Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02

Bolloré SA and Others

v

Commission of the European Communities

(Competition – Cartels − Carbonless paper – Guidelines on the method of setting fines – Duration of the infringement – Gravity of the infringement – Increase for deterrence – Aggravating circumstances – Mitigating circumstances – Leniency Notice)

Judgment of the Court of First Instance (Fifth Chamber), 26 April 2007

Summary of the Judgment

1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file

(Art. 81(1) EC; Council Regulation No 17)

2. Competition – Administrative procedure – Commission decision finding an infringement – Exclusion of evidence that has not been communicated to the addressee undertaking

(Art. 81(1) EC)

3. Competition – Administrative procedure – Commission decision finding an infringement – Decision not identical to the statement of objections – Infringement of the right to a fair hearing – Condition

(Art. 81(1) EC; Council Regulation No 17)

4. Competition – Administrative procedure – Inapplicability of Article 6 of the European Convention on Human Rights – Applicability of general principles of Community law

(Council Regulation No 17, Art. 19(2))

5. Acts of the Community institutions – Measures adopted when exercising a power of appraisal – Compliance with guarantees afforded to the person subject to the administrative procedure

6. Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions

(Art. 81(1) EC)

7. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement

(Art. 81 EC; Council Regulation No 17, Art. 11)

8. Competition – Agreements, decisions and concerted practices – An undertaking’s participation in anti-competitive initiatives

(Art. 81(1) EC)

9. Competition – Agreements, decisions and concerted practices – Imputation to an undertaking

(Art. 81(1) EC)

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

(Art. 81(1) EC)

11. Competition – Agreements, decisions and concerted practices – Concerted practice – Definition

(Art. 81(1) EC)

12. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

13. Competition – Administrative procedure – Statement of objections – Necessary content

(Art. 81(1) EC; Council Regulation No 17)

14. Competition – Administrative procedure – Statement of objections – Necessary content

(Arts 81(1) EC and 229 EC; Council Regulation No 17, Arts 17 and 19(1))

15. Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Agreements and concerted practices which can be addressed as a single infringement

(Art. 81(1) EC)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Art. 81(1) EC; Commission Notice 98/C 9/03)

17. Competition – Fines – Amount – Determination – Criteria – Actual market impact

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

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

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

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

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

20. Competition – Fines – Amount – Determination

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

21. Competition – Fines – Amount – Determination

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

22. Competition – Fines – Amount – Determination

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notices 96/C 207/04 and 98/C 9/03)

23. Competition – Fines – Amount – Determination

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

24. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances

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

25. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

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

26. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

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

27. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3, third dash)

28. Competition – Fines – Amount – Determination – Waiver or reduction of the fine for cooperation of the undertaking concerned

(Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04)

29. Competition – Fines – Amount – Determination – Criteria – Reduction in the amount of the fine in exchange for cooperation by the undertaking accused of the infringement

(Council Regulation No 17, Arts 11(4) and (5) and 15(2); Commission Notice 96/C 207/04, Title D, point 2)

30. Procedure – Measures of inquiry – Request for production of documents

(Rules of Procedure of the Court of First Instance, Arts 65 and 66(1))

1. During a procedure under the Community competition rules, in order to allow the undertakings in question to defend themselves effectively against the objections raised against them in the statement of objections, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of other undertakings, other confidential information and internal documents of the Commission.

In addition, the right of undertakings and associations of undertakings to the protection of their business secrets must be weighed against the safeguarding of the right of access to the entire investigation file.

Therefore, if the Commission takes the view that certain documents in its investigation file contain business secrets or other confidential information, it should prepare non-confidential versions of those documents or have them prepared by the undertakings or associations of undertakings providing the documents in question. If the preparation of non-confidential versions of all the documents proves difficult, it should send the parties concerned a sufficiently precise list of the documents posing problems so as to enable them to ascertain whether it is appropriate to seek access to specific documents.

(see paras 45-46)

2. Since documents that have not been communicated to the parties concerned during the administrative procedure are not admissible evidence, it will be necessary, if it should prove that the Commission relied in the final decision on documents that were not in the investigation file and were not communicated to the applicants, to exclude those documents as evidence.

It follows that, if the Commission intends to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to establish the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be able to comment on such evidence.

(see paras 56-57)

3. The statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that basis that the statement of objections can fulfil its function under the Community regulations of giving undertakings and associations of undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision.

That requirement is not complied with where the decision attributes liability for the infringement to a parent company by reason, first, of its subsidiary’s participation in the cartel, and, secondly, of the parent company’s direct involvement in the cartel activities, while the statement of objections does not enable the parent company to acquaint itself with the objection based on its direct involvement in the infringement, or even with the facts finally established in the decision in support of that objection.

However, even if the Commission decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defect will only entail the annulment of the decision in that respect if the allegations concerned cannot be substantiated to the requisite legal standard on the basis of other evidence in the decision on which the undertakings concerned were given the opportunity to comment.

Moreover, in so far as certain grounds of the decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part.

(see paras 67, 71, 77, 79-81)

4. Even if the Commission does not constitute a ‘tribunal’ within the meaning of Article 6 of the European Convention on Human Rights and even if the fines imposed by the Commission for breach of competition law are not of a criminal law nature, the Commission is bound to observe the general principles of Community law in the course of the administrative procedure.

However, first, although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement, and, secondly, the fact that the provisions of Community competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles.

(see paras 86-87)

5. Where the Community institutions have a power of appraisal in order to be able to fulfil their tasks, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

(see para. 92)

6. The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of its conduct being imputed to the parent company, especially where the subsidiary does not independently decide its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company.

In that regard, although the evidence relating to the 100% shareholding in its subsidiary provides a strong indication that the parent is able to exercise a decisive influence over the subsidiary’s conduct on the market, this is not in itself sufficient to attribute liability to the parent for the conduct of its subsidiary. Something more than the extent of the shareholding must be shown, but this may be in the form of indicia. It need not necessarily take the form of evidence of instructions given by the parent company to its subsidiary to participate in the anti-competitive conduct.

(see paras 131-132)

7. An admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

Moreover, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence.

(see paras 166-167)

8. It is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

The reasoning underpinning this principle is that, having participated in such a meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it.

In addition, the fact that an undertaking does not act on the outcome of such a meeting is not such as to relieve it of responsibility for its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting.

Where such a system of meetings is part of a series of efforts made by the undertakings in question in pursuit of a single economic aim, namely to distort the normal movement of prices on the market concerned, it would be artificial to split up such conduct, characterised by a single purpose, by treating it as consisting of several separate infringements.

(see paras 188-189, 196, 312, 360, 424)

9. An undertaking which has participated in a multiform infringement of the Community competition rules by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk.

The mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice to render that undertaking responsible for the global cartel. It is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that global cartel.

(see paras 207, 209, 236)

10. In relation to adducing evidence of an infringement of Article 81(1) EC, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement.

The Commission has to provide sufficiently precise and consistent evidence to give grounds for a firm conviction that the alleged infringement took place. However, it is important to emphasise that 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.

(see paras 256-258)

11. The requirement that every economic operator determine its own policy, which is inherent in the Treaty provisions on competition, strictly precludes any direct or indirect contact between such operators, whose object or effect is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which one has decided to adopt or contemplates adopting on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question. In that regard, subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in collusion and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market.

(see para. 291)

12. The fact that the Commission in the past imposed fines of a certain level for particular types of infringement does not mean that it is stopped from raising that level within the limits indicated in Regulation No 17, if that is necessary to ensure the implementation of Community competition policy.

The proper application of the Community competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy.

Undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed.

(see paras 376-377)

13. Where it has indicated the elements of fact and of law on which it will base its calculation of the fines, the Commission is under no obligation to explain in the statement of objections the way in which it would use each of those elements in determining the level of the fine. To give indications of the level of the contemplated fines, when the undertakings have not been in a position to put forward their observations on the objections held against them, would in effect inappropriately anticipate the Commission’s decision.

The Commission is not therefore bound to inform the undertakings concerned, during the administrative procedure that it intended to use a new method to calculate the amount of the fines.

(see paras 392, 403)

14. Provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined.

It follows that, so far as concerns the determination of the amount of the fines imposed for breach of the competition rules, the rights of defence of the undertakings concerned are guaranteed before the Commission by virtue of the fact that they have the opportunity to make their submissions on the duration, the gravity and the anti-competitive nature of the matters of which they are accused. Moreover, the undertakings have an additional guarantee, as regards the setting of that amount, in that the Court of First Instance has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 17 of Regulation No 17.

