JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

27 September 2012 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction on competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Rights of the defence — Fine — Aggravating circumstances — Role of instigator and leader — Absence of cooperation — Commission’s powers of investigation — Right to the assistance of a lawyer — Misuse of powers — Calculation of the amount of the fines — Duration of the infringement — Unlimited jurisdiction’

In Case T-357/06,

Koninklijke Wegenbouw Stevin BV, established in Utrecht (Netherlands), represented initially by E. Pijnacker Hordijk and Y. de Vries, and subsequently by Pijnacker Hordijk and X. Reintjes, lawyers,

applicant,

v

European Commission, represented by A. Bouquet, A. Nijenhuis and F. Ronkes Agerbeek, acting as Agents, assisted initially by L. Gyselen, F. Tuytschaever and F. Wijckmans, and subsequently by Gyselen, lawyers,

defendant,

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Sixth Chamber),

composed of M. Jaeger, President, N. Wahl and S. Soldevila Fragoso (Rapporteur), Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 26 May 2011,

gives the following

Judgment

Facts

I – The applicant

1 Koninklijke Volker Wessels Stevin is a Netherlands construction group consisting of more than a hundred operating companies. The parent company, Koninklijke Volker Wessels Stevin NV (‘KVWS’), operates in the road construction sector through Volker Wessels Stevin Verkeersinfra BV and through the applicant, its subsidiary, Koninklijke Wegenbouw Stevin BV, which is responsible on behalf of the whole group for the negotiations concerning and for the purchasing of bitumen for the production of asphalt in the Netherlands. During the period of the infringement, KVWS held all the applicant’s capital, through the holding companies Volker Wessels Stevin Infra BV and Volker Wessels Stevin Verkeersinfra.

II – Administrative procedure

2 By letter of 20 June 2002, British Petroleum (‘BP’) informed the Commission of the European Communities of the presumed existence of a cartel with regard to the supply of road pavement bitumen in the Netherlands and submitted a request for immunity from fines in accordance with 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’).

3 On 1 October 2002, the Commission carried out surprise inspections at the premises of, in particular, the applicant. During that inspection, the applicant first refused to allow the Commission’s staff to enter the building until its external lawyers arrived and then denied them access to the office of one of its directors. The Commission therefore requested the assistance of the national authorities in order to carry out those investigations. The Commission’s staff drew up two reports on those incidents on 3 October 2002, which were sent to the applicant as part of the access to the file granted by the Commission on 19 October 2004.

4 The Commission sent requests for information to several companies, including the applicant, on 30 June 2003, to which the latter replied on 12 September 2003. On 10 February 2004, the Commission sent a further request for information, to which KVWS replied on 2 March 2004.

5 On 12 September 2003, Kuwait Petroleum submitted an application under the Leniency Notice, to which a corporate statement was attached. Shell Nederland Verkoopmaatschappij BV (‘SNV’) also submitted such an application on 10 October 2003, accompanied by a corporate statement and a statement by a retired former employee. In addition, in their replies to the statement of objections, Total and Nynas requested that their replies to the Commission’s request for information be taken into account under the Leniency Notice.

6 On 18 October 2004, the Commission initiated a proceeding and adopted a statement of objections, which was sent on 19 October 2004 to several companies, including KVWS, the applicant and Volker Wessels Stevin Infra.

7 Following the hearing of the companies concerned on 15 and 16 June 2005, Nynas and Kuwait Petroleum provided, on 28 and 30 June 2005 respectively, clarifications with regard to certain statements used by the Commission in the statement of objections and challenged during the hearing by other companies, which were forwarded to all the parties. The applicant responded to those documents on 26 August 2005. Similarly, it replied on 28 June 2005 to a request for information which followed on from an oral question put by the Commission at the hearing, and that reply was forwarded to all the parties on 24 May 2006. On 25 January 2006, the Commission sent a letter to all the parties, in order to provide explanations regarding a passage in the statement of objections relating to price fixing, to which the applicant replied on 16 February 2006. Finally, on 24 May 2006, the Commission forwarded to the applicant all the replies from the other undertakings to the statement of objections which it was intending to use as evidence against it, and the applicant submitted its comments on those documents on 12 June 2006.

III – Contested decision

8 On 13 September 2006, the Commission adopted Decision C(2006) 4090 final relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands), ‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 28 July 2007 (OJ 2007 L 196, p. 40), and which was notified to the applicant on 25 September 2006.

9 The Commission stated that the companies to which the contested decision was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods concerned, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for the road builders participating in the cartel (‘the large builders’ or ‘the W5’) and a smaller maximum rebate on the gross price for other road builders (‘the other builders’ or ‘the small builders’).

10 A fine of EUR 27.36 million was imposed on the applicant, jointly and severally with KVWS, for having committed that infringement for the period from 1 April 1994 to 15 April 2002.

11 As regards the calculation of the amount of the fines, the Commission described the infringement as very serious, given its nature, even though the relevant geographic market was limited (recital 316 of the contested decision).

12 In order to take account of the specific weight of the conduct of each of the undertakings involved in the cartel and of its real impact on competition, the Commission made a distinction between the undertakings concerned according to their relative importance in the relevant market, measured by their market shares, and grouped them into six categories.

13 On the basis of the foregoing considerations, the Commission applied a starting amount of EUR 9.5 million to the applicant (recital 322 of the contested decision). It considered that it was not necessary to apply a multiplier to it in order to ensure a sufficient deterrent effect of the fine, in view of the size and turnover of the Koninklijke Volker Wessels Stevin group (recital 323 of the contested decision).

14 As regards the duration of the infringement, the Commission took the view that the applicant had committed an infringement of long duration, namely an infringement of more than five years, and took as a basis a total period of eight years, from 1 April 1994 to 15 April 2002, thus increasing the starting amount by 80% (recital 326 of the contested decision). The basic amount of the fine, determined according to the gravity and duration of the infringement, was therefore fixed at EUR 17.1 million for the applicant (recital 335 of the contested decision).

15 The Commission applied several aggravating circumstances with regard to the applicant. In the first place, it took the view that, since the applicant was guilty of refusal to cooperate and of attempts at obstruction during the investigations carried out at its premises on 1 October 2002, an increase of 10% in the basic amount of the fine should be applied to it (recitals 340 and 341 of the contested decision). In the second place, it considered that the applicant had played the role of instigator and leader of the cartel, justifying a further increase of 50% in the basic amount of the fine (recitals 342 to 349 of the contested decision).

16 Moreover, the Commission considered that no attenuating circumstances could be found with respect to the applicant (recitals 350 to 360 of the contested decision).

Procedure and forms of order sought by the parties

17 By application lodged at the Registry of the Court on 5 December 2006, the applicant brought the present action.

18 Acting upon a report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the parties to lodge certain documents and put questions to them. The parties complied with those requests within the prescribed period.

19 The parties presented oral argument and answered questions put to them by the Court at the hearing on 26 May 2011.

20 As a member of the Sixth Chamber was unable to sit, the President of the Court designated himself to complete the Chamber pursuant to Article 32(3) of the Rules of Procedure.

21 By order of 18 November 2011, the Court (Sixth Chamber), in its new composition, reopened the oral procedure and the parties were informed that they could present oral argument at a further hearing.

22 By letters of 25 and 28 November 2011 respectively, the applicant and the Commission notified the Court that they waived their right to present further oral argument.

23 Consequently, the President of the General Court decided to close the oral procedure.

24 The applicant claims that the Court should: — principally, annul the contested decision in so far as it applies to it; — in the alternative, annul Article 2 of the contested decision in so far as it concerns the applicant and substantially reduce the fine imposed on it; — order the Commission to pay the costs;

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

Law

26 The applicant claims, principally, that the contested decision should be annulled and, in the alternative, that the fine imposed on it by the Commission in that decision should be cancelled or reduced.

I – Claim for annulment of the contested decision

A – Introductory remarks

27 In support of its claim for annulment of the contested decision, the applicant raises three pleas in law, the first alleging errors of fact, the second alleging errors of law in the assessment of the requirements for the application of Article 81(1) EC and the third alleging infringement of an essential procedural requirement and of the rights of the defence on which it was entitled to rely.

1. Arguments of the parties

28 The applicant recalls that, according to settled case-law, the Commission must produce sufficiently precise and consistent evidence to establish an infringement of Article 81 EC and that any doubt in the mind of the Court must operate to the advantage of the undertaking (Joined Cases T-67/00, T-68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II-2501, paragraph 179, and Joined Cases T-44/02 OP, T-54/02 OP, T-56/02 OP, T-60/02 OP and T-61/02 OP Dresdner Bank and Others v Commission [2006] ECR II-3567, paragraphs 60 and 62). It submits that, in this case, the Commission failed to observe those principles in its assessment of the existence of the infringement and in the classification of the nature of the infringement. It wrongly placed on an equal footing the very serious infringement committed by the bitumen suppliers (‘the suppliers’), constituted by the price and market-sharing cartel, and the mere joint negotiating structure set up by the large builders, which was aimed only at responding to the suppliers’ cartel and at securing more advantageous purchase conditions. As a result of that erroneous assessment of the operation of the cartel, the Commission attached too much importance to the suppliers’ statements and disregarded evidence mentioned in the statement of objections, some of which was contemporaneous with the infringement.

