Joined Cases T-456/05 and T-457/05

Gütermann AG and

Zwicky & Co. AG

v

European Commission

(Competition – Agreements, decisions and concerted practices – European market in industrial thread – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Fines – Gravity of the infringement – Actual impact on the market – Duration of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality – Guidelines on the method of setting fines)

Summary of the Judgment

1. Community law – Interpretation – Acts of the institutions – Statement of reasons

2. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement – Imputation of liability to an undertaking by reason of its participation in an infringement considered as a whole – Lawfulness

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Imputation to an undertaking – Responsibility for conduct of other undertakings in the context of the same infringement – Lawfulness – Criteria

(Art. 81(1) EC)

4. Competition – Administrative procedure – Bringing infringements to an end – Commission's powers – Injunctions to undertakings

(Council Regulation No 1/2003, Art. 7(1))

5. Competition – Fines – Amount – Determination – Maximum amount

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2))

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

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2))

7. Competition – Fines – Amount – Whether appropriate – Judicial review

(Arts 229 EC and 253 EC; Council Regulations Nos 17, Art. 17, and 1/2003, Art. 31)

8. Actions for annulment – Judicial review – Limits on jurisdiction

(Art. 233 EC)

9. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – Criteria for assessment

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

10. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1B, first para.)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Sections 1A, first para., and 3)

12. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Art. 81 EC; Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03, Sections 2 and 3)

13. Procedure – Introduction of new pleas during the proceedings – Conditions – New plea – Concept

(Rules of Procedure of the General Court, Art. 48(2))

14. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions – Discretion of the Commission

(Council Regulation No 17; Commission Notice 96/C 207/04, Title D, Section 2)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Determination of the fine in proportion to the factors for assessment of the gravity of the infringement

(Council Regulation No 17, Art. 15(2))

1. The enacting terms of an act are indissociably linked to the statement of reasons for those provisions, so that, when they have to be interpreted, account must be taken, if necessary, of the reasons which led to their adoption.

(see para. 41)

2. An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision.

A single and continuous infringement frequently consists of a series of acts which follow each other in time and which, in themselves, at the time when they occur, can also constitute an infringement of the competition rules. The distinctive feature of those acts is that they form part of an overall strategy.

(see paras 45-46)

3. An undertaking which has participated in a single complex infringement through its own conduct – conduct which meets the definition of an agreement or concerted practice with an anti-competitive object for the purposes of Article 81(1) EC, and which was intended to help bring about the infringement as a whole – may also be liable for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably have foreseen such conduct, and was prepared to accept the risk.

An undertaking can infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has itself to be active on that relevant market.

(see paras 50, 53)

4. The Commission’s power to issue injunctions is to be applied according to the nature of the infringement found.

In so far as an undertaking has ceased to trade in the sector in question, it is no longer concerned by the injunction to bring the infringements to an end. There cannot therefore be a breach of the principle of proportionality in that regard.

The application of Article 7(1) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] may involve a prohibition on continuing certain activities, practices or situations which have been found to be unlawful, but also a prohibition on adopting similar future conduct or any measure having the same or equivalent object or effect.

Where the undertaking concerned has given an undertaking to refrain from repeating its anti-competitive conduct, the Commission is justified in including that injunction in the enacting terms of the contested decision even if that undertaking has ceased to trade in the sector concerned by the cartel.

Such obligations on undertakings must not, however, exceed the limits of what is appropriate and necessary to achieve the aim pursued.

(see paras 61, 63, 65, 67)

5. In determining the ‘preceding business year’, the Commission must assess, in each specific case and having regard both to the context and to the objectives pursued by the scheme of penalties created by Regulation No 17 and Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s true economic situation in the period during which the infringement was committed.

It is clear, however, both from the objectives of the system of which Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(3) of Regulation No 1/2003 form part and from the case-law, that the application of the 10% upper limit of turnover presupposes, first, that the Commission has at its disposal the turnover figure for the last business year preceding the date of adoption of the decision and, second, that those data represent a full year of normal economic activity over a period of 12 months.

Thus, if the business year had ended before the adoption of the decision but the annual accounts of the undertaking in question had not yet been drawn up or had not been disclosed to the Commission, the latter would have the right, indeed the obligation, to use the turnover achieved in an earlier business year in order to apply Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003. Similarly, if, as a result of a reorganisation or a change in accounting practices, an undertaking has, for the preceding business year, produced accounts which relate to a period shorter than 12 months, the Commission is entitled to rely on the turnover achieved in an earlier complete year in order to apply those provisions. The same is true if an undertaking has not carried on any economic activity during the preceding business year and, accordingly, the Commission does not have at its disposal a figure for the undertaking’s turnover, representing economic activity carried on by it during that year. Contrary to the requirements of the case-law, the turnover for that period gives no indication of the size of the undertaking and, in consequence, cannot serve as a basis for determining the maximum amount permissible under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003.

Even in a year of normal business activity, the turnover of an undertaking may fall significantly, or indeed substantially, as compared with previous years, for various reasons, such as a difficult economic context, a crisis in the sector concerned, an accident or a strike. However, as long as an undertaking has in fact achieved a turnover during a complete year in which economic activities, albeit on a reduced scale, have been carried on, the Commission must take account of that turnover for the purposes of determining the maximum amount permissible under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003. Accordingly, at least in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it is appropriate to regard the Commission as obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity.

(see paras 89-90, 94-97)

6. The power of the Commission to impose fines pursuant to Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] is one of the means given to the Commission so as to enable it to carry out the task of supervision entrusted to it by Community law.

That task includes the duty to investigate and punish individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. That task thus also includes the curbing of illegal activities and the prevention of repeat offences.

It follows that the Commission must ensure that fines have a deterrent effect.

(see paras 79, 91)

7. The Community judicature has, in regard to actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules, power to assess, in the context of the unlimited jurisdiction accorded to it by Article 229 EC, Article 17 of Regulation No 17 and Article 31 of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty under Article 253 EC to state reasons, to be set out in the decision imposing the fine.

(see paras 105-106)

8. If an addressee of a decision decides to bring an action for annulment, the matter to be adjudicated by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be adjudicated by the Community judicature.

(see para. 112)

9. In order to assess the actual impact of an infringement on the market, the Commission must take as a reference the competition which would normally have existed if there had been no infringement. In order to conclude that there has been an impact on the market, it is sufficient that the agreed prices have served as a basis for determining individual transaction prices, thereby limiting customers’ room for negotiation.

On the other hand, the Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel. It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility has in no way been demonstrated. In order to assess the gravity of the infringement, the decisive point is whether the cartel members did all they could to give practical effect to their intentions. What then happened at the level of the market prices actually obtained is liable to have been influenced by other factors outside the control of the members of the cartel. The cartel members cannot therefore benefit from external factors which counteracted their own efforts by turning them into factors justifying a reduction of the fine.

The actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of assessing the impact of a cartel on the market. Only the effects resulting from the whole of the infringement are to be taken into account. Thus, consideration of the unlawful conduct of an undertaking concerned with regard to competition sheds light on the individual situation of the undertaking, but can have no bearing whatsoever on the categorisation of the infringement as ‘very serious’.

With an infringement of long duration, it is unlikely that the producers regarded the practices complained of at the time as wholly ineffective and pointless.

The nature of the infringement plays a major role, in particular, in distinguishing ‘very serious’ infringements. It is clear from the description of very serious infringements given 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 that agreements or concerted practices which are designed, inter alia, to fix prices may, on the basis of their nature alone, be categorised as ‘very serious’, without there being any need to distinguish such conduct by reference to a particular impact or geographic area. The description of very serious infringements makes no mention of any requirement as to actual market impact or effects produced in a particular geographic area.

(see paras 126, 128-130, 133-134, 136-137)

10. The duration of the infringement is one of the factors to which regard is to be had in fixing the amount of the fine to be imposed on undertakings which have infringed the competition rules. In relation to infringements of long duration, the Commission may automatically apply the maximum increase of 10% of the amount used to calculate the gravity of the infringement for each year thereof. Even though the third indent of the first paragraph of Section 1B of 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 does not provide for an automatic increase of 10% per year for long-term infringements, it leaves the Commission a measure of discretion in that regard

There is nothing in the Guidelines to prevent the actual duration of the infringement from being taken into account in the calculation of the amount of the fine. Such an approach is entirely logical and reasonable and falls, in any event, within the Commission’s discretion.

