JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

15 July 2015 ( 1 )

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and the exchange of commercially sensitive information — Single, complex and continuous infringement — Agency agreement — Imputability to the principal of the unlawful conduct of the agent — Lack of awareness by the principal of the unlawful conduct of the agent — Participant in a component of the infringement and awareness of the overall plan — 2006 Guidelines on the method of setting fines — Proportionality — Principle that penalties must have a proper legal basis — Unlimited jurisdiction’

In Case T‑418/10,

voestalpine AG, established in Linz (Austria),

voestalpine Wire Rod Austria GmbH, formerly voestalpine Austria Draht GmbH, established in Sankt Peter-Freienstein (Austria),

represented by A. Ablasser-Neuhuber, G. Fussenegger, U. Denzel and M. Mayer, lawyers,

applicants,

v

European Commission, represented by R. Sauer, V. Bottka and C. Hödlmayr, acting as Agents, and by R. Van der Hout, lawyer,

defendant,

APPLICATION for annulment and variation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 October 2014,

gives the following

Judgment

Subject-matter of the dispute

1 The present action has been brought against Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), imposing penalties on a cartel between suppliers of prestressing steel (‘PS’) who took part in quota-fixing, customer-sharing, price-fixing and the exchange of commercially sensitive information relating to price, volume and customers at European, regional and national levels.

2 The initial decision was addressed by the European Commission to: — ArcelorMittal SA, — ArcelorMittal Wire France SA, — ArcelorMittal Fontaine SA, — ArcelorMittal Verderio Srl, — Emesa-Trefilería, SA (‘Emesa’), — Industrias Galycas, SA (‘Galycas’), — ArcelorMittal España, SA, — Trenzas y Cables de Acero PSC, SL (‘Tycsa’), — Trefilerías Quijano SA (‘TQ’), — Moreda-Riviere Trefilerías, SA (‘MRT’), — Global Steel Wire, SA (‘GSW’), — Socitrel — Sociedade Industrial de Trefilaria, SA (‘Socitrel’), — Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA (‘Companhia Previdente’), — voestalpine Austria Draht GmbH, now voestalpine Wire Rod Austria GmbH, the second applicant (‘Austria Draht’), — voestalpine AG, the first applicant, — Fapricela Indústria de Trefilaria, SA (‘Fapricela’), — Proderac — Productos Derivados del Acero, SA (‘Proderac’), — Westfälische Drahtindustrie GmbH (‘WDI’), — Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG (‘WDV’), — Pampus Industriebeteiligungen GmbH & Co. KG (‘Pampus’), — Nedri Spanstaal BV (‘Nedri’), — Hit Groep BV, — DWK Drahtwerk Köln GmbH and Saarstahl AG (together ‘DWK’), — Ovako Hjulsbro AB, — Ovako Dalwire Oy AB, — Ovako Bright Bar AB, — Rautaruukki Oyj, — Italcables SpA (‘ITC’), — Antonini SpA, — Redaelli Tecna SpA (‘Redaelli’), — CB Trafilati Acciai SpA (‘CB’), — ITAS — Industria Trafileria Applicazioni Speciali SpA (‘Itas’), — Siderurgica Latina Martin SpA (‘SLM’), — Ori Martin SA, — Emme Holding SpA, formerly and then again called Trafileria Meridionali SpA (‘Trame’).

3 The initial decision was twice amended by the Commission.

4 First, on 30 September 2010 the Commission adopted Decision C(2010) 6676 final amending the initial decision (‘the first amending decision’). In essence, the first amending decision had the effect of reducing the amount of the fines imposed on the following companies: ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France, ArcelorMittal España, WDI and WDV.

5 The first amending decision was addressed to all the addressees of the initial decision.

6 Second, on 4 April 2011 the Commission adopted Decision C(2011) 2269 final amending the initial decision (‘the second amending decision’). In essence, the second amending decision had, in particular, the effect of reducing the amount of the fines imposed on the following companies: first, ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France; and, second, SLM and Ori Martin. Only those companies were addressees of the second amending decision.

7 Where appropriate, on the Court’s initiative, all the companies which had brought an action against the initial decision were notified of both amending decisions.

8 Voestalpine and Austria Draht were questioned by the Court as to the consequences that might be drawn from those amendments of the initial decision for the content of their initial argument and had the opportunity to amend the form of order sought in order to take account of those possible consequences.

9 Thus, the initial decision, as amended by the first and second amending decisions, constitutes, for the purposes of the present action, ‘the contested decision’.

10 Twenty eight actions were brought against the initial decision, the first amending decision, the second amending decision or letters sent by the Commission following requests from certain addressees of the initial decision seeking a reappraisal of their ability to pay (Cases T‑385/10 ArcelorMittal Wire France and Others v Commission; T‑388/10 Productos Derivados del Acero v Commission; T‑389/10 SLM v Commission; T‑391/10 Nedri Spanstaal v Commission; T‑393/10 Westfälische Drahtindustrie and Others v Commission; T‑398/10 Fapricela v Commission; T‑399/10 ArcelorMittal España v Commission; T‑406/10 Emesa-Trefilería and Industrias Galycas v Commission; T‑413/10 Socitrel v Commission; T‑414/10 Companhia Previdente v Commission; T‑418/10 voestalpine and voestalpine Wire Rod Austria v Commission; T‑419/10 Ori Martin v Commission; T‑422/10 Trafilerie Meridionali v Commission; T‑423/10 Redaelli Tecna v Commission; T‑426/10 Moreda-Riviere Trefilerías v Commission; T‑427/10 Trefilerías Quijano v Commission; T‑428/10 Trenzas y Cables de Acero v Commission; T‑429/10 Global Steel Wire v Commission; T‑436/10 Hit Groep v Commission; T‑575/10 Moreda-Riviere Trefilerías v Commission; T‑576/10 Trefilerías Quijano v Commission; T‑577/10 Trenzas y Cables de Acero v Commission; T‑578/10 Global Steel Wire v Commission; T‑438/12 Global Steel Wire v Commission; T‑439/12 Trefilerías Quijano v Commission; T‑440/12 Moreda-Riviere Trefilerías v Commission; T‑441/12 Trenzas y Cables de Acero v Commission; and T‑409/13 Companhia Previdente and Socitrel v Commission).

Background to the dispute

I – The sector to which the proceedings relate

A – Product

11 The cartel in respect of which the Commission imposed sanctions concerned PS. That expression refers to metal wires and strands made of wire rod and, in particular, (a) steel used for prestressed concrete, which is used in making balconies, foundation piles and pipes, and (b) steel used for post-tensioned concrete, which is used in structural engineering, underground engineering and bridge-building (contested decision, recital 2).

12 The PS product range includes several types of single wires (for example smooth, bright or galvanised wires, indented wires and ribbed wires) and several types of strands (for example, bright, indented, polythene-coated or metallic coated). PS strands are composed of three or seven wires. PS is sold in several diameters. However, special strands, that is to say, galvanised or sheathed — greased or waxed –, and stays, that is to say, galvanised, coated strand and galvanised wire used in bridge-building, were not taken into consideration by the Commission (contested decision, recitals 3 and 4).

13 It is also stated in the contested decision that in many countries technical approval by national authorities is mandatory. The certification procedures take around six months (contested decision, recital 5).

B – The supply structure

14 Taken together, and according to the contested decision, the members of the cartel controlled around 80% of sales within the European Economic Area (EEA). In most countries several of the larger producers were present along with some local producers. Most of those larger producers were part of metallurgical groups which also produced wire rod, a raw material of PS and its most important cost element. Whereas non-integrated companies were obliged to purchase their own raw materials on the market, integrated undertakings generally relied on supplies within their group. Throughout the period of the cartel found in the contested decision, the industry reported substantial and lasting overcapacities of PS (contested decision, recitals 98 and 99).

15 In 2001, the value of PS sales in the EEA came to approximately EUR 365 million, for a total volume of around 600000 tonnes for that year. Those sales were, for 20% to 25%, of PS wire and, for 75% to 80%, of PS strand, those averages being slightly different from country to country. Italy was the country with the highest consumption of PS (around 28% of PS sales within the EEA). Other large consuming countries were Spain (16%) and the Netherlands, France, Germany and Portugal (8% to 10% each) (contested decision, recital 100).

C – The demand structure

16 According to the contested decision, the demand structure for PS was very heterogeneous. Producers of prefabricated building materials and specialised engineering companies use PS, for example in constructions designed to stabilise buildings or bridges. The clientele consisted of a very small number of large customers — for example, Addtek International Oy AB (‘Addtek’), which has since become Consolis Oy AB, which represented 5% to 10% of PS consumption within the European Union — and a large number of smaller customers (contested decision, recitals 101 and 102).

17 Commercial habits varied from one Member State to another. PS producers and their customers often concluded six- or 12-month framework contracts. Thereafter, depending on demand, customers ordered tonnages within the volume agreed at the agreed price. Contracts were regularly extended following further negotiations (contested decision, recital 103).

D – Trade within the European Union and the EEA

18 As reported in the contested decision, sales volumes of PS during the period affected by the cartel show that trade between EU Member States was intensive. PS was produced and marketed throughout the EEA (contested decision, recital 104).

