JUDGMENT OF THE COURT (Fourth Chamber)

19 December 2013 ( )

Table of contents

I – Legal context

II – Background to the disputes and the contested decision

III – The actions before the General Court and the judgments under appeal

IV – Developments following the delivery of the judgments under appeal

V – Forms of order sought by the parties and the procedure before the Court of Justice

VI – The appeals

VII – The grounds of appeal relating to proof of the infringement

A – The grounds raised by Siemens, alleging a lack of evidence of its participation in the infringement between 22 April 1999 and 1 September 1999

1. The ground alleging a distortion of the evidence and an infringement of principles derived from experience

a) Arguments of the parties

b) Findings of the Court

2. The ground of appeal alleging an infringement of Article 25 of Regulation No 1/2003, in that the General Court refused to apply the rules on limitation periods for actions to the period prior to 22 April 1999

a) Arguments of the parties

b) Findings of the Court

B – The grounds of appeal raised by Mitsubishi and Toshiba alleging a lack of evidence of the existence of the common understanding

1. The grounds of appeal alleging a distortion of the evidence and contradictory or insufficient grounds

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

2. The grounds of appeal alleging errors of law in the assessment of the probative value of statements which run counter to the interests of the declarant

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

3. The grounds of appeal alleging errors of law in the application of the criteria relating to the assessment and weighting of evidence

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

4. The grounds of appeal alleging errors of law in the application of the principles concerning the ‘corroboration of evidence’

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

5. The grounds of appeal alleging an error of law in that the General Court did not allow Mitsubishi and Toshiba to submit an alternative explanation of the facts held against them by the Commission

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

6. The grounds of appeal alleging an error of law in that the General Court held that the Commission was able to conclude that there was a single and continuous infringement

a) Arguments of the parties

i) Mitsubishi’s appeal

ii) Toshiba’s appeal

b) Findings of the Court

VIII – The grounds of appeal relating to the determination of the amount of the fines

A – Arguments of the parties

B – Findings of the Court

IX – The grounds of appeal relating to the observance of fundamental procedural rights and the duty to state reasons

A – The ground of appeal alleging an infringement of the fundamental rights to a fair hearing and to observance of the rights of the defence, in that an incriminating witness was not able to be questioned

1. Arguments of the parties

2. Findings of the Court

B – The ground of appeal alleging an infringement of the right to an effective judicial remedy, in that the General Court failed to exercise its powers of unlimited jurisdiction

1. Arguments of the parties

2. Findings of the Court

C – The grounds of appeal alleging an infringement of the rights of the defence, in that the Commission did not grant access to incriminating and exculpatory evidence and reversed the burden of proof

1. Arguments of the parties

a) Mitsubishi’s appeal

b) Toshiba’s appeal

2. Findings of the Court

D – The ground of appeal alleging an infringement of the duty to state reasons

1. Arguments of the parties

2. Findings of the Court

X – Costs

(Appeals – Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Market sharing – Regulation (EC) No 1/2003 – Proof of the infringement – Single and continuous infringement – Distortion of the evidence – Probative value of statements which run counter to the interests of the declarant – Fines – Starting amount – Reference year – Deterrent multiplier – Powers of unlimited jurisdiction – Equal treatment – Rights of the defence – Duty to state reasons)

In Joined Cases C‑239/11 P, C‑489/11 P and C‑498/11 P,

THREE APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, lodged on 19 May 2011, 22 September 2011 and 23 September 2011 respectively,

Siemens AG, established in Munich (Germany), represented by I. Brinker, C. Steinle and M. Hörster, Rechtsanwälte (C‑239/11 P),

Mitsubishi Electric Corp., established in Tokyo (Japan), represented by R. Denton, Solicitor, and K. Haegeman, advocaat (C-489/11 P),

Toshiba Corp., established in Tokyo, represented by J. MacLennan, Solicitor, A. Dawes, Solicitor, A. Schulz, Rechtsanwalt, and S. Sakellariou, dikigoros (C‑498/11 P),

appellants,

the other parties to the proceedings being:

European Commission, represented by A. Antoniadis, R. Sauer, N. Khan and P. Van Nuffel, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

supported by

EFTA Surveillance Authority, represented by M. Schneider and M. Moustakali, acting as Agents,

intervener in the appeal (C-239/11 P),

THE COURT (Fourth Chamber),

composed of L. Bay Larsen, President of the Chamber, K. Lenaerts, Vice‑President of the Court, acting as Judge of the Fourth Chamber, M. Safjan, J. Malenovský, and A. Prechal (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: A. Impellizzeri, Administrator,

having regard to the written procedure and further to the hearing on 2 May 2013,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeals, Siemens AG (‘Siemens’), Mitsubishi Electric Corp. (‘Mitsubishi’) and Toshiba Corp. (‘Toshiba’) seek the annulment, respectively, of:

– the judgment of the General Court of the European Union in Case T‑110/07 Siemens v Commission [2011] ECR II‑477 (‘judgment in Siemens v Commission’);

– the judgment of the General Court in Case T‑133/07 Mitsubishi Electric v Commission [2011] ECR II‑4219 (‘judgment in Mitsubishi Electric v Commission’); and

– the judgment of the General Court in Case T‑113/07 Toshiba v Commission [2011] ECR II‑3989 (‘judgment in Toshiba v Commission’) (referred to collectively as ‘the judgments under appeal’);

by which the General Court, first, in the judgment in Siemens v Commission, dismissed the action brought by Siemens seeking the annulment, in so far as it concerned it, of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear), a summary of which has been published in the Official Journal of the European Union (OJ 2008 C 5, p. 7) (‘the contested decision’), and, second, in the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, annulled the fines imposed respectively on Mitsubishi and Toshiba by the contested decision and dismissed their actions as to the remainder.

I – Legal context

2 Article 23 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), entitled ‘Fines’, provides:

‘…

2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article 81 [EC] or Article 82 [EC]; …

…

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

…

5. Decisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature.’

3 Article 25 of Regulation No 1/2003, entitled ‘Limitation periods for the imposition of penalties’, states:

‘1. The powers conferred on the Commission by Articles 23 and 24 shall be subject to the following limitation periods:

…

(b) five years in the case of all other infringements.

2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases.

…’

4 Article 31 of that regulation, entitled ‘Review by the Court of Justice’, provides:

‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’

II – Background to the disputes and the contested decision

5 The disputes concern a cartel relating to the sale of gas insulated switchgear (‘GIS’), which is used to control energy flow in electricity grids. It is heavy electrical equipment, used as a major component for turnkey power sub-stations.

6 On 3 March 2004, ABB Ltd (‘ABB’) informed the Commission of the existence of a cartel in the GIS sector and submitted an oral application for immunity from fines pursuant to the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the Leniency Notice’). ABB’s request for immunity was supplemented by oral observations and documentary evidence. On 25 April 2004, the Commission granted conditional immunity to ABB.

7 On the basis of ABB’s statements, the Commission launched an investigation and, on 11 and 12 May 2004, it carried out inspections at the premises of Siemens, Areva T&D SA, the VA Tech Group, Hitachi Ltd and Japan AE Power Systems Corp (‘JAEPS’). On 20 April 2006, the Commission adopted a statement of objections which was notified to 20 companies, including Siemens, Mitsubishi and Toshiba. A hearing of the undertakings concerned took place on 18 and 19 July 2006.

8 On 24 January 2007, the Commission adopted the contested decision which was notified to the same 20 companies to which the statement of complaints had been sent, namely, in addition to the three appellants, to ABB, Alstom SA, Areva SA, Areva T&D AG, Areva T&D Holding SA and Areva T&D SA (the latter four companies are referred to collectively as ‘Areva’), Fuji Electric Holdings Co. Ltd and Fuji Electric Systems Co. Ltd (the latter two companies are referred to collectively as ‘Fuji’), Hitachi Ltd and Hitachi Europe Ltd (referred to collectively as ‘Hitachi’), JAEPS, Nuova Magrini Galileo SpA, Schneider Electric SA, Siemens AG Österreich, Siemens Transmission & Distribution Ltd, Siemens Transmission & Distribution SA and VA Tech Transmission & Distribution GmbH & Co. KEG (‘VA Tech’).

9 The characteristics of the cartel as found in the contested decision are summarised in the judgments in similar terms. Accordingly, in paragraphs 12 to 14 of the judgment in Siemens v Commission, those characteristics are described as follows:

‘12 In recitals 113 to 123 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had coordinated the allocation of GIS projects worldwide – except for specific markets – according to agreed rules in order to maintain quotas largely reflecting estimated historic market shares. It pointed out that the allocation of GIS projects had been carried out on the basis of a joint “Japanese” quota and a joint “European” quota, which the Japanese and European producers then had to distribute among themselves. An agreement signed in Vienna on 15 April 1988 (“the GQ Agreement”) established rules allowing the allocation of GIS projects to either Japanese producers or European producers and to set their value against the corresponding quota.