(see paras 397-398)

15. Whilst the fact that an undertaking has not taken part in all aspects of a cartel is not material to the establishment of the existence of the infringement, such a factor must be taken into consideration when the gravity of the infringement is assessed and if and when the fine is determined.

(see para. 429)

16. In setting the amount of the fines for breach of the Community competition rules, the gravity of an infringement is to be appraised by taking into account in particular the nature of the restrictions on competition.

Infringements involving price‑fixing and market-sharing must be treated as particularly serious since they involve direct interference with the essential parameters of competition on the market in question.

However, the classification of an infringement as very serious is not conditional on a partitioning of the markets. On the contrary, horizontal agreements relating to price cartels or market-sharing quotas are presumed to jeopardise the proper functioning of the internal market, and other practices likely to have the same effect may also be classified as very serious infringements.

It does not follow from that case-law or from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty that the classification of an infringement as very serious presupposes that several of those practices must be present. A horizontal pricing agreement may in itself constitute such an infringement if it undermines the proper functioning of the market. It is established that in the present case the undertakings concerned agreed on prices and its effect was to undermine the proper functioning of the market.

Moreover, it does not follow either from the case-law or from the Guidelines that, in order to be classified as a very serious infringement, the cartel must include particular institutional structures.

(see paras 434-437, 441)

17. According to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market. The Guidelines thus do not directly link the gravity of the infringement to its impact. Actual impact is one factor among others and should not even be taken into account where it cannot be measured.

(see para. 447)

18. The mere fact that the market in question was in decline and that certain undertakings were suffering losses cannot preclude the setting up of a cartel or the application of Article 81 EC. Furthermore, the poor market conditions do not mean that the cartel had no impact. Agreed price increases may make it possible to control or limit the decrease in prices, thereby distorting competition.

Moreover, when imposing a penalty for breach of the Community competition rules, the Commission is not required to regard the poor financial state of the sector in question as an attenuating circumstance; just because in earlier cases the Commission has taken the economic sector into account as an attenuating circumstance it does not necessarily have to continue to observe that practice. As a general rule, cartels come into being when a sector encounters problems.

(see paras 462, 663)

19. The criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the overall turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the fixing of an appropriate fine cannot be the result of a simple calculation based on overall turnover.

(see para. 468)

20. The Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to calculate the fines on the basis of the turnover of the undertakings concerned, or to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover in the relevant product market.

(see para. 484)

21. Where the Commission divides the undertakings concerned into categories for the purpose of setting the amount of the fines, the thresholds for each of the categories thus identified must be coherent and objectively justified. Since they are such as to indicate the importance of the undertaking, the product’s turnover in the European Economic Area and the market shares can be taken into account by the Commission in that connection.

Recourse to market shares among other factors in order to differentiate between the undertakings would be contrary to the principle of equal treatment if it did not apply to all the undertakings concerned.

(see paras 504, 507, 511)

22. The taking into account of the deterrent effect of the fines imposed for breach of the Community competition rules when setting the starting amount forms an integral part of weighting the fines to reflect the gravity of the infringement.

The Commission may impose a heavier fine on an undertaking which occupies a decisive position within the market and where the impact of its actions on the market is more significant than that of the actions of other undertakings committing the same infringement. Calculating the amount of the fine in such a way satisfies, inter alia, the requirement that it be sufficiently dissuasive.

The increase of fines imposed for breach of the competition rules for deterrence is not incompatible with the application of the Notice on the non-imposition or reduction of fines, since those two elements are manifestly different and the simultaneous application of those two elements cannot be held to be contradictory. The increase of the fine for deterrence is part of the phase in which the fine sanctioning the infringement is calculated. Once that amount has been determined, the application of the Leniency Notice is then intended to reward undertakings which have decided to cooperate with the Commission. The fact that an undertaking decides to cooperate with an investigation in order to obtain a reduction of its fine in this context in no way guarantees that it will refrain from committing a similar infringement in the future.

(see paras 526, 540-541)

23. When setting the amount of the fines for breach of the Community competition rules, the Commission may apply a first increase in the starting amount of the fine on account of the applicant’s importance on the market of the product in question, and then a second deterrent multiplier of 2, taking into account all the activities of the undertaking or of the group to which it belongs, in order to take account of its overall resources. Those two increases do not take account of the same factors.

(see paras 535-536)

24. Where an infringement of the Community competition rules has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established. It follows, in particular, that the role of ‘ringleader’ played by one or more undertakings in a cartel must be taken into account in setting the fine, in so far as undertakings which have played such a role must for that reason bear a special responsibility by comparison with other undertakings. In accordance with those principles, Section 2 of the Commission Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty sets out, under the heading of ‘aggravating circumstances’, a non-exhaustive list of circumstances which can give rise to an increase in the basic amount of the fine and includes in particular the ‘role of leader in or instigator of the infringement’.

(see paras 561, 622)

25. Although the circumstances in the list at Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course when an undertaking puts forward evidence of the existence of one of those circumstances. Whether it is appropriate to grant a reduction of the fine on grounds of attenuating circumstances must be determined on the basis of a global assessment which takes account of all the relevant circumstances. In the absence of a mandatory indication in the Guidelines of the attenuating circumstances which may be taken into account, the Commission retained a certain discretion when making a global assessment of the size of any reduction in the fines to reflect attenuating circumstances.

(see paras 602, 624)

26. The existence of threats and pressure brought to bear on an undertaking does nothing to alter the reality and the gravity of an infringement of the competition rules and cannot amount to an attenuating circumstance. An undertaking which participates in anti-competitive activities with others may report the pressure to which it is subject to the competent authorities and lodge a complaint with the Commission under Article 3 of Regulation No 17 rather than participate in the cartel. That is true of all the undertakings which are party to a cartel, and there is no need to distinguish between them by reference to the alleged intensity of the purported pressure.

(see paras 638-639)

27. Termination of the infringement as soon as the Commission intervenes is one of a number of attenuating circumstances expressly set out in Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

None the less, the Commission cannot be required, as a general rule, either to regard a continuation of the infringement as an aggravating circumstance or to regard the termination of an infringement as a mitigating circumstance.

Furthermore, where the date on which the infringement is terminated precedes the first intervention or investigations by the Commission, the application of a reduction would duplicate the taking into account of the duration of the infringements, which, in accordance with the Guidelines, is applied in calculating the fine. Duration is taken into account for the specific purpose of imposing a heavier penalty on undertakings which infringe the competition rules over a prolonged period than on those whose infringements are of short duration. Thus, a reduction in the amount of a fine on the ground that an undertaking terminated its unlawful conduct before the Commission first intervened would have the effect of benefiting for a second time those responsible for infringements of short duration.

(see paras 643-646)

28. It is clear from the express wording of Section B(b) of the Notice on the non‑imposition or reduction of fines in cartel cases that the ‘first’ undertaking does not have to have provided all the evidence demonstrating every detail of the operation of the cartel, provided that it adduces ‘some’ decisive evidence. In particular, that section does not require that the evidence adduced is sufficient in itself in order to draw up the statement of objections or for the adoption of a final decision establishing the existence of an infringement.

Furthermore, it is clear from the Leniency Notice that being the first undertaking to adduce decisive evidence is what matters for the application of Sections B and C, but not for Section D which makes no reference to and attaches no importance to whether the cooperation of one undertaking preceded that of another.

(see paras 692, 697)

29. A reduction of the fine for cooperation during the administrative procedure is justified only if the conduct of the undertaking concerned enabled the Commission to establish the infringement more easily and, where relevant, bring it to an end.

The Commission has a discretion in that regard, as may be seen from the wording of Section D2 of the Notice on the non-imposition or reduction of fines in cartel cases.

Furthermore, and above all, a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part.

Admissions made subject to reservations or equivocal statements do not convey real cooperation and are not capable of facilitating the Commission’s task, since they require investigation. That is all the more true where those reservations relate to aspects such as the duration of the infringement, sales quotas, market shares or information exchanges.

(see paras 716-717)

30. In proceedings before the Community courts, the internal documents of the Commission relating to a procedure applying the Community competition rules are not revealed to the parties unless the exceptional circumstances of the case concerned so require, on the basis of sound evidence which it is up to them to provide.

