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

28 March 2019 ( *1 )

(Competition – Agreements and concerted practices – European steel abrasives market – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Price coordination throughout the EEA – Chronologically staggered ‘hybrid’ procedure – Presumption of innocence – Principle of impartiality – Charter of Fundamental Rights – Evidence of the infringement – Single and continuous infringement – Restriction of competition by object – Duration of the infringement – Fine – Exceptional adaptation of the basic amount – Obligation to state reasons – Proportionality – Equal treatment – Unlimited jurisdiction)

In Case T‑433/16,

Pometon SpA, established in Maerne di Martellago (Italy), represented by E. Fabrizi, V. Veneziano, and A. Molinaro, lawyers,

applicant,

v

European Commission, represented by P. Rossi and B. Mongin, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2016) 3121 final of 25 May 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39792 – Steel Abrasives).

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of S. Frimodt Nielsen, President, V. Kreuschitz, I.S. Forrester, N. Półtorak and E. Perillo (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written part of the procedure and further to the hearing on 31 May 2018,

gives the following

Judgment

I. Background to the dispute

1 The applicant, Pometon SpA, is an Italian undertaking specialising in the treatment of metals. It was active on the steel abrasives market until 16 May 2007, when it sold its business line in that sector to one of its competitors, the French company Winoa SA. On that date, the applicant’s abovementioned business was transferred to the company Pometon Abrasives Srl, owned by the Winoa group.

2 Steel abrasives are steel particles, either in round or angular form, mainly used in the steel, automotive, metallurgy, petrochemical and stonecutting industries. They are produced from steel scrap residue.

3 By Decision C(2016) 3121 final of 25 May 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39792 – Steel Abrasives; ‘the contested decision’), the European Commission found that, between 3 October 2003 and 16 May 2007, the applicant had participated, either directly or through its representatives or the representatives of two of its subsidiaries, Pometon España SA and Pometon Deutschland GmbH, in a cartel consisting of agreements or concerted practices with four other undertakings, namely the US group Ervin Industries Inc. (‘Ervin’), the French company Winoa SA (‘Winoa’) and the German companies MTS GmbH and Würth GmbH, essentially designed to coordinate the price of steel abrasives throughout the European Economic Area (‘EEA’). The applicant and its two subsidiaries mentioned above are hereafter referred to as ‘Pometon’.

A. Investigation stage and initiation of proceedings

4 On 13 April 2010, Ervin applied for immunity from fines under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17).

5 Following that application, Ervin made oral statements and adduced documentary evidence. On 31 May 2010, the Commission granted it conditional immunity pursuant to point 8(a) of that notice.

6 Between 15 and 17 June 2010, the Commission conducted unannounced inspections at the premises of various producers of steel abrasives, including Pometon. It subsequently sent several requests for information to the undertakings which it believed were parties to the cartel.

7 On 16 January 2013, the Commission, in accordance with Article 2 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), initiated investigation proceedings as provided for in Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) against Pometon and the other four cartel participants (Ervin, Winoa, MTS and Würth). It set a time limit for them to indicate in writing to the Commission whether they were prepared to engage in settlement discussions, in terms of Article 10a(1) of Regulation No 773/2004.

B. Settlement procedure and Pometon’s decision to withdraw from that procedure

8 The five parties to the alleged cartel expressed their willingness to engage in settlement discussions. Between February and December 2013, three rounds of bilateral meetings took place between the Commission and the parties to the cartel, during which the substance of the objections and the evidence underpinning them were set out. The Commission provided each party to the cartel with the range of fines likely to be imposed on them.

9 In January 2014, the undertakings concerned forwarded their settlement submissions within the prescribed period, except for the applicant, who decided to withdraw from that procedure. Consequently, on 10 February 2014, the applicant returned to the Commission the CD-ROM which the latter had given it on 21 February 2013 in the context of the settlement procedure.

10 On 13 February 2014, the Commission sent a statement of objections to each of the other four parties to the alleged cartel and, on 2 April 2014, it adopted settlement decision C(2014) 2074 final against them, on the basis of Articles 7 and 23 of Regulation No 1/2003 (‘the settlement decision’).

C. Adoption of the contested decision under the ordinary procedure and content of that decision

11 On 3 December 2014, the Commission sent a statement of objections to the applicant, who replied on 16 February 2015, after having had access to the file. The applicant subsequently took part in a hearing held on 17 April 2015.

12 On 25 May 2016, the Commission adopted the contested decision on the basis of Articles 7 and 23 of Regulation No 1/2003. The operative part of that decision is worded as follows: ‘Article 1 Pometon SpA has infringed Article 101(1) of the Treaty and Article 53(1) of the EEA Agreement by participating in a single and continuous infringement concerning prices in the steel abrasives sector, which consisted of the coordination of its pricing behaviour and covered the entire EEA. The duration of the infringement was from 3 October 2003 until 16 May 2007. Аrticle 2 For the infringement referred to in Article 1, the following fine is imposed on Pometon SpA: EUR 6197000 …’

13 It is apparent, in essence, from the contested decision as a whole that Pometon and the other cartel participants introduced (first limb of the cartel) a uniform calculation model enabling them to achieve a coordinated increase in the price of steel abrasives based on price indexes for scrap (‘the scrap surcharge’; see paragraphs 132 and 136 below). At the same time, they also agreed (second limb of the cartel) to coordinate their behaviour as regards the sale price of steel abrasives charged to individual customers, in particular by undertaking not to compete by means of price cuts (recitals 32, 33, 37 and 57 of the contested decision; see paragraph 173 below).

14 Concerning the classification of the infringement at issue, the Commission found that there had been a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement. Not only did all of the anticompetitive arrangements of the participants concern price coordination and the same products, they also followed the same pattern throughout the infringement period, from 3 October 2003 to 16 May 2007, when the applicant sold its business in the steel abrasives sector to Winoa. Finally, the undertakings involved in the infringement and the persons acting on their behalf were essentially the same (recitals 107 and 166 of the contested decision).

15 In short, according to the Commission, the object of such a cartel was to restrict competition and significantly affect trade in the product concerned between Member States and the parties to the EEA Agreement (recitals 142 and 154 of the contested decision).

16 As regards the duration of the applicant’s participation in the infringement, the Commission fixed the beginning of that participation as 3 October 2003 and, relying on the fact that Pometon had not formally distanced itself from the cartel, it found that that undertaking’s involvement in the cartel continued until 16 May 2007, when the applicant sold its business in the steel abrasives sector to Winoa (recitals 160 and 166 of the contested decision; see, also, paragraph 1 above).

17 Based on the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’), the Commission set the basic amount of Pometon’s fine at 16% of the value of sales made by the applicant in the markets of EEA countries in 2006, namely the last full year of Pometon’s participation in the infringement at issue before selling its steel abrasives business to a French competitor.

18 That percentage comprises a base figure of 15% plus a further 1% to take account of the geographic scope of the infringement covering the entire EEA (recitals 214 to 216 of the contested decision). The variable part of the basic amount of the fine was then increased by an additional fixed amount of 16%, applied with the aim of deterring undertakings from entering into price coordination agreements, under point 25 of the Guidelines on the method of setting fines (recital 220 of the contested decision).

19 Furthermore, the basic amount of the fine thus calculated was not increased on the ground of aggravating circumstances. On the contrary, Pometon received a 10% reduction of that amount on account of mitigating circumstances, since it had participated to a lesser extent than the other undertakings in the second limb of the cartel (recital 225 of the contested decision).

20 Finally, pursuant to point 37 of the Guidelines on the method of setting fines, a provision allowing the Commission to depart from the methodology laid down in those guidelines when ‘the particularities of a given case’ may justify doing so, the Commission adapted the adjusted basic amount of the fine (recitals 228 to 231 of the contested decision), resulting in a 60% reduction.

21 In short, as is clear from Article 2 of the contested decision, following that calculation the amount of the fine imposed on the applicant stood at EUR 6197000 (see paragraph 12 above).

II. Procedure and forms of order sought

22 The applicant brought the present action by application lodged at the Court Registry on 3 August 2016.

23 The parties were notified of the closure of the written part of the procedure on 21 February 2017. By document lodged at the Court Registry on 24 March 2017, the applicant submitted a reasoned request for a hearing to be held, in accordance with Article 106(2) of the Rules of Procedure of the General Court.

24 By decision of 21 March 2018, the Court referred the case to the Chamber sitting in extended composition, pursuant to Article 28 of the Rules of Procedure.

25 By order of 22 March 2018, upholding the applicant’s alternative request seeking the adoption of a measure of inquiry, the Court ordered the Commission, on the basis of Article 91(b), Article 92(1) and Article 103(1) of the Rules of Procedure, first, to produce a copy of the full text of the settlement decision and a copy of the leniency applicant’s statements contained in documents ID 5, ID 10, ID 136 and ID 643 in the administrative file and, secondly, to state the total turnover in 2009 of the addressees of the settlement decision which had been taken into account in that decision.