13 In addition, in recitals 124 to 132 of the contested decision, the Commission stated that the various undertakings which participated in the cartel had entered into an unwritten agreement (“common understanding”), under which GIS projects in Japan, on the one hand, and in the countries of European members of the cartel, on the other – together described as the “home countries” for GIS projects – were reserved to Japanese members and European members of the cartel respectively. GIS projects located in the “home countries” were not the subject of information exchanges between the two groups and were not charged to their respective quotas. The GQ Agreement also contained rules relating to the exchange of information necessary for operation of the cartel between the two groups of producers, carried out in particular by their respective secretaries, and to the manipulation of the bidding procedures concerned and the fixing of prices for GIS projects which could not be allocated. Under the terms of Annex 2 to the GQ Agreement, the agreement applied worldwide, except in the United States, Canada, Japan and 17 western European countries. Furthermore, under the common understanding, GIS projects in European countries, other than the “home countries”, were also reserved for the European group, as the Japanese producers had undertaken not to submit bids for GIS projects in Europe.

14 According to the Commission, the sharing of GIS projects among European producers was governed by an agreement also signed in Vienna on 15 April 1988, entitled “E-Group Operation Agreement for GQ Agreement” (“the EQ Agreement”). It indicated that the distribution of GIS projects in Europe followed the same rules and procedures as those governing the distribution of GIS projects in other countries. In particular, GIS projects in Europe also had to be notified, recorded, allocated, arranged or have received a minimum price.’

10 On the basis of the findings of fact and legal assessments made in the contested decision, the Commission concluded that the undertakings involved had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) (‘the EEA Agreement’) and imposed on them fines calculated in accordance with the methods 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) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’) and in the Leniency Notice.

11 The Commission decided that, pursuant to the Leniency Notice, ABB’s application for immunity had to be granted, but that each of the leniency applications brought by Siemens, Mitsubishi, Areva, the VA Tech Group, Hitachi/JAEPS and Fuji had to be rejected.

12 Articles 1 and 2 of the contested decision provide:

‘Article 1

The following undertakings infringed Article 81 EC … and Article 53 of the EEA Agreement by participating, during the periods indicated, in a complex of agreements and concerted practices in the [GIS] sector in the [European Economic Area] (EEA):

…

(l) [Mitsubishi], from 15 April 1988 to 11 May 2004;

…

(o) Siemens …, from 15 April 1988 to 1 September 1999, and from 26 March 2002 to 11 May 2004;

…

(s) Toshiba …, from 15 April 1988 to 11 May 2004;

…

Article 2

For the infringements referred to in Article 1, the following fines are imposed:

(a) ABB …: EUR 0;

…

(g) [Mitsubishi]: EUR 113 925 000;

(h) [Mitsubishi], jointly and severally with Toshiba. ...: EUR 4 650 000;

(i) Toshiba …: EUR 86 250 000;

…

(m) Siemens …: EUR 396 562 500.’

III – The actions before the General Court and the judgments under appeal

13 First of all, by the judgment in Siemens v Commission, the General Court rejected the three pleas raised by Siemens in support of its application for annulment of the contested decision and, consequently, dismissed the action in its entirety.

14 It is clear from paragraph 24 of that judgment that those pleas alleged, first, an infringement of Article 81(1) EC and Article 53 of the EEA Agreement, second, an infringement of Article 25 of Regulation No 1/2003 and, third, errors of law in the calculation of the fine.

15 Next, it is apparent from the judgment in Mitsubishi Electric v Commission that, in support of the form of order which it sought, Mitsubishi had raised five pleas which the General Court summarised as follows in paragraph 27 of that judgment:

‘By its first plea it alleges that the Commission did not establish that the applicant infringed Article 81 EC and Article 53 of the EEA Agreement by participating in a cartel having as its object or effect the restriction of competition in the [EEA]. By its second plea the applicant alleges that the Commission failed to establish the existence of an agreement infringing Article 81 EC and Article 53 of the EEA Agreement to which the applicant was a party. By its third plea it argues that the Commission committed an error in disregarding the evidence explaining its lack of presence in, and proving its difficulty entering, the European market. By its fourth plea the applicant alleges that the Commission infringed the rules of evidence in reversing the burden of proof and infringed the principle of the presumption of innocence. By its fifth plea the applicant claims that the Commission infringed the principles of equal treatment and proportionality in calculating the starting amount of the fine imposed on it on the basis of its 2001 turnover. By its sixth plea the applicant submits that the Commission infringed its duty to state reasons in choosing to calculate the fine on the basis of its 2001 turnover. By its seventh plea the applicant alleges that the Commission erred in defining the worldwide GIS market and the applicant’s share of it, thereby infringing the principles of equal treatment and proportionality. By its eighth plea the applicant claims that the Commission infringed its duty to state reasons in finding that the applicant controlled between 15% and 20% of the worldwide market. By its ninth plea the applicant submits that the Commission infringed the principle of sound administration in estimating the worldwide market value. By its tenth plea the applicant claims that the Commission infringed the principles of equal treatment and proportionality in calculating the deterrent factor applicable to it. By its eleventh plea the applicant maintains that the Commission infringed the principle of proportionality in calculating its fine by the same method as that employed to calculate the fines imposed on the European producers. By its twelfth plea the applicant claims that the Commission failed to take account of relevant economic and technical evidence in calculating its fine. By its thirteenth plea the applicant argues that the Commission erred in determining the duration of the cartel. By its fourteenth plea the applicant maintains that the Commission infringed its rights of defence and its right to a fair hearing by not granting it access to incriminating and exculpatory evidence. By its fifteenth plea the applicant submits that the Commission infringed its rights of defence by not putting forward to it its conclusions on the theory of compensation inherent in the common understanding.’

16 The General Court rejected all of Mitsubishi’s pleas in its main application for annulment of the contested decision in so far it concerned it and TM T&D Corp. (‘TM T&D’) – a company in which Mitsubishi and Toshiba hold equal shares – and thus confirmed that those companies had committed an infringement, as was found in the contested decision.

17 However, in paragraphs 264 to 280 of the judgment in Mitsubishi Electric v Commission, in the context of the examination of the fifth plea raised by Mitsubishi in support of its action, the General Court held that the Commission had infringed the principle of equal treatment in calculating the starting amounts of the fines of the Japanese producers on the basis of their global sales of GIS for 2001, whereas it used 2003 as the reference year for the European producers. The General Court concluded from this that Article 2(g) and (h) of the contested decision had to be annulled in so far as it concerned Mitsubishi and that the action had to be rejected as to the remainder.

18 Finally, in so far as concerns the judgment in Toshiba v Commission, it is apparent from paragraph 26 of that judgment that, in support of the form of order which it sought, Toshiba relied on four pleas in law alleging, first, that, in the contested decision, the Commission did not establish to the requisite standard the existence of a common understanding, second, that the Commission did not establish a single and continuous infringement, third, that its rights of defence were infringed and, fourth, that the Commission wrongly imposed a fine on it.

19 By that judgment, the General Court rejected the three pleas raised by Toshiba in support of its main application seeking the annulment of the contested decision in so far as it concerned it, and thus confirmed that that company had committed an infringement, as had been found in the contested decision.

20 However, in paragraphs 280 to 293 of the judgment in Toshiba v Commission, in the context of the examination of the fourth plea, the General Court held that the Commission had infringed the principle of equal treatment in calculating the starting amounts of the fines of the Japanese producers on the basis of their global sales of GIS for 2001, whereas it used 2003 as the reference year for the European producers. The General Court concluded, as it did in the judgment in Mitsubishi Electric v Commission, that Article 2(h) and (i) of the contested decision had to be annulled in so far as it concerned Toshiba and that the action had to be dismissed as to the remainder.

IV – Developments following the delivery of the judgments under appeal

21 Taking note of the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, on 27 June 2012 the Commission adopted Decision C(2012) 4381, amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and Article 53 of the EEA Agreement to the extent that it was addressed to Mitsubishi Electric Corp. and Toshiba Corp., a summary of which has been published in the Official Journal of the European Union (OJ 2013 C 70, p. 12) (‘the contested decision as amended’). Pursuant to the contested decision as amended, the Commission imposed fines on Mitsubishi and Toshiba, in the amount of EUR 74 817 000 and EUR 56 793 000 respectively, in respect of the infringements for which each of those companies was individually liable, and EUR 4 650 000 on the same two companies in respect of the infringements in respect of which they were found to be jointly and severally liable.

22 By two actions brought before the General Court on 12 September 2012 (Cases T‑404/12 and T‑409/12), which are currently pending before that court, Mitsubishi and Toshiba requested the annulment of the contested decision as amended.

V – Forms of order sought by the parties and the procedure before the Court of Justice

23 By its appeal, Siemens claims that the Court of Justice should:

– primarily, set aside the judgment in Siemens v Commission, in so far as it affects it and annul in part the contested decision in so far as it affects it;

– in the alternative, annul or reduce the fine imposed on it in that decision;

– in the further alternative, refer the case back to the General Court for reassessment of points of law in accordance with the Court’s judgment; and

– in any event, order the Commission to pay the costs of both instances.

24 By its appeal, Mitsubishi claims that the Court should:

– set aside the judgment in Mitsubishi Electric v Commission in so far as it dismisses the action which it brought before the General Court;

– annul the articles of the contested decision which have not already been annulled by the General Court, in so far as they apply to Mitsubishi and TM T&D for the period during which Mitsubishi shares joint and several liability with Toshiba for the activities of TM T&D; and

– in any event, order the Commission to pay its own costs and those incurred by Mitsubishi at both instances.