(see para. 736)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

26 April 2007 ( )

(Competition – Cartels − Carbonless paper – Guidelines on the method of setting fines – Duration of the infringement – Gravity of the infringement – Increase for deterrence – Aggravating circumstances – Mitigating circumstances – Leniency Notice)

In Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02,

Bolloré SA, established in Puteaux (France), represented by R. Saint‑Esteben and H. Calvet, lawyers,

applicant in Case T‑109/02,

Arjo Wiggins Appleton Ltd, established in Basingstoke (United Kingdom), represented by F. Brunet, lawyer, J. Temple Lang, Solicitor, and J. Grierson, Barrister,

applicant in Case T‑118/02,

supported by

Kingdom of Belgium, represented by A. Snoecx and M. Wimmer, acting as Agents,

intervener in Case T‑118/02,

Mitsubishi HiTec Paper Bielefeld GmbH, formerly Stora Carbonless Paper GmbH, established in Bielefeld (Germany), represented by I. van Bael, lawyer, and A. Kmiecik, Solicitor,

applicant in Case T‑122/02,

Papierfabrik August Koehler AG, established in Oberkirch (Germany), represented by I. Brinker and S. Hirsbrunner, lawyers,

applicant in Case T‑125/02,

M‑real Zanders GmbH, formerly Zanders Feinpapiere AG, established in Bergisch Gladbach (Germany), represented by J. Burrichter and M. Wirtz, lawyers,

applicant in Case T‑126/02,

Papeteries Mougeot SA, established in Laval‑sur‑Vologne (France), represented initially by G. Barsi, J. Baumgartner and J.‑P. Hordies, and subsequently by Messrs Barsi and Baumgartner, lawyers,

applicant in Case T‑128/02,

Torraspapel, SA, established in Barcelona (Spain), represented by O. Brouwer, F. Cantos and C. Schillemans, lawyers,

applicant in Case T‑129/02,

Distribuidora Vizcaína de Papeles, SL, established in Derio (Spain), represented by E. Pérez Medrano and I. Delgado González, lawyers,

applicant in Case T‑132/02,

Papelera Guipuzcoana de Zicuñaga, SA, established in Hernani (Spain), represented by I. Quintana Aguirre, lawyer,

applicant in Case T‑136/02,

v

Commission of the European Communities, represented, in Cases T‑109/02 and T‑128/02, by W. Mölls and F. Castillo de la Torre, acting as Agents, assisted by N. Coutrelis, lawyer, in Cases T‑118/02 and T‑129/02, by W. Mölls and A. Whelan, acting as Agents, assisted by M. van der Woude, lawyer, in Case T‑122/02, initially by R. Wainwright and W. Mölls, and subsequently by R. Wainwright and A. Whelan, acting as Agents, in Cases T‑125/02 and T‑126/02, by W. Mölls and F. Castillo de la Torre, assisted by H.‑J. Freund, lawyer, in Joined Cases T‑132/02 and T‑136/02, by W. Mölls and F. Castillo de la Torre, assisted by J. Rivas Andrés and J. Gutiérrez Gisbert, lawyers,

defendant,

APPLICATION for annulment of Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.212 — Carbonless paper) (OJ 2004 L 115, p. 1) or, in the alternative, reduction in the fine imposed on the applicants by that decision

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, F. Dehousse and D. Sváby, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearings on 2 (T‑132/02 and T‑136/02), 7 (T‑109/02 and T‑128/02), 14 (T‑122/02), 16 (T‑118/02 and T‑129/02) and 21 June 2005 (T‑125/02 and T‑126/02),

gives the following

Judgment

Background

1 In autumn 1996, the Sappi paper group, owned by Sappi Ltd, provided the Commission with information and documents which gave the Commission grounds for suspecting that a secret cartel existed or had existed for fixing prices in the carbonless paper sector, in which Sappi operated as a producer.

2 In light of the information provided by Sappi, the Commission carried out investigations at the premises of a number of carbonless paper producers pursuant to Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ English Special Edition 1959-62, p. 87). Accordingly, inspections provided for under Article 14(3) of Regulation No 17 were carried out on 18 and 19 February 1997 at the premises of Arjo Wiggins Belgium SA, Papeteries Mougeot SA (‘Mougeot’), Torraspapel, SA, Sarriopapel y Celulosa, SA (‘Sarrió’) and Grupo Torras, SA. In addition, inspections were carried out under Article 14(2) of Regulation No 17 between July and December 1997 at the premises of Sappi, Arjo Wiggins Appleton plc (‘AWA’), Arjo Wiggins Europe Holdings Ltd, Arjo Wiggins SA and its subsidiary Guérimand SA, Mougeot, Torraspapel, Sarrió, Unipapel, Sociedade Comercial de Celulose e Papel Lda, Stora Carbonless Paper GmbH (‘Stora’; formerly Stora‑Feldmühle AG) and Papierfabrik August Koehler AG (‘Koehler’).

3 In 1999 the Commission also sent requests for information pursuant to Article 11 of Regulation No 17 to AWA, Mougeot, Torraspapel, Cartiere Sottrici Binda SpA (‘Binda’), Carrs Paper Ltd (‘Carrs’), Distribuidora Vizcaína de Papeles, SL (‘Divipa’), Ekman Iberica, SA (‘Ekman’), Papelera Guipuzcoana de Zicuñaga, SA (‘Zicuñaga’), Koehler, Stora, Zanders Feinpapier AG (‘Zanders’) and Copigraph SA. In those requests, the undertakings concerned were asked to give particulars of their announcements of price rises, their sales volumes, customers, turnover and meetings with competitors.

4 In reply to the request for information, AWA, Stora and Copigraph admitted their participation in multilateral cartel meetings held between carbonless paper producers. They provided the Commission with various documents and information.

5 Mougeot, for its part, contacted the Commission on 14 April 1999 stating that it was prepared to cooperate in the investigation pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’). It accepted that there was a cartel for fixing prices in the carbonless paper sector and it provided the Commission with information on the structure of the cartel, and in particular on the various meetings attended by its representatives.

6 On 26 July 2000 the Commission initiated the procedure and adopted a statetement of objections (‘SO’), which it addressed to 17 undertakings, that is, AWA, Bolloré SA, and its subsidiary Copigraph, Carrs, Zicuñaga, Divipa, Mitsubishi HiTech Paper Bielefeld GmbH (‘MHTP’), formerly Stora, Mougeot, Koehler, Sappi, Torraspapel and Zanders. They were given access to the Commission’s investigation file in the form of a copy on CD-ROM, which was sent to them on 1 August 2000.

7 All the undertakings to which the SO was addressed, save Binda, International Paper and Mitsubishi Paper Mills Ltd, submitted written observations in response to the objections raised by the Commission.

8 A hearing took place on 8 and 9 March 2001.

9 After obtaining the opinion of the Advisory Committee on Restrictive Practices and Dominant Positions, and in light of the final report of the hearing officer, the Commission adopted, on 20 December 2001, Decision 2004/337/EC relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 — Carbonless paper) (OJ 2004 L 115, p. 1; ‘the decision’).

10 In the first paragraph of Article 1 of the decision, the Commission finds that 11 undertakings infringed Article 81(1) EC and Article 53(1) of the EEA Agreement by participating in a complex of agreements and concerted practices in the sector of carbonless paper.

11 In the second paragraph of Article 1 of the decision, the Commission finds that AWA, Bolloré, MHTP, Koehler, Sappi, Torraspapel and Zanders participated in the infringement from January 1992 to September 1995, Carrs from January 1993 to September 1995, Divipa from March 1992 to January 1995, Zicuñaga from October 1993 to January 1995 and Mougeot from May 1992 to September 1995.

12 In Article 2 of the decision, the undertakings referred to in Article 1 are ordered to bring the infringement referred to therein to an end, if they have not already done so, and to refrain from any agreements or concerted practices in relation to their activities in carbonless paper which may have the same or a similar object or effect to that of the infringement.

13 According to the first paragraph of Article 3 of the decision, the following fines were imposed on the undertakings concerned:

– AWA: EUR 184.27 million;

– Bolloré: EUR 22.68 million;

– Carrs: EUR 1.57 million;

– Divipa: EUR 1.75 million;

– MHTP: EUR 21.24 million;

– Zicuñaga: EUR 1.54 million;

– Mougeot: EUR 3.64 million;

– Koehler: EUR 33.07 million;

– Sappi Ltd: EUR 0;

– Torraspapel: EUR 14.17 million;

– Zanders: EUR 29.76 million.

