Deutschland was informed of the Commission’s intention to grant it a reduction in its fine of between 30% and 50% (recital 73 to the contested decision).

18 On 7 June 2005 the Commission initiated the procedure and sent a first statement of objections to the undertakings to which the contested decision is addressed – with the exception of Unipetrol – and also to Dwory. The first statement of objections was also adopted against Tavorex but was not notified to that undertaking since it had been in liquidation since October 2004. The procedure against Tavorex was therefore closed (recitals 49 and 74 to the contested decision).

19 The undertakings concerned lodged written comments in relation to that first statement of objections (recital 75 to the contested decision). They also had access to the file, in the form of a CD-ROM, and to the oral statements and documents relating thereto at the Commission’s premises (recital 76 to the contested decision).

20 On 3 November 2005 Manufacture française des pneumatiques Michelin (‘Michelin’) requested to intervene. It submitted written comments on 13 January 2006 (recital 78 to the contested decision).

21 On 6 April 2006 the Commission adopted a second statement of objections addressed to the undertakings to which the contested decision is addressed. The undertakings concerned lodged written comments in that regard (recital 84 to the contested decision).

22 On 12 May 2006 Michelin lodged a complaint pursuant to Article 5 of 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) (recital 85 to the contested decision).

23 On 22 June 2006 the undertakings to which the contested decision is addressed (with the exception of Stomil) and Michelin took part in the hearing before the Commission (recital 86 to the contested decision).

24 Since it did not have sufficient evidence of Dwory’s participation in the cartel, the Commission decided to close the procedure against that undertaking (recital 88 to the contested decision). The Commission also decided to close the procedure against Syndial (recital 89 to the contested decision).

25 Furthermore, although two different case numbers (one for BR and one for ESBR) had initially been used (COMP/E‑1/38.637 and COMP/E‑1/38.638), after the first statement of objections the Commission used a single number (COMP/F/38.638) (recitals 90 and 91 to the contested decision).

26 The administrative procedure led to the adoption of the contested decision by the Commission on 29 November 2006.

27 According to Article 1 of the operative part of the contested decision, the following undertakings had infringed Article 81 EC and Article 53 EEA by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors:

(a) Bayer, from 20 May 1996 to 28 November 2002;

(b) Dow Chemical, from 1 July 1996 to 28 November 2002; Dow Deutschland, from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft, from 22 February 2001 to 28 February 2002; Dow Europe, from 26 November 2001 to 28 November 2002;

(c) Eni, from 20 May 1996 to 28 November 2002; Polimeri, from 20 May 1996 to 28 November 2002;

(d) Shell Petroleum, from 20 May 1996 to 31 May 1999; Shell Nederland, from 20 May 1996 to 31 May 1999; Shell Nederland Chemie, from 20 May 1996 to 31 May 1999;

(e) Unipetrol, from 16 November 1999 to 28 November 2002; Kaučuk, from 16 November 1999 to 28 November 2002;

(f) Stomil, from 16 November 1999 to 22 February 2000.

28 On the basis of the findings of fact and legal assessments set out in the contested decision, the Commission imposed fines on the undertakings concerned calculated according to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and in the Leniency Notice.

29 Article 2 of the operative part of the contested decision imposes the following fines:

(a) Bayer: EUR 0;

(b) Dow Chemical: EUR 64.575 million, of which:

(i) EUR 60.27 million jointly and severally with Dow Deutschland;

(ii) EUR 47.355 million jointly and severally with Dow Deutschland Anlagengesellschaft and Dow Europe;

(c) Eni and Polimeri, jointly and severally: EUR 272.25 million;

(d) Shell Petroleum, Shell Nederland and Shell Nederland Chemie, jointly and severally: EUR 160.875 million;

(e) Unipetrol and Kaučuk, jointly and severally: EUR 17.55 million;

(f) Stomil: EUR 3.8 million.

30 Article 3 of the operative part of the contested decision orders the undertakings listed in Article 1 immediately to bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.

Procedure and forms of order sought by the parties

31 By application lodged at the Registry of the Court on 16 February 2007, Kaučuk brought the present action.

32 By decision of the President of the General Court of 2 April 2009, N. Wahl was designated to complete the Chamber as one of its members was prevented from attending.

33 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.

34 In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court requested the Commission to produce certain documents. The Commission complied with that request within the period prescribed.

35 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 14 October 2009.