26 By order of 4 May 2018, Pometon v Commission (T‑433/16), the Court, ruling on the applications for confidential treatment of the documents produced by the Commission in compliance with the abovementioned order of 22 March 2018, decided that documents ID 5, ID 10, ID 136 and ID 643 containing the transcription of the leniency applicant’s oral statements could be consulted by the applicant’s lawyers at the Court Registry. However, it rejected the application for confidential treatment as regards the respective turnover in 2009 of the four undertakings to whom the settlement decision was addressed and the data set out in tables 1 (recital 90), 3 (recital 100) and 4 (recital 103) of that decision.

27 By measures of organisation of procedure, first, the Court asked the applicant to submit its written observations on the relevance of the non-confidential data referred to in paragraph 26 above to the fifth plea in law, concerning the adaptation of the basic amount of the fine under point 37 of the Guidelines on the method of setting fines. The applicant complied with that request within the prescribed period. Secondly, the Court requested the parties to reply orally, at the hearing, to a number of written questions.

28 Moreover, at the hearing, the Commission sought leave to lodge a document consisting of a table containing data relating to the five undertakings party to the cartel at issue, data which it stated it had relied on to determine, for each of those undertakings, the adaptation of the basic amount of the fine under point 37 of the Guidelines on the method of setting fines. It applied for the confidential treatment of such data vis-à-vis the public.

29 The Court decided to place that document on the file, without prejudice to the assessment of its admissibility, and gave the applicant until 2 July 2018 to submit its comments on it, pursuant to Article 85(4) of the Rules of Procedure. The applicant submitted its comments on 2 July 2018 and the oral part of the procedure was closed on the same date.

30 By order of 8 November 2018, the President of the Third Chamber reopened the oral part of the procedure. The Commission was asked to submit its comments on a new piece of information contained in the applicant’s comments of 2 July 2018 and it complied with that request within the prescribed period. By decision of 17 January 2019, the President of the Third Chamber closed the oral part of the procedure.

31 The applicant claims that the Court should: – annul the contested decision; – in the alternative, annul or vary the contested decision, in so far as the Commission states that the applicant participated in the infringement until 16 May 2007 and imposes a fine on it even though it was time-barred; – in the further alternative, annul or reduce the amount of the fine; – order the Commission to repay any sums disbursed by the applicant before delivery of the judgment and any other costs borne by it in complying with that decision; – adopt the measures of organisation of procedure or, in the alternative, the measures of inquiry sought by the applicant; – order the Commission to pay the costs.

32 The Commission contends that the Court should: – dismiss the action; – dismiss the application for measures of organisation of procedure or inquiry; – order the applicant to pay the costs.

III. Law

33 The applicant relies on four pleas in law in support of its first two heads of claim. First, it submits that the contested decision is vitiated by an infringement of the principle of a fair trial, the principle of the presumption of innocence and the rights of the defence, in so far as the Commission ascribed specific conduct to the applicant in the settlement decision itself, thus influencing the claims subsequently made against it in the contested decision.

34 Secondly, the applicant alleges infringement of Article 101 TFEU and Article 53 of the EEA Agreement, an inadequate and contradictory statement of reasons and infringement of the rights of the defence and the rules governing the burden of proof, in so far as the Commission ascribed to the applicant, without evidence, participation in a cartel in which it did not, in fact, participate.

35 Thirdly, the contested decision is said to be vitiated by an infringement of Article 101 TFEU and Article 53 of the EEA Agreement, in so far as the Commission found that the cartel constituted a restriction of competition by object.

36 Fourthly, the applicant disputes the duration of its participation in the cartel and pleads time bar.

37 Lastly, in support of its third head of claim seeking the annulment or variation of the amount of the fine, the applicant alleges infringement of the obligation to state reasons and of the principles of proportionality and equal treatment, as regards the exceptional adaptation of the basic amount of the fine carried out by the Commission pursuant to point 37 of the Guidelines on the method of setting fines.

A. First plea in law: infringement of the duty of impartiality, the principle of the presumption of innocence and the rights of the defence, in so far as the Commission ascribed specific conduct to the applicant in the settlement decision, thus influencing the assessments set out in the contested decision

1. Arguments of the parties

38 The applicant states that, although the settlement decision was not addressed to it, several references were made to it in section 4 of that decision (‘Description of the events’) as an undertaking which, in essence, actively participated in the cartel. It draws attention in particular to the following passages of the settlement decision, in which the Commission expressly referred to its conduct: ‘(26) Ervin, Winoa, Pometon, MTS and Würth engaged in frequent contacts on bilateral as well as multilateral bases, in which they discussed the key price components applicable to all their EEA steel abrasives sales, that is to say the scrap and energy surcharges. They also discussed (mainly through bilateral contacts) which parameters of competition would be allowed between them as regards individual customers. In the framework of that overall understanding, the parties engaged in behaviour covering the EEA. … (28) In October 2003, Winoa, Ervin and Pometon met at the Lago di Garda (Italy) to agree on a uniform calculation model for a common scrap surcharge to be applied by all of them. … (29) … MTS and Würth … did not participate in the initial stages of the process when the agreement between Winoa, Ervin and Pometon was concluded. … (31) The contacts continued with Pometon until 16 May 2007 when it sold the steel abrasives business to Winoa and exited the business. … (38) The evidence demonstrates that contacts involving Winoa, Ervin and Pometon evolved into a pattern of behaviour as of October 2003.’

39 The applicant contends that those references were neither necessary nor useful. In particular, first, it argues that the information provided in recital 31 of the settlement decision – essentially stating that it participated in the cartel until 16 May 2007, when it sold its business to Winoa and left the market – did not appear in the settlement submissions of the other four undertakings concerned. Secondly, in any event, in a settlement procedure, the final decision should be concerned only with the conduct of the undertakings party to the settlement and the penalties imposed on them.

40 It claims that that analysis is moreover confirmed by comparing the settlement decision with Commission Decision C(2014) 4227 final of 25 June 2014 in Case AT.39965 – Mushrooms, which also relates to a settlement procedure. According to the applicant, that decision did not contain, in the description of the relevant events, any reference to the non-settling undertaking.

41 In those circumstances, the references in the settlement decision to conduct ascribed to the applicant clearly show that, even before the applicant had the opportunity to defend itself, the Commission had already prejudged its guilt. The contested decision is therefore vitiated by a breach of the principle of a fair trial, the principle of the presumption of innocence and the rights of the defence of the applicant.

42 Furthermore, in that connection, the applicant disputes the Commission’s arguments based on the interpretation provided by the European Court of Human Rights (‘the ECtHR’) of Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, on the presumption of innocence.

43 With regard to that provision, the applicant claims in particular that, contrary to the Commission’s assertions (see paragraph 51 below), the ECtHR, in its judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310), held that where, in criminal proceedings involving several persons who cannot be tried together, it is necessary, in order to assess the guilt of the accused, to refer, in an initial judgment, to the participation in the offence of an accused who will subsequently be tried in a second set of criminal proceedings at a later point in time, the competent court should avoid giving more information than that required for the assessment of the criminal liability of the accused who are standing trial at that time (ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, §§ 64 and 65).

44 According to the applicant, the same criterion should apply where the Commission, as in the present case, after initiating infringement proceedings against five undertakings suspected of having participated in a cartel, first of all, adopts a settlement decision in respect of four of them and thereafter adopts, against the fifth undertaking, which has, in the intervening period, withdrawn from the settlement procedure, an infringement decision following an ordinary procedure conducted on the basis of the general provisions of Regulation No 773/2004.

45 Moreover, as regards the Commission’s argument that the applicant’s name was inadvertently mentioned in the publication of the provisional text of the settlement decision, the applicant states that the infringement of the principle of the presumption of innocence arises in this case from the fact that, irrespective of the manner in which the settlement decision was published, Pometon was the subject in that decision of specific allegations concerning its participation in the cartel at issue. The replacement of the applicant’s name in the text of the settlement decision subsequently published on 6 January 2015 by the words ‘another undertaking’ is therefore not capable of curing the infringement of that principle in the contested decision.

46 The Commission contests those arguments.

47 First of all, the references which the applicant complains of are intended only to establish the liability of the other four undertakings that participated in the cartel and, moreover, do not affect the Commission’s duty to complete the adversarial procedure in relation to the applicant after its withdrawal from the settlement procedure.

48 Any other approach, according to the Commission, would result, both procedurally and substantively in terms of the penalty, in a form of ‘immunity from fines’ benefiting undertakings which withdraw from settlement procedures they had initially agreed to.

49 The Commission goes on to claim that the combination of those two procedures indeed constitutes a complex procedure, also known as a ‘hybrid’ procedure, since it is governed by separate legal provisions – the settlement procedure is specifically governed by Article 10a of Regulation No 773/2004, while the adversarial procedure is governed by other provisions of that regulation – the lawfulness of which is not, moreover, called into question in any way by the applicant. However, even in a hybrid procedure, the position of a non-settling undertaking cannot confer a procedural advantage on it enabling it to derogate from the applicable rules.