25 By its appeal, Toshiba claims that the Court should:

– first, and primarily, set aside the judgment in Toshiba v Commission in so far as it rejected Toshiba’s request for the annulment of Article 1 of the contested decision and, second, annul that decision;

– in the alternative, refer the case back to the General Court for reassessment in accordance with the judgment of the Court of Justice as to points of law;

– in any event, order that Toshiba be reimbursed its costs, including those incurred in the context of the proceedings before the General Court.

26 The Commission contends that the Court should:

– dismiss the three appeals in their entirety; and

– order the appellants to pay the costs of the proceedings.

27 The EFTA Surveillance Authority (‘the Authority’), which was granted leave, by order of the President of the Court of Justice of 16 April 2012, to intervene in support of the form of order sought by the Commission in Case C‑239/11 P, requests the Court to dismiss the appeal in that case.

28 The parties, the Judge‑Rapporteur and the Advocate General having been heard on the issue, Cases C‑239/11 P, C‑489/11 P and C‑498/11 P were joined for the purposes of the judgment by decision of the President of the Fourth Chamber, taken pursuant to Article 54 of the Rules of Procedure of the Court.

VI – The appeals

29 Siemens raises seven grounds for annulment in support of its appeal, alleging respectively:

– an infringement of the fundamental right to a fair trial, such as guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), in conjunction with Article 6(3) TEU and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and an infringement of the rights of the defence, as guaranteed by Article 48(2) of the Charter, in that the General Court did not sanction the fact that the Commission based its finding that Siemens had participated in the cartel from 22 April 1999 to 1 September 1999 primarily on the statement of Mr M., a former ABB employee, without having granted Siemens the possibility to question that witness;

– distortion of the evidence and an infringement of principles derived from experience, in that the General Court found that Siemens had participated in the cartel from 22 April 1999 to 1 September 1999 and thus erroneously determined the duration of the infringement for which it could be held liable;

– an infringement of Article 25 of Regulation No 1/2003, in that the General Court refused to apply the rules on limitation periods for actions to the period up to 22 April 1999, in finding there to have been a single and continuous infringement;

– an infringement of the principle of equal treatment in relation to the reference year and the categorisation of Siemens for the purposes of calculating the fine;

– an infringement of the principle of equal treatment when fixing the amount of the fine in relation to the determination of the deterrent multiplier;

– an infringement of Article 6 of the ECHR and of Article 47 of the Charter, in that, in finding that it could not replace by its own method of calculation the method chosen by the Commission to calculate the increase for deterrence, the General Court failed to use its powers of unlimited jurisdiction to cancel, reduce or increase fines; and

– an infringement of the duty to state reasons, in that the General Court was not severe enough regarding the requirements to state reasons in relation to the calculation of the deterrent multiplier.

30 In support of its appeal before the Court of Justice, Mitsubishi raises two grounds for annulment. The first alleges significant errors of law committed by the General Court when assessing the evidence relating to the existence of the common understanding, and comprises seven branches, alleging respectively that the General Court:

– distorted the information concerning the existence of the common understanding;

– failed to apply the correct standard for review of evidence and misapplied the principle that statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable;

– misapplied the case‑law on the standard and weighting of evidence in concluding that Mr M.’s statement was credible and of probative value;

– misapplied the law on corroboration to Fuji’s reply to the statement of objections;

– failed to consider the overall effect of the individual breaches by the Commission of Mitsubishi’s rights of defence and right to a fair hearing;

– infringed Mitsubishi’s rights of defence, in particular the presumption of innocence, by requiring that company to prove a negative fact to show that it had not committed an infringement; and

– breached the presumption of innocence and misapplied legal principles by refusing to consider the alternative plausible explanation.

The second ground of appeal raised by Mitsubishi alleges errors of law committed by the General Court in that it did not establish, to the requisite legal standard, the purported duration of the alleged infringement.

31 In support of its appeal, Toshiba raises four grounds for annulment, alleging, respectively, that the General Court committed errors of law in finding:

– that the witness statements furnished by ABB were capable of proving the existence of a common understanding;

– that there was corroborating evidence and indirect evidence of the existence of a common understanding;

– that Toshiba participated in a single and continuous infringement; and

– that Toshiba’s rights of defence were not breached by the non-disclosure of several exculpatory witness statements.

VII – The grounds of appeal relating to proof of the infringement

A – The grounds raised by Siemens, alleging a lack of evidence of its participation in the infringement between 22 April 1999 and 1 September 1999

1. The ground alleging a distortion of the evidence and an infringement of principles derived from experience

a) Arguments of the parties

32 By the first part of the second ground in support of its appeal, Siemens complains that the General Court distorted the evidence in finding, in paragraph 183 of the judgment in Siemens v Commission, that the statements of the main incriminating witness, Mr M., concerning the issue of Siemens’s participation in the cartel from 22 April 1999 to 1 September 1999 were not contradictory. Yet, it is apparent from paragraphs 181 and 182 of that judgment that, in reality, the statements at issue were equivocal, ambivalent and contradictory.

33 By the second part of that ground of appeal, Siemens submits that the General Court clearly infringed ‘principles derived from experience’ in finding, in paragraph 183 of the judgment in Siemens v Commission, that the evolution over time of Mr M.’s statements was a result of the fact that they simply became more and more specific over time as Mr M. remembered increasingly specific details. In accordance with established knowledge relating to the functioning of the memory and the psychology of witnesses, it is in fact indisputable that memories do not become stronger over time, but in fact become weaker.

34 By the third part of the second ground in support of its appeal, Siemens submits that, in finding, in paragraph 70 of the judgment in Siemens v Commission, that Mr M. could not have, in contrast to ABB, a personal interest in maximising the infringing conduct of ABB’s competitors, the General Court infringed the ‘principle derived from experience’ that individuals from an undertaking which participated in the cartel may themselves have an interest in maximising such conduct and minimising their own liability, and thus distorted the evidence in question.

35 As the General Court rightly stated in paragraph 64 of the judgment in Siemens v Commission, it cannot be ruled out that ABB, as a candidate for leniency, might have felt inclined to maximise the significance of the infringing conduct which it was revealing, so as to harm its competitors on the market. There is such risk not only in relation to ABB’s statements, but also those of Mr M., since the General Court confirmed, in paragraph 69 of that judgment, that those statements did not constitute different and independent evidence.

36 Siemens argues that the result is that the General Court ultimately accepted the self‑regarding nature of Mr M.’s statements. However, such statements, if admitted as evidence of an infringement, should have been treated critically and with caution, since they were such as to jeopardise the fairness of the procedure, as guaranteed by Article 6(1) of the ECHR.

37 The Commission contends that this ground of appeal is admissible in its entirety, in so far as what Siemens actually seeks to achieve from it is a reexamination of the application lodged before the General Court, which goes beyond the jurisdiction of the Court. So far as concerns the substance, the Commission considers that the General Court cannot be accused of having distorted the wording of Mr M.’s witness statement in relation to the date Siemens temporarily withdrew from the cartel.

b) Findings of the Court

38 First of all, it must be borne in mind that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the General Court has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 38 and the case‑law cited).

39 The jurisdiction of the Court of Justice to review the findings of fact by the General Court therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 39 and the case‑law cited).

40 By contrast, contrary to what Siemens maintains, the Court’s power of review in the context of an appeal cannot extend to the alleged infringement of purported principles derived from experience, such as those claimed by Siemens, concerning, inter alia, established knowledge relating to the functioning of the memory and the psychology of witnesses, or the fact that individuals from an undertaking involved in the cartel may themselves have an interest in maximising the unlawful conduct of competitors and minimising their own liability.

41 Review of an infringement of that nature requires a factual assessment which is fundamentally different from the marginal review which the Court carries out when an appellant complains, in a sufficiently detailed manner, that the General Court distorted the evidence.

42 It should be pointed out that, according to settled case-law, the distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, Case C‑260/09 P Activision Blizzard Germany v Commission [2011] ECR I‑419, paragraph 53 and the case‑law cited).

43 Consequently, the second and third parts of Siemens’s second ground of appeal must be rejected as inadmissible, in as much as they are based on an alleged infringement of principles derived from experience.

44 Next, it should be borne in mind that the review carried out by the Court in order to assess a ground of appeal alleging the distortion of evidence is restricted to ascertaining that, in relying on that evidence to make a finding that an undertaking participated in a cartel, the General Court did not manifestly exceed the limits of a reasonable assessment of that evidence. The task of the Court of Justice is not, therefore, to assess independently whether the Commission has established such participation to the requisite legal standard and thus discharged the burden of proof necessary to show that the rules of competition law were infringed, but to determine whether, in finding that that was actually so, the General Court misconstrued the evidence in a manner manifestly at odds with its wording (see, to that effect, Activision Blizzard Germany v Commission, paragraph 57).

45 In the present case, in so far as concerns the statements of ABB and Mr M., it cannot be claimed that paragraph 183 of the judgment in Siemens v Commission is vitiated by a distortion of the evidence. In reasoning its decision on the basis of those statements to reach the conclusion that Siemens participated in the cartel from 22 April 1999 to 1 September 1999, the General Court did not manifestly exceed the limits of a reasonable assessment of those statements, since its interpretation of that evidence was not manifestly at odds with its wording.