36 Kaučuk claims that the Court should:

– annul Articles 1 to 3 of the contested decision in whole or in part in so far as they concern the applicant;

– in the alternative, annul Article 2 of the contested decision in so far as it imposes on Kaučuk a fine of EUR 17.55 million, and fix a substantially lower fine;

– order the Commission to pay the costs.

37 The Commission contends that the Court should:

– dismiss the action;

– order Kaučuk to pay the costs.

Law

38 Kaučuk’s action is based on seven pleas in law. By its first plea, Kaučuk submits that the Commission erred in imputing Tavorex’s conduct to Kaučuk. By its second plea, Kaučuk claims that there is no proof of Tavorex’s participation in price-fixing and market-sharing agreements. The third plea alleges a manifest error of assessment by the Commission with respect to Tavorex’s participation in the cartel by comparison with the solution adopted for Dwory. The fourth plea alleges the misapplication of Community competition law to Tavorex and Kaučuk. By its fifth plea, Kaučuk submits that the Commission made a manifest error of law and of assessment with respect to Kaučuk’s participation in an infringement relating to BR. The sixth plea alleges the absence of any infringement committed negligently or intentionally. Last, by its seventh plea, Kaučuk claims a manifest error of law and of assessment in the application of the Guidelines.

39 It is appropriate to examine, first of all, the second plea raised by Kaučuk.

Second plea in law: no proof of Tavorex’s participation in price-fixing and market-sharing agreements

Arguments of the parties

– Arguments of Kaučuk

40 Kaučuk begins by reciting the case-law on the burden of proof borne by the Commission. In particular, it submits that it is important to exercise caution when dealing with the statements of undertakings, prepared with external counsel, in the context of the Leniency Notice.

41 Next, first, Kaučuk observes in essence that the contested decision contains little specific evidence of Tavorex’s participation in the cartel. In particular, Kaučuk refers to recitals 125, 141 and 155 to 159 to the contested decision and submits that the statements contained therein are vague. They are also contradicted by the facts.

42 Second, Kaučuk disputes the direct involvement of Mr T. (Tavorex) in a cartel on 15 and 16 November 1999. In particular, it maintains that the figures relating to it which appear in the handwritten notes taken by Mr N. (Dow) and the facts mentioned in Dow’s statement are incorrect. Kaučuk provides a table by way of illustration, and points in particular to inconsistencies by reference to actual sales made to two companies, Bridgestone and Michelin, in 1999 and 2000. There are also major discrepancies with respect to other customers. Kaučuk concludes that those notes most probably reflect estimates by Mr N. Kaučuk further submits that, contrary to Dow’s contention, the evidence in the file shows that no unofficial meeting took place on 16 November 1999. More specifically, Kaučuk observes that Mr P. (Bayer) left Frankfurt (Germany) at 4 p.m. on 16 November 1999. Kaučuk assumes that if an unofficial meeting had taken place, it would have been held on 15 November 1999, in the evening. There is no document showing that Mr T. was present at that time. Mr T. participated only in the official meeting on 16 November 1999. Last, Kaučuk emphasises that the fact that Bayer confirms Dow’s statement has no probative value with respect to Tavorex and therefore to Kaučuk itself.

43 Third, Kaučuk maintains that there is no evidence of a single and continuous infringement on its part from 15 and 16 November 1999. Kaučuk observes in that regard that, after noting the watershed meeting in November 1999, which is alleged to have triggered the infringement in BR and ESBR, the Commission points to three meetings which are alleged to have occurred in 2000, two in 2001 and two in 2002. However, as regards the meetings held in Prague on 31 August and 1 September 2000, in Frankfurt on 30 November and 1 December 2000, in Frankfurt on 30 and 31 August 2001 and in Hamburg (Germany) on 26 and 27 November 2001, the Commission does not claim that Kaučuk participated in unlawful discussions. As regards the meeting in Prague on 2 and 3 September 2002, Kaučuk observes that although Dwory participated in that meeting, the Commission does not find that Dwory participated in the single and continuous infringement (footnote 161 to the contested decision). Kaučuk maintains that the Commission ought to have arrived at the same conclusion in its case. Furthermore, the responses provided by Dow’s employees are vague and ambiguous, and indeed incompatible with the first statements made independently. Last, as regards the meeting held in London (United Kingdom) on 28 and 29 November 2002, no unlawful discussion took place. Kaučuk concludes that the Commission has not succeeded in establishing a single and continuous infringement in respect of the period from November 1999 to November 2002 in its case. The quality of the evidence is too fragile to establish the liability of Tavorex and, in turn, of Kaučuk.