29 The Commission rejects the applicant’s arguments.

2. Findings of the Court

30 It should first be recalled that, in accordance with the provisions of Article 2 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and with the earlier case-law (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 86), the burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement, that authority being required to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. The Courts of the European Union have, moreover, held that, where there is doubt, the benefit of that doubt must be given to the undertaking accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continental v Commission [1978] ECR 207, paragraph 265) and that, under the presumption of innocence, the Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (JFE Engineering and Others v Commission, cited in paragraph 28 above, paragraph 177). However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering and Others v Commission, paragraph 180). In the context of the examination of this first plea in law, the Court must therefore examine whether the Commission held sufficient evidence of the existence of facts constituting an infringement of Article 81(1) EC.

31 Furthermore, the Court of Justice has stated that, where the Commission has succeeded in gathering documentary evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine whether the undertaking concerned had a commercial interest in the agreement (Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 46). If this Court were to hold that the Commission has established the existence of an agreement of an anti-competitive nature, it would not then be required to deal with the arguments relating to the applicant’s commercial interest in the cartel.

32 Moreover, the applicant maintains that, in general, the Commission attached too much importance to the suppliers’ statements and that it therefore disregarded certain evidence. It must be pointed out, in that regard, that the Commission is not required, in the contested decision, to verify and respond to every allegation of the parties put forward during the administrative procedure, but it is required, in accordance with the provisions of Article 253 EC, to set out its reasoning in a clear and unequivocal fashion, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. Those requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19; Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86, and Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63).

B – Errors of fact

33 The applicant submits that the Commission made three errors of fact.

1. First error of fact, concerning the failure to take account of the opposition between the interests of the suppliers and those of the large builders

a) Arguments of the parties

34 The applicant points out that the suppliers and the large builders had diametrically opposite interests, the former seeking to increase selling prices and gain customers while attempting to secure the collaboration of the latter. It submits that the Commission has not demonstrated that the large builders pursued a common objective with the suppliers. It notes that several items of evidence, including an internal SNV note of 6 February 1995, proved that only the suppliers had established a cartel in the 1980s and that all of them participated in it, and that those facts were disregarded by the Commission. Similarly, it submits that other items confirm that the cartel established by the suppliers led to the collaboration between the large builders, which the Commission has not disputed, moreover. It points out that, by contrast, the collaboration between the large builders began only in the first half of the 1990s, when asphalt production was radically reorganised in the Netherlands, resulting in a significant reduction in the number of asphalt plants and the emergence of plants jointly owned by several large builders. The consultation meetings with the suppliers were also the inevitable consequence of a legislative change in the Netherlands, which led to the introduction, in 1990, in road construction tender specifications, of the certificate of origin rule requiring such a certificate to be obtained by builders.

35 It further complains that the Commission, with the objective of bolstering its theory of the existence of a bilateral cartel between suppliers and large builders, abandoned its investigations into the market sharing agreements concluded between the suppliers, even though the statement of objections contained numerous indicia in that regard, and even though it had itself produced numerous items of evidence relating to them. Similarly, the Commission disregarded several indicia relating to exchanges of confidential information concerning use of production capacities, customers and prices between suppliers, as well as the existence of cartels between those suppliers in other European countries. Finally, it points out that the large builders have never organised cooperation agreements for the purchase of any other raw materials.

36 The Commission rejects the applicant’s arguments.

b) Findings of the Court

37 The applicant submits that the Commission did not take account of evidence proving that all the suppliers had established a cartel in the 1980s, while the large builders took part in it, in response, only in the first half of the 1990s. It relies, inter alia, on an internal SNV note of 6 February 1995, seized by the Commission during the investigations and placed on the administrative file. It is clear from that document that an SNV employee carried out an analytical review of the road construction market in the Netherlands, in which he describes the situation of overcapacity in the market and the ‘origins of the cartel’ from 1980 onwards. He thus mentions the creation of ‘Nabit’, the professional organisation representing bitumen undertakings, in 1980, a period when bitumen prices were unstable, then the setting up of the ‘Star’ project, a cartel consisting of the five principal road builders and the principal suppliers, which ended in 1993, and lastly the fact that the large builders demanded greater price stability in 1995, so that the volumes and market allocation would return to approximately their 1993 levels. The document stresses, in conclusion, the share of responsibility borne both by the public authorities and by the large builders and the suppliers for the fact that certain agreements were concluded. However, that document does not, on its own, make it possible to establish clearly whether a cartel existed before 1994, or whether the suppliers imposed the cartel on the large builders.

38 Moreover, account must also be taken of other evidence mentioned in the contested decision. Thus, in another internal note of 9 February 1995, also seized by the Commission during the investigations and placed on the administrative file, two SNV employees describe the situation on the Netherlands road construction market and draw attention in particular to the existence of agreements on prices and markets between the large builders, which benefited from a specific rebate, and the suppliers, to the detriment of the contracting authorities and the other builders. Those employees describe the situation as ‘cooperation between two cartels’ and are aware that there is a risk of sanction by the Commission. They state that SNV attempted to put an end to that situation from 1992 onwards, but that it did not succeed, and examine the prospects of the situation changing and the associated risks (maintenance of the cooperation and partial or total termination of the cooperation). That document confirms the bilateral character of the cartel and, by contrast, invalidates the applicant’s theory that before 1994 a cartel existed only on the part of the suppliers, which imposed it on the large builders. Moreover, an internal report dated 20 February 1992, seized by the Commission during the investigations and placed on the administrative file, of Wintershall AG, a road pavement bitumen producer which was an addressee of the contested decision by which a fine of EUR 11.625 million was imposed on it, refers to contacts between SNV and the applicant, the latter having asked SNV, as ‘market leader’, to make some proposals for cooperation between the suppliers and the W5, amounting to a purchasing monopoly. The document states that Wintershall had pointed out to the applicant, during a visit by the latter to its premises on 18 February 1992, that that step was problematical under cartel law. The applicant tried to call into question the credibility of that document by stating that it had little commercial contact with Wintershall and that it was not very credible that it would have passed on to its interlocutor information that was so confidential. Nevertheless, it does not appear very plausible that Wintershall would have deliberately reproduced incorrect information in a purely internal report of 1992. In any event, the mere fact, if proved, that the applicant had little commercial contact with Wintershall cannot suffice to call into question the evidential value of that document.

39 The Court therefore takes the view that several concordant documents dating from the time of the infringement or from the period immediately preceding it permitted the inference by the Commission that the cartel had not originated in an earlier cartel established by the suppliers and that the latter had not imposed it on the large builders.

40 The applicant further complains that the Commission, despite the numerous indicia mentioned in the statement of objections, abandoned the investigations into market sharing agreements allegedly concluded by the suppliers in the Netherlands, into regular exchanges of confidential information between the suppliers, relating to use of production capacities, customers and prices, and into the existence of cartels in other European countries concluded by those suppliers.

41 It must, first of all, be pointed out that (i) the existence of possible other cartels between the suppliers is not incompatible with the theory of the existence of a bilateral cartel between those suppliers and the W5 and that (ii) the Commission did not rule out the possibility that the large builders participated in other agreements with the suppliers (points 174 and 175 of the statement of objections).

42 Moreover, it cannot be held against the Commission, in this action, that it did not include other possible agreements in the contested decision. Such an argument, even if well founded, cannot have a bearing on the lawfulness of the contested decision.

44 As regards the applicant’s argument that the setting up of the cartel on the part of the large builders in the 1990s was a reaction to the restructuring of the asphalt market by the Netherlands public authorities (introduction of a certificate of origin in the tender specifications for road construction contracts, making any change of supplier during a calendar year difficult, decrease in the number of asphalt plants and setting up of plants owned jointly by several large builders), it must be pointed out that the applicant has not stated the reason why those developments in national legislation led to the W5 setting up the cartel. According to the case-law, in the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission is entitled to conclude that the operators in question enjoyed no autonomy only if it appears on the basis of objective, relevant and consistent evidence that that conduct was unilaterally imposed upon them by the national authorities through the exercise of irresistible pressures, such as, for example, the threat to adopt State measures likely to cause them to sustain substantial losses (Case T-66/99 Minoan Lines v Commission [2003] ECR II-5515, paragraphs 176 to 179). In the present case, the applicant has not provided any evidence which would permit the inference that the conduct alleged against it had its origin in the Netherlands national legislation.

45 Finally, the fact, if proved, that the large builders never organised cooperation agreements for the purchase of other raw materials has no bearing on the existence of the present infringement.

46 It must therefore be concluded that the Commission did not make any error of assessment in regard to the interests of the suppliers and those of the large builders.