50 The Commission submits that, in any event, it had due regard, in its dealings with the applicant, for the principle of the presumption of innocence and, in particular, the requirements laid down by the ECtHR in its judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310). The Commission argues that it exercised caution and expressly stated, in footnote 4 of the settlement decision and recitals 27 and 28 of the contested decision, that the description of events set out in the settlement decision did not draw any conclusions as to Pometon’s guilt regarding its participation in the cartel, it being necessary for an adversarial procedure establishing the infringement to be conducted at a later stage in respect of that undertaking.

51 In short, in order to determine here whether the principle of the presumption of innocence has been infringed, the Commission claims that it is necessary to look at the observance of Pometon’s rights of the defence, which were, in the present case, guaranteed throughout the ordinary procedure leading to the adoption of the contested decision.

2. Findings of the Court

(a) Legal background to the present dispute in the light of the key aspects of the Commission’s settlement decision

52 Before turning to the analysis of this plea, it should be briefly noted that the applicant pleads breach of its rights of the defence solely in relation to the fact that the Commission referred to some of its conduct in the settlement decision, which is not, however, addressed to it. Therefore, in no way does it criticise the Commission for failing to observe, during the procedure leading to the adoption of the contested decision, all of the procedural safeguards associated with its rights of the defence, such as those laid down by the general provisions of Regulation No 773/2004.

53 Having clarified the subject matter of this plea, it must be stated, as a preliminary point, that the parties disagree, among other things, on the scope of Article 41(1) and Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’), particularly as regards the latter provision, in connection with their differing interpretations of the ECtHR’s judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310), concerning respect for the principle of the presumption of innocence in complex criminal proceedings involving several persons who cannot be tried together (see paragraphs 43 and 50 above). Those two articles of the Charter are worded as follows: ‘Article 41 1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. … Article 48 1. Everyone who has been charged shall be presumed innocent until proved guilty according to law. 2. Respect for the rights of the defence of anyone who has been charged shall be guaranteed.’

54 It should be recalled that, according to settled case-law, even though, in the exercise of its powers when dealing with infringements of competition law, the Commission may not be classified as a ‘tribunal’ within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, or, inter alia, a public authority exercising functions of a criminal nature, it is nevertheless required to respect the fundamental rights of the European Union during the administrative procedure, including the right to good administration enshrined in Article 41 of the Charter. In particular, it is that provision, not Article 47 of the Charter, concerning the right to an effective remedy and to a fair trial, which governs the administrative procedure relating to restrictive practices before the Commission (judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154).

55 It also follows from the case-law that the principle of the presumption of innocence – which, by virtue of its origin, is peculiar to the area of criminal law – as it is currently enshrined in EU law by Article 48(1) of the Charter, also applies mutatis mutandis to the administrative procedures relating to compliance with EU competition rules, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties (judgment of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 150; see, also, to that effect, judgments of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraphs 38 to 40, and of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraphs 93 and 94).

56 Accordingly, within the current EU legal framework for punishing infringements of the competition rules, respect for the fundamental and procedural rights which an undertaking accused by the Commission of an infringement of Article 101(1) TFEU must be able to enjoy is ensured, first, by that institution’s duty to act, at all stages of a proceeding pursuant to the competition rules, with complete impartiality (Article 41 of the Charter), which also includes the obligation to observe the presumption of innocence of the companies under investigation (Article 48 of the Charter), and, secondly, by the right of any addressee of a binding act adopted by that institution under Article 101(1) TFEU to bring proceedings, in its defence, before the EU Courts, initially before the General Court at first instance and subsequently, where appropriate, before the Court of Justice on appeal.

57 Having set out those general premisses, it should be recalled, as regards the relevant procedural rules in the present case, that under Article 2 of Regulation No 773/2004, when the Commission decides to initiate proceedings against certain undertakings in order to investigate ‘cases of suspected infringement’ (see Article 105 TFEU), it issues ‘a statement of objections or a request for the parties to express their interest in engaging in settlement discussions’.

58 In the second case, Article 10a(1) of that regulation provides that ‘after the initiation of proceedings …, the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions’.

59 In that respect, point 11 of the Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1; ‘the settlement notice’) states, furthermore, that the written declarations of undertakings which have expressed an interest in engaging in those discussions ‘[do] not imply an admission by the parties of having participated in an infringement or of being liable for it’.

60 However, to enable more specific progress to be made in the planned negotiations, Article 10a(2) of Regulation No 773/2004 provides as follows: ‘Parties taking part in settlement discussions may be informed by the Commission of: (a) the objections it envisages to raise against them; (b) the evidence used to determine the envisaged objections; (c) non-confidential versions of any specified accessible document listed in the case file at that point in time …; (d) the range of potential fines.’

61 In the present case, the file shows that the five undertakings involved in the alleged steel abrasives cartel, including Pometon, received, following their written statements, all of the information set out in Article 10a(2) of Regulation No 773/2004 (see paragraphs 8 and 60 above).

62 It is in that legal and factual context that the substance of this plea must be assessed.

(b) Scope of the Commission’s duty of impartiality and of the principle of the presumption of innocence, in particular in the specific case of a hybrid procedure staggered over time

63 In order to determine, in the first place, whether the Commission complied with its duty of impartiality vis-à-vis Pometon, particularly in the context of the settlement procedure from which Pometon nevertheless withdrew, it should be noted that the settlement decision adopted by the Commission in respect of the other four undertakings party to the cartel undoubtedly brought an end to the infringement of which that institution had accused them and, in consequence, also brought an end to the cartel in question and its negative effects on the relevant market, since four of the five undertakings concerned admitted coordinating the price of steel abrasives and agreed to terminate it immediately.

64 However, that settlement decision did not bring an end to the Commission’s actions as regards the infringement proceedings initiated against Pometon on 16 January 2013 (see paragraph 7 above), as Pometon decided to withdraw from the settlement procedure in which it had initially expressed an interest and the investigation in respect of it therefore had to continue by means of an adversarial procedure, within the framework of infringement proceedings that had acquired a hybrid nature. Indeed, owing to Pometon’s withdrawal from the settlement procedure, footnote 4 of the settlement decision reads ‘the administrative proceedings under Article 7 of Regulation (EC) No 1/2003 against [Pometon] are pending’.

65 Against that background, the applicant’s proposition that the references to some of its conduct in the settlement decision infringed its right to the presumption of innocence, thereby compromising the impartiality which the Commission is required to display towards it, is objectively inconsistent with the fact that the Commission, especially in footnote 4 of the settlement decision, expressly ruled out Pometon’s guilt at that stage of the procedure, precisely because the investigation in its case had to continue by means of an adversarial procedure on the basis of a specific allegation, namely the statement of objections that the Commission in fact adopted on 3 December 2014.

66 In particular, the reference to Pometon’s conduct in recital 38 of the settlement decision, in which the Commission states that the evidence in its possession ‘demonstrates that contacts involving Winoa, Ervin [the leniency applicant] and Pometon evolved into a pattern of behaviour as of October 2003’ (see paragraph 38 above), cannot cast doubt on that finding.

67 First of all, the wording used does not contain any legal characterisation of the facts in question or objectively support the conclusion that the Commission had, at the stage of the settlement decision, already established Pometon’s guilt, since it had not demonstrated, in that introductory section of the settlement decision, the guilt of the other four parties to the cartel, which were the only addressees of the decision.

68 Next, the fact that the same settlement decision states, in the following section concerning the legal characterisation of the conduct ascribed to those other four undertakings (Legal Assessment), that they acknowledged their involvement in the infringement and thus admitted their guilt does not automatically convert, de facto and de jure, references to some of the applicant’s behaviour in the description of events into a form of ‘disguised verdict’ by the Commission also covering Pometon’s guilt.

69 That being the case, when drafting a settlement decision adopted, as here, in a procedure which has become hybrid in nature, the dividing line between, on the one hand, the description of the facts relating to the cartel as a whole and, on the other, the legal characterisation of the facts specifically attributed to the undertakings which have admitted their guilt should remain as clear and precise as possible, precisely so as to ensure that, in the same administrative matter, in this case the steel abrasives cartel (see paragraph 3 above), the definitive legal situation of the settling undertakings is not treated in the same way as the situation of the undertaking which exercised its right to withdraw from the settlement procedure and in respect of whom the administrative procedure is still ongoing (see paragraph 64 above).

70 For that reason, it is in the first place the fundamental obligation of impartiality, imposed by Article 41 of the Charter on all EU institutions, as the Court recalled in its judgment of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 154), which must guide the Commission when drawing up a settlement decision in the specific context of a procedure that has become hybrid in nature concerning an undertaking which has withdrawn from that procedure (see paragraph 54 above).

71 An undertaking which ultimately decides to withdraw from the settlement procedure therefore does not lose its right to be treated impartially or its right to the presumption of innocence as regards the infringement at issue, even though no formal allegations will be made against it until the adoption of the statement of objections initiating the adversarial procedure, which, in the present case, was notified to the applicant on 3 December 2014.