Where it is established that an undertaking was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk, it is also regarded as responsible, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement The Commission is right to consider, implicitly, that the duration of the infringement could not be divided on the basis of the intensity of the participation of the applicant undertaking in the markets concerned. If the role played in a cartel by an undertaking has been correctly taken into account in determining the starting amount for the fine, the fact that the undertaking did not take part in all the conduct by which the cartel is identified cannot once again be taken into account in determining the duration of the infringement.

The increase in the amount of the fine in relation to the duration of the infringement is calculated by the application of a certain percentage to the starting amount which is determined according to the gravity of the infringement as a whole, thus already reflecting the varying levels of intensity of the infringement. Thus, it would not be logical to take into account, for the increase of that amount on the basis of the duration of the infringement, a variation in the intensity of the infringement during the period concerned. A distinction should always be made between the duration of the actual operation of the cartel and the gravity thereof as resulting from its particular nature.

(see paras 147-148, 150, 152, 156-157, 159-160)

11. The mitigating circumstances provided for in Section 3 of 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 are all based on the individual conduct of each undertaking. In order to assess any mitigating circumstances, including those relating to the non-implementation of agreements, it is necessary to take into account not the effects arising from the infringement as a whole, which must be taken into consideration in assessing the actual impact of an infringement on the market for the purposes of determining its gravity, but the individual conduct of each undertaking, for the purposes of examining the relative gravity of the participation of each undertaking in the infringement.

Undertakings must therefore put forward other arguments which are capable of showing that, during the period in which they were party to the unlawful agreements, they actually avoided implementing those agreements by adopting competitive conduct on the market or, at the very least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its operation.

(see paras 178, 180)

12. A passive role implies that the undertaking adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anti-competitive agreements. Amongst the circumstances that may indicate the adoption by an undertaking of a passive role within a cartel is the situation where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ‘ordinary’ members of the cartel, and likewise its belated entry to the market where the infringement occurred, regardless of the duration of its participation in the infringement, or again the existence of express statements to that effect emanating from representatives of other undertakings which participated in the infringement.

It is only in certain specific circumstances that the small size of an undertaking is an important factor to take into consideration. When the managers of the undertaking chair and organise several meetings, the Commission is entitled to conclude that it is not playing a passive role. It is settled law that convening meetings, proposing an agenda and distributing preparatory documents for such meetings are incompatible with a low-profile since such initiatives show the positive and active attitude of the undertaking concerned to the founding, continuation and control of the cartel.

The Commission is not bound by a decision-making practice: because, in previous cases, it took account of the economic situation in the sector as a mitigating circumstance does not mean that it must necessarily continue to do so. The Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings, other product and service markets or other geographical markets at different times.

(see paras 184-185, 189, 193-195)

13. Under Article 48(2) of the Rules of Procedure of the General Court, no new plea in law may be introduced in the course of proceedings unless that plea is based on matters of law or of fact which have come to light in the course of the procedure.

However, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible.

(see paras 198-199)

14. The Commission has a broad discretion as regards the method of calculating fines and may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. An undertaking's cooperation with the Commission can justify a reduction of the fine pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases solely if it has made it easier for the Commission to establish an infringement and to put an end to it.

The Commission is not bound by a previous decision-making practice when it grants a certain rate of reduction for a particular kind of conduct; it is not required to grant a reduction of the same proportion when assessing similar conduct in the course of a later administrative procedure.

The Commission enjoys a broad discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, especially in comparison with the contributions made by other undertakings. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned. The list of circumstances which may give rise to a reduction of the fine, set out in Section D2 of the Leniency Notice, is merely illustrative.

The Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession. Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking, that does not facilitate the Commission’s task significantly and does not justify a reduction in the fine for cooperation.

Leniency is a reward granted by the Commission in return for facilitating establishment of the infringement, whatever the stage at which the undertaking provided assistance and regardless of whether the assistance consisted in the provision of new information and evidence, or in the admission of facts or of the legal characterisation of the facts.

A reduction in the fine in recognition of cooperation depends principally on the quality and usefulness of the cooperation provided, which is a matter for the Commission to assess in the exercise of its broad discretion, of which only a manifest abuse of that discretion can be censured.

When assessing the cooperation provided by undertakings, the Commission cannot ignore the principle of equal treatment, which is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such treatment is objectively justified.

The assessment of the usefulness of cooperation is in no way based on an arithmetical formula automatically indicating a reduction of at least 20% if the two indents of Section D of the Leniency Notice are found to apply.

(see paras 219-225, 238, 246, 248)

15. The principle of proportionality requires that measures adopted by Community institutions must not exceed the limits of what is appropriate and necessary for attaining the objective pursued.

When it comes to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors.

In this context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

Thus, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking, since recognition of such an obligation would be tantamount to conferring an unfair competitive advantage on the undertakings least well adapted to market conditions. In any event, even if a measure taken by a Community authority were to lead to the liquidation of an undertaking, such a liquidation of the undertaking in its existing legal form – although it may adversely affect the financial interests of the owners, investors or shareholders – does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value.

Thus, neither Regulation No 17, nor Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC], nor 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 provide that the amount of fines must be determined in direct relation to the size of the affected market, that being only one relevant factor among others.

Although the Guidelines do not state that fines should be calculated according to the overall turnover of the undertakings concerned or their turnover on the relevant market, nor do they preclude the Commission from taking either figure into account in determining the amount of the fine, in order to ensure compliance with the general principles of Community law and where circumstances so require. The turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement and the liability of each cartel member on the relevant markets. That turnover figure constitutes an objective criterion which gives a proper measure of the harm which the offending conduct in question represents for normal competition and it is therefore a good indicator of the capacity of each undertaking to cause damage. However, there is no general principle that the penalty be proportionate to the turnover which the undertaking made from the sale of the product in respect of which the infringement was committed.

The Commission is under no obligation, where fines are imposed on a number of undertakings involved in the same infringement, to ensure that the final amounts calculated for the fines reflect every difference between the undertakings concerned in terms of their overall turnover or their turnover on the market for the product in question. The Commission is not required to take account of the size of the undertakings concerned when it determines the amount of the fine; there is no reason to treat small and medium-sized undertakings differently from other undertakings since that does not exempt them from their duty to comply with the competition rules.

(see paras 260-261, 264, 266-267, 275, 277-283)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

28 April 2010 ( )

(Competition – Agreements, decisions and concerted practices – European market in industrial thread – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Fines – Gravity of the infringement – Actual impact on the market – Duration of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality – Guidelines on the method of setting fines)

In Joined Cases T‑456/05 and T‑457/05,

Gütermann AG, established in Gutach-Breisgau (Germany), represented by J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers,

applicant in Case T‑456/05,

Zwicky & Co. AG, established in Wallisellen (Switzerland), represented by J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers,

applicant in Case T-457/05,

v

European Commission, represented initially by F. Castillo de la Torre, M. Schneider and K. Mojzesowicz, and subsequently by F. Castillo de la Torre and K. Mojzesowicz, acting as Agents,

defendant,

APPLICATIONS for annulment of Commission Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread), as amended by Commission Decision C(2005) 3765 of 13 October 2005, and, in the alternative, for reduction of the fine imposed on the applicants by that decision,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucǎ, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 17 December 2008,

gives the following

Judgment

Background to the dispute

1. Subject-matter of the dispute

1 By Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread) (‘the contested decision’), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and a summary of which was published in the Official Journal of the European Union of 26 January 2008 (OJ 2008 C 21, p. 10), the Commission of the European Communities found that the applicants – Gütermann AG (‘Gütermann’) and Zwicky & Co. AG (‘Zwicky’) – had participated in a set of agreements and concerted practices on the market in thread for industrial customers in Benelux and the Nordic countries during the period from January 1990 to September 2001, in the case of Gütermann, and during the period from January 1990 to November 2000, in the case of Zwicky.