14 According to the second paragraph of Article 3 of the decision, the fines are payable within three months of the date of notification of the decision. The third paragraph of Article 3 provides that, after expiry of that period, interest will automatically be payable at the interest rate applied by the European Central Bank to its main refinancing operations on 1 December 2001, plus 3.5 percentage points, namely 6.77 per cent.

15 The decision is addressed to the 11 undertakings referred to in Articles 1 and 2 of the decision.

16 According to the decision (recital 77) the parties to the cartel agreed on an overall anti-competitive plan aiming essentially at improving the profitability of the participants by collectively increasing prices. According to the decision, the principal objective of the cartel through that plan was to agree price increases and also the timing of those increases.

17 To that end various meetings were organised at different levels – general, national and regional. According to recital 89 of the decision, the general cartel meetings were followed by a series of national or regional meetings, the purpose of which was to ensure market-by-market implementation of the price increases agreed at the general cartel meetings. During these meetings the participants exchanged detailed and individual information on their prices and sales volumes (recital 97). In order to ensure implementation of the agreed price increases, in some national cartel meetings sales quotas were allocated and market shares were fixed for each participant (recital 81).

18 The Commission took the view that the cartel arrangements involved all major operators in the EEA and were conceived, directed and encouraged at high levels in each participating company. By its very nature, the implementation of that type of cartel leads automatically to an important distortion of competition (recital 377). Taking into account the nature of the behaviour under scrutiny, its actual impact on the carbonless paper market and the fact that it covered the whole of the common market and, following its creation, the whole EEA, the Commission considered that the undertakings concerned by the decision had committed a very serious infringement of Article 81(1) EC and Article 53(1) of the EEA Agreement (recital 404).

19 In order to establish the starting amount of the fine according to the gravity of the infringement, the Commission put the undertakings concerned into five categories according to their relative importance in the market concerned (recitals 406 to 409). In order to ensure that the fine had a sufficient deterrent effect, it then increased the starting amount of the fine thus determined by 100% for AWA, Bolloré and Sappi (recitals 410 to 412). The Commission then took into account the duration of the infringement committed by each undertaking in order to fix the basic amount of the fines imposed (recitals 413 to 417).

20 As regards aggravating circumstances, the Commission increased the basic amount of the fine imposed on AWA by 50% on account of its position as cartel leader (recitals 418 to 424). The Commission did not establish any extenuating circumstances in the present case.

21 The Commission adopted the final amounts to take into account the provisions of Article 15(2) of Regulation No 17 (recital 434), then applied the Leniency Notice which justified a reduction in the amount of the fines by 50% for Mougeot, 35% for AWA, 20% for ‘Bolloré (Copigraph)’ and by 10% for Carrs, MHTP and Zanders (recitals 435 to 458).

Procedure and forms of order sought

22 By separate applications lodged at the Registry of the Court of First Instance between 11 and 18 April 2002, Bolloré (T‑109/02), AWA (T‑118/02), MHTP (T‑122/02), Koehler (T‑125/02), Zanders (T‑126/02), Mougeot (T‑128/02), Torraspapel (T‑129/02), Divipa (T‑132/02) and Zicuñaga (T‑136/02) brought the present actions.

23 Bolloré claims that the Court should:

– annul Articles 1, 2 and 3 of the decision, in so far as those articles relate to it;

– in the alternative, very substantially reduce the amount of the fine imposed on it in Article 3 of the decision;

– order the Commission to pay the costs.

24 AWA claims that the Court should:

– annul or substantially reduce the fine imposed on it by the decision;

– order the Commission to pay the costs;

– take all other measures which the Court may deem appropriate.

25 The Kingdom of Belgium, which intervened in support of AWA’s application, claims that the Court should substantially reduce the fine imposed on AWA.

26 MHTP claims that the Court should:

– annul Article 1 of the decision in so far as it is apparent that it participated in an infringement before 1 January 1993;

– reduce the level of the fine imposed on it;

– order the Commission to pay the costs.

27 Koehler claims that the Court should:

– annul the decision;

– in the alternative, reduce the amount of the fine imposed on it under Article 3 of the decision;

– order the Commission to pay the costs.

28 Zanders claims that Court should:

– annul Article 3 of the decision, in so far as it imposes on it a fine of EUR 29.76 million;

– in the alternative, reduce the fine imposed on it under Article 3 of the decision;

– order the Commission to pay the costs.

29 Mougeot claims that the Court should:

– annul the decision;

– in the alternative, substantially reduce the amount of the fine imposed by the Commission;

– order the Commission to pay the costs.

30 Torraspapel claims that the Court should:

– annul Article 1 of the decision in that it finds that the applicant infringed Article 81(1) EC between 1 January 1992 and September 1993, and reduce the fine accordingly;

– substantially reduce the fine imposed on the applicant under Article 3 of the decision;

– order the Commission to pay the costs, including the expenses and interest arising from the provision of a bank guarantee or from the payment of the whole or part of the fine.

31 Divipa claims that the Court should:

– annul the decision to the extent that it establishes, in addition to its participation in a cartel relating to the Spanish market, its participation in a cartel covering the entire EEA market and, in the alternative, reduce the fine imposed on it by that decision;

– order the Commission to pay the costs.

32 Zicuñaga claims that the Court should:

– annul Articles 1, 3 and 4 of the decision, in so far as those articles relate to it;

– in the alternative, reduce the amount of the fine imposed by the Commission as follows:

– annul the increase of the 10%, on the ground that its participation in the infringement does not exceed one year;

– reduce substantially, at the very mimimum by 60%, the basic amount of the fine, due to the existence of mitigating circumstances;

– order the Commission to pay the costs.

33 For each of those cases, the Commission contends that the Court should dismiss the application and order the applicant to pay the costs.

34 In Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑128/02, T‑132/02 and T‑136/02, the Court asked questions in writing to which the parties replied within the prescribed period.

35 By letter of 14 June 2005, which included observations on the report for the hearing, the applicant in Case T‑126/02 informed the Court of the change in its company name and status, from Zanders Feinpapiere AG to M-real Zanders GmbH (also ‘Zanders’).

36 The parties presented oral argument separately and answered the Court’s questions at the hearings on 2, 7, 14, 16 and 21 June 2005.

37 Since the parties were requested by the Court, at the hearing in each case, to present their observations on a possible joinder of all the cases for the purposes of the judgment and they did not raise any objections, the Court considers that the present cases should be joined pursuant to Article 50 of the Rules of Procedure.

Law

38 The parties seek annulment of the decision and/or cancellation or reduction of the fine.

I – The pleas for annulment of the decision

39 The applicants seek, as the case may be, annulment of the decision in full or certain of its provisions which concern them. Those claims for annulment rely on procedural pleas relating to the administrative procedure and substantive pleas concerning the Commission’s findings as to the participation of certain undertakings in the infringement.

A – The pleas relating to the administrative procedure

1. The first plea, alleging infringement of the right to be heard resulting from the failure to disclose documents classed as confidential by the Commission during the administrative procedure

a) Arguments of the parties

40 Zicuñaga maintains that it is clear both from legal literature and from Article 19 of Regulation No 17 that full access to the investigation file is a procedural guarantee intended to ensure effective exercise of the rights of the defence, in particular the right to be heard. It points out that that guarantee is intended to enable the party concerned not only to dispute the inculpatory documents relied on by the Commission, but also to gain access to exculpatory documents which may be useful for its defence.

41 In the relation to the confidential documents, it is for the Commission to reconcile the legitimate interests of the undertaking concerned in respecting confidentiality, on the one hand, with the rights of the defence on the other. However, the Commission cannot base its final decision on documents on which the party accused of the infringement did not have an opportunity to comment. The Commission’s refusal to disclose a given document during the administrative procedure constitutes, moreover, a breach of the rights of the defence where it is conceivable that the administrative procedure might have had a different outcome had the document in question been disclosed to the interested party. According to Zicuñaga, it follows that the failure to disclose documents classified as confidential by the Commission infringed the applicant’s rights of defence.