2. Second error of fact, concerning the content of the agreements between the suppliers and the large builders

a) Arguments of the parties

47 The applicant submits that the Commission wrongly assessed the content of the agreements concluded between the suppliers and the large builders. Thus, firstly, the suppliers alone were always behind the increases in the gross price of road pavement bitumen in the Netherlands (‘the gross price’), the large builders having succeeded on only one occasion, in March 2000, in challenging the increase announced by the suppliers. It is apparent from numerous documents in the file, and in particular from the statements of Kuwait Petroleum and Nynas, bitumen suppliers which were addressees of the contested decision by which fines of EUR 16.632 and 13.5 million respectively were imposed on them, that the suppliers alone always took the initiative for a price increase and summoned the large builders in order to impose it on them. Secondly, the specific rebate granted by the suppliers to the W5 was regarded as commercially justified on the basis of the quantities of bitumen purchased by those companies and it was only a starting point for the individual negotiations conducted by each builder with each supplier. Thirdly, the applicant reiterates that numerous documents in the administrative file demonstrate that the small builders behaved in the same manner as their larger competitors in their negotiations with the suppliers, demanding the lowest prices, and that the W5 suspected that the suppliers were granting them a larger rebate. The reaction of the W5, when, in 2000, it discovered that the small builders had received a rebate equivalent to theirs, was to demand individually or collectively (although that was the case on only one occasion), a larger rebate from the suppliers. In any case, the applicant asserts that the W5 had no way of verifying the suppliers’ compliance with their commitment, or even of penalising them if they granted higher rebates to the small builders. Fourthly, the applicant states that the Commission gives the misleading impression that the rebate granted to the W5 was always increasing, whereas, in 2002, it had returned to the 1994 level and, by contrast, the increase in the gross price was continual during the period of infringement.

48 The Commission rejects the applicant’s arguments.

b) Findings of the Court

49 With regard, firstly, to the argument that several documents prove that the suppliers alone were behind the increase in the gross price, that the rebate granted to the W5 depended solely on the quantities purchased, and that the large builders were able to renegotiate that rebate individually with each supplier, just as the small builders did, it is necessary to take into account the agreements concluded between the W5 and the suppliers as a whole, since they cover the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders.

50 In the first place, several documents cited in the contested decision confirm that agreements were concluded between the two parties on the gross price, which, contrary to what the applicant maintains, was not fixed unilaterally by the suppliers and imposed on the larger builders. Thus, an internal memo dated 8 July 1994 of Hollandsche Beton Groep (‘HBG’), a road builder in the Netherlands and an addressee of the contested decision by which a fine of EUR 7.2 million was imposed on it, mentions agreements between the W5 and the oil companies on the gross price until 1 January 1995 (recital 94 of the contested decision). Moreover, the internal SNV note of 9 February 1995 also mentions agreements on prices concluded between the W5 and the suppliers (recital 89 of the contested decision). Similarly, an SNV note of 14 July 2000 makes reference to collective agreements on the gross price concluded between the suppliers and the W5 in 1995 (recital 90 of the contested decision). Furthermore, the applicant’s notes relating to meetings on 12 March and 14 September 1999 set out the results of those consultations as regards the gross price and the rebate granted to the W5 (recitals 104 and 106 of the contested decision). HBG memos of 1999 and 2000 also refer to agreements on price increases and compensation and to the rejection by the W5 of the suppliers’ proposed price increase for 1 April 2000 (recitals 107 and 110 of the contested decision). Notes from HGB and the applicant refer, moreover, to a meeting of 1 March 2001, during which the suppliers wished to lower the gross price whereas the W5 preferred to keep the existing gross price (recitals 115 and 116 of the contested decision). Finally, in its reply of 12 September 2003 to a Commission request for information, as in its reply of 20 May 2005 to the statement of objections, the applicant admitted that the suppliers and the W5 had concluded agreements based on the gross price proposals made by the suppliers (recital 97 of the contested decision).

51 The Kuwait Petroleum statements of 12 September, 1 October and 9 October 2003 and the Nynas statement of 2 October 2003 (recital 70 of the contested decision), cited by the applicant, give no grounds for calling into question the conclusion that the gross price was not fixed unilaterally by the suppliers and imposed on the large builders. Indeed, those statements demonstrate only the existence of pre-meetings between the suppliers during which the latter agreed on price proposals which would be made to the large builders at the cartel meetings.

52 In the second place, the contested decision makes reference to numerous documents which confirm that the negotiations between the suppliers and the large builders also covered the rebate granted to the W5 and the maximum rebate granted to the other road builders. That is true of, for example, the applicant’s reply of 12 September 2003 to a Commission request for information, in which the Commission stated that the discussions between the suppliers and the large builders concerned both the ‘list prices’ and ‘the standard rebates’ (recital 72 of the contested decision). Similarly, an internal HBG memo of 24 February 1994 also shows the importance which the large builders attached to obtaining a rebate not granted to the small builders and to preventing the rebate from being applied to all builders (recital 95 of the contested decision). In addition, an internal HBG report of 14 September 1999 makes a summary of the agreements on ‘increases and compensations’ of 1999 concluded between the W5 and the suppliers (recital 107 of the contested decision). Kuwait Petroleum’s reply of 16 September 2003 to a Commission request for information also states that the consultation meeting of 27 March 1998 had enabled discussion of the gross price and the rebates (recital 103 of the contested decision). An internal note of the applicant relating to a meeting of 12 March 1999 also makes reference to the gross price and to the rebate agreed for the W5 (recital 104 of the contested decision). Notes from HBG and the applicant refer, moreover, to the meeting of 1 March 2001, specifying the agreed gross price, the rebate granted to the W5 and that granted to the other builders (recital 116 of the contested decision). An internal note of the applicant of 23 May 2001, confirmed by its reply of 12 September 2003 to a request for information, also mentions the gross price and the rebate granted to the W5 (recital 119 of the contested decision). In its reply to the statement of objections, the applicant, quoting one of its employees, likewise stated that ‘[i]ncreases of the standard price were not a problem, as long as the rebates did not remain behind’ (recital 149 of the contested decision). Finally, an SNV analysis of 9 February 1995 shows the importance to the W5 of benefiting from a larger rebate than that granted to the small builders (recital 153 of the contested decision).

53 Those various items of evidence prove that the agreements concluded between the large builders and the suppliers covered both the gross price and the specific rebate granted to the W5. The fact, if proved, that differences of opinion and disputes may have arisen as regards the level of that price and of the rebates during those negotiations between the suppliers and the large builders is not sufficient to prove the applicant’s assertion that the suppliers imposed the gross price increases on the W5.

54 With regard, secondly, to the applicant’s argument that the rebate granted to the W5 was commercially justified on the basis of the quantities purchased, it is necessary to examine the quantities purchased individually by each member of the W5, and not the total quantity purchased by all of its members. It is thus apparent from the contested decision that the small builders did not benefit from the same rebate as the members of the W5, even though, individually, they sometimes purchased larger quantities of bitumen than the members of the W5. Thus, in a statement made on 12 July 2002, a BP employee indicated that the suppliers often failed to apply the agreements concluded with the W5 by granting a larger rebate to certain small builders which purchased larger quantities of bitumen from them. The Commission had in fact already replied to that argument in recital 157 of the contested decision, by further pointing out, on the one hand, that the large builders themselves had admitted that, in general, they negotiated an additional rebate based on quantities purchased individually and, on the other, that the existence of a system of sanctions in the event that the small builders were granted a higher rebate than that laid down in the agreements (even assuming, as the applicant asserts, that that system was used only once) constituted further evidence that the rebate granted to the W5 was not proportionate to the volumes purchased. It is apparent, moreover, from an internal HBG document of 23 December 1999 that the rebate granted to the W5 at the consultation meetings was explicable ‘in view of the total volume and the lead over non-participants’ (recital 108 of the contested decision). Those various items of evidence, as well as the importance attached by the W5 to the level of their rebate at the cartel meetings (see paragraph 52 above), permit the inference that the applicant has not proved that the rebate granted to the W5 was dependent on volumes purchased.

55 Thirdly, it must be pointed out that the applicant cannot rely on the fact that the small builders behaved in the same way as their larger competitors in their negotiations with the suppliers by demanding the lowest prices, since, under competition law, the position of an undertaking which negotiates its prices with a supplier individually is different from that of undertakings which act collectively.