II – Voestalpine and Austria Draht

19 Austria Draht is an Austrian producer of strands. From 24 February 1988 until 3 December 2002, its capital was owned as to 95% by Voest-Alpine Stahl Gesellschaft mbH and as to 5% by Donauländische Baugesellschaft mbH. Following an internal restructuring, on 3 December 2002, voestalpine Bahnsysteme GmbH, the full legal successor of Voest-Alpine Stahl Gesellschaft, acquired 99.95% of Austria Draht’s share capital. Both Voest-Alpine Stahl Gesellschaft and voestalpine Bahnsysteme are wholly-owned subsidiaries of the Austrian company voestalpine (contested decision, recitals 44 and 45).

20 In Italy, Austria Draht entrusted sales of PS to an agent, the Italian company Studio Crema CAP Srl (‘Studio Crema’), which was managed and represented by Mr G. Mr G. was not authorised to sign contracts with Austria Draht’s customers, which were always concluded directly by Austria Draht (contested decision, recital 46).

21 During its 1 April 2001 to 31 March 2002 business year, voestalpine had a turnover of around EUR 18.27 million within the EEA in the PS sector taken into consideration by the Commission. That turnover resulted exclusively from sales by Austria Draht. During the fiscal year 1 April 2009 to 31 March 2010, voestalpine’s worldwide consolidated turnover was EUR 8.55 billion (contested decision, recital 47).

III – Administrative procedure

22 On 9 January 2002, the Bundeskartellamt (the German competition authority) sent the Commission documents relating to a case before a German local labour court concerning the dismissal of a former WDI employee. That employee asserted that he had been involved in an infringement of Article 101 TFEU concerning PS. In that context, he provided an account of the undertakings involved and first information about the infringement (contested decision, recital 105).

A – First leniency application and immunity granted to DWK

23 On 18 June 2002, DWK submitted a statement to the Commission relating to an infringement of Article 101 TFEU concerning PS, which involved DWK and other undertakings. In that context, DWK made clear that it expected to benefit from the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) (contested decision, recital 106).

24 On 3 July 2002, representatives of DWK met the Commission and discussed the leniency programme. On 19 July 2002, the Commission granted DWK conditional immunity from fines under point 8(b) of the Leniency Notice, since it was the first to submit evidence which would enable the Commission to find an infringement of Article 101 TFEU in connection with an alleged EU-wide cartel of PS producers (contested decision, recital 107).

B – Inspections and requests for information

25 On 19 and 20 September 2002, the Commission conducted inspections at the premises of, among others, DWK, WDI, Nedri, Tréfileurope, Tycsa, Redaelli, CB, Itas, ITC, SLM and Edilsider (the company belonging to a sales agent of Tréfileurope Italia Srl, which subsequently became ArcelorMittal Verderio), together with their respective subsidiaries or associated undertakings, in accordance with Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87) (contested decision, recital 108).

26 Beginning on 19 September 2002, the Commission sent a number of requests for information, pursuant to Article 11 of Regulation No 17 and Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), to the undertakings to which the initial decision was addressed, their parent companies, other undertakings, certain individuals (a retired employee of Redaelli, and subsequently its commercial advisor, and a sales agent of Tréfileurope, via Edilsider) and certain trade associations (contested decision, recital 109).

27 On 7 and 8 June 2006, the Commission conducted an inspection pursuant to Article 20 of Regulation No 1/2003 at the premises (‘studio’) of a family member of a former employee of Redaelli (contested decision, recital 114).

C – Other leniency applications and the Commission’s replies

28 Some of the addressees of the contested decision, such as ITC, Nedri, SLM, Redaelli and WDI, submitted official leniency applications pursuant to the Leniency Notice. Tycsa confirmed the existence of the anti-competitive arrangements, but did not apply for leniency (contested decision, recital 110).

29 ITC applied for leniency on 21 September 2002, submitting contemporaneous evidence concerning the meetings held between PS producers between 1979 and 2002. On 11 November 2002 it also submitted a corporate statement. On 10 January 2003 the Commission granted ITC a provisional reduction of fines in the order of 30% to 50%, on condition that it continued to satisfy the conditions laid down in paragraph 21 of the Leniency Notice (contested decision, recital 111).

30 On 17 October 2002, Tycsa replied to a request for information, acknowledging the facts and providing self-incriminating evidence. On 21 October 2002, in reply to a request for information, Redaelli submitted self-incriminating evidence and on 20 March 2003 it submitted a formal application to benefit from the Leniency Notice. On 23 October 2002, in reply to a request for information, Nedri submitted evidence, at the same time requesting to benefit from the Leniency Notice. On 30 October 2002, while replying to a request for information, SLM applied for a reduction of fines. On 4 November 2002, and subsequently on 6 March 2003 and 11 June 2003, Tréfileurope submitted self-incriminating information in reply to a request for information and also a corporate statement seeking to benefit from the Leniency Notice. On 17 March 2004, Galycas replied to a request for information, acknowledging the facts and making certain incriminating statements. On 17 March 2004, WDI submitted a corporate statement seeking to benefit from the Leniency Notice. On 28 June 2007, in the course of other contacts with the Commission, ArcelorMittal submitted an application for leniency, containing mainly the contemporaneous handwritten notes of a former employee of Emesa, covering the period 1992 to 2002 (contested decision, recital 112).

31 Following the leniency applications, the Commission sent ArcelorMittal, Nedri and WDI letters dated 19 September 2008, in which it informed them that immunity from fines was not available and that, pursuant to point 26 of the Leniency Notice, it intended to apply a reduction of fines within the limits prescribed in point 23(b) of that notice. On the same day, the Commission also sent letters to Redaelli and SLM, rejecting their leniency applications (contested decision, recital 113).

D – Initiation of the procedure and statement of objections

32 On 30 September 2008, the Commission adopted a statement of objections, which was directed at a number of companies, including voestalpine and Austria Draht.

33 All the addressees of the statement of objections submitted written observations in reply to the objections raised by the Commission.

E – Access to the file, hearing and ability to pay

34 The addressees of the statement of objections were able to have access to the Commission’s file, in the form of a copy on DVD. At the same time, those companies also received a list of the documents in the investigation file, indicating the extent to which each document was accessible. They were informed that the DVD gave them access to all the documents which the Commission had been able to obtain during the investigation, apart from documents or parts of documents containing business secrets and other confidential information. Access to the documents related to leniency was granted at the Commission’s premises.

35 A hearing took place on 11 and 12 February 2009. All the addressees of the statement of objections, apart from HIT Groep, Emesa and Galycas, took part.

36 Fourteen undertakings also claimed that they were unable to pay, within the meaning of point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’). They submitted evidence in support of their claims.

F – Requests for further information

37 The Commission subsequently sent requests for information to GSW, MRT, Tycsa, TQ, Companhia Previdente and Socitrel, in order to clarify certain points concerning, in particular, their corporate structure. Those companies replied between 6 March and 15 April 2009.

38 The Commission also sent requests for information to all the addressees of the initial decision, in order to establish the value of sales of the relevant products and also the group turnover. All the addressees replied to those requests.

IV – Contested decision

39 The contested decision relates to a cartel of PS suppliers that participated in quota fixing, customer sharing, price fixing and exchanging of sensitive commercial information relating to price, volume and customers at European (Zurich Club, Club Europe, etc.) regional and national (Club Italian, Club España) level. According to recital 1 to the contested decision, those undertakings thereby committed a single continuous infringement of Article 101(1) TFEU and, from 1 January 1994, of Article 53(1) of the EEA Agreement. The illegal conduct lasted from at least the beginning of 1984 until 19 September 2002.

40 The investigation involved 18 undertakings. At recitals 122 to 133 to the contested decision, the cartel arrangements forming the subject-matter of the procedure are described in general terms, set out at paragraph 67 et seq. below.

41 Voestalpine and Austria Draht are both held liable for their participation in the cartel between 15 April 1997 and 19 September 2002 (contested decision, Article 1).

42 For that infringement, voestalpine and Austria Draht received, jointly and severally, a fine of EUR 22 million (contested decision, Article 2).

Procedure and forms of order sought

43 By application lodged at the Court Registry on 15 September 2010, voestalpine and Austria Draht brought the present action.

44 By decision of 29 October 2010, the Court (First Chamber) informed the applicants that they could adapt their pleas and the form of order sought in order to take account of the amendments made by the first amending decision.

45 Voestalpine and Austria Draht did not submit observations on the first amending decision in their reply, which was lodged on 1 June 2011.

46 By decision of 6 June 2011, the Court asked the Commission to provide it with certain documents.

47 On 29 June 2011, the Commission issued the second amending decision.

48 On 1 August 2011, voestalpine and Austria Draht submitted their observations on the second amending decision.

49 On 14 October 2011, voestalpine and Austria Draht submitted a letter, which was placed on the file on 8 November 2011, to which, in reliance on Article 66(2) of the Rules of Procedure of the General Court of 2 May 1991, they attached documents amplifying the offers of proof in support of the explanations supplied in the application.

50 The documents in question constitute statements, drawn up and communicated following the lodging of the reply, whereby a manager of Redaelli, a manager of SLM and a manager employee of ITC assert that Mr G. did not represent the applicants at Club Italia meetings.