2 The Commission imposed a fine of EUR 4.021 million on Gütermann and a fine of EUR 0.174 million on Zwicky for their participation in the industrial thread cartel in Benelux and the Nordic countries.

2. Administrative procedure

3 On 7 and 8 November 2001, the Commission carried out inspections 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 a number of sewing thread manufacturers. Those inspections were carried out as a result of information supplied in August 2000 by The English Needle & Tackle Company.

4 On 26 November 2001, Coats Viyella plc (‘Coats’) filed an application for leniency under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’), together with documents intended to show the existence of the following cartels: (i) a cartel on the market in thread for automotive customers in the European Economic Area (EEA); (ii) a cartel on the market in thread for industrial customers in the United Kingdom; and (iii) a cartel on the market in thread for industrial customers in Benelux, as well as in Denmark, Finland, Norway and Sweden (collectively, ‘the Nordic countries’).

5 In March and August 2003, on the basis of the documents taken in the course of the inspections and those provided by Coats, the Commission sent the undertakings concerned requests for information pursuant to Article 11 of Regulation No 17.

6 On 15 March 2004, the Commission issued a statement of objections regarding a number of undertakings on account of their participation in one or more of the cartels referred to in paragraph 4 above, including the cartel on the market in thread for industrial customers in Benelux and the Nordic countries.

7 All the undertakings to which the statement of objections was addressed submitted written observations. Gütermann replied in its own name and in the name of Zwicky.

8 A hearing took place on 19 and 20 July 2004.

9 On 24 September 2004, the parties were granted access to the non-confidential version of the responses to the statement of objections, as well as to the comments made by the parties at the hearing, and were given a deadline by which to submit further comments.

10 On 14 September 2005, the Commission adopted the contested decision.

3. The contested decision

Definition of the relevant markets

Product market

11 In the contested decision, the Commission states that the thread sector can be divided into two categories: (i) the thread used in industry to sew or embroider various kinds of apparel or other items such as leather goods, textile coatings for motor vehicles and mattresses and (ii) domestic thread used by individuals for sewing or mending and for leisure activities.

12 The industrial thread business can be divided into three categories according to the use to which the thread is put: (i) sewing thread for the clothing industry, which is used for various types of garment; (ii) embroidery thread, which is used in computerised, industrial embroidery machines to embellish clothing, sports shoes and household textiles; and (iii) special thread, which is used in various sectors such as footwear, leather goods and the motor industry.

13 According to the Commission, industrial thread may be regarded, from the point of view of supply, as a single product market since there is no strict correspondence between the end-use and the type of fibre and/or the structure of the thread.

14 Nevertheless, the Commission draws a distinction in the contested decision between thread intended for the motor industry and thread intended for industries other than the motor industry. It considers that, although the production processes for the two types of thread are similar or easily interchangeable, the demand in the motor industry comes from large customers which impose higher specification standards for certain products which they use – such as the thread used for seat belts – and which require product uniformity in the various countries in which they have need of those products for their industry.

15 In the present cases, the product market by reference to which the infringement complained of was investigated is the market for industrial thread other than for the motor industry (‘industrial thread’).

Geographic markets

16 In the contested decision, the Commission notes that, according to the information provided by the parties, the relevant geographic market for industrial thread is regional. It adds that, according to the case, the region can cover a number of EEA countries, such as Benelux or the Nordic countries, or a single country, such as the United Kingdom.

17 In the present case, the geographic market relevant to the alleged infringement on the part of the applicants is Benelux and the Nordic countries.

Size and structure of the relevant markets

18 It can be seen from the contested decision that the sales of industrial thread in Benelux and the Nordic countries was approximately EUR 50 million in 2000 and approximately EUR 40 million in 2004.

19 It also emerges from the contested decision that, at the end of the 1990s, the main suppliers of industrial thread in Benelux and the Nordic countries included Gütermann, Zwicky, Amann und Söhne GmbH & Co. KG (‘Amann’), Barbour Threads Ltd, before it was acquired by Coats, Belgian Sewing Thread NV (‘BST’) and Coats.

Description of the unlawful conduct

20 The Commission states in the contested decision that the events relating to the cartel on the market for industrial thread in Benelux and the Nordic countries took place between 1990 and 2001.

21 According to the Commission, the undertakings concerned met at least once a year and those meetings were split into two sessions, one dealing with the Benelux market and the other dealing with the market in the Nordic countries. The primary objective of the meetings was the maintenance of high prices on both markets.

22 The participants exchanged price lists, as well as information on rebates, the application of increases in list prices, reductions in rebates and increases in the special prices applied to certain customers. They also concluded agreements on future price lists, maximum rebates, reductions in rebates and increases in the special prices applied to certain customers, as well as agreements to avoid undercutting, to the advantage of the incumbent supplier and with a view to arranging customer allocation (contested decision, recitals 99 to 125).

Enacting terms of the contested decision

23 By Article 1(1) of the contested decision, the Commission found that eight undertakings, including Gütermann and Zwicky, had infringed Article 81 EC and Article 53 of the EEA Agreement by participating in agreements and concerted practices affecting the markets of thread for industrial customers in Benelux and the Nordic countries, during the period between January 1990 and September 2001 in the case of Gütermann and during the period between January 1990 and November 2000 in the case of Zwicky.

24 Under the first paragraph of Article 2 of the contested decision, the following fines were imposed in respect of the cartel on the market for industrial thread in Benelux and the Nordic countries on the following undertakings, among others:

– Coats: EUR 15.05 million;

– Amann: EUR 13.09 million;

– BST: EUR 0.979 million;

– Gütermann: EUR 4.021 million;

– Zwicky: EUR 0.174 million.

25 By Article 3 of the contested decision, the Commission ordered the undertakings covered by that decision to bring to an end immediately, if they had not already done so, the infringements which had been found to exist. It also ordered them to refrain from repeating any act or conduct referred to in Article 1 of the contested decision and from adopting any act or conduct having equivalent object or effect.

Procedure and forms of order sought

26 By applications lodged at the Registry of the General Court on 30 December 2005, the applicants brought the present actions.

27 In Case T‑456/05, Gütermann claims that the General Court should:

– annul Article 1 of the contested decision in so far as it declares that Gütermann infringed Article 81 EC and Article 53 of the EEA Agreement as regards the market in Finland, Norway and Sweden in the period from January 1990 to September 2001 or, in the alternative, in the period from January 1990 up to and including December 1993;

– annul Article 2 of the contested decision in so far as it imposes on Gütermann a fine of EUR 4.021 million or, in the alternative, reduce that fine to an appropriate amount;

– order the Commission to pay the costs.

28 The Commission contends that the General Court should:

– dismiss the action;

– order Gütermann to pay the costs.

29 In Case T‑457/05, Zwicky claims that the General Court should:

– annul Article 1 of the contested decision in so far as it declares that Zwicky infringed Article 81 EC and Article 53 of the EEA Agreement as regards the market in Finland, Norway and Sweden in the period from January 1990 to November 2000 or, in the alternative, in the period from January 1990 up to and including December 1993;

– annul Article 2 of the contested decision in so far as it imposes on Zwicky a fine of EUR 0.174 million or, in the alternative, reduce that fine to an appropriate amount;

– annul Article 3 of the contested decision in so far as it concerns Zwicky;

– order the Commission to pay the costs.

30 The Commission contends that the General Court should:

– dismiss the action;

– order Zwicky to pay the costs.

31 By order of 9 December 2008, the President of the Fifth Chamber of the General Court decided, after hearing the parties, to join Cases T‑456/05 and T‑457/05 for the purposes of the oral procedure and the judgment, in accordance with Article 50 of the Rules of Procedure of the General Court.

Law

32 First of all, the applicants have put forward two pleas in law concerning the alleged unlawful conduct. By their first plea, the applicants allege infringement of Article 7(1) 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). Zwicky has also put forward a plea alleging that the injunctions to bring the infringement to an end and to refrain from repeating such conduct were unjustified.

