Case T-186/06

Solvay SA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of the infringement – Concepts of ‘agreement’ and ‘concerted practice’ – Access to the file – Fines – Leniency Notice – Equal treatment – Legitimate expectations – Duty to state reasons)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market – Included

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Exchange of information under a cartel agreement or with a view to setting up a cartel

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Prohibition – Agreements which continue to produce their effects after they have formally ceased to be in force

(Art. 81 EC)

7. Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in meetings having an anti-competitive object

(Art. 81(1) EC)

8. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Failure to communicate a document – Consequences

(Council Regulation No 1/2003, Art. 27(2))

9. Competition – Administrative procedure – Observance of the rights of the defence – Communication of replies to a statement of objections – Conditions – Limits

(Council Regulation No 1/2003, Art. 27(2))

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

(Council Regulation No 1/2003, Art. 23(3))

11. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Art. 253 EC; Council Regulation No 1/2003, Art. 23(3))

12. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the actual impact on the market – Scope

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

13. Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size of the fined undertaking – Relevance

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 1A)

14. Competition – Fines – Amount – Determination – Criteria – Account taken of the undertaking’s cooperation with the Commission outside the framework of the Leniency Notice – Conditions – Limits

(Council Regulation No 1/2003, Art. 23; Commission Notices 98/C 9/03, Section 3, and 2002/C 45/03, Section 23(b), third para.)

15. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Determination of the date on which the leniency application is submitted – Criteria

(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03, Sections 21 and 23(b))

16. Competition – Fines – Amount – Determination – Criteria – Assessment of the degree of cooperation provided by each of the undertakings during the administrative procedure – Respect for the principle of equal treatment

(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03)

17. Procedure – Costs – Recoverable costs – Concept

(Rules of Procedure of the General Court, Art. 91(b))

1. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.

An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation.

In that regard, where it is established that discussions were clearly guided by a common intention of the participants to agree on the very principle of a restriction of competition, that finding cannot be undermined by the fact that specific features of the restriction envisaged were the subject of negotiations between the participants and that the modalities of the firm agreement subsequently differed from those discussed at earlier meetings. The Commission is therefore entitled to find that, where the conduct of the participants falls within an initial stage of the cartel, it is part of the same anti‑competitive scheme and is therefore caught by the prohibition laid down in Article 81(1) EC.

(see paras 85-86, 139, 142-143)

2. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them.

In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition.

The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC.

In this respect, even if the Commission does not succeed in showing that the undertakings concluded an agreement, in the strict sense of the term, it is sufficient, in order to find an infringement of Article 81(1) EC, that the competitors have made direct contact with a view to stabilising the market.

In any event, the presumption must be that – subject to proof to the contrary, which it is for the economic operators concerned to adduce – the undertakings taking part in the concerted arrangements and who remain active on the market take account of the information exchanged with their competitors when determining their conduct on that market.

(see paras 87-89, 147-148, 160)

3. The concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves.

In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC.

The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type.

(see paras 90-92, 130)

4. For the purposes of applying Article 81(1) EC there is no need to take account of the actual effects of an agreement or a concerted practice once it appears that the infringement had as its object the prevention, restriction or distortion of competition within the common market.

In particular, the fact that a concerted practice has no direct effect on price levels does not preclude a finding that it limited competition between the undertakings concerned, inter alia by eliminating competitive pressures.

(see paras 158, 162)

5. In so far as the Commission has categorised a cartel as a single infringement, it is not required to establish, as part of that categorisation, the different durations of the acts which related to one of the markets concerned. Moreover, in so far as a case does not concern separate infringements, the Commission is not required to take account of that difference when determining the duration of the infringement as a whole.

It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied in their intensity according to the market concerned. Those factors must be taken into consideration only when the gravity of the infringement is assessed and when determining the amount of the fine.

(see paras 165-166)

6. Article 81 EC applies to agreements which continue to produce effects after they have formally ceased. In particular, the Commission may lawfully find that a cartel continues to produce its effects after collusive meetings have formally ceased in so far as the price increases planned during those meetings are to be applied at a later time.

(see paras 174-175)

7. Where there is a consistent body of evidence demonstrating the existence of a cartel, there needs to be a particularly good explanation in order to demonstrate that, during a particular meeting, things occurred which were completely different from what had transpired at earlier meetings when all those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose.

(see para. 181)

8. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means, in an administrative procedure for applying the rules on competition, that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence.

Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence.

By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, by showing in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision.

(see paras 205-208)

9. In an administrative procedure in competition matters, the replies to the statement of objections are not part of the investigation file proper. Since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other parties concerned only if it transpires that they contain new incriminating or exculpatory evidence.

Moreover, although it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking in question, that consideration, relating to documents within the Commission’s file, cannot apply to the replies given by other parties concerned to the statement of objections.

Accordingly, considerations based on respect for the principle of equality of arms and respect for the rights of the defence cannot, as a rule, lead to an obligation on the Commission to disclose the replies to the statement of objections to other parties, so that they can ascertain that there is no exculpatory evidence.

In so far as the undertaking in question, the applicant, relies, before the General Court, on the existence of alleged exculpatory evidence in replies which have not been disclosed, it is for the applicant to provide prima facie evidence of the relevance of those documents for its defence. An applicant must in particular indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case. In this respect, the mere fact that the other undertakings concerned put forward substantially the same arguments as the undertaking in question is not sufficient to regard those arguments as exculpatory evidence. Equally, the fact that some undertakings succeeded in their replies to the statement of objections in showing that there is no adequate proof of their participation in the alleged infringements does not mean that those replies contain evidence of such a nature as to cast a different light on the specific documentary evidence on which the Commission relies in respect of other undertakings.

(see paras 224-225, 228-231, 233-234)

10. The gravity of an infringement of the rules on competition is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion.

Although the starting amount of the fine is determined according to the gravity of the infringement as a whole, in the case of a single and continuous infringement it may be appropriate to reflect, at that stage of the determination of the amount of the fine, the variable intensity of the unlawful conduct.

(see paras 255, 260)

11. As regards the statement of reasons in a Commission decision concerning the determination of the starting amount of a fine imposed for infringement of the rules on competition, that essential procedural requirement is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement. The Commission satisfies those requirements where it states, in its decision, the factors relating to the nature of the infringement, the extent and the size of the markets concerned, and explains their application to the circumstances of the case in question.

Furthermore, as regards the reasoning behind the starting amount in absolute terms, fines constitute an instrument of the Commission’s competition policy and the Commission must be allowed a margin of discretion when setting their amount, in order that it may channel the conduct of undertakings towards compliance with the competition rules. The Commission cannot therefore be required to set out reasons in that connection other than those relating to the gravity and duration of the infringement.

(see paras 271-273)

12. In the context of the setting of the amount of a fine imposed for infringement of the competition rules, while the existence of an actual impact of the infringement on the market is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1A 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 that that impact is to be taken into account only where this can be measured.

The Commission may therefore classify horizontal price or market sharing agreements as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. The actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount.

Furthermore, since the actual impact of the infringement is an optional element in the determination of the amount of the fine, it cannot validly be complained that the Commission does not set out in detail why it finds that the actual impact of the infringement cannot be measured.

In establishing the starting amount of the fine imposed, the Commission is entitled, without being required to justify that choice, to disregard the factor of actual impact and rely on other factors, such as the nature of the infringement, the geographic scope and the size of the market.

(see paras 277-278, 288-289)

13. In order to determine the amount of the fine imposed for infringement of the rules on competition, the Commission must ensure that it has the necessary deterrent effect. In this respect, the Commission may inter alia take into consideration the size and the economic power of the undertaking in question.

Where the infringement being punished corresponds to conduct which the Commission has found to be unlawful time and time again since it first became active in the field, the Commission is entitled to set the fine at a sufficiently deterrent level, and is not required to assess the likelihood of any repeated infringement by the applicant.

(see paras 297-298, 300)

14. In relation to infringements of the rules on competition which fall within the scope of the Notice on immunity from fines and reduction of fines in cartel cases, as a rule, an undertaking cannot validly complain that the Commission failed to take into account the extent of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice. Thus, where the Commission took an undertaking’s cooperation into account, by reducing the fine pursuant to the Leniency Notice, that undertaking cannot validly complain that the Commission did not apply a further reduction to the fine imposed on that undertaking, outside the scope of that notice.