46 Finally, even if an interpretation of that evidence different from the General Courts were possible, the fact remains that the interpretation put forward by Siemens is not the only interpretation which is compatible with the wording of that evidence, and that the different interpretation adopted by the General Court does not reveal any distortion of their content or, in particular, any substantive inaccuracy (see, by analogy, Activision Blizzard Germany v Commission, paragraph 54).

47 In the light of the foregoing, the second ground of appeal raised by Siemens must be rejected as partly inadmissible and partly unfounded.

2. The ground of appeal alleging an infringement of Article 25 of Regulation No 1/2003, in that the General Court refused to apply the rules on limitation periods for actions to the period prior to 22 April 1999

a) Arguments of the parties

48 By its third ground of appeal, Siemens complains that the General Court rejected its arguments relating to the limitation period of the infringement in respect of the period prior to 22 April 1999.

49 It maintains that the General Court found there to be a single and continuous infringement solely by applying, in paragraphs 242 to 254 of the judgment in Siemens v Commission, the criteria listed in paragraph 241 of that judgment. In doing so, the General Court infringed the rules on limitation periods for actions, as laid down in Article 25 of Regulation No 1/2003.

b) Findings of the Court

50 Given that the second ground of appeal raised by Siemens has been rejected, the result, as rightly submitted by the Commission, is that the third ground of appeal raised by that appellant must also be rejected.

51 It is apparent from paragraphs 236 to 239 of the judgment in Siemens v Commission that the General Court rejected the plea based on the limitation period on the sole ground that the Commission had rightly found, in the contested decision, that the first stage of Siemens’s participation in the infringement did not end until September 1999, thus after 10 May 1999, that is to say five years prior to the day preceding the on‑site inspections carried out by the Commission on 11 and 12 May 2004.

52 However, since the second ground of appeal raised by Siemens, seeking to dispute its participation in the cartel in relation to the period from 22 April 1999 to 1 September 1999, has already been rejected, the ground of appeal concerning the plea based on the limitation period must, consequently, also be rejected.

53 Moreover, although, in the context of the third ground of appeal, Siemens criticises, in particular, paragraphs 242 to 254 of the judgment in Siemens v Commission concerning the existence of a single and continuous infringement, it must be found that, as can be seen in particular and clearly from paragraph 239 of that judgment, paragraphs 240 to 254 of that same judgment concern grounds included purely for the sake of completeness.

54 It is settled case-law that complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness cannot lead to the judgment being set aside and are therefore ineffective (see, inter alia, Case C‑96/09 P Anheuser‑Busch v Budějovický Budvar [2011] ECR I‑2131, paragraph 211 and the case‑law cited).

55 Consequently, the third ground of appeal raised by Siemens must be rejected as ineffective.

B – The grounds of appeal raised by Mitsubishi and Toshiba alleging a lack of evidence of the existence of the common understanding

1. The grounds of appeal alleging a distortion of the evidence and contradictory or insufficient grounds

a) Arguments of the parties

i) Mitsubishi’s appeal

56 By the first part of its first ground of appeal, which concerns paragraphs 107 to 195 of the judgment in Mitsubishi Electric v Commission, Mitsubishi submits that the General Court distorted certain items of evidence relating to the existence of the common understanding.

57 It maintains, in that regard, first of all, that, in paragraphs 116 and 118 of that judgment, the General Court distorted the statements provided by Mr M. and other witnesses of ABB.

58 Second, in paragraphs 164 and 172 of the judgment in Mitsubishi Electric v Commission, Mitsubishi claims that the General Court distorted the evidence furnished by Hitachi in relation to the notification and project loading mechanism as indirect evidence of the existence of the common understanding.

59 Third, Mitsubishi submits that the General Court distorted the evidence furnished by Hitachi in relation to Alstom’s alleged proposal, at the meeting of 10 July 2002 and summarised in paragraph 140 of the judgment in Mitsubishi Electric v Commission, namely that ‘European suppliers should stay in Europe and the Japanese suppliers should stay in Japan and not attempt to penetrate the European market’ (‘the Alstom proposal’), in finding that Hitachi’s statement rejecting that proposal had to be interpreted as meaning that that undertaking did not reject the common understanding as such, but only its extension to central and eastern Europe.

60 Fourth, Mitsubishi claims that the General Court distorted other evidence in the file in that it found, in paragraphs 187 to 191 of the judgment in Mitsubishi Electric v Commission, that the Japanese producers had not participated in the EQ Agreement and that they were not aware of its existence, but none the less drew two contradictory and inadequately reasoned conclusions from those findings in paragraphs 187 and 189 of the same judgment.

61 The Commission contends that the first part of the first ground of Mitsubishi’s appeal must be rejected as inadmissible. In so far as they are admissible, the appellant’s arguments are either ineffective or unfounded.

ii) Toshiba’s appeal

62 By the second part of its first ground of appeal, Toshiba complains that the General Court distorted the evidence submitted to it for assessment in concluding that the witness statements produced by ABB and given by Mr Wi. and Mr P. constituted evidence of the existence of a common understanding.

63 Moreover, in the context of the first part of its second ground of appeal, Toshiba submits that the General Court distorted Hitachi’s rejection of the Alstom proposal in deciding, in paragraphs 153 and 154 of the judgment in Toshiba v Commission, that that evidence had to be interpreted as meaning that Hitachi had not rejected the very idea of allocating markets, but only the proposal to expand the common understanding to central and eastern European countries.

64 The Commission contends that the General Court’s interpretation of that evidence does not distort its content in any way, since it is manifestly a reasonable reading of it.

65 By the second part of its second ground of appeal, Toshiba submits that, in its assessment of several items of evidence furnished by the Commission to demonstrate the existence of the common understanding, the General Court relied on contradictory grounds. It claims that that was particularly the case for its assessment, in paragraphs 159, 160 and 206 of the judgment in Toshiba v Commission, that the EQ Agreement constituted indirect evidence of the common understanding and its assessment, made in paragraphs 184 and 206 of that judgment, that the statements of ABB and Hitachi relating to the notification and project loading mechanism also constituted indirect evidence of the common understanding.

66 The Commission disputes the contradictory nature of the grounds concerned.

b) Findings of the Court

67 It should be borne in mind at the outset that, within the limits described in paragraphs 42 and 44 above, the Court has jurisdiction, in the context of an appeal, to examine the substance of complaints alleging a distortion by the General Court of the evidence, provided that those complaints are developed in a sufficiently detailed manner. Second, it is settled case‑law that the question whether the grounds of a judgment of the General Court are contradictory or inadequate is a question of law which is amenable, as such, to review on appeal (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 77 and the case‑law cited).

68 As regards, first of all, the alleged distortion by the General Court of the statements provided by Mr M. and other witnesses of ABB, which, it is claimed, is apparent from the considerations set out in paragraphs 116 and 118 of the judgment in Mitsubishi Electric v Commission, it must be found that Mitsubishi merely criticises two particular assessments made by the General Court, which concern the probative value of only Mr M.’s witness statement.

69 However, those paragraphs form part of a detailed evaluation, made by the General Court in paragraphs 107 to 128 of that judgment, of the probative value of a bundle of evidence furnished by ABB, in particular statements made by that undertaking, including its statement of 11 March 2004, and by four other witnesses, employees or former employees of that undertaking, namely Mr M., Mr Wi., Mr P. and Mr V.-A.

70 Following that evaluation, the General Court concluded, first, that the four witness statements provided by ABB were such as to prove the existence of the common understanding and were coherent in so far as concerns the existence and fundamental content of the common understanding and, second, that those witness statements were credible and, consequently, of high probative value.

71 Moreover, the two particular assessments of the probative value of the witness statement of Mr M. which is criticised by Mitsubishi, even if they were removed and analysed out of context, as noted in paragraph 69 above, do not show that the General Court distorted that witness statement in any way.

72 First of all, as regards paragraph 116 of the judgment in Mitsubishi Electric v Commission, the General Court essentially found in that paragraph, without manifestly distorting the wording of Mr M.’s witness statement as set out in the administrative file, that its probative value could not be called into question as a result of the fact that Mr M. was not present when the common understanding was concluded or because the subject of that understanding had not been discussed at one of the meetings at which he had been present.

73 The General Court substantiated its point of view on the basis, first, of the consideration that a witness is perfectly able to furnish evidence of a long-standing phenomenon even if he was not present at its inception and, second, of Mr M.’s witness statement, pursuant to which the issue of the common understanding had not been referred to explicitly at the meetings which he had attended, because the content of the common understanding was understood, accepted and implemented by the participants to the cartel without the need for any explicit discussion in that regard.

74 In coming to that conclusion, the General Court did not manifestly exceed the limits of a reasonable assessment of Mr M.’s witness statement and, consequently, did not distort that evidence.

75 That conclusion is all the more compelling when account is taken of the General Court’s grounds, set out in paragraph 115 of the judgment in Mitsubishi Electric v Commission, in the light of which the particular considerations criticised in paragraph 116 of that judgment are of secondary importance. Indeed, in paragraph 115 of that judgment, the General Court substantiated the probative value of Mr M.’s witness statement by the fact that he had been one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators within it, with the result that Mr M. had to be considered to be a direct and privileged witness of the matters which he disclosed in his witness statement.