– Arguments of the Commission

44 The Commission begins by providing its interpretation of the burden of proof borne by it, by reference to the case-law, and maintains that in the present case the sum of all the available evidence shows convincingly that Tavorex/Kaučuk participated in the cartel during the period mentioned in the contested decision. In particular, the Commission emphasises that the statements made by undertakings pursuant to the Leniency Notice are probative evidence.

45 Next, first, the Commission sets out the elements in the file which, in its submission, show that Tavorex/Kaučuk participated in the infringement at issue. The Commission refers, in particular, to the cartel meetings concerning Kaučuk and to the meeting in Richmond-on-Thames (United Kingdom) on 2 and 3 September 1999. Apart from Kaučuk’s pure denials, there is no evidence that that undertaking did not participate in the cartel. Nor does any evidence show that Kaučuk left the cartel. Kaučuk does not deny that Mr T. (Tavorex) was present at all industry meetings between 1999 and 2002. The cartel meetings took place on the fringes of those official meetings. More precisely, the Commission rejects the arguments put forward by Kaučuk concerning recitals 125, 141 and 155 to 159 to the contested decision.

46 Second, as regards the direct involvement of Mr T. (Tavorex) in the unofficial meeting on 15 and 16 November 1999, the Commission emphasises that Kaučuk did not dispute Mr T.’s whereabouts in its responses to the first and second statements of objections. It never asserted that he could not have been present at the meeting, as described in the contested decision. The arguments which Kaučuk raises before the Court are, in that regard, inadmissible (see, to that effect, Case T‑339/04 France Télécom v Commission [2007] ECR II‑521). On the substance, the Commission admits that the details of Dow’s statement do not appear to be correct so far as the date of the unofficial meeting is concerned (namely, according to Dow, in the evening of 16 November 1999). However, the evidence in the file shows that the unofficial meeting took place on the night of 15 to 16 November 1999. The Commission further maintains that much of the evidence confirms that Mr T. was present at the meeting, although the expenses report of Mr P. (Bayer) does not mention Mr T. as being among the participants. The Commission also submits that, according to Kaučuk itself, Mr T. was very likely to have been in Frankfurt on the night before 16 November 1999, since he always used his private car when he came from Prague. In addition, the Commission emphasises that Dow mentions Mr T. among the participants in that meeting. Dow, whose statements are confirmed by Bayer, also states that all the participants, including Mr T., expressed their views on prices and gave certain figures. The handwritten notes of Mr N. (Dow) contain the figures in question under the heading ‘KRA’ (for ‘Kralupy’, the site of Kaučuk’s production facilities). The Commission does not claim in the contested decision that the sales figures given are correct but that, in any event, Dow’s and Bayer’s testimonies and Mr N.’s notes prove that Mr T. attended the illicit meeting which took place on the evening of 15 November 1999.

47 Third, as regards Kaučuk’s denial that there was a single and continuous infringement, the Commission submits that, concerning the meeting held on 21 and 22 February 2000, it has not found any evidence of illegal agreements. With regard to the meeting held in Prague on 31 August and 1 September 2000, the Commission does not impute to Kaučuk a cartel agreement on that occasion, but it finds in the contested decision that Dow exchanged information on prices involving, in particular, Kaučuk. As regards the meeting in Frankfurt on 30 November and 1 December 2000, Bayer’s statement does not directly implicate Kaučuk as a participant. However, the cartel continued. Concerning the meeting held in Frankfurt on 30 and 31 August 2001, the Commission acknowledges that Kaučuk is not directly implicated, but submits that Dow’s statement adds to the charge and that Kaučuk was undoubtedly present at the official meeting. Concerning the meeting held in Hamburg on 26 and 27 November 2001, it may be inferred from the e-mails of Ms I. (Dow) that the cartel continued generally. As regards the meeting held in Prague on 2 and 3 September 2002, the Commission observes that all the persons in charge of ESBR at Bayer directly and unanimously incriminate Mr T. (Tavorex) for having participated in agreements on prices. In particular, the evidence of Bayer (Mr P.) is based on an internal e-mail, presented as evidence in the contested decision. Concerning the meeting held in London on 28 and 29 November 2002, the Commission interprets Mr P.’s statement as including Mr T. as well. Last, there is no indication that Kaučuk (or Tavorex) clearly distanced themselves from the cartel.