(see paras 314-315)

15. For the purposes of applying the bands of reduction – provided for in point 23(b) of the Notice on immunity from fines and reduction of fines in cartel cases – of a fine imposed for infringement of the competition rules, the Commission must establish the time at which the undertaking actually provided it with evidence representing significant added value with respect to the evidence already in its possession. The Commission is required to determine the precise time at which the conditions for a reduction in the fine are met by the undertaking concerned, by comparing the evidence provided with that already in its possession when the application is made, and must, therefore, actually have the evidence in question at its disposal.

In this respect, undertakings making a leniency application pursuant to the Leniency Notice must be regarded as being in comparable situations, irrespective of the manner in which the evidence is submitted, that being a matter for the applicant for leniency to choose. Those situations must, therefore, be treated in the same way.

Thus, where an undertaking contacts the Commission to make an oral statement. but submits evidence relating to the infringement concerned only on the following day, the Commission is entitled to find that the undertaking satisfied the requirements of point 21 of the Leniency Notice on the latter date.

It is precisely because the oral disclosure of information is as a rule a slower means of cooperation than the disclosure of information in writing that an undertaking must, by deciding to disclose information orally, take account of the risk that another undertaking may disclose to the Commission, in writing and before it, decisive evidence of the cartel’s existence.

(see paras 365-366, 370-372, 374)

16. Although, in assessing the cooperation given by members of a cartel, the Commission cannot disregard the principle of equal treatment, it has a wide discretion in assessing the quality and usefulness of the cooperation provided by a given undertaking. Accordingly, only a manifest error of assessment by the Commission is open to censure. In this respect, an applicant cannot merely put forward in an annex to its application its own assessment of the submissions of the other undertakings, but must show, by specific arguments, how the Commission’s assessment is vitiated by a manifest error.

(see paras 394-395)

17. The expenses incurred in providing and maintaining a bank guarantee in order to avoid the enforcement of a Commission decision do not constitute costs of the proceedings.

(see para. 444)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

16 June 2011 ( )

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of the infringement – Concepts of ‘agreement’ and ‘concerted practice’ – Access to the file – Fines – Leniency Notice – Equal treatment – Legitimate expectations – Obligation to state the reasons on which the decision is based)

In Case T‑186/06,

Solvay SA, established in Brussels (Belgium), represented initially by O.W. Brouwer, D. Mes, lawyers, M. O’Regan and A. Villette, Solicitors, and subsequently by O.W. Brouwer, A. Stoffer, lawyer, M. O’Regan and A. Villette,

applicant,

v

European Commission, represented initially by F. Arbault, and subsequently by V. Di Bucci and V. Bottka, acting as Agents, and by M. Gray, Barrister,

defendant,

ACTION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) and for annulment or reduction of the fine imposed on the applicant,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of V. Vadapalas (Rapporteur), acting for the President, A. Dittrich and L. Truchot, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 3 March 2010,

gives the following

Judgment

Background to the dispute

1 The applicant, Solvay SA, is a company incorporated under Belgian law which at the material time manufactured, inter alia, hydrogen peroxide (‘HP’) and sodium perborate (‘PBS’).

2 On 7 May 2002 the applicant acquired 100% ownership of Ausimont SpA (now Solvay Solexis SpA), which at the material time was 100% controlled by Montedison SpA (now Edison SpA).

3 In November 2002 Degussa AG informed the Commission of the European Communities of the existence of a cartel in the HP and PBS markets and requested the application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’).

4 Degussa supplied to the Commission material evidence which enabled it to carry out investigations on 25 and 26 March 2003 at the premises of three undertakings, including those of the applicant.

5 Following those investigations, several undertakings, including EKA Chemicals AB, Arkema SA (formerly Atofina SA) and the applicant, requested the application of the Leniency Notice and sent to the Commission evidence relating to the cartel in question.

6 On 26 January 2005 the Commission sent a statement of objections to the applicant and to the other undertakings concerned.

7 By letters of 29 April and 27 June 2005, the applicant requested access, first, to the non‑confidential versions of the replies given by the other undertakings concerned to the statement of objections and, second, to certain confidential documents in the case provided by Degussa.

8 By letters of 4 May and 20 July 2005, the Commission refused access to the replies to the statement of objections and partially disclosed the documents provided by Degussa.

9 After the hearing of the undertakings concerned, which took place on 28 and 29 June 2005, the Commission adopted Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals, Degussa, Edison, FMC Corp., FMC Foret SA, Kemira Oyj, L’Air liquide SA, Chemoxal SA, SNIA SpA, Caffaro Srl, the applicant, Solvay Solexis, Total SA, Elf Aquitaine SA and Arkema (Case COMP/F/38.620 – Hydrogen peroxide and perborate) (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 13 December 2006 (OJ 2006 L 353, p. 54). It was notified to the applicant by letter of 8 May 2006.

The contested decision

10 The Commission stated in the contested decision that the addressees thereof had participated in a single and continuous infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA), regarding HP and the downstream product, PBS (recital 2 of the contested decision).

11 The infringement found consisted mainly of competitors exchanging commercially important and confidential market and company information, limiting and controlling production as well as potential and actual production capacities, allocating market shares and customers and fixing and monitoring adherence to target prices.

12 To calculate the amounts of the fines, the Commission applied the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’).

13 The Commission determined the basic amounts of the fines according to the gravity and duration of the infringement (recital 452 of the contested decision), which was categorised as very serious (recital 457 of the contested decision).

14 As part of a differentiating approach, the applicant, as the largest market operator on the markets concerned in the EEA, was placed in the first category, in respect of which the starting amount was EUR 50 million (recital 460 of the contested decision).

15 In order to ensure a sufficient deterrent effect, a multiplier of 1.5 was applied to that starting amount, in view of the applicant’s high turnover (recital 463 of the contested decision).

16 Since, according to the Commission, the applicant participated in the infringement from 31 January 1994 until 31 December 2000, namely a period of six years and 11 months, the starting amount of its fine was increased by 65% (recital 467 of the contested decision).

17 In view of the aggravating circumstances, the basic amount of the fine was increased by 50% on account of repeated infringement (recital 469 of the contested decision).

18 The Commission found that the applicant was the third undertaking to have satisfied the requirements of point 21 of the Leniency Notice and on that basis granted it a reduction in the fine of 10% (recitals 501 to 524 of the contested decision).

19 Article 1(m) of the contested decision states that the applicant infringed Article 81(1) EC and Article 53 of the EEA Agreement by participating in the infringement from 31 January 1994 until 31 December 2000.

20 The final amount of the fine imposed on the applicant under Article 2(h) of the contested decision is EUR 167 062 million.

Procedure and forms of order sought

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

22 The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was assigned to the Sixth Chamber, and, after the parties had been heard, the case was referred to the Sixth Chamber (Extended Composition).

23 By way of measures of organisation of procedure of 22 July 2009 and 6 January 2010, the Court put to the parties written questions, to which the parties replied on 15 September 2009 and 29 January 2010.

24 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 3 March 2010.

25 In accordance with Article 32 of the Rules of Procedure of the General Court, since two members of the chamber were prevented from attending the deliberations, the deliberations of the General Court were conducted by the three Judges who signed this judgment.

26 The applicant claims that the Court should:

– annul the contested decision, in full or in part, in particular in so far as the Commission found therein that the applicant participated in the infringement (a) between 31 January 1994 and August 1997 and (b) between 18 May and 31 December 2000;

– annul or substantially reduce the fines imposed on the applicant and on Solvay Solexis SpA;

– order the Commission to pay the costs, including the costs incurred in providing a bank guarantee relating to payment of the fine.

27 The Commission contends that the Court should:

– dismiss the application;

– order the applicant to pay the costs.

28 By document of 15 September 2009, the applicant withdrew in part its second head of claim, in so far as that head of claim sought the annulment or reduction of the fine imposed on Solvay Solexis. That withdrawal was confirmed at the hearing, and was noted in the minutes.