33 Secondly, the applicants have put forward a series of pleas with a view to having the fine cancelled or reduced. On the one hand, Zwicky complains that the Commission imposed on it a fine which exceeded the upper limit of 10% of turnover. On the other hand, the applicants have put forward five pleas alleging, respectively: (i) incorrect assessment of the gravity of the infringement as regards its effects; (ii) incorrect assessment of the duration of the infringement; (iii) failure to take account of certain mitigating circumstances; (iv) misapplication of the Leniency Notice; and (v) imposition of fines which are disproportionate.

1. The pleas challenging the finding that an infringement has occurred and the injunctions to bring that infringement to an end and to refrain from repeating it

The plea, put forward by Gütermann and Zwicky, alleging infringement of Article 7(1) of Regulation No 1/2003

Arguments of the parties

34 According to the applicants, the Commission infringed Article 7(1) of Regulation No 1/2003, which provides that ‘[w]here the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or of Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end’. When it accused the applicants of infringing Article 81 EC and Article 53 of the EEA Agreement by reason of their participation in agreements and concerted practices on the markets for industrial thread in Benelux and the Nordic countries, during the period from January 1990 to September 2001 in the case of Gütermann and from January 1990 to November 2000 in the case of Zwicky, the Commission failed to take account of the fact that the EEA Agreement did not enter into force until 1 January 1994 and, consequently, before that date, did not apply to Finland, Norway or Sweden. Similarly, since Finland and Sweden did not accede to the European Community until 1 January 1995, Article 81 EC did not become directly applicable there until that date.

35 The applicants also maintain that the Commission was correct in considering that an infringement in the legal sense of the term – that is to say, an infringement of Article 81 EC and Article 53 of the EEA Agreement by reason of their conduct – can exist in relation to Finland, Norway and Sweden only from 1 January 1994. The Commission therefore erred by taking as its starting point, from a legal point of view, the existence of a single infringement which simply grew in intensity. The Commission made no distinction between the factual assessment of the applicants’ conduct as a single and continuous collusive agreement, from January 1990 to September 2001 in the case of Gütermann and from January 1990 to November 2000 in the case of Zwicky, and the legal assessment of that conduct as an infringement of the competition rules during those two periods.

36 Furthermore, the applicants maintain that their plea alleging infringement of Article 7(1) of Regulation No 1/2003 is admissible. The Commission has argued, incorrectly, that it is inadmissible on the ground that they have not established the existence of a manifest error of assessment in the categorisation of their conduct as a single and continuous collusive agreement. In the applicants’ view, the Commission categorised their conduct as a single and continuous collusive agreement from the point of view of the facts, which the applicants do not challenge in the context of the present plea. On the other hand, the legal assessment set out in Article 1(1) of the contested decision is erroneous, since Zwicky was not present on the market for industrial thread in the Nordic countries and, in relation to Finland, Norway and Sweden, there could not have been any infringement of the competition rules between January 1990 and December 1993.

37 The Commission relies principally on the inadmissibility of the applicants’ present plea and, in the alternative, contends that that plea is not well founded.

Findings of the Court

38 The Court considers that the merits of the plea alleging infringement of Article 7(1) of Regulation No 1/2003 should be assessed, without there being any need to examine the admissibility of that plea.

39 It should first be noted that, in points (g) and (h) of Article 1(1) of the contested decision, the Commission finds that the applicants infringed Article 81 EC and Article 53 of the EEA Agreement by reason of their participation, from January 1990 to September 2001 in the case of Gütermann and from January 1990 to November 2000 in the case of Zwicky, in concerted practices on the market for industrial thread in Benelux and the Nordic countries.

40 It must be stated that, taken in isolation, those provisions could suggest that the Commission concluded that the applicants had committed an infringement by participating in concerted practices on the market for industrial thread in Finland, Norway and Sweden between January 1990 and December 1993, that is to say, before the EEA Agreement entered into force. However, it is common ground that, during that period, there was no legal basis for a finding by the Commission that the applicants had committed such an infringement.

41 As it is, it is clear from the case-law that the enacting terms of an act are indissociably linked to the statement of reasons for those provisions, so that, when they have to be interpreted, account must be taken, if necessary, of the reasons which led to their adoption (Case C‑355/95 P TWD v Commission [1997] ECR I‑2549, paragraph 21, and Joined Cases T‑204/97 and T‑270/97 EPAC v Commission [2000] ECR II‑2267, paragraph 39).

42 It is clear from recitals 246, 295 to 298 and 331 of the contested decision that, in so far as the cartel covered Finland, Norway and Sweden, it constituted an infringement of the Community competition rules and the EEA competition rules only from 1 January 1994, the date on which the EEA Agreement entered into force. Accordingly, points (g) and (h) of Article 1(1) of the contested decision must be read in the light of that statement of reasons, which is clear and entirely unambiguous. It follows that the enacting terms of the contested decision are to be read as meaning that the elements of the single and continuous infringement existed, in relation to Finland, Norway and Sweden, only from 1 January 1994.

43 Secondly, it is to no avail that the applicants rely, essentially, on a distinction supposedly made by the Commission in the contested decision between, on the one hand, the legal assessment of an infringement of Article 81 EC and Article 53 of the EEA Agreement and, on the other, a factual assessment – in recitals 264 to 277 of that decision – of their conduct as a single and continuous infringement. They conclude from that, also wrongly, that since an infringement ‘in the legal sense of the term’ could exist in relation to Finland, Norway and Sweden only from 1 January 1994, the Commission erred in finding that there was a single infringement which had simply grown in intensity.

44 First, it is important to point out that the applicants in no way deny the single and continuous nature of the infringement on the market for industrial thread in Benelux and the Nordic countries.

45 Also, it should be borne in mind that an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 81, and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 155).

46 Thus, a single and continuous infringement frequently consists of a series of acts which follow each other in time and which, in themselves, at the time when they occur, can also constitute an infringement of the competition rules. The distinctive feature of those acts lies in the fact that they form part of an overall strategy. That is essentially what the Commission concluded in recitals 264 to 277 of the contested decision with regard to the cartel on the market for industrial thread in Benelux and the Nordic countries.

47 Contrary to the applicants’ claim, the considerations set out in the abovementioned recitals of the contested decision do not simply rehearse the facts, but set out the objective reasons which require the Commission to conclude that the infringement on the market for industrial thread in the Nordic countries constituted, together with that on the market for industrial thread in Benelux, a single and continuous infringement.

48 The fact that the legal basis on which the Commission relied in finding that there had been an infringement on the markets for industrial thread in Finland, Norway and Sweden did not exist until after the infringement had begun is irrelevant in that regard since, as is clear from the statement of reasons in the contested decision, the applicants’ conduct on the market was taken into account only as from 1 January 1994.

49 Secondly, the complaint raised by Zwicky that it was not present on the market in the Nordic countries must be rejected. As was pointed out in paragraph 44 above, Zwicky confirmed that it did not challenge the single and continuous nature of the infringement on the market for industrial thread in Benelux and the Nordic countries.

50 However, it can be seen from the case-law that an undertaking which has participated in a single complex infringement through its own conduct – conduct which meets the definition of an agreement or concerted practice with an anti-competitive object for the purposes of Article 81 EC, and which was intended to help bring about the infringement as a whole – may also be liable for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably have foreseen such conduct, and was prepared to accept the risk (Commission v Anic Partecipazioni, paragraph 45 above, paragraph 203, and Case T‑15/99 Brugg Rohrsysteme v Commission [2002] ECR II‑1613, paragraph 73).

51 In the present case, Zwicky does not deny that it participated regularly in the meetings concerning industrial thread on the market in the Nordic countries; it does not challenge the Commission’s statement that it was active on the market for industrial thread in the Nordic countries before the beginning of the single infringement; it has not denied participating in the acts which constitute the infringement on the market for industrial thread in Benelux; nor does it deny that those acts formed part of an overall strategy and, in consequence, were merely some of the constituent parts of a single and continuous infringement on the market for industrial thread in Benelux and the Nordic countries.