42 The Commission submits that its investigation of the case complies with all the necessary safeguards and does not infringe any principle of law. It considers, in addition, that since Zicuñaga does not specify which inculpatory documents the Commission used, its argument is inadmissible.

b) Findings of the Court

43 At the outset, it is necessary to point out the ambiguity of Zicuñaga’s argument. The title of the plea in question (‘Infringement of the right to be heard. Failure to produce inculpatory documents’) gives the impression that the applicant only disputes the Commission’s failure, in the course of the administrative procedure, to disclose documents used against it in the decision. Other passages in its application suggest that it also criticises the Commission’s failure to disclose, during the procedure, documents which allegedly might have contained exculpatory evidence.

44 In so far as Zicuñaga seeks to criticise the fact that the Commission did not produce, during the administrative procedure, documents allegedly used against it in the decision, it should be pointed out, as the Commission also does in its written pleadings, that Zicuñaga does not identify any document of that nature. Since it is not in any way substantiated, Zicuñaga’s contention must, to that extent, be dismissed.

45 In so far as Zicuñaga criticises the fact that the Commission refused it access, during the administrative procedure, to documents allegedly useful for its defence, in that they might contain exculpatory evidence, it should be recalled that, according to case-law, in order to allow the undertakings in question to defend themselves effectively against the objections raised against them in the SO, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of other undertakings, other confidential information and internal documents of the Commission (Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraph 170 and the case-law cited).

46 In addition, the right of undertakings and associations of undertakings to the protection of their business secrets must be weighed against the safeguarding of the right of access to the entire investigation file. Therefore, if the Commission takes the view that certain documents in its investigation file contain business secrets or other confidential information, it should prepare non-confidential versions of those documents or have them prepared by the undertakings or associations of undertakings providing the documents in question. If the preparation of non-confidential versions of all the documents proves difficult, it should send the parties concerned a sufficiently precise list of the documents posing problems so as to enable them to ascertain whether it is appropriate to seek access to specific documents (see, to that effect, Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraphs 88 to 94).

47 In the present case, it is clear from Zicuñaga’s written pleadings that it criticises in particular the fact that the Commission refused it access to detailed information, referred to in recital 288 of the decision, relating to country-by-country sales in the EEA territory during the reference period of the cartel by several undertakings accused of the infringement, including Zicuñaga. According to Zicuñaga, that information probably contained evidence which would have enabled it to show that it did not apply a policy of concerted pricing together with the European carbonless paper producers.

48 In that regard, the list of documents comprising the file in Case T‑136/02, produced by the Commission in reply to a question from the Court, shows that the Commission made available to the parties, during the administrative procedure, a non-confidential version of the documents corresponding to the information referred to in recital 288 where those documents were classified as non-accessible. Zicuñaga was therefore in a position to ascertain whether it was appropriate to seek access to specific documents.

49 It should be recalled, in this regard, that in a proceeding finding an infringement of Article 81 EC, the Commission is not required to make available, of its own initiative, documents which are not in its investigation file and which it does not intend to use against the parties concerned in the final decision. An applicant who learns during the administrative procedure that the Commission has documents which might be useful for its defence must make an express request to the Commission for access to those documents. If the applicant does not do so during the administrative procedure, his right to do so is barred in any action for annulment brought against the final decision (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, ‘Cement’, paragraph 383).

50 However, Zicuñaga did not, during the administrative procedure, make a formal request for access to the confidential version of the information referred to above. Although it refers, in its reply to a question from the Court, to a written request for access to that information and produces the Commission’s letter rejecting that request, it must be pointed out that that request is dated 3 April 2002 and therefore after the date on which the administrative procedure was closed and the decision adopted. Since Zicuñaga failed to make such a request during the administrative procedure, its right to do so is barred in the action for annulment.

51 It is therefore appropriate to reject this plea in law put forward by Zicuñaga.

2. The second plea, alleging infringement of the right of access to the file on account of the failure to produce documents not included in the investigation file communicated via CD-ROM

a) Arguments of the parties

52 Koehler accuses the Commission of failing to grant it access to certain documents which were not part of the investigation file communicated via CD-ROM to the addressees of the SO on 1 August 2000. It refers, in particular, to the replies to the SO from other addressees of that document, and to the annexes to those replies, in particular the expert’s report, mentioned in the footnote on page 365 of the decision, sent by AWA to the Commission. It maintains that a number of references to the replies to the SO contained in the decision show that the Commission based its factual analysis and its calculation of the fines on those replies. Koehler adds that Mougeot’s reply to the SO shows that the file also clearly contained information which would have been useful for its defence.

53 The Commission replies that, while it is true that it can only base its findings on facts on which the undertakings concerned had the opportunity to submit comments, the replies to the SO do not form part of the investigation file to which access has to be granted. The administrative procedure must be deemed to be closed as soon as those replies are received and cannot be pursued ad infinitum, with each undertaking wishing to make comments on the observations of the others. Koehler has not pointed to any inculpatory evidence on which the Commission based its objections against it and on which it was unable to comment.

b) Findings of the Court

54 The arguments of Koehler may be said to comprise two aspects. First, certain documents not contained in the investigation file to which it had access were used by the Commission as inculpatory evidence in the decision, without Koehler having had access to that evidence during the administrative procedure and without being able to comment on it. Secondly, the Commission failed to disclose to Koehler documents not contained in the investigation file to which it had access and which might have contained exculpatory evidence. These two points should be the subject of separate analysis.

55 As regards, first of all, the failure to disclose supposed inculpatory evidence not contained in the investigation file to which Koehler had access, it should be recalled, as a preliminary point, that a document can be regarded as a document that incriminates an applicant only where it is used by the Commission to support a finding of an infringement in which that party is alleged to have participated (Cement, paragraph 284).

56 Since documents that have not been communicated to the parties concerned during the administrative procedure are not admissible evidence (see, to that effect, Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 21; Case T-11/89 Shell v Commission [1992] ECR II-757, paragraphs 55 and 56; and T-13/89 ICI v Commission [1992] ECR II-1021, paragraphs 34 and 35), it will be necessary, if it should prove that the Commission relied in the contested decision on documents that were not in the investigation file and were not communicated to the applicants, to exclude those documents as evidence (Cement, paragraph 382; see also, to that effect, Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 24 to 30; Solvay v Commission, paragraph 46 above, paragraph 57; and ICI v Commission, paragraph 36).

57 It follows that, if the Commission intends to rely on a passage in a reply to a SO or on a document annexed to such a reply in order to establish the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be able to comment on such evidence (see, that effect, AKZO v Commission, paragraph 56 above, paragraph 21; Shell v Commission, paragraph 56 above, paragraph 55; and ICI v Commission, paragraph 56 above, paragraph 34).

58 In the present case, the applicant submits, generally, in its request that, ‘[o]wing to a number of references in the footnotes, there can be no doubt that the Commission used the observations of the other parties to the proceeding in order to substantiate both its account of the facts and the calculation of the amount of the fine’. Such a general assertion does not, however, allow the Court to ascertain which particular documents were supposedly used as evidence against Koehler in the decision. At the hearing, moreover, Koehler admitted that there was no inculpatory document to which it did not have access.

59 As regards, secondly, the failure to disclose supposedly exculpatory evidence not contained in the investigation file to which it had access, Koehler refers to the replies of other addressees of the SO and the annexes to those replies. However, it fails to prove that it expressly requested the Commission to disclose that evidence; it even admitted at the hearing that it did not file a request for access to those documents. Koehler is therefore barred from disputing before the Court the fact that it did not have access to that evidence (see, to that effect, Cement, paragraph 283; see also paragraph 49 above).

60 For the sake of completeness the Court notes that Koehler has not shown that, if it had had access to the replies of other addressees of the SO and to the annexes to those replies, it would have been able to invoke arguments such as to affect the outcome of the decision (see, to that effect, Case 30/78 Distillers v Commission [1980] ECR 2229, paragraph 26, and Case T‑7/90 Kobor v Commission [1990] ECR II-721, paragraph 30).

61 In fact, in relation, first of all, to the expert’s report annexed by AWA to its response to the SO, in so far as the reference made by Koehler to that report seeks to identify a document not contained in the investigation file to which it had access and which might have been useful for its defence, it is clear from the decision (recitals 390, 392 and 396) that the Commission explicitly rejected the arguments made by AWA during the administrative procedure, on the basis of that report, alleging that the infringement did not have any concrete impact on the market. Koehler’s contention that the fact of not having access to that report during the administrative procedure damaged its defence cannot therefore succeed.