Law

29 In support of its action, the applicant relies on five pleas in law, alleging errors of law and in assessment of the facts in relation to, first, the finding of its participation in the infringement for the period from 31 January 1994 until August 1997, second, the finding of its participation in the infringement for the period from 18 May to 31 December 2000, third, the application of the Leniency Notice, fourth, the determination of the amount of the fine and, fifth, the refusal of access to certain material in the file.

30 It is apparent from the applicant’s arguments that the pleas relating to the duration of its participation in the infringement (first and second pleas) and to access to the file (fifth plea) are submitted in support of its application for annulment of the contested decision, whereas the pleas relating to the determination of the amount of the fine (fourth plea) and the reduction thereof pursuant to the Leniency Notice (third plea) are put forward in support of its application for annulment of the fine or the reduction in the amount thereof.

31 It is therefore appropriate to examine the pleas in that order.

The duration of the applicant’s participation in the infringement

Arguments of the parties

32 By the first and second pleas, the applicant contests the finding that it participated in the infringement during the initial and final periods of the cartel, from 31 January 1994 until August 1997, and from 18 May until 31 December 2000, respectively.

– The period from 31 January 1994 until August 1997

33 The applicant disputes the Commission’s conclusion that it participated in the infringement between 31 January 1994 and August 1997. The applicant distinguishes the period prior to May 1995 from the period between May 1995 and August 1997.

34 As regards the period between 31 January 1994 and May 1995, the applicant claims that the Commission did not prove that it took part in any discussions or exchanges of information with competitors.

35 First, in relation to the Stockholm meeting between EKA Chemicals and Kemira on 31 January 1994, the date determined as the start of the infringement, it was not clearly established that the meeting had actually taken place, since Kemira did not confirm it.

36 Moreover, the notes made by EKA Chemicals at that meeting, referring to Kemira’s discussions with other undertakings, including the applicant, did not establish that those discussions were illicit. That piece of evidence is not corroborated by any other evidence from which a link can be established between the bilateral cartel of EKA Chemicals and Kemira in the Scandinavian market and the alleged Europe-wide cartel.

37 Since the notes by EKA Chemicals indicated that the results of discussions with Air Liquide were ‘not so good’ and that the discussions with the applicant were ‘going better’, they demonstrated that Kemira had not reached an agreement either with Air Liquide or with the applicant. Since the Commission found that Air Liquide had not been party to the infringement at that time, it ought to have come to the same conclusion as regards the applicant.

38 Second, the meeting in Gothenburg on 2 November 1994 did not have any anti‑competitive purpose. The Commission’s argument that commercial data was exchanged during that meeting is not supported by the evidence produced by EKA Chemicals, and is contradicted by the information supplied by the applicant.

39 Third, as regards the contacts which allegedly took place on the fringes of the European Chemical Industry Council (CEFIC) meetings on 29 April 1994 in Rome and on 25 November 1994 in Zaventem, the statements by Degussa alone on the exchange of ‘competition sensitive data’ are not sufficient to prove that those contacts were unlawful.

40 As regards the period between May 1995 and August 1997, the applicant admits that it exchanged information with competitors, but claims that those exchanges cannot be classified as either an agreement or as a concerted practice.

41 The mere wish to restrict competition does not constitute an infringement of Article 81 EC. The Commission should have proved the existence of an agreement, resulting from a common wish by parties to conduct themselves on the market in a specific way. All the meetings described in the contested decision which took place prior to August 1997 ended without the undertakings having come to any agreement on even a single form of unlawful conduct to be adopted.

42 Thus, contrary to the requirements arising from the case-law relied on in recital 305 of the contested decision, the Commission did not prove that the undertakings concerned were in agreement on any specific line of conduct likely to restrict competition.

43 Nor did the Commission establish that the exchanges of information during the period at issue constituted a concerted practice.

44 According to the applicant, a concerted practice requires the existence of an agreement by competitors to behave in a certain manner, contacts between the undertakings enabling them to remove any uncertainty as to each other’s conduct, and an effect on their behaviour on the market.

45 In the applicant’s submission, the case‑law, relied on in recital 298 of the contested decision, that the possibility that exchange of information by way of preparation for a cartel may be deemed to be a concerted practice, applies only where an agreement has already been concluded and where the exchange takes place in order to effect its implementation. In the present case, there was no agreement or concerted practice prior to the exchange of information in question.

46 The disagreements of opinion among the participants in the meetings in question were so severe that there could not be any practical cooperation between them or, therefore, any concerted practice.

47 Furthermore, the information exchanged was not such as to influence the conduct of competitors or substantially to reduce uncertainty as to the conduct of other undertakings on the market.

48 During the period concerned, the focus of the discussions was upon the capacities and volumes of different suppliers, how to deal with the problem of new capacity and how to allocate additional demand. The exchange of information related to production volumes and was intended to develop models as to how to allocate those volumes to ensure reasonable levels of capacity utilisation, and not to allocation of market share. That information was not of a nature to enable the undertakings to adapt their commercial behaviour.

49 Since the Commission failed to consider whether the information exchanged could have been used for anti-competitive purposes, it failed to establish the causal link between the alleged concerted practices and market conduct.

50 Degussa’s statement on the exchange of ‘competition sensitive data’ is not sufficient proof of its unlawfulness.

51 Degussa mentioned, in its leniency application and in its reply of 5 September 2003 to the Commission’s request for information, contacts with competitors which allegedly took place over many years, without providing any detail of the content of the information exchanged. The assessment of that information, provided in the context of a leniency application, requires caution. Degussa’s statements are ambiguous and of dubious probative value, since they do not date from the material time and do not make it possible to identify individual witnesses. Given that they are not confirmed by other evidence in the file, they are not sufficient proof of the infringement.

52 Degussa itself did not acknowledge having committed an infringement before ‘mid-1997’. Degussa explained that the ‘term “exchange of market sensitive information” characterised the typical content of a discussion between sales personnel of competing undertakings’ and did ‘not relate to an active concertation of conduct between competing undertakings’. Degussa added that such exchanges ‘were only aimed at extending the information basis for future decisions of the undertakings’. They therefore had no other purpose than to create a ‘climate’ within which it might have been possible to take decisions in the future.

53 Degussa’s statements were not corroborated by the other undertakings. The documents supplied by EKA Chemicals confirmed solely that it and Kemira had exchanged information. Arkema referred only to unsuccessful discussions about a model that might be used to allocate production ‘tonnage’. It follows that, even by early 1997, the producers had come to no agreement or understanding on how to ‘establish a European market order’, despite attempts to do so.

54 The lack of any agreement or concerted practice is confirmed, first, by Degussa’s conduct at the time, notably its ‘WAR’ plan intended to increase its sales regardless of price and, secondly by the failure of discussions at the meeting in Seville in May 1997, described by Degussa and Arkema as having come ‘to a dead end’ because of the lack of confidence among the producers. The Commission itself acknowledged, in recital 164 of the contested decision, that no agreement had been reached at that meeting, when the applicant’s representative had ‘stormed out of the room’.

55 Since the Commission had not established the existence of concertation, it was not entitled to presume that the undertakings had taken account of information which other undertakings had disclosed to them. Unlike in Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 161 and 162, in the present case, the undertakings concerned had found it impossible to reach an agreement on any aspect of their commercial behaviour and, in any event, the information exchanged was not capable of being taken into account to implement any concerted practice.

56 The lack of a concerted practice is also corroborated by the fact that the HP market was very competitive prior to August 1997. In particular, HP prices fell markedly in late 1996 and early 1997, falling below the level of variable costs in some cases.

57 The evidence provided by several undertakings during the administrative procedure demonstrates that the market was very competitive throughout the period concerned. In view of that evidence, the Commission was obliged to establish that the exchange of information had indeed influenced the undertakings’ market behaviour.

58 Lastly, as regards PBS, there is no evidence to prove that the applicant committed an infringement prior to the meeting at Évian‑les‑Bains on 14 May 1998. Before that date no agreement had been reached and the producers had not exchanged any commercially sensitive information.

59 The Commission contends that it established to the requisite legal standard that the applicant’s conduct, from as early as 31 January 1994, fell within the prohibition laid down in Article 81(1) EC.