76 Moreover, by submitting that the General Court should have concluded from this that Mr M.’s witness statement had no probative value in relation to the creation, existence or implementation of the common understanding, Mitsubishi is, in reality, contesting the General Court’s assessment of the probative value of that evidence.

77 However, since such arguments cannot be analysed as constituting a complaint alleging a distortion of, or failure to have regard to, the rules on the burden of proof and the taking of evidence, they must be rejected as inadmissible (see, to that effect, Sumitomo Metal Industries and Nippon Steel v Commission, paragraphs 56 and 57 and the case‑law cited).

78 Next, in so far as concerns paragraph 118 of the judgment in Mitsubishi Electric v Commission, Mitsubishi is also wrong to submit that, in that paragraph, the General Court distorted the wording of Mr M.’s witness statement in considering that that statement contained information on the duration of the common understanding, its content and the participants thereto.

79 In coming to that conclusion, the General Court did not distort that witness statement, since its assessment was not manifestly contrary to the content of that statement, as summarised in the following terms in paragraph 117 of the judgment in Mitsubishi Electric v Commission, and of which Mitsubishi makes no criticism:

‘… [A]s regards the content of his witness statement, Mr M. stated that an understanding relating to the mutual protection of domestic markets, predating the GQ Agreement, existed between the Japanese and European producers, that that understanding was a prerequisite for the conclusion of agreements relating to other regions and that compliance with its rules implied that the Japanese producers were not to enter the domestic market of the European producers, even though they would have been able to do so at a technical level. Mr M. also explained, in that context, the notification and project loading mechanism and the fact that the GIS projects in the home countries were not discussed between the two groups of producers and were not charged to the quotas set under the GQ Agreement.’

80 At this stage, it is also necessary to reject the complaint raised by Toshiba in the context of its first ground of appeal, alleging that the General Court distorted, in its assessment, other witness statements provided by ABB, namely those submitted by Mr Wi. and Mr P.

81 Even supposing, as stated by Toshiba, that those two witnesses participated in meetings relating to the cartel in the GIS sector only for an 18‑month, or one‑year, period, and that the common understanding was not mentioned during those meetings, it is not apparent, contrary to what Toshiba maintains, that the General Court distorted the content of those witness statements in concluding, in paragraphs 130 and 131 of the judgment in Toshiba v Commission, that the evidence furnished by ABB, of which those two witness statements form part, was coherent in that the existence of the common understanding is referred to therein.

82 In drawing that conclusion, the General Court relied, in paragraph 128 of the judgment in Toshiba v Commission, on the following assessment of the content of the witness statements of Mr Wi. and Mr P.:

‘… Mr Wi. stated that the absence of the Japanese undertakings on the European market was the result of a system in place to protect the Japanese and European markets, motivated by the fact that neither of the two groups of producers wanted the other group to enter its domestic market. Similarly, Mr P. referred spontaneously to a common understanding with the Japanese undertakings pursuant to which the latter undertook not to participate in the European market and the European undertakings undertook not to participate in the Japanese market. …’

83 It must be found that no distortion of the wording of those two witness statements is apparent from the General Court’s assessment.

84 Second, in so far as concerns the complaint alleging a distortion of the evidence furnished by Hitachi concerning the notification and project loading mechanism, it should be noted that, following an examination, in paragraphs 156 to 174 of the judgment in Mitsubishi Electric v Commission, of a bundle of evidence relating to that mechanism, the General Court concluded, in paragraph 175 of that judgment, that the regular notification to the group of Japanese producers of certain GIS projects in the EEA after their allocation and the loading of those projects into the joint ‘European’ quota, provided for in the GQ Agreement, had been established in so far as concerned the period from 1988 to Hitachi’s withdrawal from the cartel in 1999 by ABB’s statements, those of Hitachi and Mr M.’s witness statement and that, in addition, that mechanism constituted indirect evidence of the existence of the common understanding.

85 In its analysis, the General Court also rejected, in paragraph 161 of the judgment in Mitsubishi Electric v Commission, certain items of evidence relied on by the Commission as being irrelevant as proof of that mechanism. The same is true of certain lists provided by ABB. Mitsubishi cannot, therefore, rely on such evidence, in the context of the present appeal, to challenge the assessment made by the General Court in relation to the probative value of other evidence in the file.

86 In paragraph 162 of that judgment, the General Court even rejected as irrelevant some of Hitachi’s statements and the Commission’s argument alleging an information communication mechanism provided for in Annex 2 to the EQ Agreement.

87 First, Mitsubishi criticises specifically paragraph 172 of the judgment in Mitsubishi Electric v Commission on the ground that, according to its wording, the General Court admitted that ABB’s and Hitachi’s statements did not mention regular and compulsory notification, but none the less considered that it was clear from the wording used in the documents concerned that notification was carried out regularly and applied to all of the participants and projects concerned.

88 Mitsubishi submits that the General Court distorted the evidence in drawing such a conclusion from it.

89 In the context of its second ground of appeal, Toshiba criticises paragraph 184 of the judgment in Toshiba v Commission, the wording of which is identical to that in paragraph 172 of the judgment in Mitsubishi Electric v Commission, by submitting that that paragraph of the judgment in Toshiba v Commission is based on contradictory grounds, with the result that the General Court could not rely on the evidence at issue as indirect evidence of the existence of the common understanding.

90 In that regard, it must be found that, in those paragraphs of the judgments under appeal concerned, the General Court stated that the issue of the regularity of the GIS project notification was not addressed explicitly in ABB’s and Hitachi’s statements or in Mr M.’s witness statement, but that it was clear from the wording used in the documents concerned that notification was carried out regularly and applied to all of the participants and projects concerned.

91 However, those two findings do not contradict one another, since there is nothing preventing the subject concerned, even if it is not expressly addressed in the documents at issue, from emerging implicitly from them and, consequently, through their interpretation. In addition, neither Mitsubishi nor Toshiba shows in any way how that assessment on the part of the General Court was based on a distortion of the actual wording of the documents at issue.

92 Consequently, the respective complaints of Mitsubishi and Toshiba concerning the assessment of that evidence must be rejected.

93 Moreover, in so far as concerns Mitsubishi’s complaint alleging a distortion in relation to paragraph 164 of the judgment in Mitsubishi Electric v Commission, in that the General Court wrongly held therein, in Mitsubishi’s view, that, in its response to the statement of objections, Hitachi had explicitly confirmed the existence of the notification and project loading mechanism alleged by the Commission until 1999, it must be found that the General Court arrived at that conclusion by reiterating, in paragraph 163 of that judgment, the content of that statement. It is not disputed that that reiteration is consistent with the wording set out in recital 130 of the contested decision.

94 In paragraph 163 of that judgment, the General Court summarised that statement as follows:

‘… [I]n its reply to the statement of objections, Hitachi stated that, before it discontinued its participation in the cartel in 1999, the European producers disclosed to the Japanese producers details of GIS projects which they would be supplying in Europe, to ensure that those projects were taken into account when agreeing the quota of GIS projects outside of the EEA allocated to the two groups of producers under the GQ Agreement.’

95 In considering, in paragraph 164 of the judgment in Mitsubishi Electric v Commission, that, by that statement, Hitachi had expressly confirmed the existence of the notification and project loading mechanism – referred to by the Commission – until 1999, the General Court did not read that statement in a manner which was manifestly contrary to its wording, as summarised in paragraph 163 of that judgment. Consequently, the General Court did not distort the meaning of that statement.

96 Third, as regards the complaint alleging a distortion of Hitachi’s statement relating to the Alstom proposal, that part of the file is summarised in paragraph 140 of the judgment in Mitsubishi Electric v Commission as follows:

‘It is apparent from recital 127 of the contested decision that, at the meeting of 10 July 2002 during which there was discussion of the development of the modes of operation of the cartel after Siemens and Hitachi had withdrawn from it, Alstom proposed that the European producers should stay in Europe and the Japanese producers should stay in Japan and not attempt to enter the European market. In addition, it is stated in that recital that, at the following meeting on 15 July 2002, Hitachi’s representative had stated that Hitachi rejected that proposal, that the European producers had reacted by stating that Europe, including central and eastern Europe, was their market and that they wanted to maintain the prices they were currently charging in western Europe and had also said that the issue was to be raised again, even though that was not the case.’

97 Although, as the General Court also observes in paragraph 141 of the judgment in Mitsubishi Electric v Commission, that summary, which is moreover not criticised as such by Mitsubishi, may, at first sight, be understood as meaning that, by its statement, Hitachi rejected the proposal to conclude a new understanding, with the result that, at least as of July 2002, there was no market‑sharing agreement, the General Court ultimately opted for an alternative interpretation of that document, namely that the Alstom proposal concerned only the extension of the common understanding to central and eastern European countries, meaning that Hitachi’s rejection related only to that extension and not the common understanding as such.