72 Therefore, compliance with the duty of impartiality enshrined in Article 41 of the Charter requires the Commission, in a procedure that has acquired a hybrid nature, to draw up and state the reasons for the settlement decision exercising all necessary drafting precautions to ensure that that decision, while not addressed to the undertaking which withdrew from the settlement procedure, does not undermine the body of procedural safeguards which it must enjoy in the subsequent adversarial procedure. It is true that such drafting precautions should prompt the Commission to avoid as far as possible naming the non-settling undertaking in the settlement decision. However, they cannot lead to a prohibition on any direct or indirect reference to that undertaking.

73 The ECtHR’s decision in the case giving rise to the judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310) (see paragraph 53 above), does not support the applicant’s contention that the Commission, pursuant to its duty of impartiality and the principle of the presumption of innocence, as they apply to administrative proceedings to establish an infringement of Article 101 TFEU, should not have mentioned some of its conduct.

74 In the judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310), the ECtHR acknowledged that, in complex criminal proceedings involving several co-accused, the holding of separate trials staggered over time is nevertheless consistent with the principle of respect for the presumption of innocence in criminal law, provided, however, that the court concerned exercises particular caution when drafting the first of the two criminal judgments, which were necessary and were staggered over time specifically to ensure that proceedings against a large number of co-accused could be conducted in the best way possible.

75 In the case in point, this is what the Commission did, mutatis mutandis, as regards the applicant when it drafted the settlement decision addressed to the other four undertakings involved in the same cartel, as is apparent from the findings made in paragraphs 63 to 68 above.

76 Furthermore, upon reading the settlement decision, no potentially interested persons could objectively infer from the references to some of Pometon’s conduct in the provisional settlement decision (see paragraph 45 above) that it was conclusively guilty, since that decision made clear, leaving no room for doubt, that it was addressed exclusively to the other four undertakings which had agreed to settle and that the case concerning Pometon would be dealt with at a later stage in a separate adversarial procedure.

77 Based on the foregoing considerations, it then remains only to be ascertained, for completeness of analysis of the plea, whether the references to the name and to some of the applicant’s conduct in the ‘Description of the events’ of the settlement decision could actually be considered necessary for the fullest possible description of the facts at the origin of the cartel in question.

78 In that respect, it should be noted in the first place that, since parties to one and the same cartel are involved, such an examination must be carried out in the light not only of the factual and legal context concerning the four undertakings to whom the settlement decision was addressed, but also the broader context of an investigation procedure which has become hybrid in nature and which therefore must inevitably also include the situation of the applicant as a participant in the alleged infringement at issue, against whom the Commission adopted, on 16 January 2013, the decision initiating the investigation into the steel abrasive cartel (see paragraph 7 above).

79 In view of the continuity of the Commission’s actions between the settlement procedure followed in this case in respect of the other four undertakings and the ordinary procedure that led to the adoption of the contested decision against the applicant (see paragraph 64 above), the disputed references to some of the latter’s conduct in the settlement decision may prove to be objectively relevant to the description of the origin of the cartel as a whole.

80 However, in order to determine whether the Commission complied with its obligation of impartiality throughout the hybrid procedure at issue, it is necessary to take as a basis – as, moreover, the parties did – the interpretation criteria developed by the ECtHR in its judgment of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310). Of course, such criteria can only be taken into consideration here mutatis mutandis, due to the fact that, in Karaman, those parameters related to proceedings staggered over time of an exclusively criminal nature (see paragraph 74 above), which is not the case in the hybrid administrative procedure followed in this case.

81 First, as regards the precautions taken by the Commission in the settlement decision, it should again be noted that the references which the applicant challenges, appearing exclusively in section 4 of the settlement decision, headed ‘Description of the events’, do not contain any legal characterisation of the conduct of that undertaking.

82 In addition, in section 2 of the settlement decision, immediately after the list in section 1 of the four undertakings to whom the settlement decision was addressed, the Commission expressly describes the applicant in subsection 2.25 as an undertaking subject to the investigation proceedings initiated in respect of the participants in the cartel at issue, not as a party to the settlement procedure. In order to avoid any possible ambiguity, the Commission again points out that the applicant is not an addressee of that decision.

83 Furthermore, as has already been noted in paragraphs 64 and 65 above, in footnote 4 of the settlement decision, the Commission states that the decision is based on matters of fact as accepted by the four settling undertakings and that the references to Pometon’s conduct are used to establish only the liability of those four undertakings for the infringement, since the proceedings in respect of Pometon are pending.

84 It follows that those references to Pometon do not provide objective grounds for suspecting that the Commission deliberately prejudged the guilt and liability of that undertaking in connection with the cartel as early as the settlement decision addressed to the other four undertakings involved in it.

85 Secondly, as for whether the references in the settlement decision to the applicant’s conduct were necessary to establish the liability of the addressees of that decision, the Court must first of all reject the comparison which the applicant draws with the settlement decision of the Commission in the case giving rise to Decision C(2014) 4227 final, in which one of the undertakings involved in the cartel also withdrew from the settlement (see paragraph 40 above).

86 The facts of those two cases are not identical. In any event, the applicant fails to identify any plausible similarity between the cartel in that case and the cartel here.

87 That said, it must be recalled, next, that the wording of recital 38 of the settlement decision, according to which the references to the applicant’s situation in the preceding recitals ‘[demonstrate] that contacts involving Winoa, Ervin and Pometon evolved into a pattern of behaviour as of October 2003’, thus marking the beginning of the infringement, does not mean that, at that stage of the statement of reasons for the settlement decision, the Commission had already established all of the conditions of fact and law proving that Pometon, in the same way as the other four undertakings that had admitted their guilt, was guilty of having participated in the infringement at issue (see paragraphs 66 and 67 above).

88 As regards, moreover, recital 37 of the settlement decision concerning the geographic scope of the cartel covering, for the five undertakings concerned, the entire EEA, it should be pointed out that, since the Commission found that there was a single and continuous infringement, it was necessary to specify the territorial extent of the cartel as a whole (see paragraph 259 below).

89 Finally, recital 31 of the settlement decision, which states that ‘the contacts continued with Pometon until 16 May 2007 when it sold the steel abrasives business to Winoa and exited the business’, is not meant as a finding of the applicant’s liability for the infringement in question, but rather seeks to describe the development over time of the cartel in which the four addressees of the settlement decision admitted having participated, specifically in the light of Winoa’s acquisition on that date of Pometon’s business (recitals 32 to 35 of the settlement decision).

90 In those circumstances, and in accordance with the provisions applicable in this case, as set out in paragraphs 57 to 60 above – the lawfulness of which was not challenged by the applicant – the applicant cannot legitimately complain that the Commission, by referring to some of its conduct in the settlement decision in relation to the conduct of the other four undertakings concerned, infringed its fundamental duty of impartiality in the way it subsequently dealt with the still pending steel abrasives case against the applicant, or infringed the applicant’s presumption of innocence, as an undertaking that had decided not to take further steps in the settlement procedure while the other four competitors had, by contrast, agreed to it.

91 The applicant nevertheless maintains that, in the present case, the infringement of the presumption of innocence stems from the fact that the two procedures relating to the steel abrasives cartel to which it was subject – first, the settlement procedure, followed by the adversarial procedure – were staggered over time, which should have compelled the Commission to omit any reference to its specific situation from the settlement decision (see paragraphs 7, 10 and 11 above).

92 It is clear here that the fact that four of the five undertakings involved in the cartel admitted their guilt is a factor capable of having a significant and inevitable impact on the facts relating to the participation of the fifth undertaking suspected of having been a party to the same cartel, namely Pometon.

93 However, when an undertaking freely decides to opt for the hybrid procedure rather than provide the Commission with settlement submissions, it cannot claim, by relying on the principle of the presumption of innocence, that the Commission, as the authority responsible for ensuring compliance with the competition rules, is required to completely disregard in the settlement decision certain facts admitted by the other settling undertakings which are relevant for assessing the existence of that cartel as a whole, even though they relate to the conduct of the applicant who chose to take no further steps in the settlement procedure.

94 Moreover, the Commission’s argument that the applicant’s proposition would be tantamount in practice to conferring a form of ‘immunity from fines’ on undertakings that withdraw from settlement procedures cannot be upheld, either.

95 The point of law raised in that respect by the applicant does not seek to challenge the Commission’s power to impose a fine on it, but rather has its sights on the duty of impartiality that that institution is bound to comply with in dealing with the steel abrasives case against it and, therefore, on respect for the principle of the presumption of innocence in a hybrid procedure staggered over time.

96 However, the right of an undertaking to withdraw from a settlement procedure does not also confer on it the right to an irrebuttable presumption of innocence, that is to say, a presumption which cannot be disproved by evidence to the contrary, evidence that it is, in the instant case, for the Commission to adduce precisely in the course of an adversarial procedure with the undertaking concerned.

97 Consequently, notwithstanding its hybrid nature and the fact that it is staggered over time, such a procedure nevertheless allows, on the one hand, the Commission to fulfil in a proper manner its task of monitoring and punishing conduct which may prevent, restrict or distort free competition within the internal market (Article 101(1) TFEU) and, on the other, the undertakings concerned to assert fully their rights of the defence, in the specific context of a direct and adversarial confrontation with the Commission.