60 The Commission established that, during the period from 31 January 1994 to August 1997, the undertakings concerned had exchanged sensitive information with the specific aim of allowing them to anticipate each other’s conduct on the market, as regards production volumes, their possible reduction and the possible prevention of new capacity being brought onto the market (recitals 104 to 170 and 304 of the contested decision).

61 Degussa’s statements demonstrated that during the 1990s the undertakings exchanged ‘competition sensitive data’. It is clear from the description provided by Degussa that the information disclosed related to intended conduct on the market, namely ‘volume and price developments’ and ‘entry or exit of competitors’ (recital 104 of the contested decision).

62 That evidence is corroborated by documentary evidence provided by EKA Chemicals, which referred to ‘an understanding that existed between suppliers not to enter each other’s market’. EKA Chemicals drew up a list of meetings during which it stated that there was collusive behaviour. The notes made by EKA Chemicals at a bilateral meeting with Kemira on 31 January 1994 in Stockholm were a report of discussions with, inter alia, the applicant. It is evident from the content of that information that the producers were mutually controlling the behaviour of their competitors and that, in that context, Air Liquide was lacking discipline whereas the applicant was meeting the others’ expectations. EKA Chemicals also referred to a bilateral meeting between itself and the applicant on 2 November 1994 in Gothenburg (recitals 106 to 108 and 111 of the contested decision).

63 Contrary to what is claimed by the applicant, Kemira did not dispute that it participated in the meeting with EKA Chemicals on 31 January 1994 but acknowledged, on the contrary, its participation in the infringement from that date. Since the purpose of that bilateral meeting was illegal, it was obvious that the negotiations with other competitors, including the applicant, described in the notes made by EKA Chemicals were also illegal.

64 The applicant wrongly claims that there is no evidence that its meeting with EKA Chemicals on 2 November 1994 in Gothenburg was illegal. In fact, it is clear from information provided by EKA Chemicals that commercial data was exchanged during that meeting (recital 113 of the contested decision).

65 Degussa stated that the exchange of ‘competition sensitive data’ also took place on the fringe of CEFIC meetings on 29 April 1994 in Rome and on 25 November 1994 in Zaventem (recital 114 of the contested decision).

66 Those facts are corroborated by Arkema’s statements that, in April or June 1995, the applicant took part in discussions on ‘market trend and new entrances’, in relation to which ‘Degussa and [the applicant] aimed to keep the market and their existing respective positions as stable as possible’, and ‘a model for sharing out among producers [was] being discussed probably since 1994-1995’ (recitals 115 and 116 of the contested decision).

67 Moreover, in its reply to the statement of objections, the applicant admitted to contacts with competitors and to having shared market information from May 1995 onwards.

68 Those contacts, which occurred during the initial period of the cartel, had the objective of restricting competition and led to the conclusion of an agreement on prices and market allocation, are subject to the prohibition laid down in Article 81(1) EC (recital 305 of the contested decision). Those contacts can be regarded as forming part of the same collusive scheme.

69 The Commission accepts that no ‘firm’ agreement was reached on the model for market allocation, discussed at Milan on 31 October 1995 and at Seville in May 1997, but contends that the fact that such a model was proposed and discussed is sufficient to warrant the conclusion that there was an infringement of Article 81(1) EC.

70 The mere fact that, during the period in question, there were discussions relating to volumes, prices and models for sharing-out customers demonstrated a common wish to restrict competition. Contrary to what is claimed by the applicant, there was not only a ‘mere intent’, but a common scheme with the aim of reaching an agreement which would influence their conduct on the market.

71 Alternatively, the Commission contends that the competitors’ behaviour during the period in question constitutes a concerted practice within the meaning of Article 81(1) EC. Consequently, it could be characterised as falling under the prohibition of Article 81(1) EC, even if it had not reached the stage where ‘an agreement properly so-called was concluded’ (recital 309 of the contested decision).

72 During that period, the competitors exchanged information on sales volumes, prices and customers, which was such as to allow them to adapt their market behaviour (recital 308 of the contested decision and recitals 120, 127 and 144 thereof).

73 The information exchanged was sufficient to reduce uncertainty about the conduct of competitors on the market. The applicant has itself admitted sharing confidential information with its competitors, from May 1995 onwards, and stated that ‘[t]he participants discussed potential options to improve the market situation and anticipate the increase in capacities on the market’. The question was ‘whether it would be possible to come to any understanding’ (paragraphs 130 and 133 of the applicant’s reply to the statement of objections, and recitals 317 to 319 of the contested decision). That statement confirmed that the exchanges in question had the effect of putting competitors in a position to adapt their market behaviour. Furthermore, those exchanges served to ‘prepare the ground’ for price increases and market sharing practices.

74 Consequently, viewed as a whole, the body of evidence relied on in the contested decision met the requirements of being sufficiently precise and consistent to support the firm conviction that the applicant had committed the infringement from 31 January 1994.

– The period from 18 May until 31 December 2000

75 The applicant claims that the Commission erred in law and in the assessment of the facts, by finding that the cartel had continued after 18 May 2000.

76 First, the Commission has not proved that at the meeting on 18 May 2000 in Turku the participants had decided to continue the implementation of an agreement or concerted practice.

77 The Commission relied solely on evidence from Arkema, which is not decisive and uncorroborated by other evidence. The evidence from Arkema is contradictory, since Arkema also asserted that the meeting in question was ‘the opportunity for certain producers to indicate that times had changed’ and ‘to signal an interruption of the cooperation’. Its evidence of a ‘consensus’ which emerged at the meeting in question is contradicted by other undertakings.

78 Before the meeting of 18 May 2000, at a bilateral meeting in Krefeld, the applicant informed Degussa that it had no further interest in the cartel. The Commission stated, wrongly, that the meeting at Krefeld post-dated that at Turku.

79 As regards bilateral contact between the applicant and FMC Foret in late 2000, that one-off contact, concerning PBS, was not capable of proving the continuation of the cartel relating to HP. The cartel relating to PBS had already come to an end, and FMC Foret had ended its participation in the cartel at the end of 1999 in relation to HP.

80 Second, the Commission wrongly relied on a presumption that the effects of the cartel continued after May 2000. In order to establish the continuing effects of an agreement which was no longer in force, the Commission should have demonstrated its effects on prices.

81 In particular, the Commission disregarded the evidence that the market was competitive after May 2000. In relation to the movement of prices, the Commission relied solely on a document from Arkema, from which it emerged that its average prices had remained relatively stable throughout 2000. However, other documents from Arkema indicated that its prices had fallen in 2000 in the European Union and that the average price was not calculated only on the basis of EEA sales. In addition, even if prices remained stable, that might be due to a strong increase in demand and rising costs.

82 In so far as it stated that the applicant had not clearly distanced itself from the cartel after 18 May 2000, the Commission disregarded the fact that the cartel had ‘collapsed’ on that date and thus reversed the burden of proof, in breach of the principle of the presumption of innocence.

83 The Commission disputes the applicant’s arguments, referring in particular to the reasoning set out in recitals 355 to 360 of the contested decision.

Findings of the Court

84 Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.

85 In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256, and Case T-9/99 HFB Holding and Others v Commission [2002] ECR II‑1487, paragraph 199).

86 An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see, to that effect, HFB Holding and Others v Commission, paragraph 85 above, paragraphs 151 to 157 and 206).

87 The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 115, and Hüls v Commission, paragraph 55 above, paragraph 158).

88 In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, paragraph 87 above, paragraphs 116 and 117).

89 The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 82, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 178).

90 According to settled case‑law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (Commission v Anic Partecipazioni, paragraph 87 above, paragraphs 131 and 132, and HFB Holding and Others v Commission, paragraph 85 above, paragraph 190).

91 In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC (see, to that effect, Commission v Anic Partecipazioni, paragraph 87 above, paragraphs 111 to 114, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 696).

92 The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type (Hercules Chemicals v Commission, paragraph 85 above, paragraph 264, and HFB Holdings and Others v Commission, paragraph 85 above, paragraph 187).