51 In the abovementioned letter of 14 October 2011, voestalpine and Austria Draht also ask the Court to adopt a measure of inquiry within the meaning of Article 68(1) of the Rules of Procedure of 2 May 1991, with the aim of the abovementioned managers of Redaelli and SLM being examined as witnesses.

52 The written procedure was initially closed on 20 October 2011, when the Commission lodged, in the language of the case, the rejoinder and its comments on the observations submitted by voestalpine and Austria Draht on the second amending decision.

53 On 24 November 2011, the Commission submitted its observations on voestalpine’s and Austria Draht’s letter of 14 October 2011, placed on the file on 8 November 2011, which had entailed the re-opening of the written procedure.

54 On 24 February 2012, the Commission submitted a corrigendum to the rejoinder.

55 The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 3 October 2013.

56 The preliminary report referred to in Article 52(2) of the Rules of Procedure of 2 May 1991 was communicated to the Sixth Chamber on 19 March 2014.

57 On 28 April 2014, in the context of measures of organisation of procedure adopted under Article 64 of its Rules of Procedure of 2 May 1991, the Court asked the parties to answer a series of questions and the Commission to produce certain documents, including a copy of the file communicated to the applicants during the administrative procedure.

58 On 13 June 2014, the parties submitted their replies to those requests.

59 On 16 July 2014, in the context of measures of inquiry adopted under Article 65 of its Rules of Procedure of 2 May 1991, the Court directed the Commission to produce the documents which it had refused to produce in reply to the measures of organisation of procedure adopted on 28 April 2014.

60 On 23 July 2014, the Commission produced the requested documents, to which the applicants were given access before the hearing.

61 The parties presented oral argument and answered the written and oral questions put by the Court at the hearing on 2 October 2006.

62 Voestalpine and Austria Draht claim that the Court should: — annul the contested decision; — in the alternative, reduce the fine imposed on them and set in Article 2 of the contested decision; — order the Commission to pay the costs.

63 The Commission contends that the Court should: — dismiss the appeal in its entirety; — order the applicants to pay the costs.

Law

64 In essence, voestalpine and Austria Draht take issue with the Commission for having imposed a fine of EUR 22 million on them for having participated in a single, complex and continuous infringement, namely a ‘complex of agreements and concerted practices in the [PS] sector in the internal market’ (‘the cartel’ or ‘the single infringement’), consisting so far as the applicants were concerned: — in particular, in Austria Draht’s participation in Club Italia, one of the regional agreements of the cartel, through its agent in Italy, Mr G., who also worked for another member of the cartel (CB); — furthermore, in Austria Draht’s sporadic involvement, shown by clear indicia, in anti-competitive discussions at European level, which meant that it was aware of the European level of the cartel at an early stage.

65 In that context, the applicants criticise, in the first plea, the fact that the unlawful conduct of Austria Draht’s agent for Italy was imputed to the principal, on the ground that such imputation of liability infringes Article 101 TFEU and Article 53 of the EEA Agreement, and, in the second plea, the finding that Austria Draht participated in a single infringement. Apart from the fact that Austria Draht was never aware of the unlawful conduct of its agent within Club Italia, it was also always unaware of the European dimension of the cartel. Austria Draht was never associated with the pan-European cartel arrangements from which in any case it always distanced itself.

66 Those observations on the single infringement lead the applicants to challenge, in the third plea, the fine and the amount thereof. In particular, the applicants claim that the fine is disproportionate, since they were not aware of the unlawful conduct of Austria Draht’s agent for Italy (Club Italia) and they did not participate in the other components of the cartel (Club Zurich, Club Europe, Club España, the allocation of the customer Addtek, etc.). In any event, the value of the sales to be taken into consideration when determining the amount of the fine could therefore not be the value of the applicants’ European PS sales.

I – Preliminary observations

A – Content of the contested decision

67 It follows from Article 1 of the contested decision that voestalpine and Austria Draht infringed Article 101 TFEU and, from 1 January 1994, Article 53 of the EEA Agreement by participating, from 15 April 1997 to 19 September 2002, in a ‘continuing agreement and/or concerted practice in the [PS] sector in the internal market and, as of 1 January 1994, within the EEA’.

1. Components of the cartel and characterisation of the single infringement

68 In recital 122 to the contested decision, the cartel is described as ‘a pan-European arrangement, consisting of a Zurich and a European phase, and/or, as the case may be, in national/regional arrangements’. Recitals 123 to 135 to the contested decision set out briefly those different agreements and concerted practices, which are subsequently described in detail and assessed under Article 101 TFEU and Article 53 of the EEA Agreement.

69 Put simply, the cartel was composed of the following arrangements: — the Zurich Club, or the first phase of the pan-European agreement. That agreement lasted from 1 January 1984 until 9 January 1996 and concerned quota-fixing by country (Germany, Spain, France, Italy, Austria and Benelux), customer-sharing, prices and the exchange of commercially sensitive information. Its members were Tréfileurope, Nedri, WDI, DWK and Redaelli, which represented several Italian undertakings at least from 1993 and 1995, subsequently joined by Emesa in 1992 and Tycsa in 1993; — Club Italia, a national arrangement that lasted from 5 December 1995 to 19 September 2002. That agreement concerned the fixing of quotas for Italy and also exports from Italy to the rest of Europe. Its members were the Italian undertakings Redaelli, ITC, CB and Itas, subsequently joined by Tréfileurope and Tréfileurope Italia (on 3 April 1995), SLM (on 10 February 1997), Trame (on 4 March 1997), Tycsa (on 17 December 1996), DWK (on 24 February 1997) and Austria Draht (on 15 April 1997); — the Southern Agreement, a regional arrangement negotiated and concluded in 1996 by the Italian undertakings Redaelli, ITC, CB and Itas, with Tycsa and Tréfileurope in order to determine the penetration rate of each of the participants in the Southern countries (Belgium, Spain, France, Italy and Luxembourg) and to undertake to negotiate quotas jointly with the other Northern European producers; — Club Europe, or the second phase of the pan-European agreement. That agreement was concluded in May 1997 by Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa (known as ‘the permanent members’ or ‘the six producers’) and ended in September 2002. The agreement was intended to overcome the crisis in the Zurich Club, to share new quotas (calculated over the period from the third quarter of 1995 to the first quarter of 1997), to share customers and fix prices. The six producers agreed on coordination rules, including the appointment of coordinators responsible for the implementation of the arrangements in several countries and for coordination with other interested companies active in the same countries or in respect of the same customers. Their representatives regularly met at different levels in order to monitor the implementation of the arrangements. They exchanged commercially sensitive information. In the event of discrepancy with the agreed trade behaviour, a compensation scheme was applied. — coordination in respect of the customer Addtek. In the context of that pan-European arrangement, the six producers, joined occasionally by the Italian producers and Fundia, also maintained bilateral (or multilateral) contacts and participated in price-fixing and customer-sharing on an ad hoc basis, if it was in their interest to do so. For example, Tréfileurope, Nedri, WDI, Tycsa, Emesa, CB and Fundia coordinated together on prices and volumes for the customer Addtek. Those projects related mainly to Finland, Sweden and Norway, but also the Netherlands, Germany, the Baltic States and Central and Eastern Europe; — discussions between Club Europe and Club Italia. During the period between at least September 2000 and September 2002, the six producers, and also ITC, CB, Redaelli, Itas and SLM met regularly with the aim of integrating the Italian companies into Club Europe as permanent members. The Italian undertakings wished to increase the Italian quota in Europe, while Club European maintained the status quo. To that end, meetings were held within Club Italia in order to define a uniform position, meetings were held within Club Europe in order to examine that position and define its own position, and meetings were held between participants in Club Europe and Italian representatives in order to agree on the allocation of the Italian quota on a specific market. The undertakings involved exchanged commercially sensitive information. For the purposes of redistributing the European quota with the aim of including the Italian producers, those undertakings agreed to use a new reference period (from 30 June 2000 to 30 June 2001). Those undertakings also reached an understanding on the overall volume of exports to Europe by the Italian undertakings, which the Italian undertakings shared among themselves for each country. At the same time, they discussed prices, as the members of Club Europe sought to adopt, on a European scale, the price-fixing mechanism applied within Club Italia; — Club España. Alongside the pan-European arrangement and Club Italia, five Spanish undertakings (Trefilerías Quijano, Tycsa, Emesa, Galycas and Proderac, the latter from May 1994) and two Portuguese undertakings (Socitrel, from April 1994, and Fapricela, from December 1998) agreed, for Spain and Portugal, and for a period from at least December 1992 until September 2002, to keep their market shares stable and to fix quotas, to allocate customers, including for public works contracts, and to fix prices and payment conditions. In addition, they exchanged commercially sensitive information.

70 In the Commission’s view, all the arrangements described in paragraph 69 above display the characteristics of a single infringement of Article 101 TFEU and Article 53 of the EEA Agreement (contested decision, recitals 135 and 609 and section 12.2.2).