98 In addition, the applicant does not contend that such a time lag between the two procedures, when they are implemented, is, as such, contrary to the relevant provisions of the applicable regulations or the provisions of Article 41 of the Charter, concerning the duty of impartiality of the EU institutions. By contrast, the applicant submits that, in the present case, the time lag between the settlement decision and the contested decision undermines the presumption of innocence it must enjoy until its guilt has been established according to law.

99 It should be observed, however, that the decision to initiate an adversarial procedure in respect of an undertaking that has withdrawn from a settlement procedure does not require the Commission to delay or suspend the adoption of ‘appropriate measures to bring … an end’ to the cartel in question (Article 105 TFEU), particularly those relating to other undertakings that have admitted their liability and submitted final settlement submissions. The adoption of a settlement decision when all legal conditions so permit is, in fact, in the overriding public interest of safeguarding competition to the benefit of consumers. As also stated in recital 3 of Commission Regulation (EC) 2015/1348 of 3 August 2015 amending Regulation No 773/2004 (OJ 2015 L 208, p. 3), ‘the interests of consumers in ensuring that secret cartels are detected and punished outweigh the interest in imposing fines … on those undertakings that enable the Commission to detect and prohibit such practices’.

100 Accordingly, first, none of the provisions of EU law that apply in this case require the Commission to adopt a settlement decision at the same time as the infringement and penalty decision against an undertaking which has withdrawn from the settlement procedure or has even refused to participate in such a procedure from the outset. In that situation, the possibility of a time lag expressly follows from point 19 of the settlement notice, which states: ‘Should the parties concerned fail to introduce a settlement submission, the procedure leading to the final decision in their regard will follow the general provisions, in particular Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004, instead of those regulating the settlement procedure.’

101 Secondly, in consequence, even in the particular context of a hybrid procedure staggered over time, the applicable provisions of EU law enable the Commission to fulfil its task of monitoring and punishing cartels effectively, provided however that it fully complies with its duty of impartiality and the presumption of innocence with regard to the party which withdrew from the settlement and chose to have its case dealt with by that institution by means of a specific adversarial procedure.

102 During such an adversarial procedure, the undertaking concerned may, by invoking, inter alia, all the powers associated with the rights of the defence conferred on it by EU law, challenge all the inculpatory evidence put forward by the Commission and, at the same time, put forward all relevant exculpatory arguments.

103 For all of those reasons, in the light of both the drafting precautions taken by the Commission when drawing up the settlement decision and the substantive content of the disputed references to the applicant in that decision, those references cannot be regarded as evidence of a lack of impartiality on the part of that institution towards the applicant and, consequently, a lack of respect for the presumption of innocence in the contested decision.

104 In view of the foregoing, the first plea in law must therefore be rejected.

B. Second plea in law: infringement of Article 101 TFEU and Article 53 of the EEA Agreement, inadequate and contradictory statement of reasons, and infringement of the rights of the defence and the rules governing the burden of proof, in so far as the Commission ascribed to the applicant participation in the cartel

105 This plea may be broken down into three parts. In the first two parts, the applicant denies that it participated in each of the two limbs of the alleged cartel relating, first, to the method for calculating the scrap surcharge and, secondly, coordination in respect of individual customers. In the third part, it claims that it did not participate in the alleged single and continuous infringement. In support of those three parts, the applicant essentially pleads that the evidence which the Commission relied on in the contested decision was insufficient since it was unclear, inconsistent and contradictory.

106 Before addressing each of the three parts of this plea, some preliminary remarks should be made concerning the rules on the burden of proof and the taking of evidence.

1. Preliminary observations on the burden of proof and the taking of evidence

107 Article 2 of Regulation No 1/2003 expressly provides that ‘the burden of proving an infringement of [Article 101(1) or Article 102 TFEU] shall rest on the party or the authority alleging the infringement’. Thus, it is incumbent on the Commission to prove the infringement found by it and to demonstrate to the requisite legal standard the existence of the circumstances constituting an infringement (see, to that effect, judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 91 and the case-law cited).

108 Therefore, in accordance with the principle of the presumption of innocence, any doubt of the Court when it is called upon to assess whether the Commission has established to the requisite legal standard that an undertaking is guilty of an infringement of Article 101 TFEU must benefit the undertaking to whom the decision finding the infringement was addressed (see, to that effect, judgment of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraph 92 and the case-law cited).

109 Thus, the Commission must, in that situation, adduce precise and consistent evidence to support the finding that the infringement and the penalty in question were established according to law, namely in compliance with the applicable legal rules and, in particular, the rights of the defence, which is guaranteed for anyone who has been charged. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the set of indicia relied on by the Commission, viewed as a whole, meets that requirement (see, to that effect, judgments of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 52, and of 12 April 2013, CISAC v Commission, T‑442/08, EU:T:2013:188, paragraphs 96 and 97).

110 Since the prohibition on participating in anticompetitive practices and agreements and the penalties which offenders may incur are well known, it is increasingly common for collusive activities to take place in a clandestine fashion, for meetings between representatives of the undertakings to be held in secret, most frequently in a non-member State, and for the associated documentation to be reduced to a minimum, precisely in order to avoid detection of the cartel and penalties which are quite rightly severe.

112 Therefore, the existence of anticompetitive practices or agreements must, in most cases, be inferred from a number of coincidences or indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgments of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26, and of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51).

113 Faced with anticompetitive practices which are ever more difficult to detect, the Commission may, among other things, take account of elements from outside the infringement period if they form part of the body of evidence it relies on to prove the infringement. It may thus rely on factual circumstances prior to the anticompetitive conduct in order to confirm the content of an objective item of evidence (see, to that effect, judgment of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 188) or even on circumstances subsequent to that conduct (judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 178).

114 Moreover, where the Commission relies, in establishing an infringement of competition law, on documentary evidence, the burden is on the undertakings concerned not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence it relied on in the contested decision to establish the existence of the alleged infringement is insufficient (see judgment of 16 June 2015, FSL and Others v Commission, T‑655/11, EU:T:2015:383, paragraph 181 and the case-law cited).

115 As regards the evidence that may be relied on to establish an infringement of Article 101 TFEU, the principle which prevails in EU 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, secondly, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128).

116 According to the generally applicable rules on evidence, the credibility and, therefore, the probative value of a document depend on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and the soundness and reliable nature of its contents.

117 Special importance should therefore be attached to documents which have been drawn up in close connection with the events or by a direct witness of those events. That is the case, in particular, as regards documents relating directly to meetings at which the planning or implementation of the cartel was discussed and which were clearly drawn up without any thought for the fact that they might fall into the hands of third parties (see, to that effect, judgments of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 207, and of 15 December 2016, Philips and Philips France v Commission, T‑762/14, not published, EU:T:2016:738, paragraph 109).

118 From that point of view, statements made by other incriminated undertakings may be of significance for the purposes of determining the existence of a cartel. In particular, statements made in the context of an application for immunity under the Commission’s leniency programme (see recital 3 of Regulation 2015/1348, cited in paragraph 99 above) have a high probative value (see, to that effect, judgments of 8 July 2004, JFE Engineering and Others v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraphs 205, 211 and 212, and of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraph 115). Indeed, any attempt by a leniency applicant to mislead the Commission could call into question the sincerity and the completeness of its cooperation and, thus, expose it to losing the benefit of such cooperation (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 138).

119 For that reason, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence, given that the degree of corroboration required may be lesser in view of the reliability of the statements at issue (judgments of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 135, and of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 28).

120 In short, when considering the evidence of the infringement alleged by the Commission, each item of evidence put forward by that institution does not necessarily have to be specific and constitute in itself independent proof of the infringement. It is sufficient for the entire adversarial process and the body of evidence produced by the Commission, assessed as a whole, to meet the basic requirements relating to proof of guilt, so that the EU Courts before which proceedings may be brought to review the infringement decision are able to find that guilt has been proven according to law (see paragraph 109 above).

2. First part of the second plea in law: the applicant did not participate in the first limb of the cartel relating to the method for calculating the scrap surcharge

(a) Arguments of the parties

121 The applicant claims that the Commission’s finding that it participated in the arrangement concerning the method for calculating the scrap surcharge is incorrect and is not based on any evidence. It argues that the scrap surcharge could not be applied automatically and that it required regular exchanges between the undertakings involved as well as meetings and other contacts which constituted the very essence of the cartel.

122 In the first place, the applicant asserts that it was not sufficient for each producer to consult the price indexes for scrap, namely the CAEF 225 index for Italy and the Eurofer index for the other EEA countries, and for it then to calculate, independently, the amount of the scrap surcharge by applying the previously agreed formula. On the contrary, the applicant states that it follows from the Commission’s findings in the contested decision (recitals 40, 121, 124 and 125) that, in order to determine the scrap surcharge, the producers had to receive the communication that Winoa was required to send every month by email to each cartel participant (‘the spreadsheet’) or, failing which, they had to consult the website of Winoa on which it published, as from May 2004, information on the scrap surcharge and notified the other parties of that publication.