93 In relation to adducing evidence of the infringement, it should be pointed out that it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement of Article 81(1)(EC) (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58).

94 The Commission must produce precise and consistent evidence in this respect (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited).

95 However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 180 and the case-law cited).

96 The items of evidence on which the Commission relies in the Decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see BPB v Commission, paragraph 89 above, paragraph 185 and the case-law cited).

97 It is also necessary to take account of the fact that anti‑competitive activities take place clandestinely, and accordingly, in most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).

98 As regards the scope of review by the Court, according to settled case‑law, where the Court is faced with an application for the annulment of a decision applying Article 81(1) EC, it must undertake in a general manner a comprehensive review of the question whether or not the conditions for the application of Article 81(1) EC are met (see Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 62 and the case-law cited).

99 Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed, in accordance with the principle of the presumption of innocence, which, as a general principle of European Union law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Hüls v Commission, paragraph 55 above, paragraphs 149 and 150, and Joined Cases T‑44/02 OP, T‑54/02 OP and T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraphs 60 and 61).

100 The question whether, in the present case, the Commission has established to the requisite legal standard that, during the periods at issue, the applicant’s conduct amounted to an infringement of Article 81(1) EC must be examined in the light of those considerations.

– The period from 31 January 1994 until May 1995

101 The applicant essentially submits that the Commission erred in assessing the facts in taking 31 January 1994 as the starting date of the infringement. The applicant claims that it has not been established that, prior to May 1995, it engaged in any contact with competitors which might infringe Article 81(1) EC.

102 It is apparent from recitals 104 to 114 and 351 of the contested decision that the Commission took 31 January 1994 as the starting date of the applicant’s participation in the infringement, on the basis of Degussa’s statements made in its application for immunity, which were backed up by documentary evidence from EKA Chemicals and by Arkema’s statements.

103 First of all, the Commission observed that, according to Degussa’s statements, in the course of the 1990s, the competitors had increasingly exchanged ‘competition sensitive data’, or even ‘market related information’. According to those statements, ‘the term "exchange of market related information" characterise[d] the typical content of a discussion between sales personnel of competing undertakings’. The Commission added that, according to those statements, ‘[t]he information which was orally communicated concerned volume and price developments, the market position of competitors and customers, the entry or exit of competitors, changes in production capacity, product innovation on the supply and demand side, and comparable matters’ (recital 104 of the contested decision). According to Degussa, the competitors engaged in such discussions in order inter alia to identify and verify competitors’ market shares and to find out about customer behaviour (recital 105 of the contested decision).

104 Next, as regards the precise starting date of the infringement, the Commission stated that the first evidence confirming Degussa’s statements, implicating inter alia the applicant, concerned the Stockholm meeting of 31 January 1994 between EKA Chemicals and Kemira, and the meeting of the same date between Degussa and EKA Chemicals. According to the Commission, that evidence shows that ‘EKA [Chemicals], Kemira, Degussa and [the applicant had] participated in collusive behaviour at least from the beginning of 1994’ (recitals 106 to 108 and 351 of the contested decision).

105 Lastly, the Commission stated that other illicit contacts took place in 1994 and 1995, which were recounted by EKA Chemicals (recitals 110 and 111 of the contested decision), by Degussa (recital 114) and by Arkema (recital 115 of the contested decision).

106 In this respect, the Court would point out, first of all, that Degussa’s statements, whose content is contested by the applicant, cannot, in themselves, constitute adequate proof of the applicant’s participation in the infringement.

107 According to settled case-law, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by undertakings which have been similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (JFE Engineering and Others v Commission, paragraph 95 above, paragraph 219, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285).

108 That consideration applies a fortiori in the circumstances of this case, in view of the general nature of the wording used by Degussa, which refers to all the meetings that took place during the initial period of the cartel, between 1994 and 1996. Those statements cannot therefore suffice in themselves to place the start of the applicant’s participation in the infringement at the beginning of 1994.

109 In so far as the Commission refers to statements by Degussa, according to which ‘competition sensitive data’ was exchanged during multilateral contacts on the fringes of the CEFIC meetings of 29 April and 25 November 1994 (recital 114 of the contested decision), the Court notes that that reference, which does not explicitly mention the applicant, forms part of the abovementioned statements of Degussa and cannot therefore be regarded as evidence capable of corroborating those statements.

110 Next, as regards the evidence adduced by the Commission to substantiate Degussa’s statements relating to the period concerned, it is common ground that the applicant did not participate in the meetings referred to in recital 351 of the contested decision, namely the Stockholm meeting of 31 January 1994 between EKA Chemicals and Kemira and the meeting of the same date between EKA Chemicals and Degussa.

111 In the context of those meetings, the Commission only referred to a document of EKA Chemicals, contemporaneous with the facts, according to which, in the meeting of 31 January 1994, EKA Chemicals and Kemira had exchanged information relating to the Scandinavian market and Kemira ‘[had] announced that [it had been] negotiating with [Air Liquide], but that the results of these discussions [were] not so good’. In the Commission’s view, according to that document, ‘[d]iscussions with [Degussa] and [the applicant], on the other hand, [were] going better’ (recital 106 of the contested decision).

112 Although that document reports, first, exchanges of information between the Scandinavian producers, Kemira and EKA Chemicals and, second, discussions between those two producers and certain producers on the ‘continental marketplace’, the reference made to the applicant in that context does not constitute adequate proof of its participation in illicit contacts surrounding the meeting concerned.

113 It is indirect evidence, which originates from an undertaking that did not participate in the alleged discussions with the applicant and which was not confirmed by Kemira. Moreover, the information in the document in question does not make it possible to identify the subject‑matter of the discussions in question.

114 In this respect, the Commission was wrong to consider that it had ‘no reason to doubt that the information in the document is a true reflection of what was discussed at the time’ and formed part of the cartel in which the applicant is alleged to have participated (recital 317 of the contested decision).

115 With respect to other bilateral contacts in 1994, recounted by EKA Chemicals, the Commission refers to the meeting between EKA Chemicals and the applicant on 2 November 1994 in Gothenburg, at which, according to EKA Chemicals, the participants had ‘discussed HP in Europe’ (recital 111 of the contested decision).

116 However, the Court would point out that that reference alone, which is framed in general terms, does not suffice to establish the illegal nature of the meeting concerned, since the illegal nature of the meeting is contested by the applicant. Nor can the illegal object of that meeting be proved by the Commission’s reference to other statements of EKA Chemicals, since those statements do not relate explicitly to that meeting, but refer only to the fact that, ‘[f]rom the 1990s onwards, meetings between EKA [Chemicals] and [the applicant] had mainly taken place with regard to general market issues, such as price information, market prognosis, etc.’ (recital 113 and footnote 84 of the contested decision).

117 Lastly, although the Commission found that Degussa’s statements were substantiated by Arkema’s statements relating to the meetings that took place during 1995, according to which, inter alia, ‘a model for sharing out among producers [had been] discussed probably since 1994-1995’ (recitals 104 and 115 of the contested decision), the Court none the less observes that Arkema’s statements relate to the multilateral meetings of ‘April or May 1995’ (recital 115 of the contested decision), and to subsequent contacts, and could not therefore be used as evidence corroborating Degussa’s statements in relation to the applicant’s participation in the infringement during earlier periods.

118 It follows from all the foregoing that the evidence set out in recitals 104 to 115 and 351 of the contested decision, viewed as a whole, does not constitute a body of evidence sufficient to warrant the Commission’s finding that the applicant participated in the infringement during the period from 31 January 1994 until May 1995.

119 First, Degussa’s statements, relied on in recitals 104 and 105 of the contested decision, do not suffice in themselves to establish that the applicant took part in collusive action from as early as 1994 and, second, the other evidence relied on in recitals 106 to 115 and 351 of the contested decision is not a sufficient corroboration of those statements as regards the applicant’s participation in illicit contacts prior to May 1995.

120 The applicant’s complaint alleging an error of assessment of the facts in relation to its participation in the infringement from 31 January 1994 until May 1995 must therefore be upheld.