Findings of the Court

48 It must be noted that as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86). It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited). It must also be noted that in order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112; Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86; Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256). Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 215).

49 Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P, Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 51).

50 In the present case, as regards the cartel meetings (Section 4.3 of the contested decision), Kaučuk denies, first, that Mr T. (Tavorex) participated in an unlawful meeting in Frankfurt on 15 and 16 November 1999. Second, Kaučuk challenges the Commission’s finding that there was an infringement in its case from 16 November 1999 to 28 November 2002.

51 As a preliminary point, the Court must reject the Commission’s arguments relating to the meeting held in Richmond-on-Thames on 2 and 3 September 1999 (recitals 189 to 193 to the contested decision), since that meeting does not fall within the period of the infringement as determined by the Commission in regard to Kaučuk.

52 So far as the meeting which took place in Frankfurt on 15 and 16 November 1999 is concerned, the Commission finds that there was a cartel meeting, on the fringes of the official meeting of the European Synthetic Rubber Association, in ‘the evening and night of 16 November 1999’ (recital 212 to the contested decision). That unlawful meeting is said to have involved Mr P. (Bayer), Mr F., Mr N., Mr V. (Dow), Mr L. (Stomil), Mr L. (EniChem) and Mr T. (Tavorex). The persons concerned initially met in the bar of a hotel before renting a conference room (recital 202 to the contested decision).

53 In that regard, first of all, it is apparent from the evidence in the file that, as Kaučuk maintains, Mr P. (Bayer) was not present in Frankfurt on 16 November 1999 in the evening. The Commission acknowledges that fact.

54 Second, it must be observed that the contested decision contains a number of contradictions as to the precise timing of the unlawful meeting at issue. Thus, the Commission refers in recital 212 to the contested decision to ‘the evening and night of 16 November 1999’, on the basis of Dow’s statement. The Commission also finds, in recital 297 to the contested decision, that the unlawful meeting at issue was held in ‘the night between 15 and 16 November 1999’. Moreover, Section 4.3.8 of the contested decision refers to 15 and 16 November 1999. Last, the operative part of the contested decision finds that, in the case of Kaučuk, the infringement began on 16 November 1999.

55 Third, several substantive items also reveal contradictions regarding the alleged date of the unlawful meeting at issue and the other possible explanations given by the Commission. Accordingly the expenses report of Mr P. (Bayer) relating, inter alia, to a payment of DEM 84.50 at the hotel bar refers to 15 November 1999. By contrast, payment of DEM 436 for the hire of a conference room was recorded on 16 November 1999. Furthermore, the handwritten notes of Mr N. (Dow) mention only 16 November 1999. Last, according to Dow’s statement, set out in recital 202 to the contested decision, the unlawful meeting took place after the official meeting of the European Synthetic Rubber Association, which was held on 16 November in the morning.

56 Fourth, the Commission does not dispute, as Kaučuk indicates in its written pleadings, that Mr T. (Tavorex) travelled to meetings of the European Synthetic Rubber Association by car (except for meetings in the United Kingdom) and that the journey between Prague and Frankfurt takes around five hours. That being the case, it is not inconceivable that Mr T. travelled directly to Frankfurt in the morning of 16 November 1999, although it would have required a special effort. There is, in any event, nothing in the file to contradict that proposition. As regards the Commission’s argument that Kaučuk’s denial of Mr T.’s presence in Frankfurt in the evening of 15 November is inadmissible, suffice it to note that Kaučuk merely challenges the proposition – which is new in the light of recital 212 to the contested decision – that an unlawful meeting could have taken place on 15 November 1999 in the evening. The Commission’s arguments must therefore be rejected.

57 Fifth, Dow’s statement, set out in recital 202 to the contested decision, indicates that Mr P. (Bayer), Mr F., Mr N., Mr V. (Dow), Mr L. (Stomil), Mr L. (EniChem) and Mr T. (Tavorex) met in the hotel bar before renting a conference room. Yet Mr P.’s expenses report in respect of drinks paid for does not mention Mr T. among the participants in the encounter in the hotel bar.