52 It follows that the mere fact that Zwicky was not present on the market for industrial thread in the Nordic countries in the period during which the single and continuous infringement was committed does not relieve it of liability for the conduct engaged in on that geographic market by other undertakings in the context of that infringement.

53 Moreover, in so far as Zwicky’s complaint is to be understood as meaning that only undertakings which are active on the geographic market in the Nordic countries as competitors, or on the side of supply or demand, are capable of coordinating their conduct as undertakings which are the (co-)perpetrators of an infringement, it must be pointed out that an undertaking can infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has itself to be active on that relevant market (see, by analogy, Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501, paragraph 122).

54 In the light of the findings set out in paragraph 51 above, Zwicky cannot validly deny that it is also liable, as co-perpetrator, for the infringement of the competition rules as regards the cartel concerning industrial thread on the market in the Nordic countries.

55 The plea alleging infringement of Article 7(1) of Regulation No 1/2003 must therefore be rejected.

The plea, put forward by Zwicky, alleging that the injunctions to bring the infringement to an end and to refrain from repeating such conduct were unjustified

Arguments of the parties

56 Zwicky states that, in Article 3 of the contested decision, the Commission ordered the undertakings concerned to bring to an end immediately the infringements which had been found to exist in so far as they had not already done so and to refrain in future from any act relating to those infringements or any conduct having an equivalent object.

57 Zwicky argues that, not only has it no longer been present on the markets concerned by the contested decision since November 2000, but also it has abandoned all its commercial activities and now merely manages real estate. It maintains that the abovementioned injunctions are in breach of the principle of proportionality and that Article 3 of the contested decision is unlawful. In its view, in so far as the Commission could have determined, without carrying out any further investigations, that Zwicky had brought the infringements to an end and that there was no risk of further infringements being committed, it had no legitimate interest in issuing an injunction. Zwicky relies in that regard on Case 7/82 GVL v Commission [1983] ECR 483, paragraph 24 et seq.

58 The Commission contends that this plea should be rejected.

Findings of the Court

59 It should be pointed out that, by the present plea, Zwicky is seeking annulment of Article 3 of the contested decision in so far as it relates to Zwicky.

60 It should be noted that Article 3 of the contested decision contains, in fact, two injunctions.

61 First of all, that provision requires the undertakings concerned to bring to an end immediately the infringements referred to in Article 1 of the contested decision, in so far as they have not already done so. In so far as Zwicky had ceased to trade in the industrial thread sector at the time when the contested decision was adopted, the argument raised against that provision is manifestly devoid of all foundation. Even though Zwicky is one of the undertakings listed in Article 1 of the contested decision, it had, by virtue of the fact that it had ceased to trade, already brought the infringement to an end and was therefore no longer concerned by the injunction at issue (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 1247). That circumstance also frustrates Zwicky’s argument concerning the breach of the principle of proportionality in that regard (see, to that effect, Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 196).

62 Secondly, Article 3 of the contested decision requires the undertakings listed in Article 1 to refrain from repeating any act or conduct described in Article 1 and from adopting any measure having equivalent object or effect.

63 It should be borne in mind that the application of Article 7(1) of Regulation No 1/2003 may involve a prohibition on continuing certain activities, practices or situations which have been found to be unlawful, but also a prohibition on adopting similar future conduct. Such obligations on undertakings must not, however, exceed the limits of what is appropriate and necessary to achieve the aim pursued (see, by analogy, Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraphs 4704 and 4705 and the case-law cited). Furthermore, the Commission’s power to issue injunctions is to be applied according to the nature of the infringement found (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223, paragraph 45; Case T‑228/97 Irish Sugar v Commission [1999] ECR II‑2969, paragraph 298; and Case T‑128/98 Aéroports de Paris v Commission [2000] ECR II‑3929, paragraph 82).

64 In the present case, the Commission found, in Article 1 of the contested decision, that Zwicky, with other undertakings, had infringed Article 81 EC and Article 53 of the EEA Agreement by participating – over the course of a very long period indeed – in agreements and concerted practices in the industrial thread sector in Benelux and the Nordic countries, in the framework of which Zwicky and the other undertakings had agreed to fix future price lists, maximum rebates, reductions in rebates and increases in special prices applied to certain customers; to avoid undercutting, to the advantage of the incumbent supplier; and to arrange customer allocation. Zwicky does not dispute the statements made in the contested decision in that regard.

65 In those circumstances, by enjoining the undertakings concerned to refrain in future, in the market for industrial thread in Benelux and the Nordic countries, from any measure having the same or equivalent object or effect, the Commission did not exceed the powers conferred on it under Article 7(1) of Regulation No 1/2003 (see, to that effect and by analogy, Hoechst v Commission, paragraph 61 above, paragraph 199).

66 The fact that Zwicky was no longer active in the industrial thread sector on the day that the contested decision was adopted does not cast doubt on that conclusion. An injunction such as that in issue is, of its very nature, preventive and does not depend on the situation of the undertakings concerned at the time when the contested decision was adopted.

67 The fact that Zwicky had given no undertaking to refrain from repeating its anti-competitive conduct means that the Commission was all the more justified in including that injunction in the enacting terms of the contested decision (see, to that effect, Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraph 678).

68 In addition, the judgment in GVL v Commission, paragraph 57 above, relied on by Zwicky, is irrelevant to the present case. Above and beyond the fact that the circumstances of the present case are different from those in GVL v Commission, it has been shown in paragraphs 60 to 67 above that Zwicky was not concerned by the injunction to bring to an end immediately the infringements referred to in Article 1 of the contested decision and that the Commission had a perfectly legitimate interest in ordering it to refrain in future from any act relating to those infringements or any conduct having an equivalent object.

69 For all of those reasons, the present plea must be rejected.

2. The pleas challenging the fine and the amount thereof

The plea, put forward by Zwicky, alleging that the upper limit of 10% of turnover has been exceeded

Arguments of the parties

70 After indicating that it had discontinued its commercial activities in the industrial thread sector in November 2000, Zwicky complains first that the Commission took Gütermann’s turnover as the basis for calculating the maximum fine of 10% of turnover. Gütermann had taken over only a part of Zwicky’s activities and was not under Zwicky’s control. Accordingly, only Zwicky’s turnover matters. Since Zwicky has had no turnover since 2001, no fine can be imposed on it under Article 23(2) of Regulation No 1/2003. Regulation No 1/2003 refers to the total turnover in the last business year preceding the adoption of the decision. The fact of linking the fine to the latter figure makes it possible to take account of the size and influence of the undertaking on the market. Thus, what matters is the present position of undertakings with regard to turnover. An undertaking which no longer has a turnover has no influence on the market and, as a consequence, cannot be fined.

71 Zwicky then states that the judgment in Case T‑33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II‑4973, relied on by the Commission, must be interpreted as meaning that the taking into account of a turnover figure which is not that of the last complete business year preceding the adoption of the decision is possible where the undertaking concerned has ceased its commercial activities or diverted its turnover in order to avoid the imposition of a heavy fine. That is not the position in the present case. Zwicky claims in that regard that it sold its commercial activities one year before the Commission’s inspections, following a decline in its competitive situation.

72 Zwicky also states that, in the present case, Gütermann acquired Zwicky’s commercial business in the framework of an asset deal and that, in consequence, income related to the activities acquired should have been passed to Gütermann to increase the turnover to be taken into account for the purposes of applying Article 23(2) of Regulation No 1/2003. In addition, Zwicky argues that the sale of its activities to Gütermann does not constitute a mere internal reorganisation.

73 Finally, the fact that the applicants sent a single document in reply to the statement of objections is explained by the fact that Zwicky’s industrial thread activities had been taken over by Gütermann and that, as a result of that transaction, the chairman of Zwicky’s Board of Directors had been appointed to the Board of Gütermann. However, that in no way alters the fact that Zwicky is independent of Gütermann and that Gütermann did not become a shareholder in Zwicky.

74 The Commission argues that the present plea is ineffective ab initio inasmuch as, even if Zwicky’s argument were correct, the Commission would have determined the maximum fine permissible by taking account of the turnover for the preceding business year, as it has already done in other cases. It notes that Zwicky’s total turnover for 1999 was EUR 4.5 million and that the fine of EUR 0.174 million in no way exceeds the upper limit of 10% of turnover.