– The period from May 1995 until August 1997

121 In the contested decision, the Commission found that the undertakings to which the decision was addressed, including the applicant, had participated in a complex cartel which consisted in a complex of agreements and concerted practices having as its object the restriction of competition within the meaning of Article 81(1) EC. Its principal aspects included exchange of market-relevant information, limitation of production and production capacities, the allocation of markets and the fixing of prices (recital 337 of the contested decision).

122 As regards specifically the initial period of the cartel, the Commission stated inter alia that at least as from 31 January 1994 the cartel participants met on a regular basis to exchange market-sensitive information and to discuss production volumes, their possible reduction or the prevention of new capacity being brought onto the market (recital 304 of the contested decision), and that those collusive contacts, which led to a firm agreement on prices and market allocation, could be regarded as forming part of the same collusive scheme (recital 305 of the contested decision).

123 Moreover, the Commission found that the exchanges of information on sales volumes, prices and customers during the initial period of the cartel were of such a nature as to allow the undertakings in question to take account of this information when determining their own behaviour on the market and that, consequently, it could be presumed that those undertakings had taken account of the information exchanged with their competitors in determining their own conduct on the market (recital 308 of the contested decision).

124 Thus, the Commission found that, ‘even if during the earlier period of the infringement it had not reached the stage where an agreement properly so-called was concluded, [the behaviour in question could] at least be characterised … as falling under the prohibition laid down in Article 81(1) [EC] … [since] the complex of collusive behaviour in its various forms [presented] all the characteristics of an agreement and/or a concerted practice’ (recital 309 of the contested decision).

125 In support of those findings, as regards the period from May 1995 to August 1997, the Commission referred inter alia to the following events:

– the multilateral meeting of April or May 1995 in Paris was organised with the purpose of establishing steady contact between the competitors, Degussa and the applicant having expressed their intention to stabilise, as far as possible, the existing positions on the market (recitals 115 to 117 of the contested decision);

– bilateral contacts on the fringe of the CEFIC assembly of 11 or 12 May 1995 in Dresden related to the issue of an expected price decline owing to the completion of new production facilities (recitals 118 and 119 of the contested decision);

– the bilateral meetings of June 1995 between Atofina and Air Liquide (recital 120 of the contested decision), between Atofina and Degussa (recital 121 of the contested decision) and between Degussa and EKA Chemicals (recital 122 of the contested decision) were devoted to discussions on overcapacity on the HP market and to the possibilities of cooperation between the producers, on the basis of a table presenting a detailed overview on a per customer and a per producer basis, which included the applicant’s data;

– generally, around 1995, several proposals relating to sales quotas and control of overcapacity ‘circulated’ for over a year and were the subject of discussions between Atofina, Degussa and the applicant (recitals 123 and 124 of the contested decision);

– the meeting between Atofina, Degussa and Chemoxal in Paris on 23 October 1995 related inter alia to a detailed proposal on limiting new capacity, including that from a new plant of the applicant’s, and to a proposed agreement on prices (recitals 126 and 127 of the contested decision);

– the producers were split into two groups, ‘A’ and ‘B ’, which were coordinated by the applicant and Degussa, respectively. Group ‘B’ was supposed to share amongst themselves the market shares defined by group ‘A’; group ‘A’ brought together the ‘market leaders’, namely Degussa and the applicant, and the Scandinavian undertakings, EKA Chemicals and Kemira (recitals 130 and 131 of the contested decision);

– the meeting of group ‘B’ of 31 October 1995 in Milan related to ‘[the constitution of] a model laying out how the extra market growth would be shared’ and the notes taken on that occasion refer inter alia to information relating to the applicant (recitals 132 and 133 of the contested decision);

– bilateral contacts, including also the applicant, surrounding the CEFIC meeting of 21 and 22 November 1995 in Brussels, and the meeting in Italy involved the exchange of market information and the definition of HP price levels for the following year, although those prices were not respected (recitals 134 to 136 of the contested decision);

– the bilateral meeting between Atofina and the applicant, at the beginning of 1996 in Paris, had the objective of comparing the views of groups ‘A’ and ‘B’ (recital 139 of the contested decision);

– meetings surrounding CEFIC assemblies in which the applicant participated, on 24 May 1996 in Gothenburg and on 27 November 1996 in Brussels, related to detailed proposals on market allocation and pricing, without however leading to a specific agreement (recitals 141 to 145 of the contested decision);

– a number of bilateral contacts in 1996 and 1997, including the meeting between EKA Chemicals and the applicant, in April or May 1997 in Copenhagen, in which the applicant asked whether EKA Chemicals would join the other producers in the coordinated efforts to reduce capacity, show that there were plans to reduce capacities (recitals 154 and 155 of the contested decision);

– the meetings of 28 or 29 May 1997, surrounding the CEFIC meeting in Seville, brought together groups ‘A’ and ‘B’ and related to a model based on the division of the HP market, although no final agreement was reached and the discussions were postponed until August 1997 (recitals 156 to 167 of the contested decision);

– bilateral contacts between the applicant, EKA Chemicals and Degussa followed those meetings during summer 1997 (recitals 168 to 170 of the contested decision).

126 The applicant does not contest either the fact that those contacts took place or the content of the discussions set out in the abovementioned recitals of the contested decision.

127 It none the less submits that those facts do not lead to the conclusion that there was an agreement or a concerted practice prior to the date of the multilateral meeting of August 1997 in Brussels, which led to a firm agreement on an HP price increase (recitals 171 to 174 of the contested decision) and is acknowledged by the applicant as the beginning of its participation in the infringement.

128 First, the applicant claims, referring to the material in recitals 115 to 170 of the contested decision, that, until that meeting of August 1997, the participants in the relevant discussions were not able to conclude an agreement on the allocation of markets or prices and did not engage in concerted practices.

129 In this respect, the applicant claims that Commission relied on an incorrect interpretation of the concepts of agreement and concerted practice within the meaning of Article 81(1) EC and erred in assessing the facts.

130 As regards the alleged error of law, it should be borne in mind that, in the context of a complex infringement, the Commission is not required to classify each of the infringements established as an agreement or concerted practice within the meaning of Article 81(1) EC, since they are forms of collusion having the same nature. Moreover, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81(1) EC (see paragraphs 90 and 91 above).

131 In the present case, the Commission cannot therefore be criticised in law for having defined the complex of conduct in question as displaying all the constituent features of ‘an agreement and/or a concerted practice’ in so far as it could be regarded as falling within one or another of those forms of collusion covered by Article 81(1) EC.

132 As regards the alleged error of assessment of the facts, the applicant submits, in essence, that, prior to August 1997, the competitors, first, did not reach an agreement on specific conduct on the market and, second, did not adopt a form of coordination which could be characterised as a concerted practice.

133 The applicant refers in particular to the information in the contested decision, according to which, in 1996, discussions ‘[had been] going around in circles for one year’ and seemed ‘to have come to a dead end’. It states that, still in May 1997, ‘[a] lacking confidence was a concurrent reason for not reaching an agreement about the retention of a status quo of market shares’, ‘the smallest manufacturers … [having] voted against the fixing of market shares’ (recitals 140, 142 and 164 of the contested decision).

134 Although the material relied on by the applicant indicates that the producers which participated in the meetings between May 1995 and August 1997 did not manage to conclude an agreement ‘properly so called’ on the allocation of the market, which the Commission itself found in recital 309 of the contested decision, the fact remains that they had regular discussions over an extended period on the scheme of such an agreement.

135 It is apparent from facts which have not been contested by the applicant that, following repeated invitations from Degussa and the applicant to their competitors on the HP market, meetings took place during May 1995 with the purpose of establishing a steady contact between the competitors. The participants discussed market trends and new entrances on the European HP market; Degussa and the applicant aimed to keep the existing positions on the market as stable as possible (recitals 115 to 117 of the contested decision).

136 Between May 1995 and August 1997, regular discussions took place the subject of which were proposals on sales quotas and control of overcapacity (recitals 123 and 124 of the contested decision), a detailed proposal to limit new capacities, including those of the applicant, and a proposed agreement on prices (recitals 126 and 127 of the contested decision), ‘[the constitution of] a model laying out how the extra market growth would be shared’ (recitals 132 and 133 of the contested decision), detailed proposals on market allocation and a price agreement (recitals 143 to 145 of the contested decision), coordinated efforts to reduce capacity (recitals 154 and 155 of the contested decision) or an articulate model on division of the HP market (recitals 159 to 167 of the contested decision).