58 Sixth, as regards the handwritten notes of Mr N. (Dow), it is common ground that the Commission did not find Kaučuk liable in respect of the BR cartel. The part of Mr N.’s handwritten notes that relates to BR cannot, therefore, have any probative value with respect to Kaučuk. As regards the part of Mr N.’s handwritten notes that relates to ESBR, it must be noted that, besides the cartel producers, other producers which are not part of the cartel are mentioned as suppliers to certain customers. In those particular circumstances, it is conceivable that estimates of supplies were made as between certain producers only and it is not possible to determine precisely whether Kaučuk (through Tavorex) was involved in view, in particular, of the contradictions as to the presumed date of the unlawful meeting at issue.

59 In the light of all these particular considerations taken together in the present case, the Court considers that there is some doubt as to whether Mr T. (Tavorex) participated in an unlawful meeting in Frankfurt on 15 and 16 November 1999. That doubt must operate to the advantage of Kaučuk.

60 With regard to the meetings after November 1999, it is not possible to determine with any certainty whether Tavorex participated directly in a meeting of the cartel.

61 In particular, the Commission does not include Tavorex among the undertakings which reached an agreement at the meeting in Prague on 31 August and 1 September 2000 (recital 221 to the contested decision). As regards the meeting held in Frankfurt on 30 November and 1 December 2000 (recitals 222 to 225 to the contested decision), it is doubtful that the agreement concerned could have been concluded with Tavorex in the car of Mr W. (Bayer), in view, in particular, of the fact –not disputed by the Commission – that Mr T. (Tavorex) travelled to the meetings held in Frankfurt in his private car. With regard to the meeting on 30 and 31 August 2001, also held in Frankfurt (recitals 226 to 230 to the contested decision), the statements of undertakings set out in the contested decision do not expressly refer to Tavorex or Kaučuk. As regards the meeting on 26 and 27 November 2001 (recitals 231 to 237 to the contested decision), the Commission does not conclude that there was a specific agreement but that the agreements at issue had continued until then.

62 With regard to the meeting held in Prague on 2 and 3 September 2002 (recitals 238 to 245 to the contested decision), the evidence put forward by the Commission appears to demonstrate, prima facie, that unlawful agreements were concluded. However, there is some doubt as to whether Mr T. (Tavorex) participated in that unlawful meeting. The Commission’s conclusion is based specifically on a statement made by Bayer, set out in recital 240 to the contested decision, which is based in particular on Mr P.’s contentions and according to which Mr T. was directly involved in the unlawful meeting at issue. However, Bayer also indicated in a statement set out in recital 156 to the contested decision, also based on Mr P.’s contentions, that Mr T. had participated in the unofficial meetings on the fringes of the official meetings between November 1996 and ‘the end of 1999’. Bayer’s two statements are, therefore, contradictory to a certain extent. That contradiction raises some doubt as to whether Mr T. actually participated in an unlawful meeting in Prague on 2 and 3 September 2002. That doubt must operate to the advantage of Kaučuk.

63 Finally, as regards the meeting held in London on 28 and 29 November 2002, the Commission does not find that an unlawful agreement was concluded on those dates between the undertakings concerned.

64 In the light of all these considerations taken together in the present case, the Court considers that, in so far as it concerns Tavorex (and thus Kaučuk), the evidence set out in that part of the contested decision which relates to cartel meetings is not sufficient to support the conclusion that that undertaking participated in the unlawful agreements at issue.

65 The evidence referred to in the part of the contested decision that relates to the description of the cartel (Section 4.2 of the contested decision) does not alter that conclusion.

66 In that regard, the Court considers that even if some of the evidence set out in Section 4.2 of the contested decision may have a certain probative value, in particular the general statement of Bayer referred to in recital 156 to the contested decision, it is not sufficient – given the specific evidence previously referred to in relation to the meetings of the cartel and the doubt which must operate to the advantage of the applicant – to justify the finding that there was an infringement by Kaučuk.

67 In the light of all these considerations, and in the context of an overall assessment thereof, the Court holds that the Commission erred in finding that Tavorex (and thus Kaučuk) participated in the cartel.

68 Consequently, the contested decision must be annulled in so far as it concerns Kaučuk, and there is no need to examine the other pleas in law put forward in support of the action, and in particular the issue of the relationships between principals and agents in the context of the infringements of the competition rules.

Costs

69 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful it must be ordered to pay the costs, in accordance with the form of order sought by Kaučuk.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1. Annuls Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as it concerns Kaučuk a.s.;

2. Orders the European Commission to pay the costs.

Dehousse Wiszniewska-Białecka Wahl

Delivered in open court in Luxembourg on 13 July 2011.

[Signatures]