CELEX: 62008TJ0204
Language: en
Date: 2011-06-16 00:00:00
Title: Judgment of the General Court (Eighth Chamber) of 16 June 2011.#Team Relocations NV (T-204/08) and Amertranseuro International Holdings Ltd, Trans Euro Ltd and Team Relocations Ltd (T-212/08) v European Commission.#Competition - Cartels - International removal services market in Belgium - Decision finding an infringement of Article 81 EC - Price-fixing - Market-sharing - Bid rigging - Single and continuous infringement - Imputability of the infringement - Fines - 2006 Guidelines on the method of setting fines.#Joined cases T-204/08 and T-212/08.

Joined Cases T-204/08 and T-212/08
      Team Relocations NV and Others 
      v
      European Commission
      (Competition – Cartels – International removal services market in Belgium – Decision finding an infringement of Article 81 EC – Price‑fixing – Market‑sharing – Bid rigging – Single and continuous infringement – Imputability of the infringement – Fines – 2006 Guidelines on the method of setting fines)
      Summary of the Judgment
      1.      Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement
            – Meaning
      (Art. 81(1) EC)
      2.      Competition – Fines – Amount – Determination – Criteria – Turnover
      (Commission Notice 2006/C 210/02, Section 13)
      3.      Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Principle of the individualisation
            of sanctions
      (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
      4.      Competition – Fines – Amount – Determination – Criteria – Duration of the infringement
      (Commission Notice 2006/C 210/02)
      5.      Competition – Fines – Amount – Determination – Deterrent effect – Assessment
      (Commission Notice 2006/C 210/02, Section 25)
      6.      Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment
      (Commission Notice 2006/C 210/02, Section 29)
      7.      Competition – Fines – Amount – Determination – Mitigating circumstances –  Anti‑competitive conduct authorised or encouraged
            by public authorities
      (Commission Notice 2006/C 210/02, Section 29, last indent)
      8.      Competition – Fines – Amount – Determination – Reduction on account of an undertaking’s financial situation – Conditions
      (Commission Notice 2006/C 210/02, Section 35)
      1.      It would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of
         several separate infringements, when what was involved was a single infringement which progressively manifested itself in
         both agreements and concerted practices.
      
      Accordingly, an undertaking that has taken part in an infringement through conduct of its own which fell within the scope
         of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was
         intended to help bring about the infringement as a whole is also responsible, throughout the entire period of its participation
         in that infringement, for conduct of other undertakings in the context of the same infringement.
      
      In order to establish that there has been a single and continuous infringement, the Commission must show that the undertaking
         intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of
         the conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably
         have foreseen it and that it was prepared to take the risk.
      
      Restrictive practices can be regarded as constituent elements of a single anti‑competitive agreement only if it is established
         that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought
         to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation
         in them constitute the expression of its accession to that agreement.
      
      Thus, three conditions must be met in order to establish participation in a single and continuous infringement, namely the
         existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking to that plan, and
         its awareness (proved or presumed) of the offending conduct of the other participants.
      
      As regards the existence of an overall plan pursuing a common objective, the concept of a common objective cannot be determined
         by a general reference to the distortion of competition in the market concerned by the infringement, since an impact on competition,
         as object or effect, constitutes a constituent element of any conduct covered by Article 81(1) EC. Such a definition of the
         concept of a common objective is likely to deprive the concept of a single and continuous infringement of a part of its meaning,
         since it would have the consequence that different types of conduct which relate to a particular economic sector and are prohibited
         by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus,
         for the purposes of characterising various instances of misconduct as a single and continuous infringement, it is necessary
         to take into account any circumstance capable of establishing or casting doubt on a link of complementarity, such as the period
         of application, the content (including the methods used) and, correlatively, the objective of the various instances of misconduct.
      
      (see paras 33-37, 40)
      2.      Section 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 states
         that: ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s
         sales of goods or services to which the infringement directly or indirectly relates …’. It does not follow from that provision
         that only the value of sales for transactions actually affected by the infringement may be taken into account for the purposes
         of determining the relevant value of sales. Thus, point 13 of those Guidelines refers to: ‘sales … to which the infringement
         directly or indirectly relates’ and not to ‘sales affected by the infringement’. The wording of Section 13 therefore relates
         to sales in the relevant market. 
      
      That interpretation is reinforced by the objective of the EU rules on competition. In order to determine the basic amount
         of the fines to be imposed in cartel cases, the Commission is not obliged to ascertain the individual sales which were affected
         by the cartel. An obligation of that kind has never been imposed by the Courts of the European Union and there is no indication
         that the Commission intended to assume such an obligation in the above Guidelines. In addition, it is inevitable, in cartel
         cases, which by their very nature are secret, that some of the documents showing each of the manifestations of anti-competitive
         practices will not be discovered.
      
      Furthermore, the proportion of the turnover accounted for by the goods in respect of which the infringement was committed
         gives a proper indication of the scale of the infringement on the relevant market. In particular, the turnover in the products
         which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which
         that practice does to normal competition.
      
      (see paras 61-66)
      3.      Where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them
         must be examined. That conclusion follows logically from the principle that penalties must be specific to the offender and
         to the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in
         any administrative procedure that may lead to the imposition of sanctions under Community competition law. The gravity of
         the infringement is to be assessed on an individual basis by taking into account numerous factors, such as the particular
         circumstances of the case, its context and the deterrent effect of fines. The fact that an undertaking has not taken part
         in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it had participated
         must be taken into consideration when the gravity of the infringement is assessed and, as appropriate, when the fine is determined.
      
      However, the assessment of individual circumstances is undertaken not in the context of the assessment of the gravity of the
         infringement, that is, when the basic amount of the fine is set, but in the context of the adjustment to the basic amount
         to reflect mitigating or aggravating circumstances.
      
      The Commission is at liberty to take into account certain aspects of ‘gravity’ within the meaning of Article 23 of Regulation
         No 1/2003 in the context of mitigating and aggravating circumstances and not in the context of ‘gravity’ within the meaning
         of its Guidelines on the method of setting fines.
      
      Those Guidelines have brought about a fundamental change in the methodology for calculating fines. First, the three-fold categorisation
         of infringements (‘minor’, ‘serious’ and ‘very serious’) has been abolished. The current system, comprising a scale from 0%
         to 30%, enables finer distinctions to be made according to the gravity of the infringements. Second, flat-rate amounts have
         been abolished. Now, the basic amount is calculated on the basis of each individual undertaking’s value of sales to which
         the infringement directly or indirectly relates. That new methodology therefore makes it easier to take into account the extent
         of the individual participation of each undertaking in the infringement when the gravity of that infringement is assessed.
         It also makes it possible to take into account any reduction in the gravity of a single infringement over time. 
      
      Although the relative gravity of the participation in the infringement and the particular circumstances of the case must be
         taken into account, it remains open to the Commission, pursuant to the above Guidelines, to take such factors into account
         when assessing the gravity of the infringement or adjusting the basic amount according to the mitigating and/or aggravating
         circumstances. Where the Commission follows the latter approach, the assessment of mitigating and aggravating circumstances
         must, however, enable sufficient account to be taken of the relative gravity of the participation in a single infringement,
         and any variation in that gravity over time.
      
      (see paras 84-87, 89-90, 92)
      4.      As regards multiplying the amount determined on the basis of the value of sales by the number of years of participation in
         the infringement, Article 23(3) of Regulation No 1/2003 simply states that ‘[i]n fixing the amount of the fine, regard shall
         be had both to the gravity and to the duration of the infringement’, without, however, specifying the specific manner in which
         the duration should be taken into account. Multiplication by the number of years of participation in the infringement, provided
         for in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, is equivalent
         to increasing the amount by 100% per year. That approach represents a fundamental change in methodology as to how the duration
         of a cartel is taken into consideration. Article 23(3) of Regulation No 1/2003 does not, however, preclude such a development.
      
      Although the Commission has sometimes taken into account changes in an infringement over time, when increasing the amount
         of the fine for duration, none of the provisions of the above Guidelines obliges it to apply to such a case a multiplier that
         does not exceed two, or to reduce the percentage of the value of sales taken into account for gravity.
      
      (see paras 107-110)
      5.      Section 25 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 provides:
         ‘[I]rrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the
         basic amount a sum of between 15% and 25% of the value of sales …, in order to deter undertakings from even entering into
         horizontal price-fixing, market‑sharing and output-limitation agreements.’
      
      Where the Commission applies the same additional amount to all the addressees of its decision on the ground that they all
         participated in the single and continuous infringement which included price fixing and/or market sharing, the principle of
         equal treatment is not infringed.
      
      The wording of Section 25 of the above Guidelines (‘inclura’, ‘will include’ and ‘fügt hinzu’) shows, moreover, that, as regards
         flagrant infringements, the imposition of an additional amount is automatic and does not depend on the existence of other
         factors.
      
      (see paras 116-117)
      6.      Under the third indent of Section 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a)
         of Regulation No 1/2003, in order to benefit from a reduction in the fine on account of mitigating circumstances, the undertaking
         concerned must ‘[provide] evidence that its involvement in the infringement is substantially limited’ and ‘thus [demonstrate]
         that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive
         conduct in the market’.
      
      However, the use of the expression ‘such as’ shows that the list of circumstances set out in Section 29 of the above Guidelines
         is not exhaustive. In addition, the specific circumstances of the case, in particular whether the undertaking participated
         in all the aspects of the infringement, must be taken into account, if not in assessing the gravity of the infringement, at
         least in the course of adjusting the basic amount for mitigating or aggravating circumstances. That obligation was one of
         the reasons why the Court of Justice stated that the concept of a single and continuous infringement is not contrary to the
         principle that responsibility for infringements of competition law is personal in nature. The criteria laid down in the third
         indent of Section 29 are not capable on their own of ensuring this.
      
      (see paras 126-127)
      7.      Section 29, last indent, of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation
         No 1/2003 provides that ‘[t]he basic amount may be reduced … where the anti‑competitive conduct of the undertaking has been
         authorised or encouraged by public authorities or by legislation’. In that connection, mere knowledge of anti-competitive
         conduct does not imply that that conduct was implicitly ‘authorised or encouraged’ by the institution in question within the
         meaning of Section 29, last indent, of those Guidelines. Alleged inaction cannot be treated in the same way as a positive
         act such as an authorisation or encouragement.
      
      (see paras 131, 134)
      8.      A reduction of a fine pursuant to Section 35 of the Guidelines on the method of setting fines imposed pursuant to Article
         23(2)(a) of Regulation No 1/2003 is subject to three cumulative conditions, namely, (i) the submission of a request during
         the administrative procedure, (ii) the existence of a specific social and economic context and (iii) the inability to pay
         of the undertaking, the latter having to provide objective evidence showing that the imposition of the fine would irretrievably
         jeopardise its economic viability and cause its assets to lose all their value.
      
      The submission of a request to obtain a reduction of a fine is not merely a procedural requirement, but one which if not satisfied
         would preclude any valid assessment of the economic position from being carried out, since the Commission would not then possess
         relevant information, such as data internal to the undertaking concerned, in order to be able to assess the economic viability
         of that undertaking.
      