75 In the alternative, the Commission contends first that even though, in November 2000, Gütermann bought the business activities of Zwicky that were connected with the cartel on the industrial thread market, the Commission took account of the fact that Zwicky had been implicated for 10 years in the infringement being penalised and formed the view that, after Zwicky’s sale of its commercial activities, the fact of continuing to exist in law in the form of an ‘empty shell’ was a strategy which had been adopted for the specific purpose of avoiding penalties for infringement of the competition rules. The Commission also points out that Zwicky did not challenge the case-law to the effect that, in principle, it falls to the natural or legal person managing the undertaking in question at the time when the infringement is committed to answer for that infringement. The Commission adds that, since Zwicky’s chairman was a director of Gütermann and therefore had precise knowledge of the participation of the two undertakings in the cartel, the reasons for maintaining Zwicky in existence are easy to understand.

76 The Commission also maintains that Zwicky’s interpretation of the second subparagraph of Article 23(2) of Regulation No 1/2003 is not compatible with the principle of effectiveness, because it would enable undertakings to escape their liability by carrying out purely internal reorganisations. That was the Court’s approach in Britannia Alloys & Chemicals v Commission, paragraph 71 above.

77 Finally, the Commission contends that the close links between Zwicky and Gütermann are clear from the wording of a common reply to the statement of objections and from the fact that the same lawyers defended both undertakings before the Court.

Findings of the Court

78 Under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, the Commission may impose on undertakings fines not exceeding 10% of turnover for the business year preceding the adoption of the decision. The purpose of the upper limit of 10% is to prevent fines from being disproportionate to the size of the undertaking and, in particular, to prevent the imposition of fines which undertakings are unlikely to be able to pay. Since only the total turnover figure can effectively give an approximate indication of that size, the aforementioned percentage must be understood as referring to the total turnover (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 119).

79 It should also be pointed out that the purpose of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 is to give the Commission power to impose fines so as to enable it to carry out the task of supervision entrusted to it by Community law (Musique Diffusion française and Others v Commission, paragraph 78 above, paragraph 105, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraph 105). That task includes the duty to investigate and punish individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that the Commission must ensure that fines have a deterrent effect (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraphs 105 and 106).

80 It should also be noted that ‘preceding business year’ within the meaning of Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003 refers, in principle, to the last complete business year for each of the undertakings concerned at the date on which the decision was adopted (Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 32).

81 In the present case, since the contested decision is dated 14 September 2005, the preceding business year is that from 1 July 2004 to 30 June 2005. However, Zwicky sold its industrial thread business to Gütermann in November 2000. Consequently, the Commission formed the view that, at the time when the contested decision was adopted, it did not have to hand a turnover figure for Zwicky in respect of an economic activity pursued by that undertaking in the preceding business year. Taking as its basis, in recital 383 of the contested decision, the assumption that the relationship between Gütermann and Zwicky following the latter’s sale of its industrial thread business to the former was that of holding company and subsidiary, the Commission considered itself entitled to use Gütermann’s turnover for the purposes of applying the 10% upper limit.

82 There are two aspects to the complaints put forward by Zwicky: (i) the fact that the Commission chose to take account of Gütermann’s turnover and (ii) the failure to take account of Zwicky’s turnover for the business year ending on 30 June 2005, even though it was nil.

83 With regard to the first aspect of Zwicky’s complaints, it must be stated that the Commission erred in referring to Gütermann’s turnover for the purposes of determining the upper limit of 10% of turnover not to be exceeded when calculating the amount of the fine to be imposed on Zwicky.

84 Gütermann merely took over Zwicky’s industrial thread business in November 2000. Zwicky explained at the hearing that that cessation of activity took place in two ways, namely by the conclusion in Switzerland of a contract for the transfer of assets such as warehouses and machines and by the sale of shares in Germany.

85 However, the Commission acknowledged at the hearing that Gütermann had in no sense taken over Zwicky and that, in consequence, Gütermann had not become the owner of Zwicky. The sale of the industrial thread business thus had no effect on Zwicky’s legal and economic independence.

86 The arguments that Zwicky’s chairman became a director of Gütermann, that the two undertakings consulted the same lawyer and that they provided a common reply to the statement of objections are not enough in themselves to justify, in the present case, the Commission’s view that the relationship between the two undertakings was that of holding company and subsidiary.

87 In addition, the Commission has in no way shown how it was misled by the information provided by Zwicky in response to the Commission’s request for information concerning the sale of Zwicky’s business and its links to Gütermann.

88 It follows that, by referring to Gütermann’s turnover, the Commission committed an error of assessment, the consequences of which are set out in paragraph 104 et seq. below.

89 The second aspect of Zwicky’s complaints – namely the failure to take account of Zwicky’s zero turnover from its declared business activities in the year preceding the adoption of the contested decision – necessitates consideration of the manner in which the Commission is required to define the concept of ‘preceding business year’ in cases where the economic situation of the undertaking concerned undergoes substantial changes between the end of the period during which the infringement was committed and the date of the adoption of the Commission decision imposing the fine.

90 As regards the concept of ‘preceding business year’, it should be pointed out that, according to settled case-law, in interpreting a provision of Community law it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part (Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 41; Case C‑391/05 Jan De Nul [2007] ECR I‑1793, paragraph 20; and Britannia Alloys & Chemicals v Commission, paragraph 80 above, paragraph 21).

91 In that regard, as was pointed out in paragraph 79 above, the purpose of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 is to give the Commission power to impose fines so as to enable it to carry out the task of supervision entrusted to it by Community law. That task includes, in particular, the curbing of illegal activities and the prevention of repeat offences (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 173).

92 It should be added that, pursuant to Article 15(2) of Regulation No 17 and Article 23(3) of Regulation No 1/2003, the Commission is required to take into account the gravity and the duration of the infringement in question.

93 In the light of those factors, the purpose of the upper limit, expressed in terms of turnover and laid down in Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003, is to prevent fines imposed by the Commission from being disproportionate to the size of the undertaking concerned (Musique Diffusion française and Others v Commission, paragraph 78 above, paragraph 119).

94 It is clear from the above considerations that, in determining the ‘preceding business year’, the Commission must assess, in each specific case and having regard both to the context and to the objectives pursued by the scheme of penalties created by Regulation No 17 and Regulation No 1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s true economic situation in the period during which the infringement was committed (Britannia Alloys & Chemicals v Commission, paragraph 80 above, paragraph 25).

95 It is clear, however, both from the objectives of the system of which Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003 form part and from the case-law cited in paragraph 80 above, that the application of the 10% upper limit presupposes, first, that the Commission has at its disposal the turnover figure for the last business year preceding the date of adoption of the decision and, second, that those data represent a full year of normal economic activity over a period of 12 months (Britannia Alloys & Chemicals v Commission, paragraph 71 above, paragraph 38).

96 Thus, if the business year had ended before the adoption of the decision but the annual accounts of the undertaking in question had not yet been drawn up or had not been disclosed to the Commission, the latter would have the right, indeed the obligation, to use the turnover achieved in an earlier business year in order to apply Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003. Similarly, if, as a result of a reorganisation or a change in accounting practices, an undertaking has, for the preceding business year, produced accounts which relate to a period shorter than 12 months, the Commission is entitled to rely on the turnover achieved in an earlier complete year in order to apply those provisions (Britannia Alloys & Chemicals v Commission, paragraph 71 above, paragraph 39). The same is true if an undertaking has not carried on any economic activity during the preceding business year and, accordingly, the Commission does not have at its disposal a figure for the undertaking’s turnover, representing economic activity carried on by it during that year. Contrary to the requirements of the case-law, the turnover for that period gives no indication of the size of the undertaking and, in consequence, cannot serve as a basis for determining the maximum amount permissible under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 (Britannia Alloys & Chemicals v Commission, paragraph 71 above, paragraph 42).