56 Furthermore, with regard to the applicant’s assertion that the W5 had no means of verifying the suppliers’ compliance with their commitments, it must be noted that several concordant items of evidence prove that the W5 had set up a system of sanctions in the event that the suppliers granted the small builders a higher rebate than that laid down (see also paragraphs 94 to 96 below). Indeed, it is apparent from the contested decision that the Commission took as its basis several concordant items of evidence which refer to individual or – on at least one occasion – collective financial sanctions imposed by the W5 on suppliers granting too high a rebate to small builders and to changes of supplier where such a rebate was discovered (recitals 82 to 86 of the contested decision). Thus, an internal Wintershall report dated 4 March 1996 of a visit to the construction company Heijmans NV mentions such sanctions in relation to 1995 (recital 82 of the contested decision). Similarly, an HBG report of the consultation meeting of 14 September 1999 records some questioning about the large rebate granted to two small builders (recital 83 of the contested decision). As regards the year 2000, the applicant itself and BP mention a collective fine imposed on the suppliers following the discovery of the rebate given to Krekel, a small builder (recital 84 of the contested decision). In their statements, Kuwait Petroleum and BP also confirmed the system of sanctions which was applied if it was discovered that too large a rebate had been granted to a small builder (recitals 85 and 86 of the contested decision). The internal SNV memorandum of 9 February 1995 also mentions a threat to cut down on bitumen orders if undermining price offers were made to non-W5 builders (recital 86 of the contested decision). Finally, in a document relating to a consultation meeting of 4 May 2001, the applicant also mentions a fine imposed on Nynas because of its price policy (recital 117 of the contested decision), which was confirmed by Kuwait Petroleum in its statement of 12 September 2003 (recital 118 of the contested decision).

57 With regard, fourthly, to the applicant’s argument that the bitumen price increased continuously during the period of the infringement, whereas the rebate granted to the W5 returned in 2002 to its 1994 level, that argument has no factual basis. It is apparent from Annex 1 to the contested decision that the gross price fluctuated a great deal from 1994 to 2002 and did not consistently increase, since decreases also took place regularly. As regards the trend of the specific rebate granted to the W5, it is apparent from the documents mentioned in recitals 93 to 125 of the contested decision that it generally followed the increases in the gross price and thus continually increased during the period from 1998 to 2000, returning in 2002 to a level close to that of 1994 (60 Dutch guilders (NLG) in 2002, NLG 50 in 1994). The applicant cannot, therefore, maintain that the rebate granted to the W5 had grown proportionally less than the increase in the gross price.

58 It follows from all of the foregoing that the Commission did not make any error of assessment regarding the content of the agreements between the suppliers and the large builders and that this second argument must be rejected.

3. Third error of fact, concerning the erroneous assessment of the large builders’ interest in the cartel

a) Arguments of the parties

59 The applicant submits that the Commission made an error of assessment regarding the W5’s interest in the cartel. Thus, in the contested decision, the Commission, first, abandoned the theory put forward in the statement of objections, according to which the W5 had an interest in keeping the gross price artificially high and, secondly, put forward a new theory. According to the Commission, which relied on an SNV note of 6 February 1995, the members of the W5 had an interest in bitumen prices increasing simultaneously and substantially, in order to bring about a rise in the index established by a not-for-profit organisation responsible for publishing road pavement bitumen prices, but they also derived benefit from a decrease in bitumen prices provided that such a decrease was gradual and spread over time. Indeed, such a decrease would not have resulted in a fall in the index in question and would have enabled them not to pass on that fall to the contracting authorities. The applicant, while claiming not to have a detailed knowledge of the method of determining that index, states that it knows that that index was revised monthly on the basis of the data concerning all purchase prices, which were collected directly by the organisation responsible for compiling it and individually from a number of asphalt plants, and that it found that the actual trend of that index did not support the Commission’s theory. It also states that the large builders did not object to a lowering of the gross bitumen price at the meeting on 12 April 2000, but that, following their attempt to withdraw from the consultation meetings with the suppliers, the latter had threatened them with concomitant reductions in the gross price and in the rebate which they were granted, to which they had objected. Indeed, the same phenomenon recurred in March 2001. Moreover, it points out that a price increase occurring in the course of the road building season presented only disadvantages for a builder, since only 5% of building sites included a compensation clause linked to the trend of raw material prices. It further points out that it was sometimes possible for a builder to pass on that bitumen price increase in the absence of any specific clause, but that that possibility applied to all builders, including the small builders. Finally, it states that price increases occurring at the start of the road building season could be passed on more easily and that all builders therefore had an interest in price stability during the course of that season, even though the suppliers wished to increase their prices at any time.

60 The Commission rejects all of the applicant’s arguments.

b) Findings of the Court

61 The Courts of the European Union have already held that participants in the same cartel may have complementary economic interests (Joined Cases T-217/03 and T-245/03 FNCBV and Others v Commission [2006] ECR II-4987, paragraph 322). In the present case, the Commission took the view that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and the rebates, since such agreements had the effect of restricting competition both on the suppliers’ side and on the large builders’ side. The applicant submits that the Commission made an error of assessment concerning the W5’s objective, which was not to harm the final consumer, but to limit the effects of the price increases imposed by the suppliers.

62 It must be recalled, first of all, in accordance with paragraph 31 above, that there is no need to consider whether the undertaking concerned had a commercial interest in those agreements where the Commission has succeeded in gathering documentary evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature (Sumitomo Metal Industries and Nippon Steel v Commission, cited in paragraph 31 above, paragraph 46). The Court will therefore examine the question of an erroneous assessment of the W5’s objective only as a secondary matter.

63 As a preliminary point, it is appropriate to outline briefly the functioning of the Centrum voor regelgeving en onderzoek in de grond-, water- en wegenbouw en de Verkeerstechniek (CROW, Centre for Civil Engineering and Traffic Regulations and Research), a not-for-profit organisation which had been responsible, in particular, for publishing road pavement bitumen prices monthly since the 1970s (recitals 25 and 26 of the contested decision), on the basis of information on which the parties have agreed.

64 The road pavement bitumen price was published by the CROW, after consultation with the asphalt producers, until 1 November 1995. After that date, the calculation was made by the CBS (Central Bureau for Statistics), a governmental organisation, on the basis of a market scan covering a number of asphalt plants, namely before the application of any rebate to the builders, and that price index, published by the CROW (‘the CROW index’), served as a reference for long-term road construction contracts containing a risk settlement clause. Under such contracts, in the event of an increase in the CROW index beyond a certain threshold, the contracting authorities were required to compensate the builders. Conversely, in the event of a decrease in the CROW index, the builders were to compensate the contracting authorities. It follows that the builders were therefore not disadvantaged by a rise in prices where those prices increased simultaneously, thereby causing the CROW index to increase. On the other hand, the builders had no interest in a fall in prices, which, if it resulted in a fall in the CROW index, obliged them to repay the price differential to the other contracting party.

65 The applicant, while maintaining that it did not know precisely the mechanism for calculating the CROW index, produced before the Court a document recording the actual trend of that index between 1997 and 2005, maintaining that it invalidated the theory set out by the Commission in recitals 25 and 26 of the contested decision, according to which the suppliers increased their prices simultaneously and substantially and lowered them only very gradually. However, that document does not provide any indication as to whether the prices increased simultaneously and decreased in piecemeal fashion. It shows only that, in the period from 1997 to 2005, the CROW index relating to the bitumen price continually increased, except for the period from February 1998 to April 1999. Annex 1 to the contested decision in fact confirms that, over the entire period of infringement, the gross price of road pavement bitumen increased by NLG 253. Accordingly, the Court is of the view that the examination of the operation of that index confirms the Commission’s explanation that, in the case of contracts including a risk settlement clause, builders were not penalised by a rise in prices and, on the other hand, had no interest in a fall in prices. However, in order to be able to assess the W5’s interest in the cartel, it is not essential to establish the exact mechanism by which that index was calculated, which is a matter of dispute between the parties.

66 The applicant further disputes the Commission’s assertion that the large builders objected to a decrease in the gross price of bitumen in 2000 and 2001. However, it is apparent from the notes taken by an employee of the applicant at the cartel meeting of 12 April 2000, to which the Commission refers in recital 111 of the contested decision, that the large builders were concerned about a decrease in the gross price which would cost them a lot of money, as a result of a fall in the CROW index. The applicant states that that document should be viewed in its context, namely that the large builders had told the suppliers that they wished to withdraw from the cartel, to which the suppliers had responded by threatening drastically to reduce the gross price and the specific rebate which the builders were granted. However, that assertion is not supported by any evidence and, in any event, does not permit the inference that the Commission made an error of assessment by taking the view that the large builders did not wish to see either bitumen prices or their specific rebate decrease.

67 So far as 2001 is concerned, the Commission stated, in recitals 115 and 116 of the contested decision, that it was apparent from documents from HBG and the applicant that the suppliers wished to reduce the gross price due to the price differential with neighbouring countries, whereas the W5 had proposed maintaining the gross price and increasing its rebate, and that it was finally decided to reduce the gross price slightly (– NLG 20) and to maintain the rebate at a high level (NLG 80). In that regard, the applicant submits that the Commission made an error of assessment as to the facts, since it is apparent from those documents that the suppliers wished to maintain the price level after rebate, but wanted to reduce both the gross price and their rebate. However, it must be pointed out that the Commission used those documents to prove that the large builders had no interest either in a decrease in the gross price or in a decrease in their specific rebate and that they were not, therefore, mere victims of the suppliers.