62 In relation, next, to Mougeot’s reply to the SO, Koehler submits in its reply that Mougeot’s reply shows that the file clearly contained information useful for its defence. It refers in that regard to the passage in that reply cited in recital 293 of the decision in which Mougeot, retracting a statement made earlier to the Commission, claims that ‘the [SO] does not prove that the AEMCP [Association of European Manufacturers of Carbonless Paper] meetings would have served as a framework for collusive mechanisms before restructuring of the association in September 1993’. However, in recital 295 of the decision, the Commission explicitly rejects that argument, claiming that the statements of Sappi, Mougeot and AWA, read together, prove that general cartel meetings were held from at least 1992 onwards. Referring to recitals 112 and 113 of the decision, it adds that the evidence provided by Sappi confirms that collusion took place at the meetings of the AEMCP or that meetings were held on the occasion of these meetings before September 1993. The passage in Mougeot’s reply to the SO cited by Koehler does not show, contrary to what Koehler maintains, that the replies to the SO and the documents annexed to those replies would have enabled that undertaking to make arguments capable of altering the outcome of the administrative procedure.

63 In the light of all the preceding considerations, the Court must reject this plea.

3. The third plea, alleging infringement of the rights of the defence and of the adversarial principle resulting from a lack of consistency between the SO and the decision

a) Arguments of the parties

64 Bolloré maintains that, at the stage of the SO, the Commission established its participation in the infringement merely on the basis of its liability as a parent company for the personal conduct of its subsidiary Copigraph. Conversely, the decision contains a new objection against Bolloré, alleging its personal and independent involvement in the cartel. Bolloré submits that, by not offering it the opportunity to comment on that objection at the time of the administrative procedure, the Commission infringed its rights of defence.

65 The Commission disputes that, in the decision, Bolloré is considered to be personally involved in the infringement. The conduct of its subsidiary was attributed to the applicant on the ground that, together, they formed one and the same undertaking. This plea can only therefore be upheld if it is proved that the attribution of the infringement to the applicant on this ground was not apparent in the SO or if it were established that the Commission, in its decision, had based its assessment on facts on which Bolloré could not have commented during the pre-litigation procedure. However, this is not the case here.

b) Findings of the Court

66 On this point, it must be borne in mind that in order to respect the rights of the defence, which constitutes a fundamental principle of Community law and must be observed in all circumstances, in particular in all proceedings liable to give rise to penalties, including administrative procedures, the undertaking concerned must be in a position to make known its views on the truth and relevance of the facts, complaints and circumstances relied on by the Commission (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 32 and the case-law cited).

67 According to the case-law, the SO must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that basis that the SO can fulfil its function under the Community regulations of giving undertakings and associations of undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 42, and Case T-352/94 Mo och Domsjö v Commission [1998] ECR II‑1989, paragraph 63).

68 In addition, an infringement of the rights of the defence must be examined in the light of the objections established by the Commission in the SO and in the decision (Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 70, and Solvay v Commission, paragraph 46 above, paragraph 60). In those circumstances, the finding of an infringement of the rights of the defence presupposes that an objection – which the undertaking maintains it was not accused of in the SO – is established by the Commission in the contested decision.

69 In the light of the case-law set out in the previous three paragraphs, it is appropriate, in the present case, to ascertain first of all the basis on which the Commission, in its decision, established Bolloré’s liability for the infringement. The relevant information is to be found in recitals 353 to 356 of the decision (part II (Legal assessment), section 2.3 (Liability for the infringement) 2 (Copigraph and Bolloré)).

70 Those recitals read as follows:

‘(353) Copigraph SA was a wholly owned subsidiary of [Bolloré] (formerly known as Bolloré Technologies SA) during the time of the infringement and was acquired by AWA in November 1998. Copigraph ceased activity on 2 February 2000 with effect from 30 December 2000. Bolloré claims that it cannot be held responsible for Copigraph’s behaviour, because Copigraph had complete economic autonomy. According to Bolloré this autonomy stems from the following: the management structures of Copigraph and Bolloré were strictly separate; Copigraph had its own infrastructure and Copigraph’s commercial policy was independent because it acquired almost 35% of its raw-material requirement from outside the Bolloré group, one of the sources being a competitor.

(354) Copigraph belonged to Bolloré’s special papers division and the then head of division, [Mr V.], was simultaneously the Managing Director of Copigraph. In addition, the then Commercial Director of Copigraph, [Mr J.B.], had also held a sales position at the Thonon mill since 1994. [Bolloré] was necessarily informed of its subsidiary’s participation in the cartel.

(355) There is also evidence implicating the parent company, [Bolloré] directly in the cartel activities. Bolloré was a member of the AEMCP, whose official meetings also served as cartel meetings from January 1992 until September 1993. Bolloré’s representative, the head of its special papers division [Mr V.], attended these cartel meetings together with the Commercial Director of Copigraph. The head of Bolloré’s special papers division also participated in the French market cartel meeting of 1 October 1993. In all subsequent cartel meetings where individual representatives of Copigraph are identified the meeting was attended by the Commercial Director of Copigraph. All these meetings took place in 1994 and, as mentioned, the Commercial Director of Copigraph also held simultaneously a sales position in Bolloré.

(356) On that basis, the Commission concludes that Bolloré should be held responsible not only for its own conduct but also for the conduct of Copigraph in relation to the cartel, for the whole of the specified period.’

71 It is clear from the extract of the decision reproduced above that liability for the infringement was attributed to Bolloré on the ground that, first, it should be deemed liable for the participation of its subsidiary Copigraph in the cartel, and, secondly, there was evidence of its direct involvement in the cartel activities.

72 Bolloré does not dispute the fact that the SO enabled it to understand, and comment on, the fact that, in the SO, the Commission held it liable for the infringement on account of its responsibility as the 100% parent company of Copigraph at the time of the infringement, for Copigraph’s participation in the cartel. Its objection relates to the absence of information in the SO as to the Commission’s intention to hold it liable for the infringement on the basis of its direct involvement in the cartel activities as well.

73 The relevant passages of the SO are contained in paragraphs 240 to 245 and 248 (part II (Legal assessment), part B (Application of the competition rules) 8 (Liability for the infringement)).

74 It must be borne in mind, first of all, that in those paragraphs of the SO the Commission in no way mentions that Bolloré is directly involved in the cartel, unlike the information relating to other parent companies referred to in the SO, such as AWA and Torraspapel, in respect of which the Commission states, as regards AWA, that ‘[it] participated directly and autonomously in the cartel through its division Arjo Wiggins Carbonless Paper Operation’ and, in relation to Torraspapel, that ‘[t]here is also evidence implicating the parent company directly in the collusive activities’.

75 Next, as Bolloré correctly points out, it is clear from paragraph 243 of the SO that the Commission distinguished between two types of situation:

‘In relation to the relationships between parent companies and their subsidiaries, the Commission addresses this SO to the parent company where

– two or more subsidiaries participated in the infringement,

– the parent company was involved in the infringement.

For other cases where a subsidiary has participated, the statement is addressed to that subsidiary and its parent company.’

76 As regards the Bolloré and Copigraph group, the SO was addressed not only to Bolloré, but also to Copigraph, which, in the light of the criteria set out in paragraph 243 of the SO, was such as to reassure Bolloré that the Commission did not take the view, at the stage of the SO, that Bolloré, the parent of the group, was directly involved in the infringement.

77 It should therefore be noted that, as set out in the SO, the Commission intended to hold Bolloré liable for the infringement solely on the ground that, as the parent company of the group comprising Bolloré and Copigraph at the time of the infringement, it had to be held liable for the unlawful conduct of Copigraph, its wholly-owned subsidiary. By reading the SO, Bolloré could not foresee that, in order to hold it liable for the infringement, the Commission also intended to rely on its own direct involvement in the cartel activities, as it does in its decision.

78 It should be added that the facts referred to by the Commission in recital 355 of the decision, in support of its argument relating to Bolloré’s direct involvement in the infringement, namely that Bolloré was a member of AEMCP and represented by Messrs V. and J.B. at several cartel meetings, was not mentioned in the SO. In fact, even if it were accepted that, following the Commission’s line of argument, Bolloré’s membership of AEMCP was apparent from documents attached to the SO, clearly the Commission only referred to Copigraph as being a member of AEMCP, and never to Bolloré. As regards Messrs V. and J.B., they were consistently referred to in the SO as the representatives of Copigraph, and not of Bolloré, at the cartel meetings. In addition, at no point in the SO did the Commission mention Bolloré as being one of the undertakings represented at such meetings.