      (see paras 171, 176)
JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
      16 June 2011 (*)
      
      (Competition – Cartels – International removal services market in Belgium – Decision finding an infringement of Article 81 EC – Price‑fixing – Market‑sharing – Bid rigging – Single and continuous infringement – Imputability of the infringement – Fines – 2006 Guidelines on the method of setting fines)
      In Joined Cases T‑204/08 and T‑212/08,
      Team Relocations NV, established in Zaventem (Belgium), represented by H. Gilliams and J. Bocken, lawyers,
      
      applicant in Case T‑204/08,
      Amertranseuro International Holdings Ltd, 
      Trans Euro Ltd,
      Team Relocations Ltd,
      established in London (United Kingdom), represented by L. Gyselen, lawyer,
      applicants in Case T‑212/08,
      v
      European Commission, represented by A. Bouquet, A. Antoniadis and N. von Lingen, acting as Agents,
      
      defendant,
      APPLICATION for the partial annulment of Commission decision C(2008) 926 final of 11 March 2008 relating to a proceeding under
         Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 – International Removal Services), and, in the alternative,
         the annulment or reduction of the fine imposed on the applicants,
      
      THE GENERAL COURT (Eighth Chamber),
      composed of S. Papasavvas, acting for the President, N. Wahl and A. Dittrich (Rapporteur), Judges,
      Registrar: N. Rosner, Administrator,
      having regard to the written procedure and further to the hearing on 28 April 2010,
      gives the following
      Judgment
       Facts
      1.     Subject-matter of the dispute
      1        According to Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article
         53 of the EEA Agreement (Case COMP/38.543 – International Removal Services) (‘the Decision’), a summary of which is published
         in the Official Journal of the European Union of 11 August 2009 (OJ 2009 C 188, p. 16), Team Relocations NV (‘Team Relocations’) participated in a cartel on the international
         removal services market in Belgium, relating to the direct or indirect fixing of prices, market sharing and the manipulation
         of the procedure for the submission of tenders. The European Commission states that the cartel operated for almost 19 years
         (from October 1984 to September 2003). Its members fixed prices, issued false quotes (‘cover quotes’) to customers and compensated
         each other for rejected offers by means of a financial compensation system (‘commissions’).
      
      2.     Applicants
      2        Team Relocations was founded under the name Transeuro Worldwide Movers NV (Belgium) on 7 May 1993. Its name was changed on
         5 September 2002. Since January 1994, the 100% parent company of Team Relocations has been Team Relocations Ltd, a company
         which operates in the removal services sector and whose shares are all held by the company Trans Euro Ltd (‘Trans Euro’).
         Since 8 September 2000, 100% of the shares in Trans Euro have been held by Amertranseuro International Holdings Ltd (‘Amertranseuro’).
      
      3        In the financial year ending 30 September 2006, Amertranseuro achieved a consolidated worldwide turnover of EUR 44 352 733.
      
      3.      Administrative procedure
      4        According to the Decision, the Commission opened the procedure on its own initiative because it had information that certain
         Belgian companies operating in the international removals sector were party to agreements that might be caught by the prohibition
         in Article 81 EC.
      
      5        Accordingly, investigations were carried out at the premises of Allied Arthur Pierre NV (‘Allied Arthur Pierre’), Interdean
         NV (‘Interdean’), Transworld International NV and Ziegler SA in September 2003, under Article 14(3) of Council Regulation
         No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962,
         p. 87). Following those investigations, Allied Arthur Pierre applied for immunity from fines or a reduction in the fine in
         accordance with the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the
         2002 Leniency Notice’). Allied Arthur Pierre admitted that it had participated in agreements on commissions and cover quotes,
         listed the competitors involved, inter alia a competitor previously unknown to the Commission’s services, and submitted documents
         corroborating its oral statements. 
      
      6        In accordance with Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules
         on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), several written requests for information were
         sent to the undertakings involved in the anti-competitive agreements, to some competitors and to a professional organisation.
         On 18 October 2006, the statement of objections was adopted and notified to several undertakings. All the addressees replied
         to it. Their representatives, with the exception of Amertranseuro, Stichting Administratiekantoor Portielje, Team Relocations
         Ltd and Trans Euro, exercised their right of access to the documents contained in the Commission’s file, which were accessible
         only on the Commission’s premises. They were granted access between 6 and 29 November 2006. The hearing was held on 22 March
         2007. 
      
      7        On 11 March 2008, the Commission adopted the Decision.
      
      4.     Decision
      8        The Commission states that the addressees of the Decision – including Team Relocations, Amertranseuro, Trans Euro and Team
         Relocations Ltd (‘the applicants’) – participated in a cartel in the international removal services sector in Belgium or are
         deemed responsible therefor. The participants in the cartel fixed prices, shared customers and manipulated the submission
         of tenders at least from 1984 to 2003. As a result, they have committed a single, continuous infringement of Article 81 EC.
      
      9        According to the Commission, the services concerned include the removal of goods of both natural persons – private individuals
         or employees of an undertaking or a public institution – and undertakings or public institutions. Such removals are characterised
         by the fact that Belgium is either the starting place or the destination. Having regard also to the fact that the international
         removal companies in question are all located in Belgium and that the cartel’s activity takes place in Belgium, the Commission
         therefore considered that the geographic centre of the cartel was Belgium. 
      
      10      The combined turnover of the participants in the cartel for international removal services in Belgium in 2002 was estimated
         by the Commission at EUR 41 million. As it estimated the size of the sector at approximately EUR 83 million, the combined
         market share of the undertakings involved was considered to be approximately 50%.
      
      11      The Commission states that the aim of the cartel was, inter alia, to establish and maintain high prices and to share the market
         contemporaneously or successively in various forms: agreements on prices, agreements on sharing the market by means of a system
         of providing cover (‘cover quotes’) and agreements on a system of financial compensation for rejected offers or for not quoting
         at all (‘commissions’).
      
      12      The Commission considers that, between 1984 and the early 1990s, the cartel operated inter alia on the basis of written price-fixing
         agreements. At the same time the commissions and cover quotes were introduced. A commission is a hidden element in the final
         price which the customer had to pay without receiving a corresponding service. It is a sum of money that the removal company
         winning the contract for an international removal owed to the competitors that did not secure the contract, whether they submitted
         an estimate or abstained from doing so. It is therefore a sort of financial compensation for the removal companies that did
         not win the contract. The members of the cartel issued invoices to each other for commissions on the rejected offers or offers
         not made, referring to fictitious services, and the total for those commissions was invoiced to customers. The Commission
         states that that practice must be deemed to be indirect fixing of prices for international removal services in Belgium.
      
      13      The members of this cartel also cooperated in submitting cover quotes, which led customers, that is to say, employers paying
         for the removal, into the mistaken belief that they could choose according to competition-based criteria. A cover quote is
         a fictitious quotation submitted to the customer or the person who was moving by a removal company which did not intend to
         carry out the removal. Through the submission of cover quotes, the removal company that wanted the contract (‘the requesting
         firm’) ensured that the institution or undertaking received several quotes, either directly or indirectly via the person who
         was moving. To that end, the requesting firm indicated to its competitors the price, the rate of insurance and the storage
         costs that they were to quote. That price, which was higher than the price quoted by the requesting firm, was then indicated
         in the cover quotes. According to the Commission, since the employer will usually choose the removal company that offers the
         lowest price, the companies involved in the same international removal as a rule knew in advance which of them would secure
         the contract for that removal. 
      
      14      The Commission also observes that the price quoted by the requesting firm could be higher than it might otherwise have been
         because the other companies involved in that removal would have submitted cover quotes indicating a price stated by the requesting
         firm. By way of example, the Commission refers, in recital 233 of the Decision, to an internal Allied Arthur Pierre email
         message dated 11 July 1997 which stated: ‘[T]he customer has asked for two cover quotes, so we can ask for a high price.’
         Therefore, the Commission states that the submission of cover quotes to customers was a manipulation of the tendering procedure
         so that the prices quoted in all the bids were deliberately higher than the price of the requesting firm, and at all events
         higher than they would have been in a competitive environment.
      
      15      The Commission maintains that those arrangements were in place until 2003. Those complex activities had the same object of
         fixing prices, sharing the market, and thus of distorting competition.
      
      16      In conclusion, the Commission adopted the operative part of the Decision, Article 1 of which is worded as follows:
      
      ‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating
         the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] … in the periods
         indicated:
      
      …
      (g)      [Team Relocations], from 20 January 1997 to 10 September 2003; with Trans Euro … and Team Relocations Limited, from 20 January
         1997 to 7 September 2000; with [Amertranseuro], Trans Euro … and Team Relocations Limited, from 8 September 2000 to 10 September
         2003;
      
      …’
      17      Consequently, in Article 2(i) of the Decision, the Commission imposed a fine of EUR 3.49 million on Team Relocations, of which
         Trans Euro and Team Relocations Ltd are held jointly and severally liable for the amount of EUR 3 million and Amertranseuro,
         Trans Euro and Team Relocations Ltd (‘the Amertranseuro group’) are held jointly and severally liable for the amount of EUR 1.3
         million.
      
      18      For the purposes of calculating the amount of the fines, the Commission applied, in the Decision, the methodology set out
         in its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210,
         p. 2; ‘the 2006 Guidelines’).
      
       Procedure and forms of order sought by the parties
      19      By applications lodged at the Court Registry on 4 June 2008, the applicants brought the present actions.
      
      20      By order of the President of the Eighth Chamber of the Court of 5 March 2010, Cases T-204/08 and T-212/08 were joined for
         the purposes of the oral procedure and of the judgment, in accordance with Article 50 of the Rules of Procedure of the Court.
      
      21      Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure. The parties
         presented their oral arguments and their replies to oral questions put by the Court at the hearing on 28 April 2010. By letter
         lodged at the Registry on 6 August 2010, Team Relocations requested the reopening of the oral procedure. That request was
         rejected by decision of 23 September 2010.
      
      22      In Case T-204/08, Team Relocations claims that the Court should:
      
      –        annul Article 1 of the Decision;
      –        annul Article 2 of the Decision, in so far as it imposes on Team Relocations a fine of EUR 3.49 million;
      –        in the alternative, substantially reduce the fine imposed by the Decision;
      –        in any event, order the Commission to pay the costs of the proceedings.
      23      In addition, Team Relocations requests the Court to order the Commission to disclose the factors which it took into account
         in awarding Interdean a 70% reduction in the fine that otherwise would have been imposed on Interdean.
      