123 In that regard, the applicant claims in any event that it never received from Winoa either the spreadsheets or the notification that it had published the scrap surcharge on its website. Moreover, it denies that such publication could replace the sending of the spreadsheets (recital 127 of the contested decision).

124 In the second place, concerning its participation in meetings, the applicant argues that, of the 27 meetings that took place during the period ending on 16 May 2007, it participated in only 2 meetings with the other undertakings concerned: the first on 28 September 2004 and the second on 9 June 2005 (recital 69 of the contested decision).

125 In particular, no meeting took place on 16 May 2007. The meeting in Milan (Italy), referred to in recitals 52 to 56 of the contested decision, in fact took place on 17 May 2017, the day after the applicant sold its business in the steel abrasives sector to Winoa and thus left that market for good (recitals 11, 129 and 166 of the contested decision).

126 In the third place, regarding the other contacts, the applicant submits that it is not apparent from the documents relied on in the contested decision (recitals 48 to 55) that its contacts with the other cartel participants were such as to prove that it continued to apply, from 2004 onwards, the scrap surcharge agreed to in October 2003.

127 In short, the applicant states that the Commission distorted the facts and failed to prove that it had been involved in collusive contacts.

128 The Commission contests those arguments.

(b) Findings of the Court

(1) Initial role of the applicant in setting up the scrap surcharge in 2003

129 The applicant does not deny its initial liability for the first limb of the cartel as from 3 October 2003. Nor did it contest that liability in its reply to the statement of objections of 3 December 2004 (recitals 114 and 160 of the contested decision). It is thus common ground that the applicant not only concluded the agreement on the method for calculating the scrap surcharge, with Winoa and Ervin, at the meeting of the representatives of those three undertakings on 3 October 2003 at a restaurant on the shores of Lake Garda (Italy), but that it also played an important role in 2003 in the preparation of that meeting and the choice of the new uniform calculation system.

130 Furthermore, it follows from the documents in the case that the applicant was involved, after the conclusion of the agreement of 3 October 2003, in coordinating and actually implementing the new system for calculating the scrap surcharge. That involvement is evidenced, first of all, by a series of emails it exchanged with Winoa in October 2003 (recitals 42 to 45 of the contested decision), which the applicant does not dispute, and by an email of 1 December 2003 from the general manager of Pometon Deutschland to the director-general of the applicant (recital 46). That document, in particular, clearly shows that the applicant asked its German subsidiary to apply the scrap surcharge, an instruction which is entirely consistent with the strategy of the cartel at issue. Finally, Winoa’s internal email of 9 December 2003 shows that the introduction of that surcharge by the Spanish subsidiaries of Winoa and of the applicant was also the subject of coordination between those undertakings (recital 47 of the contested decision).

131 Those facts are also not in dispute.

(2) Automatic application of the scrap surcharge after 1 February 2004

132 The uniform scrap surcharge formula, as agreed at the meeting of 3 October 2003 and applied, according to the Commission, by all the cartel participants as from February 2004, is described in recital 37 of the contested decision.

133 That formula was based, on the one hand and for the whole of the EEA, except the Italian market, on the Eurofer scrap price index. That index was published every month until 2 March 2016 on the website of Eurofer, the European Steel Association. It was calculated on the basis of the average price in EUR per tonne based on bid and ask prices collected from major traders in Germany, France, Italy, Spain and the United Kingdom (recital 7 of the contested decision).

134 On the other hand, for Italy, where scrap prices were significantly higher than in most other European countries, that formula was based on the CAEF 225 index, a national index established by the Milan Chamber of Commerce and published on the website of Assofermet, an Italian association representing undertakings active in the steel products sector.

135 Unlike the Eurofer index, the CAEF 225 index did not take the form of a single monthly figure, namely one indicator alone, but rather a minimum and maximum price band published fortnightly by Assofermet (recitals 37 and 126 of the contested decision).

136 Based on that information, the scrap surcharge was calculated, under the terms of the agreement, by subtracting, by way of ‘offset’, the figure 68 from the Eurofer index and the figure 62 from the CAEF 225 index. To construct the base price of steel abrasives applicable to customers, the amount thus obtained was added to the other costs, including the actual purchase price of the scrap.

137 Although it does not challenge that calculation method in its pleadings, the applicant submits, however, that the producers concerned could not apply the scrap surcharge automatically on the basis of those two indexes alone.

138 According to the applicant, in order to apply the surcharge, each producer either had to receive the spreadsheet every month, namely the monthly email concerning the scrap surcharge that Winoa was responsible for sending to the cartel participants until mid-2007, or had to consult, as from May 2004, the information on the scrap surcharge published on Winoa’s website.

139 In response to a question from the Court, the applicant argued at the hearing that, particularly in Italy, it would have been very difficult to apply the scrap surcharge without the data contained in the spreadsheets, since the CAEF 225 index consisted in a price band published every 15 days, specifically, four indicators per month (see paragraph 135 above). At the hearing, the applicant also stated that the conversion of those four indicators into a single amount was carried out by Winoa, in the spreadsheets, which also mentioned not only that one amount but also the actual amount of the scrap surcharge.

140 Therefore, according to the applicant, the Commission’s claims regarding its participation in the first limb of the cartel were incorrect and not supported by sufficient evidence, since the applicant never received the monthly spreadsheets, which it argues were necessary in order to implement the first limb of the cartel, or even Winoa’s email informing the other cartel participants of the publication, as from May 2004, of information on its website concerning the scrap surcharge and forwarding them the link to that site (see paragraph 122 above).

141 However, that argument, which is essentially based on the premiss that the automatic application of the scrap surcharge agreement was impracticable or impossible, particularly in Italy, cannot be upheld.

142 First of all, as regards the application of the scrap surcharge agreement in Italy, it should be noted that since the applicant does not deny having participated in the design and initial set-up of the agreement, it is unlikely that, in the actual implementation of that anticompetitive action plan, Pometon – which was essentially one of the cartel’s architects – could reasonably refrain from applying the surcharge, without provoking any reaction from its partners in the cartel, solely because it did not have sufficient information from Winoa. Indeed, that surcharge had been designed by Pometon and agreed with the other undertakings concerned precisely so that it could be implemented autonomously and automatically by each party to the cartel, including on the Italian market, which is primarily Pometon’s market.

143 It is clearly apparent from the documentary evidence produced by the Commission, such as the email of 5 September 2003 from the applicant’s director-general to Winoa, that the scrap surcharge system was, in actual fact, intended to apply automatically and that the indexes on which that system was to be based had been chosen specifically for that reason. This confirms that it was not absolutely necessary for a monthly notice to be sent to the cartel participants for the purposes of applying the scrap surcharge.

144 Next, as regards the calculation, in the strict sense, of the scrap surcharge in Italy, the applicant’s argument that it was not readily able to determine the amount of that increase without the benefit of the spreadsheet drawn up by Winoa (see paragraph 139 above) cannot succeed, either. It is expressly stated in the exchange of internal emails within Winoa of 31 May 2007 – on which the applicant relied at the hearing, in reply to a question from the Court – that, in order to determine the level of the CAEF 225 index to be taken into account for the calculation of the surcharge, Winoa’s employees simply took the price band drawn up twice a month by the Milan Chamber of Commerce and calculated the average of those four amounts. It is in no way disputed that this approach did not change following the agreement of 3 October 2003 on the new system for calculating the scrap surcharge in question (see paragraph 129 above). Accordingly, there is nothing to suggest that the other parties to the cartel were not able, if needed, to perform the abovementioned calculation.

145 Finally, it is apparent from the documents relied on by the Commission in recital 125 of the contested decision, which were produced by the parties, that, even before the introduction of the new system for calculating the scrap surcharge, Winoa would send the applicant every month a spreadsheet referring to the previous index on which the scrap surcharge was based as well as the amount of that surcharge. This is evidenced by the fax sent by the applicant’s director-general to Winoa on 14 February 2003 and a number of such spreadsheets contained in the Commission’s file. In view of the applicant’s involvement in setting up the new system (see paragraphs 129 and 130 above), it is unlikely that Winoa stopped sending spreadsheets to the applicant after 1 February 2004, even though it was agreed that the applicant would be responsible for the monthly announcements concerning the scrap surcharge to be sent to the cartel participants (recital 38 of the contested decision).

146 In short, it is apparent from all of the evidence examined in paragraphs 141 to 144 above that the automatic application of the first limb of the cartel cannot be called in question merely because the introduction of the scrap surcharge calculation method was accompanied by the establishment a system of monthly notices, or coordination, ensured by Winoa.

147 For all of those reasons, since the Commission has proven to the requisite legal standard that the scrap surcharge was, on any view, automatically applicable, the absence – relied on by the applicant – of documentary evidence showing that Winoa sent spreadsheets to Pometon during the period covering its participation in the infringement is not such as to raise doubts as to the involvement of that undertaking in the first limb of the cartel after 1 February 2004.

(3) Contacts between the applicant and the other cartel participants as from 2004

148 In the light of the automatic nature of the scrap surcharge, the applicant’s argument that participation in meetings and other contacts were necessary for the implementation by Pometon of the first limb of the cartel, from 2004 onwards, must also fail.