68 The applicant attempts to minimise the importance of the CROW index by stating that only 5% of public contracts contained a compensation clause linked to the movement of the price of raw materials. The Commission points out that, according to another W5 builder, 10 to 15% of public contracts contained such a clause. In any event, the Court notes that it is apparent from numerous documents that this question was the subject of discussions at cartel meetings (recitals 94 (HBG memo of 8 July 1994), 101 (internal BP note of 1996), 107 (HBG report of 14 September 1999), 111 (applicant’s notes of 12 April 2000) and 115 (HBG notes of 16 February 2001) of the contested decision), and can thus be considered a central element of the negotiations, regardless of the number of public contracts concerned. Moreover, the applicant itself made reference to that type of clause in its reply of 12 September 2003 to a request for information of 30 June 2003, stating that it had been granted a specific rebate for works for which no imputation had been contractually agreed in the event of an increase in the bitumen price.

69 Furthermore, the applicant states, firstly, that, although it was sometimes possible for a builder to pass on an increase in the bitumen price to the contracting authority in the absence of a risk settlement clause, that possibility applied to all builders, including small builders, and, secondly, that a price increase occurring at the start of the season could be passed on more easily by all the builders and that they all therefore had an interest in price stability during the season. However, that argument cannot suffice to call into question the Commission’s assessment concerning the W5’s interest in the cartel. Indeed, under competition law, a distinction must be made between, on the one hand, negotiations conducted bilaterally between two undertakings and, on the other, collective price agreements and collectively agreed specific rebates. The fact that the small builders also had an interest in price variations occurring at the start of the road building season is not sufficient to neutralise the negative impact, under the competition rules, of the larger rebate granted to the W5.

70 Finally, it must be pointed out that the applicant itself stated in its reply to the statement of objections that the members of the W5 were able to accept a rise in the gross price provided that they obtained a larger rebate than the small builders (recital 149 of the contested decision).

71 It is clear from all of the foregoing that the suppliers and the W5 had a common interest in the existence of agreements on the gross price and on rebates and that the interest of the large builders is explained both by the mechanism of risk settlement clauses in public contracts and by the specific rebate from which they benefited, which gave them a competitive advantage over the small builders in obtaining public contracts. Consequently, the Commission did not commit any error of assessment as to the interest of the W5 in the cartel.

4. Fourth error of fact, concerning the absence of impact of the cartel on competition in the road construction market

a) Arguments of the parties

72 The applicant complains that the Commission considered that the price of bitumen was a very significant cost factor for road construction undertakings, even though the applicant had stated in its reply to the statement of objections that the cost of purchasing bitumen represented only around 1.5% of the total cost of a road building site and that other builders which were W5 members confirmed that figure to the Commission. Since the price differentials resulting from the specific rebate amounted to only 1%, it assumes that the Commission maintained that incorrect assertion only in order to demonstrate the bilateral nature of the cartel. Moreover, it submits that the fact that the large builders demanded a large rebate was merely part of their purchasing strategy and did not constitute an instrument for limiting competition. Lastly, it submits that the Commission cannot introduce an item of evidence at the judicial proceedings stage.

73 The Commission disputes the applicant’s arguments.

b) Findings of the Court

74 First of all, it must be borne in mind that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. The alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. Where, however, the analysis of the content of the agreement does not reveal a sufficient degree of harm to competition, the effects of the agreement should then be considered and, for it to be caught by the prohibition, it is necessary that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent. It is not necessary to examine the effects of a decision once its anti-competitive object has been established (Joined Cases C-501/06 P, C-513/06 P, C-515/06 P and C-519/06 P GlaxoSmithKline Services and Others v Commission [2009] ECR I-9291, paragraph 55). In the present case, the Commission was therefore only required to establish that the agreements had as their object the prevention, restriction or distortion of competition, and it was not required to demonstrate the actual anti-competitive effects of those agreements.

75 It is apparent from the contested decision that the Commission took the view that the agreements fixing the gross price of bitumen, a minimum specific rebate granted to the W5 and a maximum rebate granted to the small builders were intended to undermine competition in the road construction sector and that there was therefore no need to take into account the actual effects of those agreements in order to determine whether they were caught by the prohibition laid down in Article 81(1) EC (recitals 155 to 160). The Commission therefore examined the effects of those agreements, in recitals 79 to 86 and 169 to 174, only as a secondary question.

76 The applicant submits that the Commission made an error of assessment as to the impact of the cartel on the road construction market, in particular because the cost of purchasing bitumen as a proportion of the total cost of a building site is small (1.5%). The Commission calls that figure into question, noting that the applicant used a very broad method of calculation and that a public document of the Netherlands statistical office drew attention, in 2006, to the impact of the price of bitumen on the costs of road works. The applicant disputes the admissibility of that document as evidence, since it was adduced only at the judicial proceedings stage.

77 Without there being any need to rule on the admissibility of that document, it is sufficient to observe that, in this case, the Commission relied on other evidence in order to establish that the specific rebate granted to the W5 had an impact on competition in the road construction sector. In the contested decision, without putting a figure on the share of the cost of bitumen in road construction, it nevertheless pointed out that ‘[w]hat was important to the W5 was not so much the absolute level of the net price of bitumen as the fact that they would have a relative advantage compared to road builders that were not part of the W5’, since that relative advantage could ‘allow them to win bids for public tenders for works with a relatively high consumption of bitumen’ (recitals 70 and 153 of the contested decision). That assertion is based on several concordant documents in the administrative file. In the first place, in its reply to the statement of objections, the applicant thus stated that ‘the net prices of bitumen therefore represent[ed] the real production cost of bitumen to the individual road builder’ and that, ‘[f]or the latter, those prices [were] therefore the starting point for the calculation of the production cost of one tonne of asphalt as a component of a road building site’. In the second place, in its internal note of 9 February 1995, SNV had emphasised that the W5 ‘attached great importance to the availability of the lowest purchase prices in comparison with the competitors’, the absolute price level being much less important. In the third place, in its statement of 9 October 2003, Kuwait Petroleum pointed out that the large builders were in a position to know whether a supplier had failed to implement the cartel agreements by offering a larger rebate to a small builder thanks to Cobouw, a Dutch daily newspaper publishing tenders and the results of tenders in the construction sector in the Netherlands (recital 70 of the contested decision). Finally, in a report, dated 31 October 2001, of a visit to Van Kessel, a small builder, Veba, a supplier, confirmed that the most important thing for that builder was not the absolute price, but to obtain the lowest possible price.

78 The Court therefore takes the view that that evidence proves that the specific rebate granted to the W5 had an impact on competition in the road construction sector, without there being any need to rule on the exact share of the cost of bitumen in the total cost of a road building site.

79 The applicant further submits that the fact that the large builders demanded a large rebate was merely part of their purchasing strategy, which was effective, but which did not constitute an instrument for limiting competition. It must however be borne in mind that, under competition law, collective price agreements and collectively agreed specific rebates are in principle prohibited and do not fall within the scope of a mere commercial strategy, in contrast to mere commercial negotiations conducted bilaterally between two undertakings.

80 It is clear from the foregoing that the Commission did not make any error of assessment as to the impact of the cartel on the road construction market.

5. Fifth error of fact, concerning the operation of the cartel: origin and development over time of the cartel and system of sanctions

a) Arguments of the parties

81 The applicant submits that the Commission made three errors of fact relating to the operation of the cartel.

82 In the first place, whereas several concordant statements by suppliers (BP, Kuwait Petroleum and Nynas) and an internal document of the applicant prove that the initiative for the cartel lay with the suppliers alone, the Commission chose to cite the contrary statements of SNV in the contested decision.

83 In the second place, the Commission was mistaken about the development over time of the cartel. Thus, no discussion took place between the W5 and the suppliers before 1996, the date from which meetings took place; these meetings were merely formalities, since they did not differ from bilateral discussions between a supplier and an individual purchaser, in particular from those conducted by each small builder. It was only from 1999 onwards that the situation changed, since the W5 considered it appropriate to adopt a common position before each meeting with the suppliers because of the steep movement of bitumen prices and because of the discovery of a large rebate granted to the small builders.

84 In the third place, the Commission incorrectly assessed the role of the large builders in the application of the system of sanctions. They only once, in April 2000, demanded an extra collective rebate following the discovery of a large rebate granted to the small builders. On that occasion, ExxonMobil, which the Commission did not however consider to form part of the cartel, also granted an extra rebate to the W5. The Commission has no evidence that a system of sanctions was implemented on another occasion. Moreover, several documents in the Commission’s file show that the small builders also demanded to benefit from the lowest prices after rebates on the market.

85 The Commission disputes all those arguments.

b) Findings of the Court

86 With regard to the first argument concerning the evidence relating to the origin of the cartel, the Commission relied on a number of concordant documents in order to attribute the origin of the cartel jointly to the suppliers and the large builders. A preliminary point to note is that the suppliers’ statements mentioned in recital 70 of the contested decision and on which the applicant seeks to rely concern only the pre-meetings of the suppliers and that they do not provide any evidence as to the origin of the cartel.