      24      In Case T-212/08, Amertranseuro, Trans Euro and Team Relocations Ltd claim that the Court should:
      
      –        annul Article 2(i) of the Decision, in so far as it declares them jointly and severally liable for Team Relocations’ alleged
         infringement of Article 81 EC and Article 53 of the EEA Agreement in the period between January 1997 and September 2003;
      
      –        in the alternative, annul Article 2(i) of the Decision, in so far as it does not effectively limit the joint and several liability
         of Amertranseuro to the amount of EUR 1.3 million;
      
      –        order the Commission to pay the costs.
      25      In Cases T-204/08 and T-212/08, the Commission contends that the Court should:
      
      –        dismiss the applications;
      –        order the applicants to pay the costs.
       Law
      26      Team Relocations puts forward eight pleas for the annulment of the Decision and the cancellation or reduction of the fine.
         Amertranseuro, Trans Euro and Team Relocations Ltd raise two pleas, alleging that they cannot be held responsible for the
         infringements committed by Team Relocations and that they are unable to pay the fine. Since those two pleas correspond, respectively,
         to the first limb of the seventh plea and the eighth plea of Team Relocations, it is appropriate to deal with them in the
         examination of those complaints.
      
      1.     The first plea: Team Relocations was not a party to the single and continuous infringement described in the Decision
      27      By this plea, Team Relocations claims that it was not party to the single and continuous infringement described in the Decision.
      
       Arguments of the parties
      28      Team Relocations claims that, in order to be able to hold it liable for the single infringement described in the Decision,
         the Commission must demonstrate, first, that Team Relocations was aware of the unlawful conduct of the other participants,
         or could reasonably have foreseen such conduct, and that it was prepared to accept the risk and, secondly, that the different
         practices described in the Decision pursued common objectives and that Team Relocations by its own conduct intended to contribute
         to the attainment of these objectives.
      
      29      According to Team Relocations, the Commission failed to demonstrate that these two conditions were met. First, Team Relocations
         was not aware of the existence of a single, continuous infringement. The Decision failed to refer to any documentary evidence
         to show that Team Relocations, when from 1997 onwards it from time to time agreed to commissions, was aware or should have
         been aware of the price‑fixing agreements and the cover quotes. It was only in February 2002 that Team Relocations for the
         first time issued or requested a cover quote. Furthermore, it did not participate in any anti-competitive meeting at which
         such an overall anti-competitive plan was agreed.
      
      30      Secondly, Team Relocations maintains that it did not participate either in an overall plan or in a ‘continuous’ infringement.
         It was not involved in any written price-fixing agreements. The commissions it agreed to were intended to allow individual
         movers to recover the costs they incurred for a specific move, not to set prices, allocate customers or share the market.
         These commission arrangements were ad hoc, not generally applicable or automatic. Cover quotes were always obtained at the
         request of or, in any event, with the approval of the individual making the move and they were issued only after the customer
         had selected a removal company.
      
      31      The Commission contests those assertions and considers that, by taking part in at least two of these agreements, Team Relocations
         was aware or must have been aware of the overall plan underlying the single infringement. In addition, the Commission takes
         the view that the allegation that Team Locations did not participate in the written price agreement has no bearing on the
         imputation of responsibility to Team Relocations for the single and continuous infringement.
      
       Findings of the Court
      32      By this plea, Team Relocations does not deny having committed infringements of Article 81 EC. On the other hand, it submits
         that it was not a party to the single and continuous infringement described in the Decision. Consequently, the concept of
         a single and continuous infringement must, first of all, be considered.
      
       The concept of a single and continuous infringement 
      33      In Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 82, the Court of Justice stated that it would be artificial to split up continuous conduct, characterised
         by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement
         which progressively manifested itself in both agreements and concerted practices.
      
      34      Accordingly, an undertaking that has taken part in an infringement through conduct of its own which fell within the scope
         of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was
         intended to help bring about the infringement as a whole is also responsible, throughout the entire period of its participation
         in that infringement, for conduct of other undertakings in the context of the same infringement (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 83). 
      
      35      It follows from that judgment that in order to establish that there has been a single and continuous infringement, the Commission
         must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants
         and that it was aware of the conduct planned or put into effect by other undertakings in pursuit of the same objectives or
         that it could reasonably have foreseen it and that it was prepared to take the risk (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 87).
      
      36      Restrictive practices can be regarded as constituent elements of a single anti-competitive agreement only if it is established
         that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought
         to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation
         in them constitute the expression of its accession to that agreement (Joined Cases T-25/95, T-26/95, T-30/95 to T‑32/95, T-34/95
         to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T‑68/95 to T-71/95, T-87/95, T‑88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraphs 4027 and 4112).
      
      37      Thus, it is apparent from that case-law that three conditions must be met in order to establish participation in a single
         and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution
         of the undertaking to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants.
         
      
      38      The present plea must therefore be examined in the light of those conditions.
      
       The characterisation of the offending conduct
      –       The existence of an overall plan pursuing a common objective
      39      As regards, first, the existence of an overall plan pursuing a common objective, the Commission submits that the undertakings
         in question pursued a single economic aim, namely to distort the normal movement of prices.
      
      40      However, the concept of a common objective cannot be determined by a general reference to the distortion of competition in
         the market concerned by the infringement, since an impact on competition, as object or effect, constitutes a constituent element
         of any conduct covered by Article 81(1) EC. Such a definition of the concept of a common objective is likely to deprive the
         concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different
         types of conduct which relate to a particular economic sector and are prohibited by Article 81(1) EC would have to be systematically
         characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances
         of misconduct as a single and continuous infringement, it is necessary to take into account any circumstance capable of establishing
         or casting doubt on a link of complementarity, such as the period of application, the content (including the methods used)
         and, correlatively, the objective of the various instances of misconduct (see, to that effect, Joined Cases T-101/05 and T-111/05
         BASF and UCB v Commission [2007] ECR II-4949, paragraphs 179 to 181).
      
      41      In the present case, it is clear from the Decision that the common objective, pursued by different means which formed part
         of an overall plan, was to establish and maintain a high price level for the provision of international removal services in
         Belgium and to share this market. That common objective is described in detail in recitals 314 and 322 to 344 of the Decision.
         
      
      42      Team Relocations’ arguments are not such as to call that finding into question. 
      
      43      In that connection, it should be pointed out that the system of commissions is a compensation system which forms part of customer
         sharing, and that the establishment of cover quotes is an essential component of customer sharing where customers wish to
         receive quotes from several cartel participants.
      
      44      Contrary to what Team Relocations asserts, the commission and cover quote arrangements were concerned with price. As regards
         the commissions, their number and level were determined in advance, before the removal companies issued their quotes to the
         customers. Even supposing, as Team Relocations claims, that their amounts were not added directly to the price of the removal,
         it is inevitable that they would have to feature in the companies’ calculations and make their services more expensive. As
         regards the quotes, the price indicated in the ‘false’ quote was determined by the requesting company and accepted by the
         company drawing up the cover quote, which enabled the former to set its price at a higher level than would have resulted from
         the free play of competition, close to the ‘false’ price agreed by common accord. In recital 233 of the Decision, the Commission
         has demonstrated that effect which the cover quotes’ practice had on prices (see paragraph 14 above).
      
      45      The two practices, like the written price-fixing agreement, pursued a common objective, namely restricting competition between
         the cartel participants by establishing a higher level of prices than would have existed in the absence of the agreements.
         The commissions paid to the competitors that did not secure the contract strongly discouraged them from quoting a competitive
         price and, by exchanging information on their bids in the context of the cover quotes, the cartel participants restricted
         price competition. In addition, the agreement on cover quotes enabled the participants to maintain prices at a level higher
         than would have existed in the absence of that agreement.
      
      46      As regards the arguments that the cover quotes were only submitted after the customer had made his selection, it must be emphasised
         that the person in contact with the supplier, for example, the Commission official, is not the true customer of the removal
         companies. It is for the undertaking or institution paying for the removal to select a removals company. It is precisely with
         the aim of securing a choice that many undertakings and public institutions require the submission of several quotes. 
      
      –       The intentional contribution of Team Relocations to the overall plan
      47      As regards, second, Team Relocations’ contribution to the infringement, it is not disputed that it participated in two of
         the three practices described in the Decision, that is the agreements on commissions and cover quotes. 
      
      48      By contrast, Team Relocations never participated in the written price agreements. Although an undertaking that has taken part
         in an infringement through conduct of its own may also be held responsible for conduct of other undertakings in the context
         of the same infringement, that applies only to the period of its participation in that infringement (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 83). Consequently, Team Relocations cannot be held responsible for conduct which
         had ceased more than five years before its accession to the cartel.
      
      49      However, in the Decision, the Commission found that Team Relocations had infringed Article 81(1) EC only from 20 January 1997
         to 10 September 2003, the period in which Team Relocations participated in all the manifestations of the cartel. Therefore,
         the Commission correctly took into account the fact that Team Relocations participated in the cartel only as from 1997. 
      
      50      In addition, Team Relocations’ assertions that the agreements on commissions and cover quotes were not applied at the same
         time and that the commission arrangements were ad hoc are irrelevant in so far as, contrary to what that applicant contends,
         both those practices had the same objective.
      
      –       Team Relocations’ awareness of the offending conduct
      51      As regards, third, the issue of whether Team Relocations was aware of the offending conduct of the other cartel participants,
         it is true that, during Team Relocations’ participation, there were no anti-competitive meetings. However, the fact that Team
         Relocations never attended such a meeting is not decisive, since the functioning of the cartel shows that its members did
         not need to participate in meetings to be aware of or involved in the agreements on commissions and cover quotes. Agreements
         were usually reached over the phone, or by email and/or fax.
      
      52      In addition, Team Relocations could not fail to have been aware of the offending conduct of the other participants, since
         the commission and cover quote practices were based on mutual cooperation, with the partners alternating on each occasion.
         That system was based on the concept of quid pro quo, in so far as each undertaking which paid a commission or issued a cover
         quote expected to be able, in the future, to benefit itself from that system and obtain commissions or cover quotes. Therefore,
         contrary to what Team Relocations claims, those arrangements were not ad hoc but displayed a link of complementarity.
      
      53      Team Relocations’ assertion that it was unaware of the written agreements and that it had not been aware of the commission
         practice until 1997 is irrelevant, since the Decision does not hold Team Relocations responsible for the infringement until
         that date. In 1997 at the latest, when it accepted its first commission, Team Relocations became aware of the fact that not
         all the undertakings were competing under the normal terms of competition. It was therefore aware of the offending conduct
         and of the anticompetitive aim pursued by the other undertakings. Accordingly, it is not credible that Team Relocations became
         aware of the cover quote practice only in 2002. 
      
      54      Consequently, the Commission was entitled to conclude that Team Relocations was aware or ought to have been aware of the offending
         conduct of the other cartel participants.
      
      55      It follows from all the foregoing that the Commission was fully entitled to find that Team Relocations had been a party to
         the single and continuous infringement described in the Decision. The first plea must therefore be rejected.
      
      2.     The second plea, relating to calculation of the value of Team Relocations’ sales
       Arguments of the parties
      56      By its second plea, Team Relocations disputes the value of sales taken into account for calculating the basic amount of the
         fine.
      