149 First, on the matter of meetings, the applicant disputes the Commission’s assertion in recital 111 of the contested decision that, ‘in the period following the establishment of the uniform scrap surcharge formula in autumn 2003 and until the revision of the scrap surcharge in summer 2007 the contacts were less intense’ and notes that the Commission states that it attended only 2 out of 27 meetings that took place during the period in issue.

150 However, due to the automatic nature of the system, and even if it were accepted that the other cartel participants, or some of them, actually held meetings more or less regularly in order to monitor the application of the scrap surcharge, it cannot be inferred from the fact that the applicant did not participate in those meetings that it had ceased to apply that system.

151 Secondly, as for other contacts, the arguments put forward by the applicant are also not capable of casting doubt on the probative value of the evidence relied on by the Commission to support its findings regarding Pometon’s participation in the first limb of the cartel.

152 First of all, the Commission rightly points out that the very purpose of Winoa’s internal email of 24 March 2004, referred to in recital 48 of the contested decision and describing a conversation held with the general manager of Pometon España, was to monitor the implementation of the scrap surcharge, thus confirming Pometon’s involvement in the first limb. The claim put forward by the applicant that the discussion specifically concerned the question of Pometon’s compliance with the scrap surcharge agreement in relation to one of its customers in Spain, the company Acerinox, cannot invalidate that finding.

153 Next, the emails exchanged between Würth and Pometon between 16 and 18 November 2005, referred to in recital 50 of the contested decision, concerned, as the Commission points out, the extension of the scrap surcharge system in question to supplies of steel abrasives between the cartel members.

154 Contrary to the applicant’s assertions, those emails clearly refer to that system. In particular, in his email of 17 November 2005, the applicant’s director-general told Würth that, in order to set the price for the sale of steel abrasives by Pometon to Würth in 2006, ‘the solution would be to apply the monthly scrap surcharge as currently done in the markets’. He thus refers explicitly to the fact that the system in issue was applied by the cartel participants, including Pometon, in the relevant markets and advocated extending it to supplies between producers.

155 Finally, the existence of anticompetitive contacts between Pometon and the other cartel participants is also demonstrated by Ervin’s internal email of 20 March 2007, mentioned in recital 52 of the contested decision, which states that representatives of Winoa and Pometon had invited the author of that email to attend a meeting in Milan, on ‘16th/17th May’ 2007, in order to discuss the application of the scrap surcharge (see paragraph 301 below).

156 Thirdly, the references in the contested decision (recitals 69, 95, 107, 108, 110, 113 and 143) to the applicant’s participation in meetings or other contacts between the cartel participants cannot be interpreted as meaning that the Commission itself considered that such contacts were necessary for the implementation of the first limb of the cartel, which would be at odds with the evidence on the automatic nature of the scrap surcharge system.

157 First of all, the references mentioned in paragraph 156 above, relied on by the applicant, do not relate only to contacts specifically concerning the application of the first limb as from 2004. Also, where they concern the first limb, those references do not, in any way, demonstrate that such contacts were necessary for the purposes of applying the scrap surcharge, but rather support, by precise and consistent evidence, the Commission’s findings regarding the applicant’s liability for the first limb of the cartel.

158 In particular, the Commission’s conclusion in recital 95 of the contested decision that ‘Pometon was involved in collusive anticompetitive arrangements concerning the prices of steel abrasives through participation in a number of meetings and other contacts with competitors’ must be understood, in view of the findings preceding it, as including the preparatory contacts in 2003 for the meeting of 3 October 2003. Furthermore, that conclusion covers not only the scrap surcharge, but both limbs of the cartel. The same holds for recitals 107, 108, 110, 113 and 143 of the contested decision. Lastly, as for the meetings of 28 September 2004 and 9 June 2005, those meetings are mentioned in recital 69 of that decision only in connection with the implementation of the second limb of the cartel by the applicant in Germany (see paragraphs 215 to 218 below).

159 Accordingly, regarding the first limb of the cartel, the Commission has proven the existence, after the initial set-up phase of the new scrap surcharge system, of a number of collusive contacts between Pometon and the other parties to the cartel (see paragraphs 153 to 156 above), contacts which, without being necessary for the application of that system, were intended to ensure that its application was monitored.

(4) Conclusion on the evidence of the applicant’s participation in the first limb of the cartel

160 In the light of all the foregoing considerations, the Court finds that the evidence adduced by the applicant does not show that the Commission failed to prove, to the requisite legal standard, its individual liability for the first limb of the cartel, having regard, in the first place, to the automatic nature of the application of the scrap surcharge (see paragraph 148 above) and, in the second place, to the fact that the applicant’s limited but significant contacts with the other cartel participants, relied on by the Commission (see paragraph 160 above), show that the applicant was not only behind the introduction of that system, which it did not dispute, but also took part in monitoring its application. In view of those findings, the applicant’s participation in the first limb of the cartel is amply demonstrated, without prejudice to the assessment of the duration of its participation, which is challenged in the arguments put forward by the applicant under the fourth plea in law (see paragraphs 289 to 315 below).

3. Second part of the second plea in law: the applicant did not participate in the second limb of the cartel concerning coordination in respect of individual customers

(a) Arguments of the parties

161 The applicant submits that the reconstruction of the events giving rise to the cartel forming the subject matter of the contested decision is incoherent and inconsistent with the evidence put forward by the Commission itself, especially with the statements of the leniency applicant, who mentioned regular meetings not only in Germany, but also in Italy, where, according to the second of those statements, ‘competitors … met … about 3-4 times a year’.

162 The applicant observes, in the first place, that none of the leniency applicant’s statements names Pometon as one of the undertakings that participated in the overall system of coordination in respect of individual customers. By contrast, those submissions showed that there were frequent collusive contacts between the other cartel participants, particularly concerning actions on the markets of the main sales regions for steel abrasives in Europe, namely Germany, Italy, Spain, France and the United Kingdom.

163 The applicant maintains that the only reference the leniency applicant makes to Pometon regarding the German market relates in actual fact to conduct attributable to Pometon Abrasives, a company belonging to the Winoa group, or to conduct that is not confirmed by documentary evidence (recital 132 of the contested decision). In addition, in respect of the Italian market, the leniency applicant stated that the applicant had participated in two meetings, on 6 June and 4 October 2007, even though it had, by that time, already transferred its business in the steel abrasives sector to Winoa.

164 In the second place, specifically as regards the Spanish market, the applicant submits that the contacts between Pometon and Winoa ‘until 5 April 2004’, to which the Commission refers in recital 64 of the contested decision, were purely bilateral and took place over only six months, between October 2003 and April 2004. As for Winoa’s internal email of 15 July 2005, mentioned in recital 67 of the contested decision, this demonstrates that there was absolutely no customer sharing agreement.

165 The applicant also states that the documents in the file confirm that there was no coordination in respect of individual customers between Pometon and Winoa. That is the case with respect to the minutes of a meeting of 18 May 2004, annexed to one of Winoa’s internal emails, describing ‘difficulties to apply [the scrap surcharge] in a number of customers due to Ilarduya and Pometon competition on fixed price’, and Winoa’s internal email of 15 July 2005, mentioned in recitals 67 and 131 of the contested decision. That email was not, in any event, followed by a meeting with Pometon.

166 In the third place, concerning the French and Belgian markets, the applicant contends that the Commission relies, in recital 63 of the contested decision, on an internal email of Winoa of 19 January 2004 describing a discussion between MTS and Winoa, in which Winoa suspected that Pometon had undercut its price to a French customer. Contrary to the Commission’s assertion, that document proves that Pometon was considered by Winoa to be an aggressive competitor. That is, moreover, consistent with the statements of the leniency applicant, which make no mention at all of Pometon in relation to ‘competitor contacts regarding France and Benelux’.

167 In the fourth place, as regards the German market, the applicant recalls that, according to recital 164 of the contested decision, Germany was the only country where contacts were organised in a structured manner. Of the 14 multilateral and 10 bilateral meetings which took place during the period when Pometon was still active on the steel abrasives market (in other words, until 16 May 2007), the presence of Pometon is confirmed at one multilateral meeting and one bilateral meeting at the most. Furthermore, the applicant disputes the probative value of the second statement of the leniency applicant, referred to in recital 68 of the contested decision. Indeed, the expense reports produced by the leniency applicant do not relate to the applicant. As for the receipt from the NodingerHof hotel, where the meeting of 16 November 2006 took place, this demonstrates that none of Pometon’s representatives attended the meeting, since the receipt does not mention their names, only those of the other participants. Finally, the unreliability of the abovementioned statements as regards Pometon’s alleged participation in meetings with other competitors is confirmed by the fact that they refer to the applicant’s participation in a meeting held on 13 November 2017, six months after Pometon had exited the market.

168 The applicant also disputes the documentary evidence relied on by the Commission to corroborate its participation in the meetings of 28 September 2004 and 9 June 2005. In particular, it claims that there is no documentary evidence of the topics discussed during those meetings and that the leniency applicant does not provide even a brief description in that regard.