71 In particular, the Commission considered that the abovementioned arrangements were part of an overall scheme which laid down the lines of action of the cartel members in all the geographic areas and that those undertakings ‘restricted their individual commercial conduct in order to pursue an identical anti-competitive object and a single identical anti-competitive economic aim, namely to distort or eliminate normal competitive conditions for PS in the EEA, and to establish an overall equilibrium, notably by fixing quotas and prices, allocating customers and exchanging sensitive commercial information’ (contested decision, recital 610 and section 9.3).

72 The Commission stated in that respect: ‘The plan, which was subscribed to by DWK, WDI, Tréfileurope, Nedri, Tycsa, Emesa, Fundia, Austria Draht, Redaelli, CB, ITC, Itas, SLM, Trame, Proderac, Fapricela, Socitrel, Galycas and Trefilerías Quijano (not all at the same time), was developed and implemented over a period that lasted at least 18 years, through a complex of collusive arrangements, specific agreements and/or concerted practices, pursuing the same common purpose of restricting competition between them and using similar mechanisms to pursue this common purpose (see section 9.3.1). Even at times when an arrangement did not work smoothly, other arrangements continued to function normally’ (contested decision, recital 612).

2. Evidence taken into consideration in respect of Austria Draht and voestalpine

73 Austria Draht and voestalpine were found to have participated in the cartel referred to in Article 1 of the contested decision during the period from 15 April 1997 until 19 September 2002.

74 The main factors on which their participation was established are as follows.

a) Contract with Mr G.

75 It is apparent from the contested decision that, from 1984, Austria Draht entrusted its marketing and sales in Italy to an agent, Studio Crema, which was managed and represented by Mr G. Mr G. was not authorised to sign contracts, which were always concluded directly between Austria Draht and the customer by express confirmation of any order placed with Mr G. (contested decision, recital 46).

b) Club Italia (from 15 April 1997 to 19 September 2002)

76 The Commission considered that Austria Draht had participated in Club Italia from 15 April 1997 to 19 September 2002 (contested decision, recitals 124 and 385 et seq., and recitals 479 to 483 of section 9.2.1.8, entitled ‘Individual participation in Club Italia’).

77 In particular, it is apparent from the contested decision that ‘[n]umerous contemporaneous documents and corroborative statements of ITC, Redaelli, Itas, CB, SLM, Tréfileurope and DWK show that between at least early 1995 [and] the date of the Commission’s inspections on 19 and 20 September 2002 … CB, ITC, Itas, Redaelli, Tréfileurope and Tréfileurope Italia, Tycsa, SLM, Trame and the pan-European producers DWK and Austria Draht attended anti-competitive meetings at which they engaged in: (1) disclosure and exchange of commercially sensitive information, in particular relating to customers, pricing and sales volumes, (2) market allocation through quota fixing both within the Italian market and regarding exports from Italy to the rest of Europe …, (3) price fixing reacting to the raw material cost development, including the fixing of minimum prices/price increases in Italy and the other European countries and of a surcharge (“extra”) … and (4) customer allocation’. In addition, ‘[a] monitoring system through an independent third party, …, as well as a compensation mechanism were also well in place …’ (contested decision, recital 385).

78 In order to establish Austria Draht’s individual participation in Club Italia, the Commission stated that it had evidence that that undertaking ‘systematically participated in over 40 meetings of Club Italia between 15 April 1997 and 19 September 2002 and [that on] several occasions, its absence was explicitly mentioned, indicating that it was expected to attend the meetings’ (contested decision, recital 479).

79 In a footnote to the contested decision, the Commission referred, in particular, to two sets of meetings: first, to ‘at least’ 14 meetings at which Mr G. was present and at which Austria Draht’s case was discussed and, second, to ‘another 16 meetings’ at which Austria Draht’s case was discussed in Mr G.’s absence. In that regard, the Commission observed as follows: ‘Annex 3 [to the contested decision]: In at least 14 meetings Mr [G.] is present and Austria Draht’s case is discussed: 15.04.1997 (quota/customer allocation and price fixing); 24.06.1997 (search for a “market equilibrium” and information exchange on prices); 11.03.1998 (quota allocation and price fixing discussions, Austria Draht mentioned but without entries); 30.03.1998 (quota allocation discussions); 18.05.1998 (quota allocation and price fixing discussions); 19.10.1998 (customer allocation); 18.01.1999 (quota allocation and price fixing discussions); 14.12.1999 (quota allocation discussions); 12.01.2000 (quota allocation discussions); 19.09.2000 (quota allocation discussions); 10.06.2001 (quota allocation); 23.10.2001 (Austria Draht mentioned but without entries); 11.01.2002 (information exchange on past year and tentative quota allocation for 2002), 30.04.2002 (it is expressly stated that Mr [G.] should guarantee the quantity otherwise [Austria Draht] would be “kicked out” by Summer); In the evidence of another 16 meetings, Mr [G.]’s presence is not mentioned (in a few meetings he is explicitly reported as absent) but Austria Draht’s data are nevertheless discussed: 07.04.1997 (quota allocation, information exchange); 13.05.1997 (information exchange, i.e. that Mr [G.] has offered a particular price to a client (named) further to an explicit order from Austria Draht); 14.10.1997 (quota allocation discussions); 16.12.1997 (quota allocation discussions, information exchange); 22.12.1997 and 14.01.1998 (tables with detailed data on Austria Draht, quota and customer, …; 16.07.1998 (Austria Draht mentioned but without concrete entries); 06.05.1999 (fax on allocation of customers and quota for amongst others Austria Draht); 13.05.1999 (information exchange); 31.05.1999 (quota allocation discussions); 10.07.2000 (quota allocation discussions); 27.09.2000 (information exchange); 13.07.2001 (e-mail containing a detailed excel list of quota and customer allocation of strands per company for 2001) and 04.02.2002 (e-mail containing a detailed excel list of proposals for quota and customer allocation of strand per company for 2002); 23.07.2001 (quota allocation discussions); 25.07.2001 (quota allocation discussions/information exchange).’

80 That footnote also refers to a third series of meetings or internal notes: ‘In [nine] meetings (or internal notes) Mr [G.] is explicitly mentioned as the representative of Austria Draht: 15.04.1997; 12.05.1997; 13.05.1997; 24.06.1997; 22.10.1997; 11.03.1998; 18.05.1998; 29.11.1999 and 17.01.2000. Austria Draht is explicitly reported absent, again showing that its presence was expected, in the meetings of 07.09.1998 and 12.07.1999; in the meeting of 14.10.1997 Mr [G.]’s absence was considered [to be] unjustified, and in the meeting of 15.05.2002 it was expressly requested that Mr [G.] would be present at the meeting of 5/6.06.2002. Note also the meetings where it was stated that Austria Draht had to be contacted: 20.09.1999 and Summer 2002.’

81 As for the beginning of Austria Draht’s individual participation in Club Italia, the Commission stated that: ‘In 1996 and before, Austria Draht did not participate in the Italian arrangement, as appears from the minutes of a meeting of 13.02.1996 … However, the Commission has clear proof that Austria Draht started participating in Club Italia as of 1997, and at the latest on 15.04.1997 when it was explicitly reported present through its sales agent Mr [G.] … At that meeting, a quota was allocated to Austria Draht and it was explicitly stated that Austria Draht would not supply a particular group of customers (named) … This meeting must be seen in the context of the meetings which took place just before and thereafter: (i) at the meeting of 17.12.1996, a table was circulated indicating the allocation of tons per client and the appointment of lead suppliers for a number of clients on the Italian market for 1997. Despite the fact that the columns for Austria Draht were left blank, the fact that Austria Draht was considered in the table is an indication that discussions between parties were at least envisaged; (ii) This finds confirmation in the meeting of 04.03.1997 where information on Austria Draht’s volume on the Italian market was exchanged; (iii) Even if Austria Draht was not reported present on 07.04.1997, the Commission notes that concrete volume was allocated to Austria Draht; (iv) A report on a visit of Tréfileurope to CB of 24.06.1997 confirms that anti-competitive discussions with Austria Draht were ongoing and that Austria Draht was acting “through Mr [G.]”. Given this context, the Commission considers 15.04.1997 as the starting date of Austria Draht’s participation in Club Italia’ (contested decision, recital 480).