      57      Principally, Team Relocations maintains that only the value of sales for moves that were actually affected by the infringement
         – not the aggregate turnover of Team Relocations on the international removal services market in Belgium – may be taken into
         account for the purposes of determining Team Relocations’ relevant value of sales within the meaning of point 13 of the 2006
         Guidelines.
      
      58      Alternatively, Team Relocations considers that the relevant value of sales does not include the turnover on moves of private
         individuals, that is, individuals who personally have to bear the cost of their move. It is not in dispute that, as far as
         Team Relocations is concerned, neither commissions nor cover quotes were ever agreed or applied with respect to moves of private
         individuals. Team Relocations points out that, in recital 528 of the Decision, the Commission agreed not to include military
         removal services in Gosselin’s value of sales since they did not relate to the infringement. Accordingly, sales resulting
         from moves for private individuals likewise cannot be taken into account for determining Team Relocations’ relevant value
         of sales.
      
      59      The Commission disputes those arguments. 
      
       Findings of the Court
      60      Team Relocations calls in question the calculation of the relevant value of sales and claims, in the alternative, that that
         value should not include the turnover on moves paid for by private individuals.
      
       The relevant value of sales
      61      As regards the value of sales to be taken into account for calculating the basic amount of the fine, disputed in the first
         limb of this plea, point 13 of the 2006 Guidelines provides as follows:
      
      ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales
         of goods or services to which the infringement directly or indirectly relates …’ 
      
      62      Contrary to Team Relocations’ assertions, it does not follow from that provision that only the value of sales for moves actually
         affected by the infringement may be taken into account for the purposes of determining the relevant value of sales.
      
      63      Thus, point 13 of the 2006 Guidelines refers to: ‘sales … to which the infringement directly or indirectly relates’ and not
         to ‘sales affected by the infringement’. The wording of point 13 therefore relates to sales in the relevant market. That is
         very clear, moreover, from the German-language version of point 6 of the 2006 Guidelines, which is concerned with the ‘Umsatz
         auf den vom Verstoß betroffenen Märkten’ (sales in the markets concerned by the infringement). A fortiori, point 13 of the 2006 Guidelines does not relate solely to the cases for which the Commission has documentary evidence of
         the infringement.
      
      64      That interpretation is reinforced by the objective of the Community rules on competition. The interpretation put forward by
         Team Relocations would mean that, in order to determine the basic amount of the fines to be imposed in cartel cases, the Commission
         would be obliged in each case to ascertain the individual sales which were affected by the cartel. An obligation of that kind
         has never been imposed by the Courts of the European Union and there is no indication that the Commission intended to assume
         such an obligation in the 2006 Guidelines. 
      
      65      In addition, it is inevitable, in cartel cases, which by their very nature are secret, that some of the documents showing
         each of the manifestations of anti‑competitive practices will not be discovered. In the present case, it would indeed be impossible
         to find evidence in relation to each of the removals affected. Team Relocations thus confirms in the application that the
         ‘Cover quotes and commissions left no record in [the a]pplicant’s systems; accordingly, they were not traceable except by
         the individuals who handled the file’. 
      
      66      Lastly, it is settled case-law that the proportion of the turnover accounted for by the goods in respect of which the infringement
         was committed gives a proper indication of the scale of the infringement on the relevant market (Joined Cases 100/80 to 103/80
         Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 121). In particular, the turnover in the products which were the subject of a restrictive practice
         constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (Case
         T‑151/94 British Steel v Commission [1999] ECR II‑629, paragraph 643, and judgment of 8 July 2008 in Case T-50/03 Saint‑Gobain Gyproc Belgium v Commission, not published in the ECR, paragraph 84). That principle was reproduced in the 2006 Guidelines.
      
      67      At the hearing, Team Relocations stated that, unlike the present case, in the ‘Car glass’ case (Case COMP/39.125 – Car glass),
         a summary of which is published in the Official Journal of 25 July 2009 (OJ 2009 C 173, p. 13), the Commission had taken as
         relevant sales for the purposes of calculating the fine only sales by carglass suppliers to those car manufacturers for which
         there was direct evidence that they were subject to cartel arrangements. However, it must be noted that, in recital 663 of
         the ‘Car glass’ decision, the Commission starts from the principle that the fact that specific evidence is not available for
         each and every discussion that took place on the ‘car accounts’ does not limit the determination of the relevant value of
         sales to only those accounts for which such specific evidence is available, since cartel arrangements are by their very nature
         secret agreements and evidence will in most, if not all cases remain incomplete. Although the Commission proceeded to nuance
         that principle in recitals 664 to 667 of that decision, clearly it did so only in relation to two exceptional periods at the
         beginning and end of the infringement period, because it assumed that during those periods the carglass suppliers had rigged
         their bids only within selected large accounts. Therefore, the approach followed by the Commission in that decision is not
         contrary to that applied in the Decision.
      
      68      In addition, it is settled case-law that decisions in other cases can give only an indication for the purpose of determining
         whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods
         concerned, are not likely to be the same (Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 201 and 205, and Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 60). In view of the circumstances set out in recitals 664 to 667 of the ‘Car glass’ decision,
         Team Relocations has failed to adduce sufficient evidence for it to be concluded that this prerequisite for a comparison was
         fulfilled in the present case.
      
      69      Consequently, the first limb of this plea in law must be rejected.
      
       The removals paid for by private individuals
      70      As regards the alternative argument that the relevant value of sales should not include the turnover on moves of private individuals,
         that is, those not by paid for by a third party, it should be observed that cover quotes had never been issued for that type
         of removals, since a private individual would never have agreed to receive several estimates from a single removals company.
         Cover quotes were used only in respect of removals for which the employer of the person moving sought to obtain estimates
         from at least one other mover as a precondition of assuming liability for the costs of the removal. 
      
      71      However, it is apparent from recital 537 of the Decision that some of the other addressees of that decision seem to have agreed
         to pay commissions in respect of international removals paid for by private individuals. Therefore, unlike the military removals,
         for which Gosselin acted as a subcontractor to American movers, it cannot be ruled out that certain private moves were affected
         by the single infringement at issue. The crucial difference between military removals and the removals for private individuals
         is that, for military removals, the cartel participants did not themselves conduct the commercial negotiations and therefore
         had no influence on the main contract. There is no such structural guarantee, which precludes any possible adverse influence,
         in the case of private removals. It follows that, by excluding one category of removals but not another, the Commission did
         not infringe the principle of equal treatment.
      
      72      Admittedly, as regards Team Relocations, the Commission has not proved that commissions were agreed or applied to removals
         paid for by private individuals. However, if that argument were accepted, the Commission would be obliged to include in the
         relevant value of sales only the individual sales which were affected by the cartel and for which it has documentary evidence.
         The existence of an obligation of that kind has already been rejected in the course of examining the first limb of the present
         plea. 
      
      73      Consequently, the second plea must be rejected.
      
      3.     The third plea, concerning the application of a percentage of 17% of the value of Team Relocations’ sales in calculating the
            basic amount of its fine 
      74      This plea is divided into four limbs. The first two limbs allege, respectively, infringement of the requirement that the amount
         of the fine is to be determined on the basis of Team Relocations’ individual role in the infringement, and infringement of
         the principle of equal treatment. By the third limb, Team Relocations claims that setting the percentage at 17% infringes
         the principle of proportionality. The fourth limb of this plea alleges failure to state the reasons. 
      
       Arguments of the parties
      75      First, Team Relocations submits that, according to settled case-law, a fine should correctly reflect the gravity of the infringement
         actually committed by an individual undertaking (Case T-15/02 BASF v Commission [2006] ECR II-497, paragraph 280; Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T‑132/02
         and T-136/02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 429; and judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraphs 207 and 209). In the present case, a number of specific or unusual circumstances should
         have been considered for the purposes of assessing the gravity of Team Relocations’ infringement. In particular, it did not
         issue or request cover quotes prior to 2002 and was never involved in the written agreements setting the prices and other
         terms for the provision of international removal services in Belgium. The Commission therefore failed to assess Team Relocations’
         individual role in the practices discussed in the Decision. As a result of that mis‑assessment, the percentage applied to
         the value of sales (17%) and, therefore, the fine imposed on Team Relocations, are manifestly excessive.
      
      76      Secondly, Team Relocations considers that, by comparison with the general written agreements on prices concluded between some
         of the other addressees of the Decision, the infringement committed by Team Relocations was of a totally different and much
         less serious nature. In applying the same percentage of the value of sales (17%) for the purposes of calculating both the
         fine imposed on Team Relocations and the fines imposed on the other addressees of the Decision, the Commission therefore infringed
         its obligation to compute fine levels in a non‑discriminatory manner.
      
      77      Thirdly, Team Relocations maintains that taking 17% of the value of sales inevitably results in a fine level that is, in several
         respects, manifestly disproportionate to the real gravity of Team Relocations’ conduct, namely its actual responsibility and
         the limited gravity and economic importance of the infringement it committed.
      
      78      Fourthly, Team Relocations states that the Decision fails to provide any reason for the Commission’s not taking account of
         the fact that Team Relocations did not take part in all the aspects of the infringement. The reasoning with respect to the
         setting of the percentage of the value of sales is insufficient and contradictory.
      
      79      The Commission considers that it was justified in applying, in respect of Team Relocations, the same percentage of the value
         of sales of 17% as for the other cartel participants, since Team Relocations participated in a single and continuous infringement,
         which could be characterised as a very serious infringement of Article 81 EC. The individual role of an undertaking in an
         infringement is not taken into consideration for assessing the gravity of the infringement, but for adjusting the fine to
         take into account mitigating and/or aggravating circumstances. Lastly, the Commission maintains that it fulfilled its obligation
         to state reasons when it indicated in the Decision the factors which enabled it to measure the gravity of the offence.
      
       Findings of the Court
      80      In this plea, Team Relocations challenges, in essence, the application of a single percentage of 17% to all the undertakings
         in question in the context of assessing the gravity of the infringement. In that connection, two different issues, in particular,
         must be distinguished: first, whether the treatment of Team Relocations was appropriate compared to that of the other cartel
         participants (first and second limbs), and, second, whether, if taken separately, the percentage applied by the Commission
         was proportionate to Team Relocations’ conduct (third limb). 
      
       The obligation to determine the basic amount of the fine on the basis of Team Relocations’ individual role
      81      As regards the first two limbs of this plea, which should be examined together because they are closely related, it is appropriate
         to recall the settled case-law according to which the principle of non‑discrimination or equal treatment, which constitutes
         a fundamental principle of Community law, prohibits not only comparable situations from being treated differently but also
         different situations from being treated in the same way, unless such difference in treatment is objectively justified (see,
         to that effect, Case 91/85 Christ-Clemen and Others v Commission [1986] ECR 2853, paragraph 10, and Case C‑174/89 Hoche [1990] ECR I-2681, paragraph 25 and the case-law cited).
      
      82      Clearly, when assessing the gravity of the infringement, the Commission did not in fact treat the participants differently
         in the percentage applied to the value of sales, but applied a uniform percentage of 17% to all the undertakings concerned.
         The Commission justifies that approach by the fact that the infringement was a single and continuous one.
      