97 It should also be borne in mind that – as is clear from Britannia Alloys & Chemicals v Commission, paragraph 71 above, paragraph 49, applicable by analogy to the present case – even in a year of normal business activity, the turnover of an undertaking may fall significantly, or indeed substantially, as compared with previous years, for various reasons, such as a difficult economic context, a crisis in the sector concerned, an accident or a strike. However, as long as an undertaking has in fact achieved a turnover during a complete year in which economic activities, albeit on a reduced scale, have been carried on, the Commission must take account of that turnover for the purposes of determining the maximum amount permissible under Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003. Accordingly, at least in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it is appropriate to regard the Commission as obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity (Britannia Alloys & Chemicals v Commission, paragraph 71 above, paragraph 49).

98 According to Zwicky, the Commission has in no way shown that Zwicky had diverted its turnover and it therefore misapplied the exception to the principle that the turnover for the preceding business year is to be taken into account. However, as it stated at the hearing, the Commission is in no way claiming that Zwicky acted improperly in order to avoid the imposition of a heavy fine; the Commission merely states that, on the facts, Zwicky has ceased to trade and therefore exists as an ‘empty shell’.

99 In its written pleadings, Zwicky mentioned that, since 2001, it had merely managed real estate and pointed out that it had had no turnover since then. Consequently, it must be concluded that Zwicky did not achieve a turnover in the complete business year preceding the contested decision, that is to say, in the period from 1 July 2004 to 30 June 2005. When asked at the hearing about the exact nature of its activities, Zwicky reiterated its statements that it managed real estate which had remained its property. It explained that its real estate consisted of buildings formerly occupied by its industrial thread business and which have been empty since the sale of that business to Gütermann, as well as dwellings let to former employees. It argued that the dwellings could be used for rental purposes and that investments will be made with that end in view. It also referred to a development plan drawn up jointly with the local authorities. Lastly, it admitted that since the sale of its industrial thread business, it no longer had any employees.

100 Although it is common ground that Zwicky continued to exist in law after the sale of its business to Gütermann, it must be stated that there are serious grounds – such as a zero turnover over several years, the lack of employees or the lack of solid evidence that it is making use of its real estate or has investment projects for that purpose – for supposing that Zwicky did not continue to carry on a normal economic activity within the meaning of the abovementioned case-law, and specifically in the period between 1 July 2004 and 30 June 2005.

101 The answers provided by Zwicky in its written pleadings and at the hearing remained vague and have not therefore enabled the Court to determine the existence of a ‘normal economic activity’. In addition, Zwicky has confirmed the content of an extract from an economic summary of its situation, read by the Commission at the hearing, which shows that Zwicky’s turnover is nil, its profits are nil and it has no employees; nor does Zwicky deny that that was the situation specifically in the period between the sale of its industrial thread business to Gütermann and 30 June 2005.

102 Contrary to Zwicky’s claims at the hearing, the mere fact that a board of directors and a manager are dealing with the company’s development plan, the reality of which, moreover, has not been established, is not sufficient to constitute conclusive evidence of the existence of a normal economic activity on the part of that company as the Court understood that concept in Britannia Alloys & Chemicals v Commission, paragraph 71 above.

103 It follows that the Commission was required to take account of an overall turnover figure for Zwicky which pre-dated that for the business year that ended on 30 June 2005.

104 With regard to the consequences of the Commission’s error in referring to Gütermann’s overall turnover, it must be determined whether that error justifies a reduction in the fine imposed on Zwicky, or even its cancellation, by the Community judicature.

105 It must be pointed out that the Court has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. In the first place, it has the task of reviewing the lawfulness of those decisions under Article 230 EC (Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraphs 53 and 54).

106 In the second place, the Court has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 229 EC, Article 17 of Regulation No 17 and Article 31 of Regulation No 1/2003, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty under Article 253 EC to state reasons, to be set out in the decision (SCA Holding v Commission, paragraph 105 above, paragraph 55).

107 In the present case, the Court considers, in the exercise of its unlimited jurisdiction, that reference must be made to Zwicky’s turnover, not Gütermann’s.

108 For the reasons set out above and in the light of the line of authority established in the judgments in Britannia Alloys & Chemicals v Commission, paragraphs 71 and 80 above, the last turnover for Zwicky arising from real economic activities on its part, to which the Commission should have referred, is that arising from the business year running from 1 July 1999 to 30 June 2000. It can be seen from recital 76 of the contested decision that that turnover is EUR 4.5 million. The basic amount of the fine which the Commission imposed on Zwicky is EUR 205 000 and does not therefore exceed 10% of that turnover.

109 It should also be noted that, at the hearing, Zwicky argued that the alternative approach of referring to its turnover for the business year which ended on 30 June 2000 is unacceptable on the ground that it would amount to taking account of its turnover twice. Since Zwicky’s industrial thread business had been taken over by Gütermann, the Commission had already taken account of the turnover generated by that business in Gütermann’s overall turnover. The Commission contends that that is a new argument and must therefore be rejected.

110 Zwicky’s argument must be rejected as unfounded.

111 Zwicky’s argument consists in maintaining that the alternative approach would be tantamount to attributing to Zwicky the turnover already attributed to Gütermann. However, the Court considers that the only question which arises in this connection is that of identifying the relevant turnover figure to be used for calculating the 10% upper limit for the purposes of the fine to be imposed on Zwicky. As has been shown above, the only acceptable figure is the EUR 4.5 million achieved by Zwicky in the business year running from 1 July 1999 to 30 June 2000.

112 Even supposing that it had to be accepted that that approach is tantamount to attributing Zwicky’s turnover twice at that stage of the calculation of the fine to be imposed on Gütermann and Zwicky, it must be considered that the illegality was to the disadvantage of Gütermann. Zwicky’s argument thus really amounts to asking the Court to review the legality of the amount of the fine imposed on Gütermann. However, Zwicky cannot claim any right of action in that regard. If an addressee of a decision decides to bring an action for annulment, the matter to be adjudicated by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be adjudicated by the Community judicature (Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 53).

113 In the light of those considerations, the plea, put forward by Zwicky, alleging infringement of Article 15(2) of Regulation No 17 and the second subparagraph of Article 23(2) of Regulation No 1/2003 must be rejected.

The plea, put forward by Gütermann and Zwicky, alleging incorrect assessment of the gravity of the infringement as regards its effects

Arguments of the parties

114 First of all, the applicants claim that, in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’) and settled decision-making practice, the assessment of the gravity of the infringement expressly depends on the actual impact of the infringement on the market. The principle of proportionality requires the Commission to take account of any such impact in assessing the gravity of the infringement. The applicants explain that, by this complaint, they are not seeking to challenge the infringement as such but are challenging its categorisation as a very serious infringement.

115 Secondly, the applicants conclude, after considering the question of the actual impact of the infringement on the market, that it had no impact. They therefore argue that the Commission could not rely on impact as a basis for categorising the infringement as very serious. Although they admit that the price increases mentioned in the lists decided on during the meetings were mostly put into effect by the various undertakings, they maintain that those price increases did not lead to an increase in real net prices. The considerations set out by the Commission in Section 4.1.4 of the contested decision do not support the conclusion that there was such an impact. The fact that the undertakings met over a period of 11 years is not in itself a sufficient basis for concluding that the price increases had an influence on net prices. According to the applicants, they have provided proof that the principal purpose of the meetings was to exchange legal information. The Commission itself admits that it does not have sufficient evidence of actual impact.

116 By reason of the particular way in which prices are determined in the industrial thread sector – invoices to customers are almost never based on the prices quoted in the lists – the applicants submit that it is in no way possible in the present case to infer from the implementation of the agreement that there was an actual impact on the market. On the contrary, real average prices on the market did not rise and even dropped.

117 Thirdly, the applicants submit that, on the facts, the infringement had no actual impact on their real average prices; they argue that the infringement should not have been categorised as very serious at individual level; and they accordingly maintain that the Commission should have credited them with that factual situation.

118 In view of the considerable disparity between the size of the undertakings concerned and the low turnover they achieved on the market concerned, the applicants claim that the Commission should have accepted, as an exculpatory circumstance in accordance with Section 1A of the Guidelines, the fact that the infringement had no actual impact on their net prices.