82 As regards the imputation of Mr G.’s conduct to Austria Draht, the Commission stated the following at recitals 481 to 483 to the contested decision: ‘(481) The fact that Austria Draht participated in the meetings in Club Italia via its sales agent, Mr [G.], is confirmed by the statements of DWK and ITC and by contemporaneous documents from ITC and Tréfileurope. The cartel participants also perceived Austria Draht as part of the cartel through Mr [G.] … (482) Austria Draht admits that it had entrusted its entire commercial policy on the Italian market to … Studio Crema (which was represented by its Managing Director Mr [G.]) since 1984. Mr [G.] had a stringent obligation to report to Austria Draht, and he did not bear any financial risks for the transactions and actions undertaken, Austria Draht was solely responsible for all risks associated inter alia with non-delivery, defective delivery and customer insolvency and remunerated Mr [G.] on the basis of a fixed percentage by reference to the volume (by client) it had sold. Mr [G.] had a monthly reporting duty in writing to Austria Draht on its actions, and in particular on the competitors’ activities and the “sales and market relationships” in the representation area (Italy). All the elements above clearly show Austria Draht’s full control over the actions of its agent, Mr [G.] … (483) Given the strict agency relationship and Mr [G.]’s regular attendance at the Club Italia meetings on quotas, prices and customers …, it is clear that Mr [G.] communicated sensitive commercial information on Austria Draht’s position to the other Club Italia participants and obtained information at the meetings to the benefit of Austria Draht. The Commission thus considers that Austria Draht participated in Club Italia from 15 April 1997 to 19 September 2002.’

c) Club Europe and pan-European system

83 In order to establish the single and continuous nature of the infringement that voestalpine and Austria Draht were found to have committed, and in particular their ‘[i]ndividual awareness of participation in a larger scheme’ (see title of section 12.2.2.4 of the contested decision), the Commission proceeded as follows: ‘(652) Austria Draht admits that it participated in a few Club Europe meetings, but claims that there were no anti-competitive discussions at those meetings. Austria Draht should not be held liable as a direct participant in the Zurich Club or Club Europe … There are, however, clear indications that Austria Draht was sporadically involved in anti-competitive discussions at pan-European level and therefore was aware of the pan-European level of the cartel as of an early stage. (653) In 1995-1996, thus well before the date upheld by the Commission as the starting date of Austria Draht’s participation in the infringement (15 April 1997), Austria Draht participated in meetings of the Zurich Club where amongst others the possible organisation of a new European quota arrangement was discussed. Also, in the Club Italia meeting of 16 December 1997 it was noted that Austria Draht “was not part of that Club [Europe] but wanted to be kept informed”. In several other subsequent Club Italia meetings, which Mr [G.], representative of Austria Draht, attended, participants were debriefed on the discussions and agreements in Club Europe … Furthermore, Austria Draht admits that it participated in several Club Europe meetings … Among these, at least the meeting of 28 February 2000 was the occasion for discussions on volume and prices on the European market and at the meeting of 27 September 2001, Austria Draht was invited to join the expanded Club Europe. There are further several indications that during the pan-European expansion period …, Austria Draht was involved in quota and customer allocation discussions regarding particular countries and was present through Mr [G.] in at least six Club Europe expansion meetings including at the meeting of 6 November 2001 at which Mr [G.] was moreover indicated as possible country coordinator for Italy together with Mr [A.] of Itas and Mr [C.] of CB. (654) The Commission concludes that Austria Draht, while participating in Club Italia, was or should have been aware that the collusion in this Club was part of an overall plan to stabilize the PS market in order to avoid price decline, which Club Italia shared with the pan-European arrangements.’

3. Addressees of the contested decision and individual duration of liability

84 In order to define the liability of the companies concerned, the Commission distinguishes, at recitals 769 to 789 to the contested decision, the situation of Austria Draht and that of voestalpine, without contemplating that of Studio Crema.

a) Situation concerning Austria Draht

85 In order to define Austria Draht’s liability, the Commission considered that the latter had participated directly in Club Italia through its agent in Italy from 15 April 1997 until 19 September 2002 (contested decision, recital 769).

86 In order to substantiate that assertion, the Commission first of all rejected Austria Draht’s argument that Mr G., its agent in Italy, did not represent it at cartel meetings. Austria Draht relied in that regard on a statement by Mr G., who denies having represented Austria Draht at Club Italia meetings, and on a statement by Tréfileurope Italia’s agent, Mr V., who believes that Austria Draht was not a member of that club and that at the meetings which Mr V. attended Mr G. did not participate in the cartel agreements on behalf of Austria Draht, which was clear to the other participants. Austria Draht also observed that, for only five of the 60 Club Italia meetings cited by the Commission, it was specified that Mr G. had acted on behalf of Austria Draht and that at the other meetings Mr G. was presented as representing CB (without reference to Austria Draht) or without reference to the undertaking represented (contested decision, recital 770).

87 In response to that argument, the Commission stated that Austria Draht’s ‘involvement in the anti-competitive discussions via its sales agent Mr [G.] [was], however, sufficiently demonstrated: [f]irst, the two statements submitted by Austria Draht are not credible: Mr [G.]’s statement is given post factum, merely prepared in the context of Austria Draht’s reply to the [statement of objections], and Mr [V.]’s statement only gives his personal opinion limited to meetings in which he participated himself. Both statements are moreover contracted by the evidence’ (contested decision, recital 771).

88 In the Commission’s view, the evidence in question is as follows (contested decision, recital 772): — two leniency applicants (DWK and ITC) confirm that Austria Draht participated in the cartel meetings through its sales agent, Mr G.; — that is corroborated by a considerable amount of contemporaneous evidence; — Austria Draht’s case was regularly discussed and it was allocated quotas and customers throughout the infringement period until the date of the inspections. Thus, Mr G. attended at least 14 meetings at which Austria Draht’s case was discussed; Mr G. was absent from 16 other meetings, but Austria Draht’s data were none the less discussed and, finally, at nine meetings Mr G. was explicitly presented as participating on behalf of Austria Draht; — the other cartel participants also clearly perceived Austria Draht as part of the cartel through Mr G. and insisted on the need for Austria Draht’s ‘compliance’ with the cartel; — the fact that Mr G. also represented CB at some or several of the meetings listed in Annex 3 to the contested decision does not alter the evidence that he was also representing Austria Draht. It should be noted that at most of the meetings CB itself attended with its own employees, so that Mr G.’s role as representative of CB can be considered less important than his role as representative of Austria Draht, which did not participate directly, but entrusted its entire commercial activity in Italy to Mr G.

89 In order to counter Austria Draht’s argument that it could not be held liable for Mr G.’s conduct, because there was no economic entity between them, as Mr G. was an independent and non-exclusive sales agent over whom Austria Draht had no possibility of control, the Commission stated the following in the decision (contested decision, recital 774): — it is clear from the agency agreement and from Austria Draht’s statement that Mr G. was a genuine agent of Austria Draht; — the financial risks for Mr G. were very limited. First, contracts were concluded only between Austria Draht and its customer, and Austria Draht could accept or reject orders negotiated by the agent. Second, Austria Draht was solely responsible for the risks associated with, inter alia, non-delivery, defective delivery and customer insolvency. Third, remuneration was on the basis of a fixed percentage of the volume sold to each customer (reference is then made to paragraph 133 of the judgment of 11 December 2003 in Minoan Lines v Commission, T‑66/99, ECR, ‘the judgment in Minoan Lines’, EU:T:2003:337); — as they bore no, or limited, financial or commercial risks, Mr G. or Studio Crema must be regarded as an auxiliary organ forming part of Austria Draht’s undertaking. Like a commercial employee, they form an economic unit with that undertaking (reference is then made to paragraph 480 of the judgment of 16 December 1975 in Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, ‘the judgment in Suiker Unie’, EU:C:1975:174); — that is in keeping with the Commission Notice of 13 October 2000 — Guidelines on Vertical Restraints (OJ 2000 C 291, p. 1, ‘the Guidelines on Vertical Restraints’); — consequently, Austria Draht must be held liable for Mr G.’s participation in the cartel meetings.

90 As regards the fact that Mr G. also acted on behalf of another participant in the cartel, CB, and that the agency was not exclusive in the strict sense, the Commission considered that that did not alter its conclusion, but reinforced it (contested decision, recital 775).

91 The Commission stated the following in that regard: ‘(775) Indeed, according to settled case-law, if the agent has a “very considerable amount of business for its own account, as an independent dealer, on the product market in question”, there is no such exclusivity and hence no economic unit with the principal [reference is then made to paragraph 544 of the judgment in Suiker Unie]. This is not the case here. Mr [G.] was not active on his own behalf on the market in question, did therefore not conduct a considerable amount of business for his own account as an independent dealer and did not bear significant risks, but rather represented two competitors in the cartel meetings at the same time. (776) In the Commission’s view, the fact that two competitors used the same representative in the cartel meetings constitutes a co-ordination enhancing factor, facilitating the cartel behaviour, rather than discharging the principals from their responsibility. A different conclusion would allow companies participating in a cartel through an agent an easy route to escape liability simply by sharing their agent with another cartel participant. In any event, in this case one should also note that CB was mostly present itself at cartel meetings and that, therefore, Mr [G.]/[Studio Crema] generally acted as representative of Austria Draht.’

92 Last, the Commission noted that ‘the lack of control, awareness or (retroactive) approval of the cartel participation of its agent, which Austria Draht invokes, cannot be valid arguments to escape liability’ (contested decision, recital 777).