      83      The question therefore arises whether, in the light of the case-law relied on by Team Locations, it was open to the Commission
         to abandon any distinction between the participants in the infringement and any consideration of the specific circumstances
         of the case in order to assess the gravity of the infringement committed by Team Relocations. 
      
      84      In that connection, as is apparent from the case‑law, where an infringement has been committed by several undertakings, the
         relative gravity of the participation of each of them must be examined (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73,
         111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623, and Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 150). That conclusion follows logically from the principle that penalties must be
         specific to the offender and to the offence, so that an undertaking may be penalised only for acts imputed to it individually,
         a principle applying in any administrative procedure that may lead to the imposition of sanctions under Community competition
         law (Case T‑62/02 Union Pigments v Commission [2005] ECR II-5057, paragraph 119).
      
      85      In addition, it is clear from a large number of judgments of the General Court and of the Court of Justice that the gravity
         of the infringement is to be assessed on an individual basis by taking into account numerous factors, such as the particular
         circumstances of the case, its context and the deterrent effect of fines (see Cour Musique Diffusion française and Others v Commission, cited in paragraph 66 above, paragraph 106; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33; and Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraphs 83 et seq.). Thus, the Court of Justice has held that the fact that an undertaking has not
         taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it had
         participated must be taken into consideration when the gravity of the infringement is assessed and, as appropriate, when the
         fine is determined (see Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 90, and Bolloré and Others v Commission, cited in paragraph 75 above, paragraph 429 and the case-law cited).
      
      86      However, the General Court’s practice is to assess individual circumstances not in the context of the assessment of the gravity
         of the infringement, that is, when the basic amount of the fine is set, but in the context of the adjustment to the basic
         amount to reflect mitigating or aggravating circumstances (Case T-73/04 Carbone‑Lorraine v Commission [2008] ECR II‑2661, paragraphs 100 et seq., upheld on appeal in the judgment of 12 November 2009 in Case C‑554/08 P Carbone-Lorraine v Commission, not published in the ECR). Thus, even though in the passages in BASF v Commission and Coats Holdings and Coats v Commission, cited in paragraph 75 above, quoted by Team Relocations, the word ‘gravity’ is referred to, it does not relate to the determination
         of the basic amount of the fine, but in fact to whether the Commission was entitled to take into account the role of leader
         as an aggravating circumstance (BASF v Commission, cited in paragraph 75 above, paragraph 280) and a minor role, more akin to that of a mediator, as a mitigating circumstance
         (Coats Holdings and Coats v Commission, cited in paragraph 75 above, paragraph 214). 
      
      87      That case-law is, however, consistent with the case-law referred to in paragraphs 84 and 85 above. In those judgments, the
         word ‘gravity’ was used in a general manner to describe the intensity of the infringement, and not in the technical meaning
         of the Guidelines on the method of setting fines. Consequently, the Commission was at liberty to take into account certain
         aspects of ‘gravity’ within the meaning of Article 23 of Regulation No 1/2003 in the context of mitigating and aggravating
         circumstances and not in the context of ‘gravity’ within the meaning of its Guidelines on the method of setting fines. 
      
      88      This applies, in particular, to the assessment of the relative gravity of the participation in a single and continuous infringement
         committed by several undertakings. In that connection, the Court of Justice has confirmed, as regards the Guidelines on the
         method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998
         C 9, p. 3; ‘the 1998 Guidelines’), that the relative gravity of the participation in the infringement of each of the undertakings
         concerned has to be examined in the context of a possible application of aggravating or mitigating circumstances (Carbone-Lorraine v Commission, cited in paragraph 86 above, paragraph 27). In the case of a single and continuous infringement, the concept of ‘infringement’,
         as used in the 1998 Guidelines, refers therefore to the overall infringement involving several undertakings and the ‘gravity’
         of that single infringement is the same for all the participants. 
      
      89      Case C-554/08 Carbone-Lorraine v Commission, cited in paragraph 86 above, is, however, concerned with the 1998 Guidelines. The 2006 Guidelines have brought about a fundamental
         change in the methodology for calculating fines. First, the three-fold categorisation of infringements (‘minor’, ‘serious’
         and ‘very serious’) has been abolished. The current system, comprising a scale from 0% to 30%, enables finer distinctions
         to be made according to the gravity of the infringements. 
      
      90      Second, flat-rate amounts have been abolished. Now, the basic amount is calculated on the basis of each individual undertaking’s
         value of sales to which the infringement directly or indirectly relates. That new methodology therefore makes it easier to
         take into account the extent of the individual participation of each undertaking in the infringement when the gravity of that
         infringement is assessed. It also makes it possible to take into account any reduction in the gravity of a single infringement
         over time. 
      
      91      Third, at the hearing, the Commission confirmed that its decisional practice is no longer necessarily to apply a single percentage
         to all the participants in such an infringement. In Decision C(2008) 5476 of 1 October 2008 relating to a proceeding under
         Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C.39.181 – Candle Waxes), a summary of which is published in
         the Official Journal of 4 December 2009 (OJ 2009 C 295, p. 17), and Decision C(2009) 8682 of 11 November 2009 relating to
         a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.589 – Heat Stabilisers), a summary of
         which is published in the Official Journal of 12 November 2010 (OJ 2010 C 307, p. 9), the Commission applied different percentages
         to different categories of participant in the cartels at issue according to the relative gravity of their participation in
         the infringement. In particular, in the latter case, a higher percentage was set for the undertakings which had participated
         not only in price fixing but also in customer sharing and/or market sharing.
      
      92      However, the new methodology does not impose such an approach. Although the case-law referred to in paragraphs 84 and 85 above
         states that the relative gravity of the participation in the infringement and the particular circumstances of the case must
         be taken into account, it remains open to the Commission, pursuant to the 2006 Guidelines, to take such factors into account
         when assessing the gravity of the infringement or adjusting the basic amount according to the mitigating and/or aggravating
         circumstances. Where the Commission follows the latter approach, the assessment of mitigating and aggravating circumstances
         must, however, enable sufficient account to be taken of the relative gravity of the participation in a single infringement,
         and any variation in that gravity over time. 
      
      93      In the present case, the Commission set a single percentage of 17% for all the undertakings concerned. In so far as Team Relocations
         submits that the relative gravity of its participation is less significant than that of other undertakings involved and that
         a number of specific or unusual circumstances should have been considered, its arguments developed in support of that contention
         will therefore be examined in the context of the complaints alleging that the Commission incorrectly assessed the mitigating
         circumstances. Team Relocations participated in all the aspects of the cartel carried on while it participated in it and contends
         only that its involvement was less intense. Therefore, the first and second limbs of the present plea must be rejected and
         Team Relocations’ arguments considered when the sixth plea is examined (paragraphs 125 et seq. below).
      
       The alleged infringement of the principle of proportionality
      94      As regards the alleged infringement of the principle of proportionality, the Court considers that, taken separately, a rate
         of 17% is not disproportionate in relation to Team Relocations’ actual responsibility for the infringement, which consisted,
         inter alia, in market sharing and manipulating the procedure for the submission of tenders. Point 23 of the 2006 Guidelines
         states clearly that the proportion of the value of sales taken into account for horizontal price fixing and market sharing
         agreements will generally be set ‘at the higher end of the scale’. The Commission was therefore entitled to set a rate of
         17%, which is in the lower part of the ‘higher end of the scale’. 
      
       The alleged failure to state reasons
      95      As regards the fourth limb of the present plea, it must be stated that the reasoning with respect to the setting of the basic
         amount of the fine is indeed not very detailed. However, the Court of Justice has held that the Commission fulfilled its obligation
         to state reasons when it indicates in its decision the factors which enabled it to measure the gravity of the offence and
         that it is not required to set out a more detailed account or the figures relating to the method of calculating the fine (see
         Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II-1181, paragraph 252 and the case-law cited). 
      
      96      In the present case, in recital 542 of the Decision, the Commission set out the reasons which had led it to conclude that
         the infringement was very serious, namely the very nature of the obvious restrictions of competition identified. In addition,
         it explained, in the same recital, why it had not examined the geographical area and the impact of the infringement, referring
         to case-law which states that in the case of flagrant restrictions, the infringement may be classified as very serious without
         it being necessary for such conduct to cover a particular geographical area or have a particular impact (Scandinavian Airlines System v Commission, cited in paragraph 85 above, paragraphs 84 and 85, and Joined Cases T-49/02 to T-51/02 Brasserie nationale and Others v Commission [2005] ECR II-3033, paragraphs 178 and 179). It follows that, in the light of that case-law, the Commission gave sufficient
         reasons for classifying the infringement as ‘very serious’.
      
      97      However, first, it is desirable for the Commission to augment its reasoning as to the calculation of fines in order to enable
         undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a
         course of action may serve to render the administrative act more transparent and facilitate the exercise by the General Court
         of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness
         of the fine imposed (Case C-248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 46).
      
      98      Second, it should be observed that the case-law cited by the Commission refers to the 1998 Guidelines and that it goes back
         to a time before the adoption of guidelines. The 2006 Guidelines have, however, brought about a fundamental change in the
         methodology for setting fines. In particular, the three-fold categorisation of infringements (‘minor’, ‘serious’ and ‘very
         serious’) has been abolished, and a scale from 0% to 30% introduced in order to enable finer distinctions to be made. In addition,
         the basic amount of the fine is now ‘related to a proportion of the value of sales, depending on the degree of gravity of
         the infringement, multiplied by the number of years of infringement’ (point 19 of the 2006 Guidelines). As a general rule,
         ‘the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales’ (point
         21). As regards horizontal price-fixing, market-sharing and output-limitation agreements ‘which … are, by their very nature,
         among the most harmful restrictions of competition’, the proportion of the value of sales taken into account must generally
         be set ‘at the higher end of the scale’ (point 23). 
      
      99      In those circumstances, the Commission may no longer, as a rule, simply state reasons only for the classification of an infringement
         as ‘very serious’ and not for the choice of the proportion of sales taken into account. As stated above, the corollary of
         the Commission’s margin of discretion in the area of fines is an obligation to state reasons which enables the person concerned
         to ascertain the reasons for the measure adopted and the Court to exercise its review.
      
      100    In the present case, in recital 543 of the Decision, the Commission set the percentage at a level scarcely above the mid-point
         of the scale, namely at 17%, basing its choice solely on the ‘very serious’ nature of the infringement. However, the Commission
         has failed to explain in a more detailed manner how the classification of the infringement as ‘very serious’ has led it to
         set the percentage at 17% and not at a percentage considerably more ‘at the higher end of the scale’. That reasoning can be
         sufficient only where the Commission applies a percentage very close to the lower end of the scale laid down for the most
         serious restrictions, that being, moreover, highly favourable to the applicant. In that case, supplementary reasons going
         beyond the reasoning inherent in the guidelines are not necessary. By contrast, had the Commission wished to apply a higher
         percentage, it would have had to provide more detailed reasons, as it did in the ‘Car glass’ (recitals 669 to 678), ‘Heat
         Stabilisers’ and ‘Candle Waxes’ decisions (recitals 641 to 653). 
      