119 They complain that the Commission merely compared, on the basis of their turnover, the relative significance on the market of the various undertakings and thus took account only of their abstract economic capacity to influence competition, giving no consideration to the actual impact of their conduct on net prices.

120 Fourthly, according to the applicants, the Commission erred in finding that Zwicky had participated in the infringements on the industrial thread market in the Nordic countries, since Zwicky had never done business on the industrial thread market in those countries.

121 The Commission contends that this plea should be rejected.

Findings of the Court

122 First of all, it should be pointed out that, with regard to the assessment of the gravity of an infringement as such, the first and second paragraphs of Section 1A of the Guidelines state as follows:

‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.’

123 In the contested decision, the Commission pointed to the following three factors:

– the infringement at issue consisted essentially in the exchange of sensitive information on price lists and/or prices charged to individual customers, in agreements on price increases and/or on target prices, and in refraining from undercutting, to the advantage of the incumbent supplier, such practices constituting by their very nature the most serious type of infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement (contested decision, recital 345);

– the collusive agreements were implemented and had an impact on the market in the EEA for the product concerned, but that impact cannot be measured with precision (contested decision, recital 351);

– the cartel covered a number of parties to the EEA Agreement, namely Benelux and the Nordic countries (contested decision, recital 352);

124 The Commission’s conclusion is worded as follows (contested decision, recital 353);

‘Taking all these factors into account, the Commission considers that the undertakings concerned by [the contested decision] have committed a very serious infringement of Article 81 [EC] and Article 53 of the EEA Agreement.’

125 The applicants challenge the very serious nature of the infringement: on the one hand, they argue that the Commission concluded that there had been an actual impact on the market without being able to prove this and, on the other, they claim that there had been no impact on net prices or, at least, no actual impact on real average prices.

126 It should be pointed out, first, that, in order to assess the actual impact of an infringement on the market, the Commission must take as a reference the competition which would normally have existed if there had been no infringement (Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 165; see, to that effect, Case T‑347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 235, and Thyssen Stahl v Commission, paragraph 67 above, paragraph 645).

127 In the present case, it should be noted that the applicants in no way deny the implementation of the cartel. On the contrary, it is clear from point 40 of Gütermann’s application and point 46 of Zwicky’s application that they ‘expressly admitted both in the reply to the statement of objections and in the presentation of the facts in [those applications]’ that ‘the price increases appearing in the lists decided on at the meetings were mostly implemented by the various undertakings’.

128 In the case of a price cartel, in particular, the Commission may legitimately infer that the infringement had effects from the fact that the cartel members took measures to apply the agreed prices, for example by increasing the list prices that serve as a basis for the calculation of real prices; by giving up rebates; by increasing special prices; and by exerting pressure, by means of complaints, on undertakings which have breached the agreement to refrain from undercutting, to the advantage of the incumbent supplier. In order to conclude that there has been an impact on the market, it is sufficient that the agreed prices have served as a basis for determining individual transaction prices, thereby limiting customers’ room for negotiation (Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 126 above, paragraph 166; see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 61 above, paragraphs 743 to 745).

129 On the other hand, the Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel (Hoechst v Commission, paragraph 61 above, paragraph 348; see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 61 above, paragraphs 743 to 745). It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility has in no way been demonstrated (Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 126 above, paragraph 167).

130 In order to assess the gravity of the infringement, the decisive point is whether the cartel members did all they could to give practical effect to their intentions. What then happened at the level of the market prices actually obtained is liable to have been influenced by other factors outside the control of the members of the cartel. The cartel members cannot therefore benefit from external factors which counteracted their own efforts by turning them into factors justifying a reduction of the fine (Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 126 above, paragraph 168).

131 Furthermore, in Section 4.1.4 of the contested decision, the Commission set out a list of specific and credible evidence indicating that the cartel had an actual impact on the market. First of all, the Court agrees with the Commission’s argument, set out in recital 164 of the contested decision, that the increases in the list prices – which Gütermann itself confirmed – resulted in higher net prices for certain small customers, whose negotiating power is generally weaker. The Court also agrees with the finding made by the Commission in recital 165 of the contested decision that the increases in the list prices could also have influenced the prices actually charged to large customers inasmuch as the list prices served as the starting point for negotiations with those customers. Lastly, the Commission’s argument regarding the fact that certain undertakings applied genuine increases to special prices and dropped rebate arrangements tends to confirm that the infringement had an actual impact on the market concerned.

132 It follows from those considerations and from the finding that the cartel had lasted for more than 11 years that the Commission was properly entitled to conclude that there had been an actual impact on the market concerned.

133 Secondly, the arguments relating to the cartel’s alleged lack of actual impact on the applicants’ real average prices and to the fact that Zwicky never traded on the industrial thread market in the Nordic countries concern the individual conduct of those two undertakings and cannot therefore be accepted. The actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of assessing the impact of a cartel on the market. Only the effects resulting from the whole of the infringement are to be taken into account (Commission v Anic Partecipazioni, paragraph 45 above, paragraph 152, and Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 342).

134 Thus, the Commission’s consideration of the unlawful conduct of Gütermann and Zwicky with regard to competition sheds light on the individual situation of the two undertakings, but can have no bearing whatsoever on the categorisation of the infringement as ‘very serious’.

135 In addition, the fact that Zwicky never traded on the industrial thread market in the Nordic countries is irrelevant. As was pointed out in paragraph 51 above, Zwicky has in no way denied the single and continuous nature of the infringement on the industrial thread market in Benelux and the Nordic countries.

136 With regard to the evidence based on the long duration of the infringement, put forward by the Commission in recital 166 of the contested decision in relation to the impact of the cartel, it should be pointed out that since the practices complained of were applied for at least 11 years, it is unlikely that the producers regarded them at the time as wholly ineffective and pointless (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, paragraph 61 above, paragraph 748, and Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraph 130).

137 Lastly, it should be noted that the three aspects of the assessment of the gravity of the infringement do not each carry the same weight in the context of an overall examination. The nature of the infringement plays a major role, in particular, in distinguishing ‘very serious’ infringements. It is clear from the description of very serious infringements given in the Guidelines that agreements or concerted practices which – as in the present case – are mainly designed to fix prices may, on the basis of their nature alone, be categorised as ‘very serious’, without there being any need to distinguish such conduct by reference to a particular impact or geographic area. That conclusion is corroborated by the fact that, whilst the description of serious infringements expressly mentions their impact on the market and their effects on extensive areas of the common market, the description of very serious infringements makes no mention of any requirement as to actual market impact or effects produced in a particular geographic area (Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 178; Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150; Hoechst v Commission, paragraph 61 above, paragraph 345; and Schunk and Schunk Kohlenstoff-Technik v Commission, paragraph 126 above, paragraph 171).

138 In the present case, it is clear from the facts set out in Part I of the contested decision and from recitals 345 and 346 of that decision that, by its very nature, the infringement was a very serious one. It follows that, solely on the basis of the nature of the infringement, its categorisation as ‘very serious’ remains appropriate.

139 It follows from all of the above considerations that the plea alleging incorrect categorisation of the infringement as regards its effects must be rejected.

The plea, put forward by Gütermann and Zwicky, alleging incorrect assessment of the duration of the infringement

Arguments of the parties

140 A number of claims have been put forward in support of this plea.

141 First of all, the applicants complain that the Commission automatically applied to the starting amount a 10% increase for each year of the infringement even though that percentage is merely the upper limit provided for in the Guidelines for long-term infringements and not the rule. The Guidelines do not require the Commission to increase the starting amount automatically by an additional amount equal to a certain percentage for each year of the infringement; rather, they leave the Commission a measure of discretion. In the present case, the Commission did not exercise that discretion either as regards the basic principle of increasing the starting amount for the fine or as regards the size of that increase.

142 Secondly, the 5% increase applied to the fines imposed on the applicants – in the case of Gütermann, for a nine-month infringement in 2001 and, in the case of Zwicky, for a 10-month infringement in 2000 – are at odds with the plain meaning o