98 It is apparent from paragraphs 142 and 143 of the judgment in Mitsubishi Electric v Commission that the General Court substantiated that interpretation by considering, in essence, that it was clear from that summary, first, that Hitachi merely rejected the Alstom proposal and not the idea itself of market sharing and, second, that Hitachi itself had stated that the claims of the European producers included central and eastern Europe. It is equally evident from those paragraphs of the judgment under appeal that the General Court also took account of the consideration that, if, as Mitsubishi claimed, the Japanese producers were not perceived by the European producers as credible competitors on the EEA market, the latter would not have been inclined in any case to propose a market share covering both the EEA market and the central and eastern European markets.

99 In finding as it did, the General Court did not read that summary in a manner which was manifestly contrary to its wording.

100 Moreover, as stated by the Commission, the, at the very least, reasonable nature of that interpretation is confirmed by the fact that that summary, which is set out in recital 127 of the contested decision, is situated in a more general context in that part of the decision, namely that concerning the perspective, as of 2002, of integrating the central and eastern European markets into the western European markets, although, traditionally, the latter were regarded by European producers as belonging to them, which, in the long run, was likely to give rise to controversy, especially since, in the past, certain Japanese producers had carried out economic activities in central and eastern European countries.

101 Consequently, the complaint alleging a distortion of Hitachi’s statement relating to the Alstom proposal must be rejected. Since Toshiba has essentially raised the same complaint in the context of the first part of its second ground of appeal, that ground of appeal must also be rejected on the same grounds.

102 Fourth, in so far as concerns the allegation of a distortion in relation to paragraphs 187 and 189 of the judgment in Mitsubishi Electric v Commission, it must be noted, first, in relation to the first of those paragraphs, that that paragraph seeks specifically to respond to an argument raised by Mitsubishi and which is reproduced in paragraph 178 of that judgment.

103 By that argument, Mitsubishi submitted that the fact that the EQ Agreement provided that only the European producers were to submit supporting bids for European GIS projects showed that the European customers would not have regarded bids submitted by the Japanese producers as credible.

104 In paragraph 187 of the judgment in Mitsubishi Electric v Commission, the General Court responded to that argument by deciding that such a conclusion in relation to the credibility of bids submitted by the Japanese producers could not be drawn from Article 6(4) of the EQ Agreement since that agreement did not concern the Japanese producers.

105 That assessment cannot be called into question in the context of this appeal by Mitsubishi’s argument that the General Court wrongly held that such bids were credible since, over a 16‑month period, the European customers did not ask the Japanese producers for any bids and did not question the absence of such bids. Such an argument is inadmissible on appeal, since it directly calls into question an assessment of the facts made by the General Court and relies on certain findings of facts, the accuracy of which is not for the Court to verify and which are of no relevance in demonstrating that a document in the case file has been distorted.

106 Second, as regards the complaint alleging a distortion of the evidence by the General Court, inferred from the considerations set out in paragraph 189 of the judgment in Mitsubishi Electric v Commission, it is first necessary to place that paragraph into context.

107 That paragraph forms part of the reasoning, in paragraphs 188 to 191 of that judgment, following which the General Court concluded that, since it was not proven that the mechanism of notification of certain European GIS projects to the Japanese producers, as provided for in point 4 of part ‘E (E-Members)’ of Annex 2 to the EQ Agreement, had been implemented or was known to the Japanese producers, it constituted merely an indication that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA.

108 By contrast, in paragraph 170 of that judgment, the General Court held that, although it could be concluded that that mechanism constituted such an indication of credibility, it was, by its very nature, different from the notification and project loading mechanism relied on by the Commission as indirect evidence of the existence of the common understanding and was, consequently, not relevant as evidence of that same mechanism.

109 The General Court based that conclusion relating to the credibility of the Japanese producers as competitors of the European producers for the provision of certain GIS projects in the EEA on the European markets in considering, in paragraphs 188 and 189 of the judgment in Mitsubishi Electric v Commission, that the possibility for the European producers to notify the Japanese producers of the existence of certain GIS projects prior to their allocation, as provided for in that clause of the EQ Agreement, made it possible to dismiss, to a certain extent, Mitsubishi’s argument that the Japanese producers were not perceived as credible competitors on the European markets.

110 Contrary to what Mitsubishi submits, it is clear from those considerations that the General Court assessed the evidence in a way which did not in fact distort its wording.

111 Still in relation to the notification mechanism provided for in the EQ Agreement, Toshiba submits, for its part, in the context of the second part of the second ground in support of its appeal, that the General Court adopted a contradictory position since it held, first, in paragraphs 159 and 160 of the judgment in Toshiba v Commission, that that agreement did not constitute an indication of how the European undertakings perceived their Japanese counterparts, which suggests that the Japanese producers were regarded as credible competitors for the provision of certain GIS projects in the EEA and, second, in paragraph 206 of that judgment, that the same agreement constituted indirect evidence of the existence of the common understanding.

112 That argument must be rejected.

113 It is true that the General Court held, first, that the notification mechanism provided for in the EQ Agreement could be regarded as an indication that the Japanese producers were perceived by their European counterparts as credible competitors for the provision of certain GIS projects in the EEA and, secondly, that, for that reason, that indication could be relied on, in the same way as the notification and project loading mechanism referred to in ABB’s and Hitachi’s statements, as indirect evidence of the existence of the common understanding.

114 However, those grounds are not contradictory, since, as the General Court considered in paragraph 206 of the judgment in Toshiba v Commission, the notification mechanism provided for in the EQ Agreement, in that it confirms that the Japanese producers were perceived as credible competitors for certain GIS markets in the EEA, suggests that the Japanese producers had committed not to enter the European market in exchange for a larger share of the GIS projects in other regions of the world.

115 Therefore, the first part of Mitsubishi’s first ground of appeal in support of its action and the relevant parts of the two first grounds of Toshiba’s appeal must be rejected.

2. The grounds of appeal alleging errors of law in the assessment of the probative value of statements which run counter to the interests of the declarant

a) Arguments of the parties

i) Mitsubishi’s appeal

116 By the second part of the first ground in support of its appeal, Mitsubishi complains that the General Court failed to apply the correct criteria for assessing the evidence and erroneously applied the case‑law principle that statements which run counter to the interests of the declarant must, in principle, be regarded as particularly reliable.

117 First, Mitsubishi complains that the General Court distorted, in paragraph 78 of the judgment in Mitsubishi Electric v Commission, the arguments by which it submitted that, in cases in which only oral evidence or company statements support the existence of the alleged infringement, although that infringement is denied by various other sources, and even the oral witness statements which support the existence of that infringement are incoherent and contradictory, the latter should not be regarded as established to the requisite legal standard.

118 Second, Mitsubishi submits that, in deciding, in paragraph 108 of the judgment in Mitsubishi Electric v Commission, that the statements made in the context of an application for leniency tend to be more reliable when they run counter to the interests of the declarant, the General Court misapplied the case‑law principles at issue, since statements made during immunity or leniency proceedings do not necessarily run counter to the declarant’s own interests.

119 In particular, it claims that Mr M.’s statements regarding the existence of the common understanding, rather than running counter to his interests, were favourable to ABB, since they consolidated the Commission’s case and, consequently, that company’s application for immunity.

120 Third, Mitsubishi complains that the General Court concluded, in paragraph 192 of the judgment in Mitsubishi Electric v Commission, that the Commission did not err in considering that the statements and witness statements of ABB, the statements of Fuji relating to the existence of the common understanding and the statements of Hitachi relating to the notification and project loading mechanism had to be regarded as being of a higher probative value than the statements of Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech denying the existence of the common understanding.

121 In that regard, it submits that the General Court, first of all, did not explain why it was necessary not to attribute any probative value to the statements denying the existence of the common understanding made in the context of a leniency application, even though the undertakings at issue had the same interest as ABB in not compromising their status as applicants for leniency by providing inaccurate information.

122 Next, in so far as concerns Fuji’s statements relating to the common understanding, Mitsubishi claims that the General Court was wrong to find, in paragraph 135 of the judgment in Mitsubishi Electric v Commission, that those statements ran counter to the interests of that company. It claims that, in its statements, Fuji did not admit to having participated in the common understanding. It simply stated that the common understanding existed but that it concerned only the other Japanese producers, possibly with a view to being granted leniency in accordance with its own application.

123 Finally, it summits that the General Court was wrong to find, in paragraph 164 of the judgment in Mitsubishi Electric v Commission, that Hitachi’s statements regarding the notification and project loading mechanism were of high probative value since, first, they ran counter to its interests and constituted incriminating evidence and, second, Hitachi was not aware of the inferences which could be made from those statements. The deliberate and conscious acknowledgement of responsibility on the part of an undertaking making a declaration relating to unlawful conduct forms an integral part of the principle of statements which run counter to the interests of the declarant.

124 The Commission contends that the first part of the first ground of Mitsubishi’s appeal must be rejected as inadmissible. In so far as they are admissible, the appellant’s arguments are either ineffective or unfounded.

ii) Toshiba’s appeal

125 By the third part of the first ground which it raises in support of its appeal, Toshiba submits that, in holding, in paragraphs 197 and 198 of the judgment in Toshiba v Commission, that the statements made by Siemens, Mitsubishi and Hitachi denying the existence of the common understanding were less credible than the evidence to the contrary furnished by ABB, the General Court relied on contradictory and insufficient grounds, which thus vitiate its judgment by an error of law.