      101    As regards the reasoning concerning the setting of an undifferentiated percentage at 17%, it may be inferred from the Decision
         that the Commission proceeds from the principle that the finding of a single and continuous infringement justifies the application
         of a single percentage. That finding is sufficiently reasoned and well founded (see paragraphs 39 et seq. above).
      
      102    Therefore, the fourth limb of the plea must be rejected.
      
      103    It follows from all the foregoing that the third plea must be rejected in its entirety.
      
      4.     Fourth plea in law, alleging that there are no grounds for multiplying the amount determined on the basis of the value of
            sales by the number of years of participation in the infringement
       Arguments of the parties
      104    Team Relocations claims that point 24 of the 2006 Guidelines, which provides for the automatic multiplication of the amount
         determined on the basis of the value of sales by the number of years of an undertaking’s participation in the infringement,
         confers on the alleged duration of the infringement an importance disproportionate in relation to the other relevant factors
         and in particular to the gravity of the infringement. That provision therefore fails to take sufficiently into account the
         requirement that the fine for each undertaking concerned be adapted individually and provides for a fine computation formula
         that attaches a manifestly disproportionate importance to the duration of the infringement.
      
      105    In the alternative, Team Relocations claims that the Court should apply a multiplier that does not exceed two. In any event,
         if the Court were to confirm a multiplication by seven, Team Relocations submits that in its own case the percentage of the
         value of sales should be reduced for the first five years (1997‑2001) to not more than 5%, since during these years Team Relocations
         did not engage in cover quotes, and for the last two years (2002-2003) to not more than 12%.
      
      106    The Commission contends that these heads of claim should be dismissed. 
      
       Findings of the Court
      107    Although Team Relocations argues that there are no grounds for multiplying the amount determined on the basis of the value
         of sales by the number of years of participation in the infringement, it does not dispute that that methodology is based on
         the provisions of the 2006 Guidelines. Therefore, the present plea alleges, rather, that point 24 of the 2006 Guidelines is
         disproportionate to the extent that it provides for such a multiplication. 
      
      108    In that connection, Article 23(3) of Regulation No 1/2003 simply states that ‘[i]n fixing the amount of the fine, regard shall
         be had both to the gravity and to the duration of the infringement’, without, however, specifying the specific manner in which
         the duration should be taken into account. That general provision has been clarified in the various guidelines on the method
         of setting fines. More specifically, for infringements of long duration (in general, more than five years), the 1998 Guidelines
         provided for an increase of up to 10% per year in the amount determined for gravity. On the other hand, multiplication by
         the number of years of participation in the infringement, provided for in the 2006 Guidelines, is equivalent to increasing
         the amount by 100% per year. 
      
      109    That approach represents a fundamental change in methodology as to how the duration of a cartel is taken into consideration.
         Article 23(3) of Regulation No 1/2003 does not, however, preclude such a development. Admittedly, the French-language version
         of the provision (‘il y a lieu de prendre en considération, outre la gravité de l’infraction, la durée de celle-ci’) seems
         to attach less importance to duration than to gravity for the purposes of fixing the amount of the fines. By contrast, other
         language versions, such as the English-language version, (‘… regard shall be had both to the gravity and to the duration of
         the infringement’), and the German‑language version (‘… ist sowohl die Schwere der Zuwiderhandlung als auch deren Dauer zu
         berücksichtigen’) indicate that that provision attaches equal weight to the gravity and the duration of the infringement.
      
      110    As regards the alternative claims, it is sufficient to note that, although, in the past, the Commission has sometimes taken
         into account changes in an infringement over time, when increasing the amount of the fine for duration, none of the provisions
         of the 2006 Guidelines obliges it to apply to such a case a multiplier that does not exceed two, or to reduce the percentage
         of the value of sales taken into account for gravity. The Court considers, in the exercise of its unlimited jurisdiction,
         that it is not appropriate to grant the reduction which is the subject of Team Relocations’ first claim. As regards the second
         claim, this will be examined in paragraphs 125 et seq. below. 
      
      111    Without prejudice to this last point, the fourth plea must be rejected.
      
      5.     The fifth plea, alleging that there is no basis for imposing an additional amount
      112    In this plea, Team Relocations alleges infringement of the principle of equal treatment and of the principle of proportionality.
      
       Arguments of the parties
      113    First, Team Relocations claims that the inclusion of an additional amount pursuant to point 25 of the 2006 Guidelines infringes
         the principle of equal treatment since, unlike some other addressees of the Decision, it did not conclude both price-fixing
         and market-sharing agreements. Furthermore, the practices engaged in by Team Relocations do not fall within the categories
         of infringement that may warrant including an additional amount in the basic amount of the fine.
      
      114    Secondly, Team Relocations considers that, in the light of the limited gravity of the infringement it committed, the Decision
         infringes the principle of proportionality in setting the additional amount at 17% of the value of sales.
      
      115    The Commission contends that the imposition of an additional amount of 17% was justified.
      
       Findings of the Court
      116    Team Relocations alleges infringement of the principle of equal treatment (first limb) and of the principle of proportionality
         (second limb) as regards the calculation of the additional amount. In that connection, point 25 of the 2006 Guidelines provides:
      
      ‘[I]rrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the
         basic amount a sum of between 15% and 25% of the value of sales …, in order to deter undertakings from even entering into
         horizontal price-fixing, market‑sharing and output-limitation agreements.’ 
      
      117    As regards the first limb of the plea, it must be noted that the principle of equal treatment has not been infringed, since
         the Commission applied the same additional amount to all the addressees of the Decision on the ground that they all participated
         in the single and continuous infringement which included price fixing and/or market sharing. The wording of point 25 of the
         2006 Guidelines (‘inclura’, ‘will include’ and ‘fügt hinzu’) shows, moreover, that, as regards flagrant infringements, the
         imposition of an additional amount is automatic and does not depend on the existence of other factors. As to the remainder,
         reference should be made to paragraphs 81 et seq. above, the reasoning in those paragraphs being applicable mutatis mutandis to the imposition of an additional amount.
      
      118    As regards the second limb of the plea, reference should be made to paragraph 94 above, where the Court found that, taken
         separately, a level of 17% was proportionate to Team Relocations’ actual responsibility for the infringement. Those considerations
         apply equally to the additional amount, which was also set at 17%. In addition, the Court considers that a level of 17% is
         appropriate to ensure a sufficient deterrent effect. The fact that the scale provided for by the 2006 Guidelines, in respect
         of the additional amount, ranges from 15% to 25% and not from 0% to 30% has no effect in that regard. 
      
      119    Consequently, the fifth plea must be rejected.
      
      6.     The sixth plea, relating to the existence of mitigating circumstances
       Arguments of the parties
      120    The applicant maintains that there are several mitigating circumstances that, under points 20 and 29 of the 2006 Guidelines,
         justify a substantial reduction of its fine. The limited involvement of an undertaking in the infringement is one of these
         mitigating circumstances. Team Relocations states that, in the present case, it was not actively involved in the creation
         of any anti-competitive arrangement; that it never attended any anti-competitive meeting; that it was never involved in the
         most serious aspects of the infringement, namely the written price-fixing agreements and the commission agreements concluded
         with regard to office moves; that it only occasionally agreed to commissions and issued or requested cover quotes on an ad
         hoc basis and with respect to a very limited number of clients and moves; and that prior to 2002 it did not issue or request
         cover quotes. However, Team Relocations’ limited involvement in the infringement was not taken into consideration at all –
         whether in assessing the gravity or duration of the infringement or in examining the mitigating circumstances.
      
      121    In addition, Team Relocations maintains that a number of cover quotes were requested by officials of the Commission. The declarations
         of Allied Arthur Pierre clearly confirm that cover quotes were widely known among and even requested by Commission officials
         at every level. The Commission cannot disclaim liability for the cover quotes practices that were committed with the approval,
         or at the request, of its own officials.
      
      122    The Commission claims that the arguments put forward by Team Relocations are irrelevant, ineffective and/or misleading. In
         particular, the Commission does not consider that the arrangements in which Team Relocations participated are of a less serious
         nature than the written price agreements.
      
       Findings of the Court
      123    It is apparent from the Decision that the Commission did not find any mitigating circumstances. However, Team Relocations
         claims that there are several circumstances which distinguish the infringement that it committed from that committed by other
         undertakings concerned, and which demonstrate the limited nature of its involvement or which are related to the Commission’s
         conduct.
      
       Involvement in the creation of the anti-competitive arrangements
      124    First, as regards the assertion that Team Relocations was not actively involved in the creation of the anti‑competitive arrangements
         at issue, it should be noted that its first documented involvement in the implementation of the agreement on commissions was
         indeed in 1997, whereas those practices were set up in the 1980s. However, that factor is relevant only in the context of
         ascertaining whether an undertaking has played a role of leader or instigator, which may be considered an aggravating circumstance
         under point 28 of the 2006 Guidelines. Moreover, the fact that an undertaking was not actively involved in the creation of
         the anti‑competitive arrangements at issue is not, in itself, a mitigating circumstance. 
      
       The allegedly limited nature of Team Relocations’ involvement in the infringement 
      125    Second, as regards the allegedly very limited nature of its involvement in the infringement, it is common ground that Team
         Relocations was never involved in the written price fixing agreements, the meetings with an anti‑competitive object, the ad
         hoc fixing of prices for a specific move or the commission arrangements concluded for the office moves. Furthermore, Team
         Relocations was involved in the practices concerning cover quotes only between February 2002 and September 2003. 
      
      126    In that connection, it should be noted that, under the third indent of point 29 of the 2006 Guidelines, in order to benefit
         from a reduction in the fine on account of mitigating circumstances, the undertaking concerned must ‘[provide] evidence that
         its involvement in the infringement is substantially limited’ and ‘thus [demonstrate] that, during the period in which it
         was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’. Those
         conditions are not met in the present case.
      
      127    However, the use of the expression ‘such as’ shows that the list of circumstances set out in point 29 of the 2006 Guidelines
         is not exhaustive. In addition, as was noted in the context of the third plea, the specific circumstances of the case, in
         particular whether the undertaking participated in all the aspects of the infringement, must be taken into account, if not
         in assessing the gravity of the infringement, at least in the course of adjusting the basic amount for mitigating or aggravating
         circumstances. That obligation was one of the reasons why the Court of Justice stated that the concept of a single and continuous
         infringement is not contrary to the principle that responsibility for infringements of competition law is personal in nature
         (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 84). The criteria laid down in the third indent of point 29 are not capable on their
         own of ensuring this. Consequently, the specific circumstances of the case must be assessed.
      
      128    In that connection, it is common ground that the infringement at issue changed over time. The written agreements were applied
         during the first stage of the infringement from 1984 until the beginning of the 1990s and were subsequently abandoned. The
         second stage of the infringement is characterised by the use of cover quotes and commissions. Consequently, the proportion
         of the value of sales to be taken into account under point 19 of the 2006 Guidelines could, in principle, be adjusted over
         time. That fact could also justify a reduction in the fine on account of mitigating circumstances.
      