169 In the fifth place, in respect of the Italian market, the applicant states, first of all, that the Commission made no finding that it had participated in meetings with its competitors (see the end of paragraph 161 above). Next, it submits that the five documents referred to in recitals 75 to 79 of the contested decision, on which the Commission relies, do not provide a basis ‘to conclude beyond reasonable doubt’ that it was involved in coordination in respect of individual customers.

170 Concerning the fifth document in particular (recital 79 of the contested decision), containing emails exchanged in May 2008 between an employee of Pometon Abrasives, Mr T., and an employee of MTS, the applicant submits that the email of 28 May 2008 from the former to the latter, stating that ‘as you perfectly know, [Pometon Abrasives’s] policy is not to cut the prices but on the contrary to increase them’, referred to the company’s policy after its acquisition by Winoa, not the applicant’s policy.

171 The Commission contests all of those arguments. It states, first of all, that it itself acknowledged that Pometon’s role in the second limb of the infringement was less important and granted it a 10% reduction of the fine on account of mitigating circumstances.

172 However, even though the applicant had only occasional collusive contacts of a bilateral nature concerning a limited number of countries, the contacts that were proven were significant and demonstrate the existence of the cartel and Pometon’s involvement in it.

(b) Findings of the Court

173 The second limb of the cartel concerns coordination of the commercial terms applied by the participants to some individual customers in order to restrict price competition in respect of those customers. In essence, the Commission considers that the cartel participants discussed, mainly on a bilateral basis, competitive parameters relating to the sale price of steel abrasives to be charged to their respective customers, while quality, services and other commercial terms remained subject to competition.

174 Thus, in recital 57 of the contested decision, the Commission states: ‘The evidence contained in the file, in particular a number of inspection documents as well as other documents submitted by the leniency applicant, show that Pometon also coordinated its behaviour with the other participants in the infringement with respect to individual customers. In parallel with the coordination on the scrap surcharge (see for example recitals (35), (45), (52), (61) and (77)), the participants agreed in principle not to poach each other’s established customers, at least not by means of price cuts, to coordinate pricing, including price increases and to implement surcharges in cases where customers were multi-sourcing (see recitals (76), (78) and (79)). While the form and intensity of this behaviour in different Member States varied, the same general principle applied: not to compete on price with regard to individual customers.’

(1) Preliminary observations on the scope of the second part of the second plea in law

175 It should be noted as a preliminary point that the Commission accepts in the contested decision (recitals 58 and 59) that, while the contacts between Ervin and Winoa to coordinate their conduct towards individual customers were more frequent, the applicant’s involvement in such contacts was only occasional, mainly when one of the participants failed to comply or was suspected of not complying with the second limb of the cartel.

176 However, the Commission considers (recitals 225 and 226 of the contested decision) that that fact does not rule out Pometon’s participation in or liability for the second limb of the cartel, since the more limited nature of its involvement in that limb may nevertheless be taken into account as a mitigating circumstance. Therefore, the Commission granted the applicant a 10% reduction of the fine as it had done, moreover, in the settlement decision (recital 103) as regards MTS and Würth, which had also contributed to a lesser extent than Winoa and Ervin in the second limb of the cartel.

177 The applicant, however, denies all liability for the second limb of the cartel.

178 It should first be recalled that the case-law distinguishes between, on the one hand, a finding that an undertaking is liable for a single and continuous infringement as a whole, even though that undertaking participated in only some of the collusive conduct, and, on the other, the extent of its individual liability for the infringement on account of its own conduct, for the purposes of calculating the fine which may be imposed only in accordance with the principle that penalties must be tailored to the individual.

179 An undertaking that has knowingly taken part in a single and continuous infringement through conduct of its own may also be held responsible for the conduct of other undertakings in the same cartel for the entire period of its participation in that infringement (see paragraphs 243 to 249 below).

180 Accordingly, the fact that an undertaking did not take part in all aspects of a cartel or that it played only a minor role in some aspects in which it did participate is not material to the establishment of the existence, on its part, of an infringement of the competition rules, given that those factors need to be taken into consideration only when the gravity of its participation in the infringement in question is assessed and if and when it comes to determining the fine (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 86, and of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 45).

181 In that connection, the third indent of point 29 of the Guidelines on the method of setting fines lists, as one of the mitigating circumstances which may be applied to an undertaking, evidence that its involvement in the infringement is substantially limited and that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting proper competitive conduct in the relevant market.

182 In the present case, it follows that Pometon’s limited involvement in the numerous meetings and other contacts that took place in relation to the second limb of the cartel cannot preclude its liability for that second limb if the Commission shows, in accordance with the case-law criteria recalled in paragraphs 245 and 246 below, that that undertaking intended to contribute to the single and continuous infringement as a whole, which will be examined in paragraphs 252 to 269 below.

183 Thus, the fact that the applicant did not participate in the structured system of coordination organised in the form of multilateral meetings around twice a year in Germany (recitals 68 and 164 of the contested decision) or in the meetings that were held regularly in Italy (see paragraphs 162 above and 222 below) – which, moreover, is not disputed by the Commission (see paragraphs 172 and 173 above) – does not necessarily mean that it did not participate in coordination in respect of individual customers.

184 Therefore, in this part of the plea, the Court need only examine the applicant’s individual liability for the second limb of the cartel, by reviewing whether the evidence relied on by the Commission has sufficient probative value to demonstrate the existence of collusive conduct relating to price coordination in respect of some customers, conduct which it attributes to Pometon in the contested decision.

(2) Examination of the evidence relating to the applicant’s participation in the second limb of the cartel

185 It should first be pointed out that the Commission acknowledges that there is evidence of Pometon’s participation in the second limb of the cartel in only five EU Member States, namely Belgium, Germany, Spain, France, and Italy.

186 It is therefore necessary to determine whether, in the light of all the evidence adduced by the parties, the findings concerning the conduct of Pometon in the second limb of the cartel are supported to the requisite legal standard.

(i) The Spanish market

187 As regards, first, the Spanish market, the Commission relies on a number of items of documentary evidence establishing the existence of bilateral contacts between Pometon and Winoa on that market, contacts that were spread out between 20 February 2003 and 15 July 2005. These are (i) emails of22 October and 21 November 2003 between the applicant’s director-general and Winoa (recitals 61 and 62 of the contested decision); (ii) summaries of bilateral meetings and telephone conversations between Pometon and the Spanish subsidiary of Winoa, which took place between 20 February 2003 and 5 April 2004, drawn up by an employee of Winoa who participated in them (recital 64 of the contested decision); (iii) an internal document of Winoa describing a meeting held on 12 February 2004 with the Spanish subsidiary of Pometon in Zaragoza (Spain) (recital 65); and (iv) internal emails of Winoa sent on 17 and 23 March 2004 (recital 66) and 15 July 2005 (recital 67).

188 In the first place, it should be noted that the direct involvement of Pometon in coordination in respect of individual customers from the very beginning of the cartel is readily apparent from the abovementioned email of 22 October 2003, expressly mentioned in recital 61 of the contested decision. In that email, the applicant’s director-general, referring to three of Pometon’s Spanish customers, essentially criticised Winoa for lowering its prices while Pometon raised them and thus asked Winoa for an explanation.

189 In the second place, Pometon’s participation in price coordination in respect of some individual customers in Spain is evidenced in particular by a number of contacts between that undertaking and Winoa, both before and after the beginning of the cartel. Accordingly, the prices charged to some individual customers were discussed at bilateral meetings at which Pometon was represented by the general manager of Pometon España, for instance those held on 20 February 2003, 12 February 2004 and 16 March 2004, as is apparent from the minutes of those meetings referred to in the contested decision and included in the file. That coordination is also confirmed by the records of telephone conversations, for instance those of 15 and 24 March 2004, during which the need to comply with the agreement was confirmed and the prices to be charged to specific customers were discussed.

190 In the third place, the internal email of Winoa of 15 July 2005 (see paragraphs 165 and 187 above), referred to in recital 67 of the contested decision, states that Pometon has ‘made offers to customers they know to be exclusive TFM [Winoa’s subsidiary in Spain]’ and that ‘during your meeting with [Pometon], they must understand that we cannot accept such an approach’. It follows that Pometon was at least aware of an agreement intended to protect the exclusive customers of each participant (non-poaching agreement), on account of which, according to Winoa, the applicant should not have made overtures to exclusive customers of that undertaking’s subsidiary in Spain.

191 Whether the meeting with a representative of Pometon which was to be held the week following 15 July 2005 actually took place or not has no bearing on the significance of that evidence, which demonstrates, in the context under consideration and to the requisite legal standard, that Pometon was a party to the cartel, precisely because, in the case of some of Winoa’s Spanish customers, Winoa, as a party to the cartel as well, considered it necessary to remind Pometon to comply with the agreements entered into.

192 According to the relevant case-law (see paragraph 115 above), the items of evidence examined in paragraphs 188 to 191 above, the content of which refers to bilateral contacts clearly intended to coordinate prices as regards individual customers, have a high probative value since they are either exchanges of emails between the director-general of the applicant and Winoa, or documents for internal use, detailing the topics discussed at meetings or in telephone conversations betwe