87 On the other hand, a number of documents contemporaneous with the start of the cartel support the Commission’s view that the W5 was interested in setting up the cartel in the same way as the suppliers. Thus, in the internal SNV note of 6 February 1995, mention is made of the large builders’ concern about the instability of bitumen prices in 1994, which ‘endangered [the] CROW price and tenders’. Moreover, an internal SNV note of 9 February 1995 confirms the bilateral nature of the cartel, which it describes as ‘cooperation between two cartels’. Similarly, a Wintershall report of 20 February mentions the fact that the applicant contacted SNV to ask it to make proposals on the possibilities of future cooperation between the suppliers and the W5. Finally, in an internal memo of 8 July 1994, HBG records its concern about the decision of the suppliers not to adhere to the agreements concluded in March 1994.

88 In the Court’s view, the Commission correctly considered that those documents proved that the W5 was, together with the suppliers, behind the cartel. The instructions of the applicant’s secretariat, on which the applicant seeks to rely, which indicate that the initiative for the consultations of the large builders with the suppliers came from SNV, and which relate more to the question of the identity of the cartel leader, cannot, on their own, call into question the conclusion drawn from the examination of the abovementioned documents.

89 In the second argument, the applicant complains that the Commission wrongly assessed the development of the cartel over time. However, it is apparent from the contested decision that a number of concordant items of evidence demonstrate the existence and development of the infringement from 1994 to 2002 (recitals 93 to 126).

90 Thus, for 1994 and 1995, the Commission refers to evidence proving the existence of agreements between the suppliers and the W5 and the implementation of those agreements (recitals 93 to 99 of the contested decision).

91 Furthermore, according to the contested decision, although the mechanism for concluding those agreements was modified in 1996, since from that date onwards SNV and the applicant were no longer solely responsible for concluding an agreement on behalf of all the participants in the cartel, that organisational change did not affect the matters covered by the cartel (recital 100).

92 Similarly, there is nothing which permits the inference that the nature of the cartel meetings changed in 1999, and in particular that it was only from that date onwards that the large builders met to prepare the meetings with the suppliers. Thus, it is apparent from, inter alia, the applicant’s reply of 12 September 2003 to a request for information that the W5 members met immediately before (or after) consultation meetings with the suppliers in order to prepare (or evaluate) collectively the consultation meeting (recital 72 of the contested decision). Several suppliers also confirmed that the large builders met before the cartel meeting in order to prepare it (recitals 73 to 75 of the contested decision). Moreover, the fact that relations between the two groups became more tense from 1999 onwards has no bearing on the characterisation of those meetings under competition law. Finally, the applicant’s argument seeking to characterise the meetings which took place in the early years of the cartel as mere bilateral discussions between suppliers and purchasers must be rejected, since collective price agreements and collectively agreed specific rebates cannot be compared to commercial negotiations conducted bilaterally between two undertakings.

93 As regards the third argument, the applicant submits that the Commission overestimated the role played by the W5 in the system of sanctions, since it took action only once, in 2000. It further submits that the W5’s regular threats to change suppliers constituted an identical commercial attitude to that adopted by the small builders.

94 However, it is apparent from the contested decision that the Commission correctly based its assessment on a number of concordant documents which refer to individual or — on at least one occasion — collective financial sanctions imposed by the W5 on suppliers granting too large a rebate to small builders and to changes of supplier where such a rebate was discovered. Thus, an internal Wintershall report dated 4 March 1996 of a visit to Heijmans mentions such sanctions in 1995 (recital 82 of the contested decision). Similarly, an HBG report of a consultation meeting on 14 September 1999 records questioning about the large rebate granted to two small builders (recital 83 of the contested decision). With regard to 2000, the applicant itself and BP mention a collective fine imposed on the suppliers following the discovery of the rebate given to Krekel, a small builder (recital 84 of the contested decision). Kuwait Petroleum also confirmed the system of sanctions in its statements of 9 October 2003 (recital 85 of the contested decision). BP likewise stated, on 16 September 2003, in reply to a request for information, that the applicant had stopped sourcing supplies from Veba in 2002 following the discovery of a large rebate given to a small builder (recital 86 of the contested decision). The internal SNV memorandum of 9 February 1995 also mentions a threat of cutting down bitumen supplies if undermining price offers were made to non-W5 large builders (recital 86 of the contested decision). In its statement of 12 September 2003, Kuwait Petroleum confirmed that, if a supplier granted a small builder a higher rebate than that agreed, the W5 threatened to stop sourcing from that supplier (recital 86 of the contested decision). Finally, in a document relating to the consultation meeting on 4 May 2001, the applicant also mentioned a fine imposed on Nynas because of its price policy (recital 117 of the contested decision), which was confirmed by Kuwait Petroleum in its statement of 12 September 2003 (recital 118 of the contested decision). The fact that Nynas stated, in its written reply to certain questions put by the Commission, that a collective sanction was imposed only once is not sufficient to cast doubt on the existence of an individual sanction adopted against it.

95 The Commission correctly considered that those documents were specifically referring to the mechanism of the collective fine imposed on the suppliers by the W5 in respect of 2000. Moreover, they show, in their entirety, that there was an individual and collective system of sanctions in the event of non-compliance with the agreements of the cartel throughout its duration. The sanctions consisted either of a cessation of orders to the supplier who infringed those agreements, or of a fine imposed on the culpable supplier or on all the suppliers.

96 It is therefore apparent from all of the foregoing that the Commission did not make any error of assessment as regards the origin of the cartel, its development over time and the system of sanctions.

6. Sixth error of fact, relating to the role of ExxonMobil in the cartel

a) Arguments of the parties

97 The applicant submits that the Commission made an error of fact by abandoning all reference to ExxonMobil in the contested decision even though, in the statement of objections, it had considered that ExxonMobil had fully complied with the cartel agreements, of which it was regularly informed. For example, ExxonMobil had borne a significant share of the cost of the extra rebate granted to the W5 by way of sanction in April 2000, as is shown by the credit note sent to the applicant by ExxonMobil on 15 November 2000. That evidence is important for an understanding of the operation of the cartel, which grouped together all the suppliers.

98 The Commission points out that it did not have sufficient evidence to prove the participation of ExxonMobil in the cartel.

b) Findings of the Court

99 It is apparent that the argument put forward by the applicant is ineffective, since, even assuming that it is well founded, it could not have any effect on the lawfulness of the contested decision in so far as that decision concerns the applicant (Case T-75/95 Günzler Aluminium v Commission [1996] ECR II-497, paragraph 55; Case T-106/95 FFSA and Others v Commission [1997] ECR II-229, paragraph 199, and Case T-126/99 Graphischer Maschinenbau v Commission [2002] ECR II-2427, paragraph 49). Indeed, assuming that there is sufficient evidence of ExxonMobil’s participation in the cartel, that evidence would not be sufficient to call into question either the existence of the infringement or the applicant’s participation in it. If it were established that ExxonMobil had also participated in the cartel, that would not alter the Commission’s assessment regarding the existence of facts constituting an infringement of Article 81(1) EC or the applicant’s participation in that infringement.

100 That argument must therefore be rejected and so, accordingly, must all the applicant’s arguments based on errors of fact made by the Commission in the contested decision, which are put forward in support of its claims seeking annulment of that decision.

C – Errors of law

1. Introductory remarks

101 The applicant alleges that the Commission made five errors as to the legal characterisation of the facts in the light of Article 81 EC. It submits in particular that the Commission paid more attention to the specific rebate granted to the W5 than to the price and market sharing cartel established by the suppliers alone.

102 That argument has no factual basis. It is apparent from recitals 155 to 159 of the contested decision that the Commission examined the various elements of the agreements (price fixing, standard rebate for the W5, lower rebate for the other builders) in the light of the provisions of Article 81(1) EC without favouring one element to the detriment of another.

2. First error in the legal characterisation of the facts: non-participation of the large builders in the suppliers’ cartel

a) Arguments of the parties

103 The applicant submits that, in its assessment of the conduct of the large builders in the light of Article 81 EC, the Commission wrongly imputed to them all the conduct of the suppliers. The mere fact that they did not lodge a complaint against the suppliers with a competition authority cannot suffice to render them liable for the infringement.

104 The Commission reiterates that the interests of the suppliers and those of the large builders coincided sufficiently to justify anti-competitive conduct by those two parties.

b) Findings of the Court

105 The Court reiterates that the agreements concluded between the W5 and the suppliers must be taken into account as a whole, since they concern the gross price, the minimum rebate granted to the W5 and the maximum rebate applicable to the small builders (see paragraphs 44 to 53 above), and that the Commission rightly carried out that overall assessment of the agreements in question in order to characterise them in the light of the provisions of Article 81(1) EC. However, that overall assessment of the agreements cannot be equated to an imputation of the suppliers’ conduct to the large builders.

3. Second error in the legal characterisation of the facts, based on the absence of any anti-competitive object of the cartel

a) Arguments of the parties

106 The applicant submits that the Commission has not shown that the conduct of the W5 had an anti-competitive object to the detriment of final consumers.