93 The Commission put forward the following arguments in that respect: — Austria Draht forms an economic unit with its agent (contested decision, recitals 697, 480 and 481) and is therefore liable for its agent’s participation in the cartel irrespective of Austria Draht’s awareness, control or approval (or lack/absence of awareness, control or approval) [reference is then made to paragraph 54 of the judgment of 15 June 2005 in Tokai Carbon and Others vCommission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, EU:T:2005:220, and to the judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C‑97/08 P, ECR, EU:C:2009:536) (contested decision, recital 777); — furthermore, if an undertaking decides to delegate its commercial activity in a particular country or market to a genuine agent, it is under an obligation to put in place the necessary mechanisms to ensure its control (contested decision, recital 777); — in addition, ‘even if there is no direct proof of instructions/debriefings on anti-competitive meetings between Austria Draht and Mr [G.], Austria Draht’s behaviour was influenced by its agent’s participation in the anti-competitive meetings’. The Commission considers that, ‘[i]ndeed, Mr [G.] regularly attended the Club Italia cartel meetings where [he] provided amongst others sensitive commercial information on quotas, prices and customers of Austria Draht to competitors and received similar commercially sensitive information from its competitors and where he also agreed with these competitors on prices, client and quota allocation’. The Commission adds that ‘[t]his information must have influenced Austria Draht’s commercial operation in Italy (through Mr [G.])’. Moreover, ‘it is clear from the agency contract and the internal reports submitted by Austria Draht, that Mr [G.] kept Austria Draht regularly informed about the developments on the Italian market, including as regards competitors and the sales and market relationships in Italy’. Last, it observes that ‘[i]t can therefore be expected that Mr [G.] passed on at least the most relevant commercially sensitive information obtained during cartel meetings to Austria Draht’ (contested decision, recital 778).

94 Consequently, the Commission considered that ‘Mr [G.] and Austria Draht should be regarded as a single economic entity and Austria Draht should be held liable for Mr [G.]’s cartel participation’ (contested decision, recital 779).

95 In reply to Austria Draht, moreover, which generally denied having participated in the cartel meetings, the Commission emphasised that the evidence available sufficiently showed that Austria Draht had been involved in Club Italia on a continuous basis, without interruption, as described in recital 772 and Annex 3 to the contested decision (contested decision, recital 780).

96 Thus, the Commission observed that between September 1998 and summer 2002 Austria Draht had been explicitly reported as absent on a number of occasions, which implied that its present had been expected by the other cartel participants (contested decision, recital 780).

97 Likewise, the Commission stated that at the meeting of 30 April 2002 the cartel participants had threatened that Austria Draht would be ‘kicked out’ of the cartel if it failed to guarantee volume ‘by Summer (2002)’, which clearly showed that Austria Draht was still participating in the cartel (contested decision, recital 780).

98 Furthermore, in reply to Austria Draht, which observed, in the first place, that most of the contemporaneous documents relating to quotas, prices or customers in the framework of Club Italia mentioned the core Italian players but not Austria Draht, and that those that did so did not conclusively show Austria Draht’s involvement; in the second place, that it was possible that the references to its supplies in the documents in the file were mere estimations by the other parties, information on its past supplies, information released by customers and data taken from public information, in particular because market transparency was allegedly high and because figures relating to Austria could only concern Austria Draht, since it was the only Austrian producer; and, in the third place, that there was no proof that Mr P. controlled Austria Draht’s figures, the Commission recognised that ‘[n]ot all documents related to Club Italia show[ed] Austria Draht’s participation’. In the Commission’s view, ‘[t]his can be easily explained by the fact that Austria Draht was not a core member of that Club like Redaelli, ITC, CB and Itas … and therefore attended Club Italia meetings to a less regular extent than these core Club Italia participants’. The Commission considered, however, that ‘Austria Draht’s cartel participation was never interrupted between 15 April 1997 and 19 September 2002’ (contested decision, recitals 781 and 782).

99 In addition, the Commission stated that it was not credible to claim that the information exchanged concerning Austria Draht was publicly available or constituted mere estimations, given the detailed, confidential and recent nature of the information exchanged during the entire period of Austria Draht’s participation in the cartel. According to the Commission, ‘[s]uch information could thus have come only from Austria Draht directly or through its sales agent Mr [G.]’ (contested decision, recital 782).

100 Last, the Commission considered that ‘the absence of controls by Mr [P.] [a retired employee of Redaelli, subsequently commercial advisor, see paragraph 26 above] [could not] be taken as being a significant, let alone decisive factor, to rebut Austria Draht’s participation in the meetings in light of the evidence against Austria Draht and the fact that Austria Draht was not regarded as a core member of Club Italia so that controls by Mr [P.] [might] have been considered less relevant for it’ (contested decision, recital 782).

101 In conclusion, the Commission decided that ‘Austria Draht should therefore be held liable for its cartel activities, and in particular for its participation in Club Italia from 15 April 1997 until 19 September 2002’ (contested decision, recital 783).

b) Situation concerning voestalpine

102 As for voestalpine, the Commission considered that that company must be held jointly and severally liable with Austria Draht for the infringement period between 15 April 1997 and 19 September 2002, since it exercised decisive influence over its subsidiary (contested decision, recitals 784 to 789), which is not disputed by the parties in the present case.

4. Calculation of the amount of the fine imposed on voestalpine and Austria Draht

103 By way of preliminary observation, the Commission states that the amount of the fine was calculated by reference to the 2006 Guidelines (contested decision, recital 918 et seq.). In the case of voestalpine and Austria Draht, the fine of EUR 22 million was calculated as follows.

104 First, voestalpine and Austria Draht were held liable for an overall cartel on the PS market within the EEA. Accordingly, in order to determine the basic amount of the fine, the Commission stated that it had taken into consideration, in accordance with point 13 of the 2006 Guidelines, ‘the value of the undertakings’ sales of the goods or services to which the infringement relates in the relevant geographic area within the EEA’ during the last full business year of its participation in the infringement (contested decision, recital 929 et seq.).

105 For Austria Draht, the value of sales taken into account was EUR 18207306 (first amending decision, paragraph 5). This was the value of sales of PS relating to the geographic area concerned by the infringement, namely, for the period in which voestalpine and Austria Draht were found to have participated in the infringement: Germany, France, Italy, the Netherlands, Belgium, Luxembourg, Spain, Austria, Portugal, Denmark, Sweden, Finland and Norway (contested decision, recitals 931 and 932).

106 Second, the percentage to be applied to the value of sales as thus calculated depends on the gravity of the infringement as such. In that regard, the Commission took into account, among the relevant circumstances of the present case, the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented (contested decision, recital 936 et seq.).

107 As regards the nature of the infringement, the Commission took into account the fact that the entire cartel provided for market-sharing, customer-allocation and horizontal price-fixing (contested decision, recital 939).

108 The Commission also took into account the fact that the undertakings involved in the infringement held a combined market share of around 80% (contested decision, recital 946) and that the infringement covered a significant part of the EEA. On that point, the Commission stated that, contrary to Austria Draht’s contention, its turnover in Portugal and Spain should not be excluded from the value of sales, on the ground that it was not active in Club España, since those two countries were within the geographic scope of Club Italia, in which Austria Draht had participated (contested decision, recitals 947 and 948). However, for Socitrel, Proderac, Fapricela and Fundia, undertakings that participated only in Club España (covering only Spain and Portugal) or, in Fundia’s case, the coordination concerning Addtek, and for which knowledge of the single and continuous infringement could be established only at a very late stage of the infringement (17 May 2001 for Socitrel, Proderac and Fapricela and 14 May 2001 for Fundia), the Commission took account of the more limited geographic scope when determining the proportion of the value of sales. In the Commission’s view, the situation was different for the other participants in Club España (Emesa and Galycas, Tycsa and Trefilerías Quijano), which participated simultaneously in different levels of the cartel or for which knowledge of the single and continuous infringement could be established at a much earlier stage. Likewise, for participants in Club Italia, the situation was different from the situation of Socitrel, Proderac and Fapricela, since the geographic scope of Club Italia largely coincided with that of the pan-European agreements and was thus much larger than the geographic scope of Club España (Spain and Portugal) (contested decision, recital 949).

109 As for the implementation of the arrangements, the Commission considered that although they were not always entirely successful, the arrangements were implemented (contested decision, recital 950).

110 Given the specific circumstances of the case and the criteria referred to above, the Commission considered that the proportion of the value of sales to be taken into account was 16% for Fundia, 18% for Socitrel, Fapricela and Proderac and 19% for all the other undertakings, including the applicants (contested decision, recital 953).

111 Third, the duration of the infringement was fixed at five years and five months, from 15 April 1997 until 19 September 2002, in the case of voestalpine and Austria Draht (contested decision, recital 956).

112 Fourth, as regards the percentage to be included in the basic amount, independently of the duration of an undertaking’s participation in the infringement, the Commission concluded that an amount of 16% for Fundia, 18% for Socitrel, Fapricela and Proderac and 19% for all the other undertakings, including the applicants, was appropriate (contested decision, recital 962).

113 In answer to Austria Draht, which claimed that, since it was not aware of the overall pan-European arrangement, the Commission should not apply an additional amount in its case or, if it did so, it should apply only a multiplier set at the lower level (15%), the Commission observed that Austria Draht was aware of the overall pan-European arrangement (contested decision, recitals 652 to 654) and that it had also participated in Club Italia in meetings at which prices had been fixed, customers allocated and quotas shared (contested decision, recital 478 et seq.), so that the percentage applicable to Austria Draht should not be different from that applicable to other undertakings participating in similar practices (contested decision, recitals 958 and 959).

114 Fifth, the Commission rejected the mitigating circumstances put forward by voestalpine and Austria Draht during the administrative procedure. These consisted, in particular, in arguments relating to negligence (contested decision, recital 976), the minor role played by the applicants in the cartel (contested decision, recital 982 et seq.), their participation in only a part of the cartel (contested decision, recitals 996 to 998), the non-implementation of the agreements (contested decision, recital 1013 et seq., in particular recitals 1016 and 1018 to 1022) and the finding that the principal alone was liable for the acts of the agent, while the agent was not held liable (contested decision, recital 1034).