137 The content of the discussions, which has not been called in question by the applicant, demonstrates that there was a common intention to restrict competition.

138 That series of regular meetings at which the undertakings met to discuss proposals for limiting new capacity, the allocation of market shares and an agreement on prices would not have been possible had there not been at the material time a common intention among those participating in the meetings to stabilise the market by measures restricting competition (see, to that effect, Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraph 46).

139 Since the discussions in question were clearly guided by a common intention of the participants to agree on the very principle of a restriction of competition, that consideration cannot be undermined by the fact that the specific features of the restriction envisaged were the subject of negotiations between the participants until August 1997 and that the modalities of the firm agreement of August 1997 concerning a coordinated increase in HP prices differed from those discussed at the earlier meetings.

140 The applicant’s involvement in those collusive contacts is indeed clearly apparent from its active participation in the discussions. It participated in most of the meetings during the period concerned, having ‘synthesize[d]’ the proposals (recitals 123 and 124 of the contested decision) and coordinated the group composed of the ‘market leaders’ (recitals 130 and 131 of the contested decision).

141 In this respect, the applicant’s reference to the fact that, at a meeting in May 1997 (recital 162 of the contested decision), its representative ‘stormed out of the room, … irritated by small producers’ counterrequests’ does not constitute evidence to establish that its participation in the meeting concerned, or a fortiori in all the contacts in question, was without any anti-competitive intention.

142 In the light of those considerations, the Commission was entitled to find that, since the conduct in question fell within an initial stage of the cartel and the applicant took part in that conduct, it was part of the same anti‑competitive scheme and was therefore caught by the prohibition laid down in Article 81(1) EC.

143 First, it should be borne in mind that an agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see paragraph 86 above).

144 In the present case, the applicant cannot therefore reasonably claim that, in so far as the undertakings did not agree to adopt specific courses of conduct on the market, the conduct in question amounts, at most, to a mere intention to restrict competition, which does not fall with the forms of collusion covered by Article 81(1) EC.

145 In so far as the material set out above shows that the competitors already had a common scheme whose objective was to arrive at an anti-competitive agreement, those discussions must be regarded as going beyond a mere intention or an attempt to conclude an agreement.

146 Second, the Court would point out that the contacts during the period in question could, in any event, be characterised as falling within Article 81(1) EC as a concerted practice.

147 It should be recalled that, according to settled case-law, the disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (see paragraph 89 above).

148 In this respect, even if the Commission does not succeed in showing that the undertakings concluded an agreement, in the strict sense of the term, it is sufficient, in order to find an infringement of Article 81(1) EC, that the competitors have made direct contact with a view to ‘stabilising the market’ (see, to that effect, BPB v Commission, paragraph 89 above, paragraph 170).

149 In the light of those considerations, it is necessary to reject the applicant’s contention that the disclosure of information to competitors may be deemed to be a concerted practice only where an anti‑competitive agreement has already been concluded and negotiations take place only in order to effect its implementation.

150 In the present case, the Commission established that the applicant had participated in a number of meetings with its competitors and that, during those meetings, information on market conditions was exchanged, price levels were discussed and the participants set out the commercial strategy that they intended to adopt on the market. It is also established that the information in question was exchanged with the purpose of preparing an agreement on the allocation of the market or on prices, its object thus being manifestly anti-competitive.

151 The Commission was therefore entitled to find that the applicant had taken part in a concerted practice which had the object of restricting competition.

152 That finding is not called into question by the applicant’s argument that, given the lack of mutual trust between the competitors, it was inconceivable that they could have engaged in concerted practices.

153 The different views of the participants, or the lack of trust between them, are not in themselves sufficient to preclude the existence of concertation capable of being categorised as a concerted practice. The applicant’s arguments do not tell against the facts established by the Commission, from which it is apparent that, despite a certain lack of trust between them, the competitors met regularly in the period concerned and exchanged information on market conditions and their commercial strategy with the aim of preparing an anti-competitive agreement.

154 Contrary to the applicant’s claim, it cannot be alleged that the Commission did not establish that the information exchanged, in view of its content, was capable of being used for anti‑competitive purposes.

155 The anti-competitive object of the conduct in question is clear from the nature of the information exchanged at the meetings during the period concerned, since that information included sales figures relating to previous years and forecasts for the future (recital 120 of the contested decision), as well as from the content of the proposals discussed, which related to the retention of the status quo on the market, the allocation of new production capacity and the definition of HP price levels (see, for example, recitals 115, 127, 133, 136 and 144 of the contested decision).

156 The Commission therefore established to the requisite legal standard that, since the exchange of information in question served to ‘prepare the ground’ for the price increases and market sharing practices resulting from that exchange, it constituted a form of collusion covered by Article 81(1) EC.

157 It follows from those considerations that the Commission was entitled to find that the conduct at issue could be considered to fall within the prohibition laid down in Article 81(1) EC, inasmuch as it was part of a complex displaying the constituent features of an agreement ‘and/or’ a concerted practice (recitals 308 and 309 of the contested decision).

158 As regards the applicant’s argument that the HP market remained competitive until August or September 1997, HP prices having diminished considerably at the beginning of 1997, it should be borne in mind that, according to settled case-law, for the purposes of applying Article 81(1) EC there is no need to take account of the actual effects of an agreement or a concerted practice once it appears that the infringement had as its object the prevention, restriction or distortion of competition within the common market (Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I‑1843, paragraph 140, and Case C‑8/08 T‑Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 29).

159 In the present case, since the Commission found that the applicant had taken part in an anti-competitive agreement and/or concerted practice which had as its object the restriction of competition on the HP market, it was not required to take account of the actual effects of the conduct in question.

160 In any event, as regards specifically a concerted practice, according to settled case-law, the presumption must be that – subject to proof to the contrary, which it is for the economic operators concerned to adduce – the undertakings taking part in the concerted arrangements and who remain active on the market take account of the information exchanged with their competitors when determining their conduct on that market (Commission v Anic Partecipazioni, paragraph 87 above, paragraphs 118 and 121, and Hüls v Commission, paragraph 55 above, paragraphs 161 and 162).

161 In this respect, even it were established that that conduct had no influence on prices during the period concerned, that would not call into question the legality of the Commission’s findings.

162 In particular, the fact that a concerted practice has no direct effect on price levels does not preclude a finding that it limited competition between the undertakings concerned, inter alia by eliminating competitive pressures (see, to that effect, Dansk Rørindustri v Commission, paragraph 138 above, paragraphs 139 to 140).

163 Accordingly, the applicant’s argument that the Commission failed to have regard to the fact that the market remained competitive during the period concerned cannot succeed.

164 As regards the applicant’s argument that the facts relied on in the contested decision concerning the period in question relate predominantly to the HP market, and not the PBS market, it should be recalled that the contested decision is based on the finding of a single infringement relating to the two markets concerned (recital 328 et seq. of the contested decision), a categorisation which the applicant does not contest in the present case.

165 Since the Commission categorised the cartel in question as a single infringement, it was not required to establish, as part of that categorisation, the various durations of the acts which related to the PBS market alone. Moreover, given that this case does not concern separate infringements, the Commission was not required to take account of that difference when determining the duration of the infringement as a whole.

166 It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied in their intensity according to the market concerned. Those factors must be taken into consideration only when the gravity of the infringement is assessed and when determining the amount of the fine (see, by analogy, Commission v Anic Partecipazioni, paragraph 87 above, paragraph 90).

167 In the present case, in accordance with those considerations, the Commission stated that, when setting the fine, it had taken account of the fact that the collusion regarding PBS had commenced later than that regarding HP and had ceased earlier (recital 331 of the contested decision).

168 The applicant’s argument alleging insufficient proof of anti‑competitive acts on the PBS market with respect to the period in question cannot therefore succeed.

169 Lastly, since the applicant has not demonstrated that the contested decision was vitiated by an error of law in the application of Article 81(1) EC, it is also necessary to reject its argument, based on essentially the same premiss, that the Commission interpreted that provision too broadly, in breach of the principle that penalties must have a proper legal basis.