107 Firstly, the Courts of the European Union have held that, while it is accepted that an agreement intended to limit parallel trade must in principle be considered to have as its object the restriction of competition, that applies in so far as the agreement may be presumed to deprive final consumers of the advantages of competition (Case T-168/01 GlaxoSmithKline Services v Commission [2006] ECR II-2969, paragraph 121). However, the sole objective of the W5 was to obtain the most advantageous rebate possible, which was made possible by the volume of purchases made by all the members of the W5 and which ultimately benefited final consumers.

108 Secondly, the applicant points out that the pursuit of stability in purchase prices does not, as such, constitute an objective of restricting competition.

109 The Commission rejects the applicant’s arguments.

b) Findings of the Court

111 The applicant cannot rely on the judgment in GlaxoSmithKline Services v Commission, cited in paragraph 107 above (paragraph 121), since, according to the Court of Justice, ‘like other competition rules laid down in the Treaty, Article 81 EC aims to protect not only the interests of competitors or of consumers, but also the structure of the market and, in so doing, competition as such’ and ‘[c]onsequently, for a finding that an agreement has an anti-competitive object, it is not necessary that final consumers be deprived of the advantages of effective competition in terms of supply or price’ (GlaxoSmithKline Services and Others v Commission and Others, cited in paragraph 74 above, paragraphs 62 to 64). When questioned by the Court at the hearing, the applicant itself acknowledged that, in the light of that case-law, this argument had little chance of succeeding.

112 It is therefore necessary to determine, in the present case, whether the agreements at issue had an anti-competitive object.

113 Article 81(1) EC expressly mentions as prohibited agreements any which ‘directly or indirectly fix purchase or selling prices or any other trading conditions’ and ‘apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’. It is apparent from paragraphs 49 to 58 above that, in this case, the agreements were intended, on the one hand, to fix the purchase and selling prices of bitumen and, on the other, to grant a preferential rebate to the members of the W5. The very nature of those agreements is therefore sufficient for them to be held to have had as their object the prevention, restriction or distortion of competition within the common market.

114 The applicant’s argument that those agreements were intended to secure purchase price stability cannot suffice for that conclusion to be called into question. It should be recalled that such agreements must be examined in their entirety and that, in any event, the pursuit of price stability is not different from the fixing of purchase prices (Case T-329/01 Archer Daniels Midland v Commission [2006] ECR II-3255, paragraph 197).

115 The Court is of the view that it follows from the foregoing that the Commission has proved to the required legal standard that the conduct of the members of the W5 and of the suppliers had an anti-competitive objective.

4. Third error in the legal characterisation of the facts, relating to the Commission’s refusal to apply the provisions of Article 81(3) EC and the Guidelines on horizontal cooperation agreements

a) Arguments of the parties

116 According to the applicant, the Commission erred in the legal characterisation of the facts by considering that the fact that the W5 collectively negotiated a rebate could not be characterised as ‘collective purchasing’ for the purposes of the provisions of Article 81(3) EC, which is authorised by the Guidelines on the applicability of Article 81 [EC] to horizontal cooperation agreements (OJ 2001 C 3, p. 2, ‘the Guidelines on horizontal cooperation agreements’).

117 It submits, first of all, that, in the contested decision, the Commission assessed its conduct only under Article 81(3) EC and not under the Guidelines on horizontal cooperation agreements, on which, in any event, it placed too strict an interpretation. Those guidelines are however applicable to it, since they concern the conduct of purchasers on their own selling market and the Commission did not prove that the W5 had codetermined the gross price with the suppliers. In the present case, the W5 thus set up a consultation designed to secure more advantageous purchase prices in the interest of the final consumer, equivalent to a joint purchasing organisation.

118 In addition, the Commission made a number of errors of assessment in the analysis of its conduct under the provisions of Article 81(3) EC. Thus, the Commission first drew an erroneous parallel between the concepts of joint purchasing and joint selling, since only the latter is prohibited by Article 81 EC. Moreover, according to the applicant, the Commission was required to undertake an analysis of the market power of the large builders, in order to examine whether they were actually capable of restricting competition, bearing in mind that the small builders consistently succeeded in securing a higher rebate than that granted to the W5.

119 Furthermore, the applicant disputes recital 157 of the contested decision, in which the Commission states that, individually, the members of the W5 did not necessarily purchase higher quantities than those purchased by a small builder. It submits that that assertion is not based on any evidence, since the Commission did not ask the small builders for data relating to their purchases, and that it is therefore a mere assumption. In any event, a supplier might very well grant a higher rebate to a company purchasing lower volumes for specific commercial reasons, in particular where that company’s purchasing power is significant. Similarly, the fact that the W5’s negotiations with the suppliers were aimed only at setting a minimum collective rebate which could be increased individually afterwards, shows that the W5’s conduct was in compliance with competition law.

120 Finally, the applicant calls into question recital 313 of the contested decision, in which the Commission asserts that the large builders restricted competition among themselves, since each large builder negotiated the amount of its rebate bilaterally with the supplier. Moreover, under the case-law of the Court of Justice (Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraphs 92 et seq.), rules which produce restrictive effects only in relation to one cost factor which is, moreover, relatively insignificant do not cause an appreciable restriction of competition. In this case, however, the applicant points out that bitumen accounts for only 1.5% of a road building company’s total costs.

121 The Commission rejects all of the applicant’s arguments.

b) Findings of the Court

122 As a preliminary point, the Court notes that it is settled law that it is for undertakings seeking an exemption under Article 81(3) EC to establish, on the basis of documentary evidence, that an exemption is justified. Accordingly, the Commission cannot be criticised for failing to put forward alternative solutions or to indicate what it regarded as justifying the grant of an exemption (Joined Cases 43/82 and 63/82 VBVB and VBBB v Commission [1984] ECR 19, paragraph 52, and Joined Cases T-191/98, T-212/98 to T-214/98 Atlantic Container Line and Others v Commission [2003] ECR II-3275, paragraph 220). All that is incumbent upon the Commission, by virtue of its obligation to state reasons, is to mention the matters of fact and of law and the considerations which prompted it to take a decision rejecting the application for exemption, and the applicant may not require it to discuss all the matters of fact and law raised by it in the administrative procedure (Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraphs 262 and 263). It follows that it is for the applicant to establish that the Commission erred in law or as to the facts by refusing to grant it an exemption under Article 81(3) EC.

123 In this case, the Commission set out, in recitals 162 to 168 of the contested decision, the reasons why it considered that the W5’s participation in the arrangements did not amount to collective purchasing as referred to in the Guidelines on horizontal cooperation agreements. Thus, the Commission points out, in recital 163 of the contested decision, that those provisions are not intended to authorise horizontal cooperation agreements in general, but set out the principles for the assessment under Article 81 EC of such agreements which may lead to competition problems. In the present case, it states, in recital 165 of the contested decision, that the agreements in question had as their object the restriction of competition and had consequences for undertakings not involved in them (fixing of prices for all builders in the Netherlands and setting of maximum rebate levels for the small builders). In addition, and in any event, as is correctly stated by the Commission in recital 166 of the contested decision, the W5 did not make any purchases during those negotiations with the suppliers, which were intended only to fix prices and rebates, conduct which point 124 of the Guidelines on horizontal cooperation agreements characterises as a disguised cartel. Moreover, it must be pointed out that the W5 concluded those agreements with a group of sellers which was also engaging in collusive behaviour. Finally, the provisions of Article 81(3) EC do not apply in any event, since, according to point 133 of the Guidelines on horizontal cooperation agreements, purchasing agreements cannot be exempted if they impose restrictions that are not indispensable to the attainment of the economic benefits brought about by the agreements. In this case, the agreements in question imposed restrictions on the small builders in the form of limited rebates, restrictions directed at third parties and not indispensable to the attainment of the economic benefits sought.

124 Contrary what the applicant claims, it follows from the foregoing that the Commission did not confine itself to assessing its conduct under Article 81(3) EC, but that it also took account of the Guidelines on horizontal cooperation agreements.

125 The applicant submits, moreover, that the Commission erred in law by considering that the Guidelines on horizontal cooperation agreements did not authorise any particular behaviour, but set out the principles guiding the assessment of such agreements under the provisions of Article 81 EC. However, it is clear from point 1 of those guidelines that their purpose is to ‘set out the principles for the assessment of horizontal cooperation agreements under Article 81 [EC]’. The Commission therefore did not err in law on that point.

126 The applicant further submits that the Commission erred in law by placing joint purchasing on the same footing as joint selling, whereas only the latter is prohibited by the Guidelines on horizontal cooperation agreements. It thus, in recital 159 of the contested decision, added a condition requiring purchasers to engage in autonomous behaviour on the market, even though the Guidelines on horizontal cooperation agreements did not impose such a condition. However, it is apparent from recital 159 of the contested decision, relating to the application of the provisions of Article 81(1) EC, and not those of Article 81(3) EC, that the Commission was merely responding to the argument, raised by certain undertakings during the administrative procedure, relating to the specific features of the Dutch market and that it did not intend to interpret the Guidelines on horizontal cooperation agreements. That argument must therefore be rejected.