115 In the absence of any mitigating circumstances, the Commission considered that there was no reason to depart from the basic amount calculated according to the methodology set out in the 2006 Guidelines, which resulted in a fine of EUR 22 million (contested decision, recital 1057, and recital 1072 as regards the application of the limit of 10%).

B – Outline of the principles

1. Proof of the existence and duration of the infringement

116 In the first place, it should be borne in mind that it is clear from the case-law that it is for the Commission to prove not only the existence of a cartel but also its duration. In particular, as regards proof of an infringement of Article 101(1) TFEU, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubt on that point, in particular in proceedings for annulment and/or variation of a decision imposing a fine. In the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is one of the fundamental rights which are protected in the European Union legal order and has been affirmed by Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of the severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see judgment of 17 May 2013 in Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, ECR, EU:T:2013:259, paragraph 50 and the case-law cited).

117 Furthermore, it is normal for the activities which anti-competitive agreements entail to take place clandestinely, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see judgment in Trelleborg Industrie and Trelleborg v Commission, cited in paragraph 116 above, EU:T:2013:259, paragraph 52 and the case-law cited).

118 In addition, according to the case-law, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (judgment in Trelleborg Industrie and Trelleborg v Commission, cited in paragraph 116 above, EU:T:2013:259, paragraph 53 and the case-law cited).

2. Concept of a single infringement, in the sense of a complex infringement

119 In the second place, still according to settled case-law, an infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Thus, when the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‑49/92 P, ECR, EU:C:1999:356, paragraph 81; of 7 January 2004 in Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraph 258; and of 6 December 2012 in Commission v Verhuizingen Coppens, C‑441/11 P, ECR, EU:C:2012:778, paragraph 41).

120 An undertaking which has participated in such a single and complex infringement, by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 101(1) TFEU and was intended to help to bring about the infringement as a whole, may thus also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgments in Commission v Anic Partecipazioni, cited in paragraph 119 above, EU:C:1999:356, paragraphs 83, 87 and 203; Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraph 83; and Commission v Verhuizingen Coppens, cited in paragraph 119 above, EU:C:2012:778, paragraph 42).

121 An undertaking may thus have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, an undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such a case, the Commission is also entitled to attribute liability to that undertaking in relation to all the anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (judgment in Commission v Verhuizingen Coppens, cited in paragraph 119 above, EU:C:2012:778, paragraph 43).

122 Conversely, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (judgment in Commission v Verhuizingen Coppens, cited in paragraph 119 above, EU:C:2012:778, paragraph 44).

123 That cannot, however, relieve the undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. However, a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard (judgment in Commission v Verhuizingen Coppens, cited in paragraph 119 above, EU:C:2012:778, paragraphs 45 and 46).

124 Last, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine (judgments in Commission v Anic Partecipazioni, cited in paragraph 119 above, EU:C:1999:356, paragraph 90, and Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraph 86, and Commission v Verhuizingen Coppens, cited in paragraph 119 above, EU:C:2012:778, paragraph 45).

3. Concept of distancing in the event of participation in a meeting

125 In the third place, it is also settled case-law that it is sufficient for the Commission to establish that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, in order to prove to the requisite legal standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see judgment in Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraph 81 and the case-law cited).

126 The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement (judgment in Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraphs 82 and 84).

127 Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive purpose such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting. The fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. Those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the amount of the fine (judgment in Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraphs 85 and 86).

128 Where the liability of undertakings for anti-competitive conduct results, according to the Commission, from their participation in meetings having such conduct as their purpose, it is for the Court to ascertain whether those undertakings had the opportunity, both during the administrative procedure and before that Court, to rebut the findings thus made and, where appropriate, to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission (judgment in Aalborg Portland and Others v Commission, cited in paragraph 119 above, EU:C:2004:6, paragraph 87).

129 It is in the light of the content of the contested decision and in consideration of the principles set out above that the Court must appraise the parties’ arguments, which were set out in detail in the Report for the Hearing communicated by the Court.

II – First plea, alleging that the Commission was wrong to consider that the applicants participated in a component of the single infringement through their agent in Italy

130 In the first plea, voestalpine and Austria Draht claim that, although they did not participate in the cartel characterised by the Commission, they received a fine of EUR 22 million on the ground that their agent in Italy, Mr G., attended certain Club Italia meetings. However, that circumstance alone does not entitle the Commission to consider that, through that agent, they infringed Article 101 TFEU and Article 53 of the EEA Agreement.

131 In the context of this plea, the applicants rely, first, on the role played by Mr G., who performed the essential part of his activities on behalf of CB; second, on the statements made by Mr G., Mr V. (Tréfileurope) and a number of companies involved in the infringement, which show that Austria Draht did not participate in Club Italia; third, on the various factors put forward to prove that Austria Draht participated in Club Italia through Mr G., which are not conclusive; fourth, on the imputation of Mr G.’s conduct to Austria Draht, although they do not form an economic unit and there is no evidence that Austria Draht was aware of the unlawful acts committed by its agent; and, fifth, and in the alternative, on the duration of the infringement taken into consideration by the Commission, since in any event no participation by the applicants in Club Italia could be established before January 2000.

A – Imputation of the agent’s conduct to the principal

132 In order to define Austria Draht’s liability, the Commission considered that Austria Draht had participated directly in Club Italia through its agent in Italy from 15 April 1997 until 19 September 2002. In doing so, the Commission rejected in the contested decision the observations submitted by the applicants concerning the absence of an economic unit between agent and principal, the fact that the agent assumed the economic risk, the fact that the agent was not an exclusive agent in the strict sense and the principal’s lack of awareness of the unlawful conduct of the agent. Following its analysis, the Commission considered at recital 779 to the contested decision that ‘Mr [G.] and Austria Draht should be regarded as a single economic entity and Austria Draht should be held liable for Mr [G.]’s cartel participation’ (see paragraphs 85 to 94 above).

133 It is in the light of that reasoning that the Court must examine whether the Commission is entitled to conclude, for the purposes of the application of Article 101 TFEU or Article 53 of the EEA Agreement, that Austria Draht must assume liability for the conduct of its agent in Italy.

1. Conditions of the imputability of the agent’s conduct to the principal

134 It is clear from settled case-law that in competition law the term ‘undertaking’ must be understood as designating an economic unit for the purpose of the subject-matter of the agreement in question, even if in law that unit consists of several persons, natural or legal (judgments of 12 July 1984 in Hydrotherm Gerätebau, 170/83, ECR, EU:C:1984:271, paragraph 11, and in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 121).

135 Such an economic unit consists in a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in Article 101(1) TFEU or Article 53(1) of the EEA Agreement. Where a group of companies constitutes one and the same undertaking the Commission is entitled to impute liability for an infringement committed by the undertaking and to impose a fine on the company responsible for the actions of the group in the context of the infringement (see, to that effect, judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 122).

136 For the purposes of applying the competition rules, formal separation of two companies, resulting from their having distinct legal identity, is not decisive. The test is whether or not there is unity in their conduct on the market (judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 123).

137 Thus, it may be necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 124).

138 The case-law shows that this sort of situation arises not only in cases where the relationship between the companies in question is that of parent and subsidiary. It may also occur, in certain circumstances, in relationships between a company and its agent or intermediary. In so far as the application of Article 101 TFEU or Article 53 EEA is concerned, the question whether a principal and his agent or intermediary form a single economic entity, the agent or intermediary being an auxiliary organ forming part of the principal’s undertaking, is an important one for the purposes of establishing whether given conduct falls within the scope of those provisions. Thus, it has been held that if an agent/intermediary works for the benefit of his principal he may in principle be treated as an auxiliary organ forming an integral part of the latter’s undertaking, who must carry out his principal’s instructions and thus, like a commercial employee, forms an economic unit with that undertaking (see, to that effect, judgment in Suiker Unie and Others v Commission, cited in paragraph 89 above, EU:C:1975:174, paragraph 480, and judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 125).

139 In the case of two companies having a vertical relationship, such as a principal and its agent or intermediary, two factors have been taken to be the main parameters for determining whether there is a single economic unit: first, whether the intermediary takes on any economic risk and, second, whether the services provided by the intermediary are exclusive (judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 126).

140 In so far as concerns the assumption of economic risk, it has already been held that an agent could not be regarded as an auxiliary organ forming part of its principal’s business where the agreement entered into with the principal confers upon the agent or allows it to perform duties which from an economic point of view are approximately the same as those carried out by an independent dealer, because under the agreement the agent accepts the financial risks associated with sales or the performance of the contracts entered into with third parties (judgment in Suiker Unie, cited in paragraph 89 above, EU:C:1975:174, paragraph 482, and judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 127).

141 As regards the exclusive nature of the services provided by the agent, it has also been held that where, at the same time as it conducts business for the account of its principal, an agent undertakes, as an independent dealer, a very considerable amount of business for its own account on the market for the product or service in question, that tends not to suggest economic unity (judgment in Suiker Unie, cited in paragraph 89 above, EU:C:1975:174, paragraph 544, and judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 128).