170 In the light of all the foregoing, the Court rejects the complaint relating to the finding of the infringement for the period from May 1995 to August 1997.

– The period from 18 May until 31 December 2000

171 With respect to the final period of the infringement, the Commission observed, in recital 356 of the contested decision, that Article 81(1) EC applies to a cartel which continues to produce its effects after it has been formally brought to an end and that that is the case in particular where undertakings do not cease applying the reference prices agreed at the cartel meetings.

172 Applying those considerations to the circumstances of this case, the Commission stated that, according to Arkema’s statements, which were consistent with other evidence, at the multilateral meeting in Turku on 18 May 2000, there was a general consensus on maintaining the price levels throughout 2000 and that, accordingly, it could be considered that the effect on prices had continued at least during the second half of 2000 (recital 357 of the contested decision). 31 December 2000 was therefore taken as the relevant date for the end of the infringement, inter alia in the applicant’s case (recital 360 of the contested decision).

173 The applicant submits, in essence, that the Commission committed an error of law and in assessment of the facts in finding that the cartel had continued after the meeting of 18 May 2000.

174 In this respect, it should be borne in mind that, according to settled case‑law, Article 81 EC also applies to agreements which continue to produce effects after the agreements have formally ceased (Case 243/83 Binon [1985] ECR 2015, paragraph 17, and Case T-14/89 Montedipe v Commission [1992] ECR II‑1155, paragraph 231).

175 In particular, the Commission may lawfully find that a cartel continues to produce its effects after collusive meetings have formally ceased in so far as the price increases planned during those meetings are to be applied at a later time (see, to that effect, 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 and Others v Commission [2007] ECR II‑947, paragraph 186).

176 In the present case, since the Commission established that the meeting of 18 May 2000 had led to a general consensus on maintaining price levels for the second half of 2000, it was entitled to conclude that the cartel continued to produce effects until 31 December 2000.

177 That conclusion is not called into question by the applicant’s arguments alleging, first, that the evidence put forward by the Commission was inadequate.

178 The Court would point out that the applicant does not dispute that the informal meeting in question took place, or that it participated in that meeting. In this respect, the applicant is wrong to submit that Arkema’s statements, referring to a ‘consensus’, do not mean that there was a common intention of the participants to continue to produce the effects of the agreement. That argument is contradicted by the wording of those statements, which refer to the existence of ‘final discussions’ on prices to apply on 1 January 2001 and of a ‘general consensus’ on maintaining their levels (recital 282 of the contested decision).

179 The applicant is also incorrect to rely on an alleged contradiction between Arkema’s evidence on the consensus on prices and its other statements, according to which the Turku meeting had been ‘the opportunity for certain producers to indicate that times had changed’ and ‘to signal an interruption of the cooperation and thus end the controlled regulation of the market’. Those statements, which report the intention to bring to an end the anti-competitive conduct and therefore signal that the cartel had formally ceased to be in force, are not inconsistent with the existence of a consensus on maintaining its effects until the end of the year.

180 In addition, contrary to the applicant’s claim, Arkema’s statements are consistent with other material in the file, in particular, with the information, confirmed by several undertakings and undisputed by the applicant, that, in meetings which took place on the fringes of the bi‑annual CEFIC assemblies, prices were usually established for the subsequent six months (recital 357 of the contested decision).

181 The Court would point out, in this respect, that, where there is a consistent body of evidence demonstrating the existence of the cartel, there needs to be a particularly good explanation in order to demonstrate that, during a particular meeting, things occurred which were completely different from what had transpired at earlier meetings when all those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose (Opinion of Judge Vesterdorf acting as Advocate General in Case T‑1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, II‑954).

182 In any event, the evidence that several competitors continued the collusion until at least the end of 2000, despite its formal cessation, was supported by the existence of certain bilateral contacts subsequent to the meeting of 18 May 2000 (recital 357 of the contested decision).

183 The applicant’s argument seeking to establish that one of those contacts was lawful, namely its meeting with FMC Foret, is in this respect not capable of calling into question the Commission’s finding that the cartel continued to produce effects, since that finding is not based on that isolated fact, which is merely a secondary item of evidence in the body of evidence relied on by the Commission.

184 Nor can the applicant succeed in arguing that it stated at a bilateral meeting with Degussa, in May or June 2000 (recitals 283 to 285 of the contested decision), that ‘further discussions among producers on market, capacity shares as well as the reallocation thereof, were no longer the way to go forward’.

185 It is sufficient to note in that regard that that view expressed by the applicant during a bilateral contact, which could indeed be interpreted as an illustration of the difficulties of maintaining the cartel, does not show that it publicly distanced itself from the infringement, thus putting an end to its participation in the cartel.

186 It follows from those considerations that the Commission established to the requisite legal standard that the meeting of 18 May 2000 had led to a general consensus on maintaining price levels and, therefore, that the cartel had continued to produce effects during the second half of 2000.

187 That conclusion is not invalidated by the applicant’s arguments alleging, second, a lack of analysis of the actual prices charged on the market during the period concerned and the presence, in the file, of evidence that the market was competitive.

188 In so far as the Commission established that the price levels which were the subject of a general consensus during the meeting in question were to apply during the second half of 2000, it was entitled to find that the cartel had continued to produce effects during that period, and was not required to establish that the cartel had had an actual effect on prices charged (see, to that effect, Bolloré and Others v Commission, paragraph 175 above, paragraph 186).

189 Contrary to the applicant’s claim, since that finding is based on the view, which is established to the requisite legal standard, that there was a common intention of the parties to prolong the effects of the cartel despite its having formally ceased to be in force, it does not stem from a reversal of the burden of proof and cannot therefore be contrary to the principle of the presumption of innocence.

190 In the light of the foregoing, the Court finds that the applicant’s arguments have not called in question the Commission’s finding that the infringement continued until 31 December 2000.

191 The Court therefore also rejects that complaint.

192 Following examination of the first and second pleas, the Court finds that the Commission did not establish to the requisite legal standard that the applicant had taken part in the infringement during the period from 31 January 1994 until May 1995.

193 The Court dismisses the first and second pleas as to the remainder.

194 Consequently, it is necessary to annul Article (1)(m) of the contested decision, in so far as the Commission found therein that the applicant participated in the infringement during the period prior to May 1995, and to adjust the amount of the fine imposed on the applicant in Article 2(h) of the contested decision, so as to take account of the reduced period of its participation in the infringement. The practical consequences of that adjustment will be set out in paragraphs 440 and 441 below.

The alleged infringement of the rights of the defence

Arguments of the parties

195 In the fifth plea, the applicant claims that the Commission refused it access (i) to some of the documents in the file provided by Degussa and (ii) to the replies to the statement of objections submitted by the other undertakings concerned. That refusal constitutes an infringement of the applicant’s rights of defence, and Article 27(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003, L 1, p. 1).

196 First, the applicant states that it has had restricted access to the documents provided by Degussa, containing its internal monthly reports relating to the HP market for the year 2000. The Commission committed an error of law and an error of assessment by refusing the applicant full access to those documents.

197 The information in question could not objectively be regarded as confidential, because it consisted of reports at least five years old, reflecting short term strategies. In relation to comparable information from the applicant, the Commission took the view that it could no longer be regarded as confidential after three years.

198 Furthermore, the confidentiality of a document is not an absolute bar to its disclosure. The applicant’s rights of defence should have prevailed over the confidentiality of data. It was possible to take appropriate measures to protect the confidentiality of information.

199 The Degussa document was relevant to determining whether an infringement had been committed after the meeting on 18 May 2000 in Turku and, consequently, was indispensable to the applicant’s defence. The extracts from the Degussa documents relating to the year 2000 indicated that the market was competitive, and that might have made it possible to refute the existence of the infringement during that period.

200 Second, the applicant submits that the Commission infringed Article 27(2) of Regulation No 1/2003 and its rights of defence by refusing it access to the replies to the statement of objections given by the other undertakings concerned.

201 The Commission was wrong to state that such access was not a requirement of Community law. The Commission has disclosed replies to a stateme