      129    However, it must be found that the conduct in which Team Relocations participated does not amount to a less serious infringement
         than the written price‑fixing agreements or the ad hoc fixing of prices for specific moves. Contrary to what Team Relocations
         asserts, the cover quotes and commissions had also had effects on prices (see paragraph 44 above). Similarly, in the circumstances
         of the present case, the fact that Team Relocations did not participate in the commission arrangements concluded for the office
         moves or in the system of cover quotes before February 2002 is rather insignificant for assessing the gravity of the infringement.
         This also applies to the non-participation in the anti-competitive meetings, since the cartel operated through mechanisms
         which rendered such meetings pointless.
      
      130    It follows that it was open to the Commission to set a single percentage for the entire duration of the single and continuous
         infringement and not to take into account as a mitigating circumstance the changes in the infringement over time.
      
       The alleged authorisation of the conduct
      131    Third, as regards the allegation that the Commission authorised or encouraged the practice of cover notes, it should be noted
         that point 29, last indent, of the 2006 Guidelines provides that ‘[t]he basic amount may be reduced … where the anti‑competitive
         conduct of the undertaking has been authorised or encouraged by public authorities or by legislation’.
      
      132    However, there is nothing in the documents before the Court which shows that the Commission, as an institution, authorised,
         encouraged or requested the cover quotes. In point of fact, the Commission would have had no interest in encouraging or tolerating
         the system of cover notes, since it adversely affected its interests. The fact that certain employees might have requested
         cover notes for a move ultimately reimbursed by the Commission does not mean that the institution was aware of that practice,
         nor that it took part in it, since a distinction must be drawn between the officials of the Commission and the Commission
         as an institution. 
      
      133    Even if an official of an institution did request cover quotes, Team Relocations ought to have known that such requests could
         not be formulated on behalf of or at the instigation of the institutions, since they were clearly contrary to their financial
         interests. The requirement to provide two or three estimates is intended precisely to ensure a minimum level of competition
         and to prevent a single removals company from being able to set unilaterally the price of a move.
      
      134    In addition, mere knowledge of anti-competitive conduct does not imply that that conduct was implicitly ‘authorised or encouraged’
         by the Commission within the meaning of point 29, last indent, of the 2006 Guidelines. Alleged inaction cannot be treated
         in the same way as a positive act such as an authorisation or encouragement. 
      
      135    In any event, Team Relocations’ arguments relate only to the cover quotes. The practice of cover quotes is only one element
         of a single and continuous infringement. The arguments raised cannot possibly justify the payment of commissions.
      
      136    Therefore, those arguments and, accordingly, the sixth plea in its entirety must be rejected. 
      
      7.     The seventh plea of Team Relocations and the first plea of the Amertranseuro group, alleging that the infringements committed
            by Team Relocations cannot be attributed to Amertranseuro
      137    By its seventh plea, Team Relocations claims, in essence, that the Commission erred in taking into account Amertranseuro’s
         turnover for the purposes of determining the 10% ceiling provided for in the second subparagraph of Article 23(2) of Regulation
         No 1/2003, on the ground that Amertranseuro was not aware of the anti-competitive practices of its subsidiary. The Amertranseuro
         group contends, more generally, that the infringements committed by Team Relocations cannot be attributed to the group.
      
       Arguments of the parties
      138    Team Relocations maintains that it is the only legal person that can be considered responsible for the behaviour that was
         committed by certain of its employees. However, the fine amounts to more than 60% of its overall turnover. Amertranseuro,
         Trans Euro and Team Relocations Ltd are not responsible for these practices. Its parent companies were never aware of these
         occasional agreements on commissions and cover quotes, nor had they any reason to suspect their existence. Even if the Court
         were to consider that the Commission was correct to hold Team Relocations’ parent companies responsible for part of Team Relocations’
         infringement, Team Relocations nevertheless submits that, in the specific circumstances of this case, it is incompatible with
         the principle of proportionality to assess the 10% upper limit by reference to Amertranseuro’s consolidated turnover.
      
      139    The Amertranseuro group observes, first, that the Commission justified the applicants’ joint and several liability on the
         ground that all three parent companies were in a position to exercise a decisive influence over Team Relocations’ commercial
         policy. However, the Court of Justice and the General Court have often described the scope of the power to exert decisive
         influence in terms that are considerably narrower than those used by the Commission in recital 394 of the Decision
      
      140    Secondly, the Amertranseuro group submits that too narrow a scope of the parent companies’ power to exert decisive influence
         over their subsidiaries leads to a virtually irrefutable presumption of liability. In fact, their liability would become strict
         liability. Only pure financial investors with no interest in determining the strategic course of the companies in which they
         have invested would escape this liability.
      
      141    Thirdly, the Amertranseuro group submits that Team Relocations enjoyed full managerial autonomy and none of the three parent
         companies was aware of the practices under investigation. They have therefore not failed to comply with their duty of care.
      
      142    Fourthly, the Amertranseuro group complains that the Commission adopted an ‘asymmetric’ approach towards the liability of
         parent companies in this case. For the period prior to 8 September 2000, it held Team Relocations’ two intermediate parent
         companies liable (namely, Team Relocations Ltd. and Trans Euro), but not Mr E., the ultimate owner of that group. In contrast,
         for the period from 8 September 2000 onwards, the Commission found liability not only for these two intermediate parent companies
         but also for Amertranseuro, the new owner of Trans Euro. Since Amertranseuro fully owns the capital of the two intermediate
         parent companies, this means that its shareholders are de facto liable for the whole of the infringement.
      
      143    The Commission disputes those arguments. 
      
       Findings of the Court
      144    By this plea, Team Relocations submits that the Commission has infringed Article 23 of Regulation No 1/2003 (first limb) and
         the principle of proportionality (second limb) by imposing a fine which amounts to more than 10% of its turnover. Since the
         validity of the first limb depends on whether Amertranseuro’s turnover can be taken into account for the purposes of determining
         the 10% ceiling provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, the present complaint and
         Amertranseuro group’s first plea, alleging that the infringements committed by Team Relocations cannot be attributed to members
         of the Amertranseuro group, should be examined together.
      
       Attribution of the infringements committed by Team Relocations to the members of the Amertranseuro group
      145    EU competition law recognises that different companies belonging to the same group form an economic unit and therefore an
         undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not determine independently their
         own conduct on the market (Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 132 and 133, and Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290). An undertaking’s anti‑competitive conduct can therefore be attributed to another undertaking
         where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the
         instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them
         (Joined Cases C-189/02 P, C-202/02 P, C‑205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 117).
      
      146    The question therefore arises as to when an undertaking does not decide independently upon its own conduct on the market,
         but carries out, in all material respects, the instructions given to it by its parent company.
      
      147    In that connection, it has been held that that two cumulative conditions must be met: firstly, the parent company must be
         in a position to exert decisive influence over its subsidiary and, secondly, it must also actually exert that influence (ICI v Commission, cited in paragraph 145 above, paragraph 137). 
      
      148    As regards the first condition, a parent company may undoubtedly exert decisive influence over its subsidiary when, like Amertranseuro
         in the present case, it owns the whole of its share capital, either directly or indirectly through its shareholdings in other
         companies.
      
      149    As regards the requirements to be met in order to prove the actual exercise of decisive influence by the parent company over
         its subsidiary, the applicants are of the opinion that responsibility for the infringement may be attributed to the parent
         company only if, in addition to the 100% shareholding, the parent company was aware of the practices in question or had failed
         to comply with its duty of diligence. 
      
      150    The Commission, for its part, in recital 386 of the Decision, bases its reasoning on the case-law which states that in the
         specific case of a parent company having a 100% shareholding in a subsidiary which has committed the infringement, as in the
         present case, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the
         commercial policy of its subsidiary (see, to that effect, Case 107/82 AEG‑Telefunken v Commission [1983] ECR 3151, paragraph 50; Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 29; Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T‑329/94
         and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraphs 961 and 984; and Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II-5049, paragraph 62).
      
      151    That case-law was confirmed by the Court of Justice in its judgment in Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237. The Court of Justice stated, inter alia, that while at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, cited in paragraph 150 above, it had referred not only to the fact that the parent company owned 100% of the capital of
         the subsidiary but also to other circumstances, such as the fact that it was not disputed that the parent company exercised
         influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative
         procedure, the fact remains that those circumstances were mentioned for the sole purpose of identifying all the elements on
         which the General Court had based its reasoning and not to make the application of the presumption mentioned above subject
         to the production of additional indicia relating to the actual exercise of influence by the parent company (paragraph 62 of
         Akzo Nobel and Others v Commission). 
      
      152    In the present case, the applicants have failed to rebut the presumption that decisive influence has been exercised, since
         their argument is based on policy considerations and mere assertions, such as Team Relocations’ alleged managerial autonomy.
         In any event, it is apparent from recitals 490 and 491 of the Decision that, in attributing responsibility for Team Relocations’
         participation in the cartel to Amertranseuro, the Commission did not rely exclusively on the – undisputed – fact that Amertranseuro
         owned the whole of Team Locations’ capital, but also on other facts serving to establish that Amertranseuro exercised decisive
         influence over Team Relocations’ commercial policy. 
      
      153    Thus, between 1994 and September 2001, monthly meetings took place between the management of Team Relocations and the representatives
         of Trans Euro responsible for the Belgian subsidiary’s operational and financial management and with the owner of the Trans
         Euro group at the time, who was Group Managing Director with overall responsibility for the Belgian subsidiary. From 6 September
         2001 to September 2003, informal meetings were also held between Team Relocations and the representative of Amertranseuro,
         who was Group Continental Director with overall responsibility for the Belgian subsidiary. The Commission also noted that
         Team Relocations had to submit a number of reports, including the yearly management accounts, to Team Relocations Ltd from
         1 January 1994 to 7 September 2000 and to Amertranseuro after 8 September 2000, that is during the period of its participation
         in the infringement.
      
      154    Accordingly, it was open to the Commission to hold Amertranseuro responsible for the infringements committed by Team Relocations,
         because the applicants form an economic unit and therefore an undertaking for the purposes of Community competition law. Consequently,
         Amertranseuro’s turnover may be taken into account for the purposes of determining the 10% ceiling provided for in the second
         subparagraph of Article 23(2) of Regulation No 1/2003. It follows that the complaints relating to the fact that that turnover
         was taken into account must be rejected.
      
       The Commission’s alleged ‘asymmetric’ approach 
      155    The Amertranseuro group complains that the Commission adopted an ‘asymmetric’ approach by holding Amertranseuro liable as
         from the date of its acquisition of the Trans Euro group, namely 8 September 2000, whereas it did not hold the previous owner
         of the Trans Euro group, Mr E., liable for the period prior to 8 September 2000.
      