79 Accordingly, the SO did not enable Bolloré to acquaint itself with the objection based on its direct involvement in the infringement, or even with the facts established by the Commission in the decision in support of that objection, so that Bolloré was unable, as is clear from reading its reply to the SO, properly to defend itself during the administrative procedure vis-à-vis the objection and the facts in question.

80 However, even if the decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defect will only entail the annulment of the decision in that respect if the allegations concerned cannot be substantiated to the requisite legal standard on the basis of other evidence in the decision on which the undertakings concerned were given the opportunity to comment (Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 196; see also, to that effect, Case T-86/95 Compagnie générale maritime and Others v Commission [2002] ECR II‑1011, paragraph 447). Moreover, infringement of Bolloré’s rights of defence is only capable of affecting the validity of the decision relating to Bolloré if the decision is based purely on the fact of Bolloré’s direct involvement in the infringement (see, to that effect, Mo och Domsjö v Commission, paragraph 67 above, paragraph 74). In that case, since the new objection in the decision relating to Bolloré’s direct involvement in the cartel activities could not be upheld, Bolloré could not be held liable for the infringement.

81 Conversely, if it transpires, when examining the substance (see paragraphs 123 to 150 below), that the Commission was correct to hold Bolloré liable for the participation of its subsidiary Copigraph in the cartel, the fact that the Commission erred in law cannot be sufficient to justify annulment of the decision because it could not have had a decisive effect on the operative part adopted by the Commission (see, to that effect, Case T‑126/99 Graphischer Maschinenbau v Commission [2002] ECR II‑2427, paragraph 49, and Case T‑209/01 Honeywell v Commission [2005] ECR I-5527, paragraph 49). According to settled case-law, in so far as certain grounds of a decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part (Case T‑87/05 EDP v Commission [2005] ECR II-3745, paragraph 144; see also, to that effect, Joined Cases C-302/99 P and C-308/99 P Commission and France v TF1 [2001] ECR I-5603, paragraphs 26 to 29).

4. The fourth plea, alleging infringement of the rights of the defence, of the right to a fair hearing and of the principle of the presumption of innocence

a) Arguments of the parties

82 Zicuñaga maintains, first of all, that the Commission infringed the principle of the presumption of innocence by establishing its participation in the cartel on the basis of mere assumptions and indirect statements. It maintains that the absence of a sufficiently clear penalty for submission of inaccurate or incomplete information may encourage undertakings to provide the Commission with information that has been reconstructed or distorted in order to emphasise their cooperation. Zicuñaga goes on to state that, while at the outset an undertaking only expected to benefit from leniency on the part of the Commission where it provided decisive evidence, the Commission then softened its approach. It claims that, in those circumstances, the statements of Sappi should be considered with caution and can only be deemed reliable to the extent they are corroborated by other evidence.

83 Secondly, Zicuñaga asserts that the Commission cannot base its findings on the testimonies of a person whose identity is not known, lest it should prejudice the rights of the defence by not allowing the defendant to refute the claims made by that witness in the course of the hearing. Referring to the case-law of the European Court of Human Rights, it maintains that it is essential to be able to put to a witness his own statements so as to measure the level of credibility of the testimony and of the person concerned, and to permit the defendant to dispute evidence against him and to question the author of that evidence about it either at the time of submitting the evidence or afterwards.

84 The Commission disputes the characterisation as mere assumptions or indirect statements of the evidence on which it relies to establish Zicuñaga’s participation in the infringement. It points out the Community judicature has never called into question the lawfulness of the Leniency Notice nor the probative value of statements made by undertakings on that basis. Moreover, Regulation No 17 does not provide for the possibility of questioning witnesses in the course of the administrative procedure and the applicant did not make any request to this effect before the Court.

b) Findings of the Court

85 In so far as Zicuñaga’s argument seeks to deny the probative value of the statements of non-identified persons relied on by the Commission in support of the objections made against Zicuñaga in the decision, that argument falls within the examination of the substance and will be dealt with later, when ascertaining whether those objections have been sufficiently established.

86 In so far as this line of argument also alleges infringement of the rights of the defence and of the right to a fair hearing in that the failure to mention in the SO the identity of the author or authors of the statements in support of the Commission’s findings in relation to Zicuñaga prevented Zicuñaga from disputing those findings by requesting that the author or authors be heard in the course of the administrative procedure, it should be recalled that, whereas Article 6(3)(d) of the European Convention on Human Rights (‘the ECHR’) states that ‘[e]veryone charged with a criminal offence has the following minimum rights: … to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’, it is clear from settled case-law that the Commission cannot be described as a ‘tribunal’ within the meaning of Article 6 of the ECHR (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 7). Moreover, Article 15(4) of Regulation No 17 specifically provides that Commission decisions imposing fines for breach of competition law are not to be of a criminal law nature (Case T-83/91 Tetra Pak v Commission [1994] ECR II‑755, paragraph 235).

87 Nevertheless, the Commission is bound to observe the general principles of Community law in the course of the administrative procedure (Musique diffusion française and Others v Commission, paragraph 86 above, paragraph 8). However, it must be pointed out, first, that although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement, and, secondly, the fact that the provisions of Community competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles (Case T-9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 392).

88 In the present case, it is apparent moreover that Zicuñaga does not provide any information showing that, during the administrative procedure, it asked the Commission for details as to the identity of the persons who made the statements relied on by the Commission in support of the objections made against it in the SO in order for those persons to be heard in its presence. It also fails to establish that it requested the Commission to call witnesses to give evidence on its behalf during the administrative procedure.

89 In the light of the foregoing, the present plea, in so far as it is based on an infringement of the rights of the defence and of the right to a fair hearing, must be rejected. In so far as it is aimed at disputing the probative value of the evidence relied on by the Commission in support of the objections made against Zicuñaga in the decision, that aspect will be considered in the examination of the substance.

5. The fifth plea, alleging breach of the principle of sound administration when investigating the case and a failure to state the grounds in the decision

a) Arguments of the parties

90 Zanders accuses the Commission of having investigated the case in a manner purely adverse to it. It maintains that the Commission should have taken into account the information which Zanders provided to it, in December 2000 and March 2001, as to its decisive role in ending the cartel or that it should have investigated this information further if it had any doubts as to its value. It also criticises the fact that the Commission did not take into account an expert report which it submitted in March 2001 in order to show that the impact of the attempts to form cartels on prices was minimal or non-existent. In addition, the decision does not contain any reasoning as to the failure to take those two factors into account or any examination of Zanders’ individual role.

91 The Commission contends that Zanders does not substantiate its claim that it played a special role in ending the infringement. As to the impact of the price agreements on the market, the Commission devoted a whole section to this in the decision (recitals 382 to 402) in the course of its assessment of the concrete effects of the infringement. The decision fully respects the obligation to state reasons by examining the applicant’s conduct in conjunction with that of five other undertakings in recitals 263 to 271. Moreover, in its reply to the SO, Zanders did not argue that its role was purely a passive one.

b) Findings of the Court

92 It should be recalled that, in cases such as this one, where the Community institutions have a power of appraisal in order to be able to fulfil their tasks, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance; those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14; Case T-44/90 La Cinq v Commission [1992] ECR II-1, paragraph 86; and Joined Cases T‑528/93, T‑542/93, T‑543/93 and T‑546/93 Métropole télévision and Others v Commission [1996] ECR II‑649, paragraph 93).

93 Moreover, it is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The 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 (Case C‑367/95 P Commission v Sytravaland Brink’s France [1998] ECR I‑1719, paragraph 63, and Case T-16/99 Lögstör Rör v Commission [2002] ECR II‑1633, paragraph 368).

94 In this respect, it must be held that the decision discloses in a clear and unequivocal fashion the reasoning followed by the Commission and enables Zanders to ascertain the reasons for the adopted measure and the Court to exercise its power of review. In fact, in recitals 263 to 271 of the decision, the Commission examines Zanders’ participation in the cartel, together with that of AWA, Koehler, Sappi, Stora and Torraspapel.

95 Zanders asserts, more specifically, that its role in ending the infringement and the expert’s report which it provided were not taken into account.