2. Agency agreement and assumption of the economic risk

142 The applicants essentially assert that, since Mr G. represented both CB and Austria Draht and since the activities carried out on behalf of CB were more important in terms of revenue than those carried out on behalf of Austria Draht, the element associated with the exclusivity of the services provided by the agent is not satisfied. Accordingly, in the absence of the second element referred to in the judgment in Minoan Lines, cited in paragraph 89 above (EU:T:2003:337), it cannot be concluded that there was an economic unit.

143 However, in order to determine whether there was an economic unit between Mr G. and Austria Draht, and as established in the case-law cited above, it is first necessary to know to what extent the agent bears the financial risks associated with sales or the performance of the contracts entered into with third parties as regards the activities for which he was appointed by the principal. The first element referred to in the judgment in Minoan Lines, cited in paragraph 89 above (EU:T:2003:337), cannot be disregarded.

144 In that regard, it should be borne in mind that the contract between Austria Draht and Studio Crema states that, in accordance with Austria Draht’s instructions, Mr G. is charged with selling Austria Draht’s PS in Italy ‘for and on behalf of’ Austria Draht. That contract requires Mr G., in particular, not to transact ‘on his own behalf’ and to ‘comply strictly with [Austria Draht’s] directions, instructions on prices and conditions as to payment, sales and delivery’. The contract also states that ‘the goods will be supplied and invoiced’ by Austria Draht. According to the terms of the contract, a sale is thus concluded only between Austria Draht and the customer and not between Mr G. and the customer (contested decision, recital 774, and agency agreement, Article 2).

145 That contract is therefore to be analysed as an agency agreement. It covers a situation in which ‘a legal or physical person (the agent) is vested with the power to negotiate and/or conclude contracts on behalf of another person (the principal), either in the agent’s own name or in the name of the principal, for the … purchase of goods or services supplied by the principal’ (see, to that effect, the definition of ‘agency agreements’ in point 12 of the Guidelines on Vertical Restraints, concerning the assessment of vertical agreements under Article 101 TFEU).

146 Furthermore, as the Commission observes in recital 774 to the contested decision, the contract does not stipulate that Mr G. is to bear the ‘risks associated with non-delivery, defective delivery and customer insolvency’ in respect of the activities for which he was appointed by Austria Draht. No provision of the contract suggests that Mr G. is responsible for financing stocks or that he is required to make specific investments in order to represent Austria Draht in Italy. The economic risk associated with sales negotiated by Mr G. and concluded with Austria Draht in Italy is therefore essentially borne by the principal and not by its agent.

147 Before the Court, the applicants do not contradict such an appraisal of the economic risk. They merely claim that Mr G. assumed certain expenses (costs of legal advice and travelling expenses, expenses linked with the incidental obligations associated with the conclusion of the contracts, translation costs, etc.), which may be regarded as ancillary to the activities entrusted to Mr G. or as covered by the fixed nature of the remuneration paid by Austria Draht in the form of commission. Such expenses cannot establish that any economic risk borne by Mr G. was other than negligible or limited under the activities entrusted by Austria Draht.

148 In the present case, the Commission is correct to consider that, in accordance with the case-law cited above, when Mr G. acted on behalf of Austria Draht in Italy he did so without assuming an economic risk in such a way that his contract with Austria Draht would entrust him with or allow him to undertake functions economically similar to those of an independent trader.

3. Impact of the fact that the agent represents two undertakings

149 As for the second element relied on in the judgment in Minoan Lines, cited in paragraph 89 above (EU:T:2003:337), the Commission acknowledges in recital 775 to the contested decision that the fact that Mr G. was also acting on behalf of another cartel participant, CB, had the consequence that the agency was not exclusive in the strict sense.

150 None the less, as the Commission submits, and contrary to the applicants’ suggestion, the particular characteristics of the present case cannot preclude outright any possibility of establishing the existence of an economic unit between Mr G. and Austria Draht so far as the activities entrusted to him under the agency agreement are concerned.

151 In that regard, although, alongside the activities carried out on behalf of Austria Draht, Mr G.was also carrying out activities on behalf of CB, the Commission is correct to note that, in the present case, ‘Mr [G.] was not active on his own behalf on the market in question [and] did not therefore conduct a significant amount of business for his own account as an independent dealer’ (contested decision, recital 775) (see, by analogy, judgment in Suiker Unie, cited in paragraph 89 above, EU:C:1975:174, paragraph 544, and judgment in Minoan Lines, cited in paragraph 89 above, EU:T:2003:337, paragraph 128).

152 In fact, instead of representing one principal for business purposes, Mr G. represented two, namely, essentially, CB, which generated the bulk of Studio Crema’s income (around 75% during the period of the infringement which the applicants are found to have committed), but also Austria Draht, which also generated a not insignificant proportion of that income (around 25% during that period).

153 In such a situation, in order to determine the existence of an economic unit between the agent and one of his principals, it is necessary to ascertain whether that agent is in a position, as regards the activities entrusted to him by that principal, to act as an independent trader free to determine his own business strategy. If the agent is not in a position to act in that way, the functions which he carries out on behalf of the principal form an integral part of the latter’s activities.

154 Thus, as the Commission states in recital 774 to the contested decision, the decisive factor in determining the existence of an economic unit between Mr G. and Austria Draht lies in the assessment of the financial risks associated with sales or the performance of the contracts concluded with third parties through Mr G. If Mr G. acts as an emanation of Austria Draht, he may then be treated as an ‘auxiliary organ forming an integral part of Austria Draht’s undertaking and thus [as] a commercial employee’, which would not be the case if he acted as an independent trader.

155 In the present case, it has already been established that the agency agreement between Mr G. and Austria Draht did not allow Mr G. to act, within the sense of competition law, as an independent trader so far as the activities in respect of which he had been appointed were concerned.

156 Furthermore, as regards the nature of the relationship between Mr G. and CB, it is also clear from the file that Mr G.’s conduct cannot be compared, from the aspect of Article 101(1) TFEU and Article 53(1) of the EEA Agreement, to that of an independent trader in PS produced by CB. Mr G. carried out, on behalf of CB, duties similar to those of a sales manager. The absence of a written agency agreement between Mr G. and CB does not establish that the activities entrusted to him by that company were carried out by an independent trader and not on behalf of and at the risk of CB. On the contrary, it may be considered that he was therefore acting as an auxiliary organ, integrated within that undertaking. Proof, as the applicants have observed, may be seen in the fact that Mr G. presented himself at the hearing before the Commission as a member of the team representing CB.

157 It follows from the foregoing that, although the present case differs from the situations previously assessed in the case-law, especially in the judgment in Minoan Lines, cited in paragraph 89 above (EU:T:2003:337), where the exclusivity of the agent’s representation of the principal was clear from his contract and from the performance of that contract (paragraphs 131 and 132 of the judgment), the double representation by Mr G. of CB and Austria Draht cannot upset the finding that, so far as the activities entrusted to Mr G. by Austria Draht were concerned, Mr G. was not in a position to carry out duties economically comparable with those of an independent trader.

158 In conclusion, as stated in the contested decision, Mr G., or Studio Crema, which he represents, ceases to be an independent economic operator when the scope of the agency agreement concluded with Austria Draht is assessed in the light of competition law, since Mr G. does not bear, or bears to a very limited extent, the financial risks resulting from the contracts of sale concluded through him with Austria Draht and since he operates de facto as an auxiliary organ forming part of that company.

159 None of the arguments put forward by the applicants on that point can undermine such a conclusion. A large part of that argument refers to the content of the judgments in Suiker Unie, cited in paragraph 89 above (EU:C:1975:174), and Minoan Lines, cited in paragraph 89 above (EU:T:2003:337), which cannot be simply extended to the present case to support the claim that, merely because there is no exclusive link in the strict sense between Mr G. and Austria Draht, they cannot form an economic unit.

160 Likewise, the fact that Mr G. also works for CB and that the activities carried out on behalf of CB represent the essential part of Studio Crema’s income by comparison with that generated with Austria Draht cannot suffice to demonstrate Mr G.’s commercial independence. As already stated, Mr G. could be regarded as constituting at the same time an economic unit with CB and an economic unit with Austria Draht. That applies, reciprocally, for CB and Austria Draht, only in respect of, and to the extent of, the activities entrusted to Mr G. by each of those companies.

161 For that reason, however, the Commission is not entitled to take the view that, ‘[i]n any event, in this case one should also note that CB was mostly present itself at cartel meetings and that, therefore, Mr [G.]/Studio Crema … generally acted as representative of Austria Draht’ (contested decision, recital 776 in fine). In the absence of proof that would substantiate such an assertion, Mr G.’s presence at a Club Italia meeting can mean nothing other than the presence at that meeting of a person who (i) performed duties comparable to those of a sales manager on behalf of CB and (ii) was also Austria Draht’s agent in Italy. In the light of the double representation carried out by Mr G., which enabled him to have access to commercially sensitive information coming from two sources, the Commission was none the less correct to observe that that particular circumstance was a coordination-enhancing factor in the context of the cartel (contested decision, beginning of recital 776).

162 As regards the Commission’s practice in taking decisions on which the applicants rely with reference t