      156    In so far as the Amertranseuro group submits that the Commission ought also to have held Mr E. liable for the infringement
         until 7 September 2000, it should be emphasised that, even if the Commission had been able to do this, the fact that it did
         not do so cannot be relied on by the applicants in order to prove that the Decision was unlawful. According to case-law, the
         Commission has a margin of discretion as to whether to extend the responsibility for an infringement to a parent company,
         in addition to the company directly involved in the anti‑competitive conduct (see, to that effect, Joined Cases T‑259/02 to
         T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraphs 331 and 332). That margin of discretion also implies that the Commission may choose to address
         the decision only to the current parent companies of the undertaking in question and not to the former owners of the group.
         
      
      157    Moreover, the Commission did not extend responsibility for the infringement at issue to Zenic International Holdings Ltd either,
         the applicants’ current holding company. Therefore, the Decision cannot be considered ‘asymmetrical’. 
      
      158    This complaint must therefore be rejected. 
      
       The arguments relating to the Amertranseuro group’s second head of claim
      159    In its heads of claim and in the course of its first plea, the Amertranseuro group seems to assert that, although Amertranseuro
         was held liable only for an amount of EUR 1.3 million, which reflects its responsibility for a limited period, namely from
         8 September 2000, it has effectively been held liable for the full amount of the fine, in so far as it is the owner and shareholder
         of Trans Euro and Team Relocations Ltd.
      
      160    That assertion cannot call in question the lawfulness of the Decision, since it merely describes certain consequences for
         Amertranseuro that follow from that decision. That head of claim must therefore be rejected. 
      
       The allegedly disproportionate nature of the fine
      161    As regards the second limb of Team Relocations’ plea, it is sufficient to refer to the observations made in paragraph 94 above,
         according to which the rate of 17% applied is proportionate to Team Relocations’ actual responsibility in the infringement.
         The fact that the amount of the fine imposed on Team Relocations exceeds 10% of its turnover is irrelevant since that amount
         is still well below the 10% ceiling of the Amertranseuro group’s turnover. 
      
      162    It follows from all the foregoing that the seventh plea of Team Relocations and the first plea of the Amertranseuro group
         must be rejected.
      
      8.     The eighth plea of Team Relocations and second plea of the Amertranseuro group, concerning the applicants’ inability to pay
            and alleging misuse of powers
       Arguments of the parties
      163    Team Relocations maintains that it is apparent from its draft accounts for the financial year ended 30 September 2007 that
         the amount of its net equity, regardless of any fine payable to the Commission, is negative; that the financial year resulted
         in a loss of EUR 363 432; and that its cash flow was negative. The assets of the company have been fully pledged. It is unable
         to secure additional funding, and, accordingly, it is unable to pay the fine as imposed by the Commission.
      
      164    According to Team Relocations, the Commission was familiar with its weak financial situation and therefore abused its powers
         in imposing a fine in an amount that it was clearly unable to pay and that would result in its disappearance from the market.
         In addition, the Commission infringed the principle of equal treatment. In that regard, Team Relocations requests the Court
         to reduce the fine by an amount that reflects the same principles as those applied by the Commission with respect to Interdean,
         and contends that the Court should order the Commission, pursuant to Articles 58 and 65 of the Rules of Procedure, to disclose
         the factors which it has taken into account in awarding Interdean a 70% reduction of the fine.
      
      165    The Amertranseuro group claims that the fine imposed on Team Relocations – which amounts to almost two thirds of its annual
         turnover in 2006 and even approaches the absolute 10% ceiling set forth in Regulation No l/2003 – is totally disproportionate.
         According to Amertranseuro’s consolidated financial statements of 30 September 2006, the group’s total debt was GBP 35 million;
         Amertranseuro has also reported a loss on ordinary activities after taxation; its tangible net assets are negative; and all
         of its assets are fully pledged. As a consequence, the group is unable to pay the fine of EUR 3.49 million or to obtain a
         bank guarantee for such payment later.
      
      166    In the reply, the Amertranseuro group adds that, with regard to the need to submit a request for the application of point
         35 of the 2006 Guidelines, the Commission should revert to the approach adopted in the 1998 Guidelines and consider inability
         to pay as a ground for a reduction of the fine on its own initiative, as it has done in the past. Also, it stresses the fact
         that the group’s financial health deteriorated further during the financial year which ended on 30 September 2007. 
      
      167    The Commission disputes those arguments. 
      
       Findings of the Court
      168    By their last plea, the applicants submit that in imposing a fine on them in excess of their ability to pay, the Commission
         misused its powers, infringed point 35 of the 2006 Guidelines and infringed the principle of equal treatment.
      
      169    As regards the alleged misuse of powers, it must be recalled that it is settled case‑law that a decision may amount to a misuse
         of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive
         purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed
         by the Treaty for dealing with the circumstances of the case (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24 and the case-law cited). 
      
      170    However, the applicants do not claim that the Commission has imposed on them a fine with the purpose of achieving an end other
         than that stated, namely implementing Community competition law, or evading a procedure specifically prescribed by the Treaty.
         Consequently, the Decision does not amount to a misuse of powers.
      
      171    As regards the reduction of a fine pursuant to point 35 of the 2006 Guidelines, it should be noted that such a reduction is
         subject to three cumulative conditions, namely:
      
      –        the submission of a request during the administrative procedure; 
      –        the existence of a specific social and economic context; and
      –        the inability to pay of the undertaking, the latter having to provide objective evidence showing that the imposition of the
         fine would irretrievably jeopardise its economic viability and cause its assets to lose all their value. 
      
      172    Clearly at least two of those conditions have not been met. First, unlike other undertakings concerned, the applicants did
         not submit a request during the administrative procedure for the fine to be reduced on account of their inability to pay,
         although the 2006 Guidelines provide that such a request must be submitted. In that context, the argument based on the fact
         that, under the 1998 Guidelines, the Commission could have considered inability to pay as a ground for a reduction of the
         fine on its own initiative is irrelevant, since it is incapable of providing grounds for the assertion that the 2006 Guidelines
         have been infringed. In so far as that argument is relied on in order to assert that, irrespective of point 35 of the 2006
         Guidelines, the Commission is obliged to examine on its own initiative the inability to pay of the undertakings concerned,
         it should be observed that an obligation of that kind does not follow from the case-law.
      
      173    In a letter lodged at the Registry on 6 August 2010, Team Relocations requested the reopening of the oral procedure on the
         ground that the Commission had changed its practice concerning the need to submit a request under point 35 of the 2006 Guidelines
         during the administrative procedure. That request was rejected by decision of 23 September 2010, since, contrary to that applicant’s
         assertions, in the cases cited by it the requests had indeed been submitted during the administrative procedure. Although
         it appears from a press article that the Commission ‘is considering formally modifying its fining guidelines’ in order to
         be able to take account of developments after the adoption of a decision, that change has not yet been adopted. In any event,
         a change in the interpretation of the 2006 Guidelines could not render unlawful a decision taken before that change.
      
      174    Second, the applicants have not disputed the Commission’s finding, in recital 651 of the Decision, that a ‘specific social
         and economic context’, within the meaning of the point 35 of the 2006 Guidelines, is lacking in the present case. 
      
      175    In those circumstances, and without there being any need to examine whether the third condition, that is the applicants’ alleged
         inability to pay, is met in the present case, the Commission was fully entitled to find that the conditions for the application
         of point 35 of the 2006 Guidelines were not met.
      
      176    As regards the complaint alleging infringement of the principle of equal treatment, it is sufficient to note that, unlike
         Interdean, the applicants did not raise the issue of their ability to pay at the administrative procedure stage and they did
         not submit a request to obtain a reduction of their fines on that ground. Therefore, their position is not comparable to that
         of Interdean. In that context, it should be noted that the submission of a request to obtain a reduction of a fine is not
         merely a procedural requirement, but one which if not satisfied would preclude any valid assessment of the economic position
         from being carried out, since the Commission would not then possess relevant information, such as data internal to the undertaking
         concerned, in order to be able to assess the economic viability of that undertaking. 
      
      177    Consequently, the applicants’ final plea and Team Relocations’ request to order the Commission to disclose the factors which
         it took into account in awarding Interdean a 70% reduction in the fine must be rejected.
      
      178    As all of the applicants’ pleas in law have been rejected, it is necessary therefore to dismiss the actions in their entirety.
      
       Costs
      179    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the
         costs, in accordance with the form of order sought by the Commission.
      
      On those grounds,
      THE GENERAL COURT (Eighth Chamber)
      hereby:
      1.      Dismisses the actions;
      2.      Orders Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd and Team Relocations Ltd to pay the costs.
      
      
               Papasavvas
            
            
               Wahl
            
            
               Dittrich
            
         Delivered in open court in Luxembourg on 16 June 2011.
      [Signatures]
      Table of contents
      
      Facts
      1.  Subject-matter of the dispute
      2.  Applicants
      3.  Administrative procedure
      4.  Decision
      Procedure and forms of order sought by the parties
      Law
      1.  The first plea: Team Relocations was not a party to the single and continuous infringement described in the Decision
      Arguments of the parties
      Findings of the Court
      The concept of a single and continuous infringement
      The characterisation of the offending conduct
      –  The existence of an overall plan pursuing a common objective
      –  The intentional contribution of Team Relocations to the overall plan
      –  Team Relocations’ awareness of the offending conduct
      2.  The second plea, relating to calculation of the value of Team Relocations’ sales
      Arguments of the parties
      Findings of the Court
      The relevant value of sales
      The removals paid for by private individuals
      3.  The third plea, concerning the application of a percentage of 17% of the value of Team Relocations’ sales in calculating
         the basic amount of its fine
      
      Arguments of the parties
      Findings of the Court
      The obligation to determine the basic amount of the fine on the basis of Team Relocations’ individual role
      The alleged infringement of the principle of proportionality
      The alleged failure to state reasons
      4.  Fourth plea in law, alleging that there are no grounds for multiplying the amount determined on the basis of the value
         of sales by the number of years of participation in the infringement
      
      Arguments of the parties
      Findings of the Court
      5.  The fifth plea, alleging that there is no basis for imposing an additional amount
      Arguments of the parties
      Findings of the Court
      6.  The sixth plea, relating to the existence of mitigating circumstances
      Arguments of the parties
      Findings of the Court
      Involvement in the creation of the anti-competitive arrangements
      The allegedly limited nature of Team Relocations’ involvement in the infringement
      The alleged authorisation of the conduct
      7.  The seventh plea of Team Relocations and the first plea of the Amertranseuro group, alleging that the infringements committed
         by Team Relocations cannot be attributed to Amertranseuro
      
      Arguments of the parties
      Findings of the Court
      Attribution of the infringements committed by Team Relocations to the members of the Amertranseuro group
      The Commission’s alleged ‘asymmetric’ approach
      The arguments relating to the Amertranseuro group’s second head of claim
      The allegedly disproportionate nature of the fine
      8.  The eighth plea of Team Relocations and second plea of the Amertranseuro group, concerning the applicants’ inability to
         pay and alleging misuse of powers
      
      Arguments of the parties
      Findings of the Court
      Costs
      *  Language of the case: English.