96 As regards Zanders’ role in ending the infringement, it must be pointed out that, in its reply of 12 December 2000 to the SO, Zanders referred to the letter of 1 April 1996 from the CEO of International Paper addressed to all employees in the group, drawing their attention to the fact that the group attached the highest importance to observing laws and ethics in relation to contacts with customers, commercial partnerships, administrations and other bodies. It also referred to the meeting held at its premises with the aim of impressing upon its managerial staff the need to observe competition law and drawing up a compliance programme. It further referred to the fact that the president of its division, who became the president of the AEMCP on 1 January 1996, had made an unequivocal declaration in public, after his accession to the presidency of the association, that the undertaking had ceased any collusive activities.

97 Clearly, the evidence referred to in the previous paragraph was submitted by Zanders in its response to the SO in support of its observations for the purposes of refuting the Commission’s objection in the SO that collusive contacts continued after autumn 1995. More precisely, the presentation of such evidence formed part of Zanders’ argument seeking to establish that, as from autumn 1995, it no longer participated in secret cartel meetings or concerted practices on pricing with its competitors, its pricing policy was set independently, and, in particular, the price increase which it applied in September 1996 was not the product of a collusive meeting.

98 There can be absolutely no doubt, however, that Zanders argument set out in the previous paragraph was taken into account by the Commission in the course of the administrative procedure. In the decision, the end of the infringement established in relation to Zanders is in fact September 1995, and not, as stated in the SO, March 1997.

99 However, neither Zanders’ reply of 12 December 2000 to the SO, nor the supplementary observations sent by Zanders to the Commission on 2 March 2001 show that the evidence referred to in paragraph 96 above, or any other evidence, was presented by Zanders in the course of the administrative procedure with a view to proving, as Zanders is now seeking to do, that it played a decisive role in ending the unlawful cartel, such that this warranted recognition as a mitigating circumstance when setting the fine. In those circumstances, Zanders cannot accuse the Commission of infringing the principle of sound administration by failing to take into account both the evidence mentioned above and evidence allegedly intended to establish that it contributed decisively to ending the collusion before the Commission began its initial investigations.

100 Similarly, it must be pointed out that, in its reply to the SO Zanders did not contend that it had played an exclusively passive role in the cartel. It therefore cannot rely on a failure to state reasons in the decision in this respect. In addition, in relation to the period from 1992 until autumn 1995, in its reply to the SO Zanders denied having played the key or leading role that was attributed to it in paragraphs 187 and 199 of the SO. Zanders was thus arguing that there were no aggravating circumstances. However, the Commission did not establish any such circumstances in relation to Zanders.

101 The expert’s report commissioned by Koehler, MHTP and Zanders from PricewaterhouseCoopers, dated 2 March 2001, is entitled ‘The competitive situation on the European carbonless paper market from summer or autumn 1995 to February or March 1997’ (‘the PricewaterhouseCoopers report’).

102 It is apparent from the letter accompanying the PricewaterhouseCoopers report sent to the Commission that the main aim of this report was to refute the allegations made by the Commission in the SO in relation to the operation of the cartel on the carbonless paper market during the period from summer or autumn 1995 to February or March 1997 inclusive. Moreover, the conclusion of that report expressly mentions the fact that the economic analysis shows that the conduct of the three producers in question between summer or autumn 1995 and February or March 1997 was not concerted.

103 It must be stated that the PricewaterhouseCoopers report relates to a period which falls outside the infringement period established in the decision. To that extent, the report is not relevant.

104 However, on reading the application it becomes apparent that Zanders’ criticism concerns the Commission’s failure to take into account the information, also contained in the PricewaterhouseCoopers report, which seeks to show that the impact of the attempts at forming a cartel on prices during the period from January 1992 to autumn 1995 inclusive was minimal or non-existent.

105 In that respect, even if it were considered appropriate to take into account supplementary information provided in support of an entirely irrelevant factor, the Commission cannot be accused of failing to take into account Zanders’ arguments as to the allegedly limited impact of the cartel.

106 In fact, recital 388 of the decision states as follows:

‘AWA, Carrs, MHTP (Stora), Koehler, Sappi and Zanders claim that the actual impact of the cartel on the carbonless paper market in the EEA was very limited or that the cartel had no negative impact at all. In this respect, they concentrate on arguing that there was limited or no impact on prices, because the prices actually realised on the market were lower than the agreed or announced increases. According to these cartel participants, this shows that the agreed price increases were not implemented in practice. They have put forward many arguments to support this assertion, which include in particular the following claims: prices and producers’ margins have fallen substantially; carbonless paper prices essentially reflect changes in pulp costs and demand, and during the later phases of the cartel the capacity constraints; competition between the producers continued; and producers had to negotiate price increases with customers on individual basis.’

107 While it makes no explicit reference to the PricewaterhouseCoopers report sent by Zanders to the Commission in the course of the administrative procedure, that extract from the decision proves without a doubt that the Commission took into account during the procedure the information provided, in particular by Zanders, with a view to proving that the impact of the attempts to form a cartel on prices during the infringement period was negligible or non-existent. The Commission’s rejection of the undertakings’ arguments supported by that information indicates that the Commission considered that those arguments were not such as to alter its point of view, set out in recitals 382 to 387 of the decision, as to the actual impact of the infringement on the market. On the other hand, that extract cannot be interpreted as establishing that the Commission failed, when assessing the case, to afford proper consideration to the arguments which Zanders set out in its defence (see, to that effect, Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347, paragraph 118).

108 Following that analysis, the fifth plea in law must be rejected.

6. The sixth plea, alleging infringement of the principle of sound administration, of the right of access to the file and of the rights of the defence, resulting from the fact that certain documents in the investigation file were difficult to find and the list of documents comprising that file was unusable

a) Arguments of the parties

109 AWA maintains that the list of documents put onto the CD‑ROM by the Commission which was given to it in the course of the administrative procedure was unusable. It submits, in fact, that the list did not contain either an index or a description of the documents concerned, but merely indicated why some of those documents were allegedly confidential and the place of any corresponding non-confidential version.

110 Koehler maintains that, before sending the CD-ROM to the addressees of the SO, the Commission removed certain confidential documents from the file and replaced them with non-confidential versions which were inserted elsewhere on the file. However, neither in the SO nor in the decision did the Commission take the trouble to make the consequential amendments to the references to the documents it had moved. In addition, it failed to mention that those non-confidential versions existed or where to find them in the file. The list of documents put together by the Commission only enabled the relevant documents to be identified very approximately. Occasionally, it was even impossible to find the document in question.

111 The Commission considers that it cannot be accused of any infringement of the rights of the defence. First, a list of the various documents on the file was made available to the undertakings, at the same time as the CD-ROM, using the normal classification of accessibility of the documents. Secondly, the documents referred to in the SO were already attached to that document, with a list indicating the connection between the confidential and non-confidential versions.

b) Findings of the Court

112 It is clear from the information provided by the Commission in the two cases at issue (T‑118/02 and T‑125/02) that, on 26 July 2000, it sent the addressees of the SO, at the same time as sending that SO and the documents referred to therein, a list of documents annexed to the SO. That list was produced by the Commission as an annex to its defence in Case T‑125/02. On the Court’s request, the Commission also produced that list in Case T‑118/02.

113 The list in question includes for each document referred to in the SO, according to the order of reference in the SO, a brief description of the document, the identity of the undertaking at whose premises the document was found or who sent it, the number of the document, and, where appropriate, the number of the non-confidential version.

114 On 1 August 2000, the addressees of the SO also received from the Commission, at the same time as the CD-ROM containing the Commission’s investigation file in its entirety, a list entitled ‘List of documents’, setting out in respect of each document, according to the numbering order of the file, the document’s accessibility code (A for accessible; PA for partially accessible; NA for not accessible). In relation to the documents classed as non-accessible and the non-accessible parts of the documents classed as partially accessible, the list indicated where in the file the non-confidential version of the document or of the part of the document concerned and/or a summary of the content of the document or part of the document concerned could be found. In so doing, the Commission fully respected the provisions under section II A 1.4 of its notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles [81] and [82] of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89 (OJ 1997 C 23, p. 3).

115 Having both the list of documents attached to the SO and the ‘List of documents’ referred to in the previous paragraph, AWA and Koehler were perfectly able, as were the other addressees of the SO, to locate the documents they sought in the investigation file, whether in the original version or in the non-confidential version according to the accessibility code indicated on those lists.

116 Admittedly, as the Commission itself states in its written pleadings relating to Case T‑125/02