126 It claims that, after having defined, in paragraph 93 of the judgment in Toshiba v Commission, six criteria for assessing the reliability of witness statements, the General Court then failed to apply those criteria to the statements of the employees of Siemens, Mitsubishi and Hitachi, but merely affirmed, so as to dismiss their probative value, that those witness statements did not run counter to the interests of the undertakings which produced them.

127 The Commission contends that the General Court correctly applied the principles relating to the probative value of evidence by duly taking account of the fact that, contrary to ABB’s statements, those made on behalf of Siemens, Mitsubishi and Hitachi, denying the existence of the infringement, did not run counter to the interests of those undertakings.

b) Findings of the Court

128 The Court notes, at the outset, that the principle which prevails in European Union law is that of the unfettered evaluation of evidence, from which it results, first, that, where evidence has been obtained lawfully, its admissibility cannot be contested before the General Court and, second, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (see, to that effect, Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraphs 49 and 63).

129 Moreover, the appraisal by the General Court of the probative value of the documents submitted to it cannot, save where the rules on the burden of proof and the taking of evidence have not been observed or the evidence has been distorted, be challenged before the Court of Justice (see, inter alia, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 56 and the case‑law cited).

130 By contrast, the question whether the General Court observed the rules relating to the burden of proof and the taking of evidence in its examination of the rules relied on by the Commission to support the existence of an infringement of the competition rules of the European Union constitutes a question of law which is amenable to judicial review on appeal (see, to that effect, Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 40).

131 As regards, first, the complaint alleging a distortion of Mitsubishi’s arguments in paragraph 78 of the judgment in Mitsubishi Electric v Commission, it must be found that that paragraph forms part of the General Court’s reasoning in which it responded to a series of arguments raised by Mitsubishi seeking to demonstrate that, in establishing its participation in the infringement, the Commission infringed the rules on the taking of evidence and the burden of proof on the ground that only oral evidence of such participation existed, which, moreover, stemmed from undertakings which had applied for leniency, and that that evidence was also discredited by other evidence or was incoherent or contradictory.

132 Taking account of the principles set out in paragraphs 128 to 130 above, it must be found that the General Court responded adequately to those arguments without committing any error of law.

133 On the one hand, the General Court was right, first of all, in paragraphs 75 and 76 of the judgment in Mitsubishi Electric v Commission, to recall the principles governing the burden of proof and the taking of evidence which it applied:

‘75 Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement …

76 In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules …’

134 On the other hand, in paragraph 78 of that judgment, the General Court responded, equally without committing an error of law, to the more specific complaint raised by Mitsubishi that, given the statements obtained in the context of the leniency notice, it was no longer necessary to grant the Commission discretion in relation to the assessment of evidence, by deciding that:

‘… [I]n order for the Commission to validly rely on it as evidence of an infringement, the evidence received from interested undertakings must, in any event, satisfy the applicable criteria in the case‑law. Thus, the existence of the leniency programme per se does not simplify the Commission’s role. …’

135 Among the criteria in the case‑law to which the General Court refers, mention should be made of the one, rightly pointed out in paragraphs 84 and 89 of the judgment in Mitsubishi Electric v Commission, pursuant to which a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the ‘degree of corroboration required’ may be less in view of the reliability of the statements at issue.

136 Second, in so far as concerns the criticism of the considerations in paragraph 108 of the judgment in Mitsubishi Electric v Commission, the General Court did not err in law in finding that it could not be considered that the evidence furnished by ABB, and in particular Mr M.’s statements relating to the existence of the common understanding, was not capable of damaging that undertaking.

137 In that regard, Mitsubishi does not dispute the principle that high probative value must be granted to the statements which run counter to the interests of the undertakings on behalf of which they were made, but merely submits that, in this instance, the General Court misapplied that principle.

138 However, the General Court righty stated, in paragraph 107 of the judgment in Mitsubishi Electric v Commission, that, although it is possible that the representative of an undertaking which has applied for leniency may submit as much incriminating evidence as possible, the fact remains, as is correctly stated in paragraphs 88 and 89 of that judgment, that such a representative will also be aware of the potential negative consequences of submitting inaccurate information, which could, inter alia, lead to a loss of immunity after it has been granted. Moreover, the General Court was also correct to point out that the risk of the inaccurate nature of those statements being detected and leading to those consequences is increased by the fact that such statements must be corroborated by other evidence.

139 In so far as concerns the specific acknowledgement by ABB of its participation in the common understanding, such acknowledgement was clearly likely to run counter to the interests of that company, since it constitutes evidence which may be used against it by the Commission as a party which participated in the infringement, as is apparent from paragraph 108 of the judgment in Mitsubishi Electric v Commission.

140 More generally, the Court has already had the opportunity to point out that a statement made by a person acting in the capacity of a representative of a company and admitting the existence of an infringement by that company entails considerable legal and economic risks (Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 103).

141 Among those risks is that of actions for damages being brought before the national courts, in the context of which the Commission’s establishment of a company’s infringement may be invoked.

142 The potentially harmful nature for ABB of Mr M.’s statements cannot, moreover, be called into question by an argument, such as that raised by Mitsubishi, seeking to demonstrate that, in practice, ABB did not need to fear losing its immunity if it were to be found that the purported evidence which it had furnished was in fact distorted or misleading.

143 By such an argument, Mitsubishi is in fact inviting the Court to evaluate facts, which is beyond its jurisdiction in the context of an appeal.

144 Third, in so far as concerns the complaint raised by Mitsubishi against paragraph 192 of the judgment in Mitsubishi Electric v Commission, the Court notes, first of all, that, contrary to what Mitsubishi submits, in paragraphs 193 and 194 of that judgment, the General Court substantiated its finding that lower probative value had to be granted to the statements made by Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech than to ABB’s statements and witness statements, Fuji’s statements on the common understanding and Hitachi’s statements on the notification and project loading mechanism.

145 In those paragraphs, the General Court considered, without committing any error of law, that, unlike the statements and witness statements of ABB, Fuji and Hitachi, the statements of Siemens, Mitsubishi, Toshiba, Hitachi and VA Tech respectively were not contrary to the interests of those undertakings, since they sought to contest the existence of any infringement, but it could not be considered that those undertakings had no interest in contesting the existence of the common understanding.

146 It also follows that, contrary to what Toshiba submits in the third part of its first ground in support of its appeal, by its approach the General Court applied, in the context of the assessment of the probative value of those statements, a criterion which it deemed to be particularly relevant in relation to them, which is, moreover, entirely appropriate when applying the European Union law principle of the unfettered evaluation of evidence, referred to in paragraph 128 above. Consequently, the grounds relied on by the General Court are not contradictory in that respect.

147 Next, in so far as concerns the complaint regarding paragraph 135 of the judgment in Mitsubishi Electric v Commission, alleging that the General Court wrongly considered that Fuji’s statement relating to the common understanding ran counter to its interests, the Court considers it to be an assessment of a piece of evidence by the General Court that is in principle unfettered.

148 In basing that assessment on the nuanced consideration that, by that statement, Fuji admitted, at least indirectly, that its absence from the European market was in part due to the common understanding and thus acknowledged a fact which could have been used against it by the Commission, the General Court did not distort that evidence either.

149 Finally, as regards the criticism of paragraph 164 of the judgment in Mitsubishi Electric v Commission, the Court finds that the General Court did not err in law in finding, in that paragraph, that the probative value of Hitachi’s statement was high, inter alia, because it ran counter to the interests of that company, since it implied the existence of a link between the collusive activities within the EEA and the Japanese producers and constituted, as a result, incriminating evidence.

150 Contrary to what Mitsubishi submits, that finding cannot be called into question by the fact, also referred to by the General Court, that, on reading that evidence, Hitachi was not aware of inferences which could have been made from that statement. That finding, although capable of explaining why Hitachi made that statement, reinforces its probative value, as the General Court rightly noted in paragraph 164 of the judgment in Mitsubishi Electric v Commission, since, irrespective of the fact that it ran counter to Hitachi’s interests, it confirms that that undertaking set out the facts therein as they happened, without seeking to manipulate them so as to draw the most favourable consequences for it.

151 Therefore, the second part of Mitsubishi’s first ground and the third part of Toshiba’s first ground raised in support of their respective appeals must be rejected.

3. The grounds of appeal alleging errors of law in the application of the criteria relating to the assessment and weighting of evidence

a) Arguments of the parties

i) Mitsubishi’s appeal

152 By the third part of its first ground of appeal, which concerns paragraphs 118 and 128 of the judgment in Mitsubishi Electric v Commission, Mitsubishi complains that the General Court misconstrued the principles relating to the assessment and weighting of evidence by considering Mr M.’s witness statement to be of high probative value as evidence demonstrating the existence of the common understanding.

153 By those considerations, it argues, the General Court misapplied the six criteria resulting from its own case‑law and, in particular, from 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, paragraphs 205 to 210) (‘the six JFE Engineering criteria’), reiterated in paragraph 87 of the judgment in Mitsubishi Electric v Commission in the following terms:

‘… [P]articularly high probative value may be attached to those [statements] which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection. …’

154 Mitsubishi considers that, in the light of the six JFE Engineering criteria, Mr M.’s statements could be regarded as being of only weak probative value.