127 The applicant also complains that the Commission did not carry out an analysis of the market power of the members of the W5 in order to determine whether it was in fact capable of restricting competition. However, the Commission correctly takes the view that it was not required to carry out such an analysis, since this was not a question of a cooperation agreement by which the purchasers were seeking to counterbalance the sellers, but of a collective price cartel between two groups. Moreover, it is apparent from recital 24 of the contested decision that the Commission made it clear at the outset that the members of the W5 owned 36 of the 51 asphalt plants existing in the Netherlands in 2002, that is, more than 70% of them. It must further be stated that, under point 18 of the Guidelines on horizontal cooperation agreements, it is not necessary to examine the actual effects on competition and the market of agreements that have as their object a restriction of competition by means of price fixing, output limitation or sharing of markets or customers, since these agreements are presumed to have negative market effects. Since the Commission considered that the agreements in question were by nature aimed at the restriction of competition (recital 165 of the contested decision), it was therefore not required to carry out a detailed analysis of the market power of the members of the W5.

128 The applicant further submits that the Commission erred as to the facts by asserting, without any evidence, that, individually, the members of the W5 did not necessarily purchase higher quantities than those purchased by a small builder. However, it is apparent from the contested decision that the Commission relied on a number of items of evidence in order to consider that the rebate from which the W5 benefited was not linked to the volume of its members’ purchases and that the specific rebate from which they benefited was intended to harm other builders (see paragraphs 50 and 51 above). Moreover, the fact that each member of the W5 tried to obtain an extra rebate in addition to the collective rebate on the basis of purchased quantities constitutes further evidence that the collective rebate was not linked to the volume of the W5’s purchases.

129 Finally, the applicant disputes the Commission’s assertion that the agreements had as their object a restriction of competition (recitals 166 and 313 of the contested decision). It submits that those agreements, on the one hand, did not restrict competition between the members of the W5 and, on the other, did not limit competition between all builders, since bitumen accounted for only 1.5% of those undertakings’ total costs. However, it is apparent from the contested decision that, by fixing, together with the suppliers, which covered 80% of the market, the gross price and the rebate for all their future purchases, the members of the W5 limited the competition which could exist between them. Moreover, although it is true that the Court of Justice may have held, in the specific case of rules establishing compulsory membership of a supplementary pension scheme, that the latter did not affect competition (Pavlov and Others, cited in paragraph 120 above, paragraph 95), it has already been properly established by the Commission, for the sake of completeness, that, in the present case, the specific rebate granted to the W5 had an impact on competition in the road building sector, in view of the tendering system existing in the road building sector (see paragraphs 69 to 73 above).

130 It is clear from all of the foregoing that the Commission did not err in law or in the legal characterisation of the facts by refusing to consider that the participation of the W5 in the agreements constituted ‘collective purchasing’ falling within the scope of Article 81(3) EC, which is authorised under the Guidelines on horizontal cooperation agreements.

5. Fourth error in the legal characterisation of the facts, relating to the incorrect definition of the relevant market and the erroneous determination of the large builders’ market position

a) Arguments of the parties

131 The applicant submits that the Commission erred in the legal characterisation of the facts by defining the relevant market too narrowly in determining the W5’s position. Thus, following the view taken by the suppliers, the Commission limited its assessment of the relevant market with the sole objective of demonstrating that the large builders held a purchase market share of 49.5% (recital 29 of the contested decision). The applicant points out that objections to the definition of the market adopted by the Commission cannot be seen in isolation from those concerning the impairing of competition (Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II-5761, paragraph 123).

132 Thus, in the first place, it submits that the Commission has not provided sufficient reasons to justify the exclusion of industrial bitumen from the relevant market, in particular by not stating that no relevant alternative supply existed.

133 In the second place, it contests the Commission’s decision to limit the relevant market geographically to the Netherlands. Only Kuwait Petroleum still produced bitumen in the Netherlands during the period of infringement, the other suppliers importing bitumen sold in the Netherlands from Belgium and Germany and owning a sales organisation structured at Benelux level. The Commission thus disregarded clear circumstantial evidence of cross-border concertation between suppliers. Similarly, it rejected for no reason the consistent claims of several large builders that the Dutch market was being closed off from other markets by the suppliers, preventing them from sourcing supplies abroad (recital 174 of the contested decision). However, if the Commission had taken account of Belgium and the western part of Germany in its definition of the relevant market, the market share held by the W5 would have been lower than 15%. The Guidelines on horizontal cooperation agreements state that, in the case of joint purchasing by several undertakings, they do not have market power where their combined market shares are below 15%.

134 The Commission disputes all the applicant’s arguments.

b) Findings of the Court

135 For the purposes of applying Article 81 EC, the Commission must determine whether the concerted practice in question may harm trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market. The parties are opposed on the question of the extent of that obligation upon the Commission and on the definition of the relevant market applied by the Commission in the contested decision.

136 According to the case-law, the sole purpose of defining the relevant market, in order to apply Article 81(1) EC, is to determine whether the agreement in question may harm trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (order in Case C-111/04 P Adriatica di Navigazione v Commission, paragraph 31, and Opinion of Advocate General Mengozzi in Case C-511/06 P Archer Daniels Midland v Commission [2009] ECR I-5843, paragraphs 196 and 197).

137 Moreover, as the General Court has already made clear in its case-law, the obligation to define the market in a decision adopted pursuant to Article 81 EC is not absolute, but is binding on the Commission only where it is impossible, without such a definition, to determine whether the arrangement at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 230; Case T-44/00 Mannesmannröhren-Werke v Commission [2004] ECR II-2223, paragraph 132, and Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 99).

138 Definition of the relevant market is necessary in order to establish whether, in a given situation, the condition laid down in Article 81(3)(b) EC for Article 81(1) EC to be declared inapplicable is met (to that effect, see Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) and Case T-213/00 CMA CGM and Others vCommission [2003] ECR II-913, paragraph 226), whereas it is not necessary in order to establish whether the other three conditions laid down in Article 81(3) EC are met (CMA CGM and Others v Commission, paragraph 226).

139 In the present case, firstly, it should be noted that the Commission refused, correctly, to apply the provisions of Article 81(3) EC, and in particular those of Article 81(3)(b) EC (paragraphs 122 to 130 above). Secondly, although the applicant maintains that the erroneous definition of the relevant market used by the Commission had an impact on the assessment of the market power of the W5, which was in fact much less significant than that attributed to them, it does not dispute that the agreements at issue were liable to affect trade between Member States and had as their object, at the very least, the stabilisation of purchase prices, which, as has been demonstrated (see paragraphs 113 to 115 above), had the consequence, in the present case, of restricting and distorting competition within the common market. Accordingly, since the application by the Commission of Article 81 EC did not, in the present case, require a prior definition of the relevant market, the Commission was entitled to confine itself to referring to the product and the territory covered by the cartel.

140 The applicant complains that the Commission did not provide sufficient reasons for the exclusion of industrial bitumen from the relevant market, in particular by not stating that no relevant alternative supply existed. Since there was no duty on the Commission to define the market, it cannot be held that the duty to state reasons was infringed in that regard (Groupe Danone v Commission, cited in paragraph 137 above, paragraph 99).

141 The applicant further maintains that the Commission wrongly limited the geographic definition of the relevant market to the Netherlands, even though only one oil company was producing bitumen in the Netherlands, the other suppliers were importing their bitumen from Germany or Belgium and some of them had a sales organisation for Benelux. However, it is apparent from recitals 27 and 28 of the contested decision that the Commission took those facts into account and that it nevertheless stated that bitumen was marketed on a purely national basis in view of the national quality requirements, the risk settlement mechanism and the ownership structure of the asphalt plants.

142 Moreover, the circumstantial evidence referred to by the applicant in order to give credence to the argument regarding the existence of a cartel in Belgium does not, on its own, appear sufficient to demonstrate that the Commission erred in law in defining the relevant market. In any event, that evidence was taken into account by the Commission in the contested decision. It consists, on the one hand, of a handwritten record drawn up by Kuwait Petroleum of a consultation meeting between the suppliers (Nynas, Klöckner, SNV, BP, Smid & Hollander and Kuwait Petroleum), dated 4 March 1994, mentioning the need to ‘raise the price level in Belgium’ and, on the other, of documents indicating that SNV owned a structured sales organisation at Benelux level, a single manager having been made responsible for marketing bitumen in Benelux from 1993 to 1998, in precisely the same way as ExxonMobil, whose sales organisations were managed by the same persons in the Netherlands and Belgium.

143 It follows from all of the foregoing that the Commission did not err either in law or in the legal characterisation of the facts in defining the relevant market.

6. Fifth error in the legal characterisation of the facts, relating to the absence of indirect spill-over effects on the downstream market of road construction

a) Arguments of the parties

144 According to the applicant, the Commission erred in the legal characterisation of the facts by considering that the agreements in question had indirect spill-over effects on the downstream market of road co