155 The Commission contends the substance of that argument, submitting, inter alia, that the six JFE Engineering criteria laid down can be explained by the circumstances of the case which gave rise to that judgment. Moreover, the assessment of the probative value of the evidence at issue as made by the General Court cannot be criticised, especially in the light of the principle of the unfettered evaluation of evidence.

ii) Toshiba’s appeal

156 By the first part of its first ground which it raises in support of its appeal, Toshiba submits that the General Court relied on contradictory and insufficient grounds in concluding that Mr M.’s witness statement was credible and of high probative value and, consequently, was capable of proving the existence of the common understanding.

157 It claims that the General Court accepted, in paragraph 93 of the judgment in Toshiba v Commission, the relevant legal basis for assessing the credibility of Mr M.’s witness statement, namely the six JFE Engineering criteria, but then misapplied those criteria to that witness statement in that four of the six criteria concerned were not established.

158 The Commission contends that that argument is inadmissible in the context of an appeal, since it seeks to have the Court re‑examine a finding of fact, namely the credibility of Mr M.’s witness statement, without showing that the General Court distorted any evidence in its assessment. In any event, it claims that argument is unfounded.

b) Findings of the Court

159 Mitsubishi and Toshiba call into question the probative value accorded by the General Court to one of the items of evidence furnished by ABB, as put forward in the contested decision to show the existence of the common understanding, namely the witness statement of Mr M., a former employee of ABB.

160 They consider, in essence, that the General Court committed an error of law in deeming that witness statement to be of high probative value, whereas it admitted or, at least, should have admitted that that witness statement did not satisfy some, or the majority, of the six JFE Engineering criteria which the General Court purported to apply.

161 In that regard, it must be found, as a preliminary point, that the General Court concluded, following a detailed assessment of Mr M.’s witness statement, first, that that witness statement, just like the coherent statements submitted by ABB’s employees, namely Mr Wi., Mr P. and Mr V.-A, was capable of proving both the existence and the fundamental content of the common understanding, even if it needed to be corroborated by other evidence and, second, that those four witness statements needed to be regarded as being of high probative value.

162 As regards, first of all, the wording of Mr M.’s witness statement, it must be found that Mitsubishi and Toshiba do not make any submissions capable of showing that the General Court distorted that statement in finding that it confirmed the existence and the fundamental content of the common understanding.

163 In so far as concerns, second, the ‘high probative value’ accorded by the General Court to that witness statement, as has already been referred to in paragraph 128 above, given that the prevailing principle under European Union law is that of the unfettered evaluation of evidence, the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility, as also rightly pointed out by the General Court in paragraph 85 of the judgment in Mitsubishi Electric v Commission and paragraph 91 of the judgment in Toshiba v Commission.

164 Although it is true that, in the introductory part – which is common to both – of the judgments in Mitsubishi Electric v Commission and Toshiba v Commission, the General Court also noted that ‘particularly high probative value’ could be recognised to a witness statement which satisfies the six JFE Engineering criteria, the fact remains that it did not subsequently refer to that criteria in its specific assessment of Mr M.’s witness statement and did not, moreover, just apply those criteria in a mechanical fashion.

165 On the contrary, following an overall and concrete assessment of the credibility of Mr M.’s witness statement, the General Court considered that, since the statements of the four witnesses at issue came from direct witnesses and it was not apparent from the circumstances reported by those witnesses that they were motivated to submit inaccurate information, they had to be regarded as being of high probative value.

166 In ruling to that effect, the General Court did not misconstrue the rules on the burden of proof and the taking of evidence, or manifestly distort the wording of Mr M.’s witness statement.

167 Moreover, even supposing that, in the case at hand, some of the six JFE Engineering criteria were not satisfied, the General Court was able to regard Mr M.’s witness statement as being of high probative value, since, following an overall and concrete assessment of the reliability of that witness statement, it concluded that it was credible, while stating that that evidence still needed to be corroborated by other evidence.

168 As rightly pointed out by the Commission, the present case differs from that in JFE Engineering v Commission, in which the General Court recognised particularly high probative value to a witness statement which satisfied the six JFE Engineering criteria, which could justify the fact that that witness statement was sufficient to establish certain elements of the infringement and that there was less justification to require that witness statement to be corroborated by other evidence.

169 As regards, more specifically, the consideration – deemed crucial by the General Court – that Mr M. had to be regarded as ‘a direct and privileged witness of the facts which he disclosed’, it must be found that the General Court could justify such an assessment without distorting the evidence, on the basis of the factual finding, set out in paragraph 115 of the judgment in Mitsubishi Electric v Commission and paragraph 121 of the judgment in Toshiba v Commission, that ‘Mr M. was one of ABB’s representatives in the cartel between 1988 and 2002, that is during almost its entire duration, at which time ABB itself was one of the main operators’.

170 It has already been held in paragraphs 72 and 73 above that the General Court did not commit an error of law, in paragraph 116 of the judgment in Mitsubishi Electric v Commission and in paragraph 122 of the judgment in Toshiba v Commission, in finding that the probative value of that witness statement could not be called into question by the fact that Mr M. was not present when the common understanding was concluded, or the fact that the subject‑matter of the common understanding was not raised specifically at one of the meetings at which he was present.

171 It follows that the General Court was able to attach particular importance to the fact that Mr M. was not only a direct witness but also a privileged one in respect of the facts which he disclosed, namely those relating to the existence and fundamental content of the common understanding.

172 Next, it must be found, contrary to what Mitsubishi and Toshiba submit, that the General Court took due account, in its assessment of the credibility of Mr M.’s witness statement, of the fact that, at his interview, ABB’s outside counsel intervened suggesting to him that it could be profitable for the Japanese producers to penetrate the European market, of which Mr M. did not appear to be convinced.

173 In paragraph 110 of the judgment in Mitsubishi Electric v Commission and paragraph 118 of the judgment in Toshiba v Commission, the General Court indeed inferred from that intervention that Mr M. expressed doubts as to the commercial interest of such a step and that account needed to be taken of that fact when assessing the content of his witness statement.

174 However, the General Court immediately put into perspective the impact of that fact on the credibility of Mr M.’s witness statement, as such, by stating that neither Mitsubishi nor Toshiba had explained the extent to which that intervention of ABB’s outside counsel affected the credibility of Mr M.’s witness statement in other respects.

175 Moreover, Mr M.’s reaction to the intervention of ABB’s outside counsel suggests precisely that Mr M. did not allow himself to be influenced by that step, since his statement went against what was suggested by that counsel. Mr M.’s reaction to the outside counsel’s intervention is thus rather such as to strengthen the credibility of his witness statement.

176 Furthermore, in paragraph 125 of the judgment in Mitsubishi Electric v Commission and in the same paragraph of the judgment in Toshiba v Commission, the General Court stated that the position of Mr M., which was shared by Mr P., whereby there was no commercial interest for the Japanese producers in entering the European market, had no bearing on the fact that, according to ABB’s four witnesses and ABB itself, the Japanese undertakings were committed not to enter the EEA market even though they were capable of doing so at a technical level.

177 It is also apparent that, contrary to what Toshiba submitted, it cannot be claimed that, in this instance, the General Court committed any error of law in relation to the reliability of Mr M.’s witness statement.

178 In the light of all of the foregoing considerations, the grounds of appeal alleging errors of law in the application of the criteria for the assessment and weighting of evidence must be rejected.

4. The grounds of appeal alleging errors of law in the application of the principles concerning the ‘corroboration of evidence’

a) Arguments of the parties

i) Mitsubishi’s appeal

179 By the fourth part of its first ground in support of its appeal, Mitsubishi complains that the General Court erroneously applied the principles relating to the corroboration of evidence in its assessment of Fuji’s reply to the statement of objections (‘Fuji’s statement’), in finding, in paragraphs 134 to 139 of the judgment in Mitsubishi Electric v Commission, that, in spite of its ‘relatively vague’ nature and its ‘limited’ probative value, that statement could be qualified as evidence which ‘tend[ed] to corroborate’ the evidence furnished by ABB.

180 It claims that it is apparent from paragraph 84 of the judgment in Mitsubishi Electric v Commission that the statements submitted by ABB had, in any event, to be supported by other evidence.

181 The case‑law does not recognise a distinct category of evidence which ‘tends to corroborate’ other evidence. Fuji’s statement does not corroborate, to the requisite legal standard, the existence of the common understanding since it amounts to nothing more than an unreliable and self‑serving assumption.

182 The Commission contends that that argument is erroneous, essentially on the ground that it is based on a distinction which runs counter to the principle of the unfettered evaluation of evidence.

ii) Toshiba’s appeal

183 In the context of the first part of the second ground raised in support of its appeal, Toshiba submits that the General Court erred in law in finding that Fuji’s statement and the evidence furnished by Hitachi relating to the Alstom proposal corroborated, or were capable of corroborating, the evidence furnished by ABB concerning the existence of a common understanding.

184 First, it is apparent from the case‑law that such evidence cannot corroborate the evidence furnished by ABB since, although it is true that leniency statements can substantiate each other, corroboration of such statements can be provided only by other evidence contemporaneous with the facts at issue, namely evidence dating from the time of the infringement (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 168).

185 Secondly, as reg