Dansk Rørindustri A/S (C-189/02 P), Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH and Others (C-202/02 P), KE KELIT Kunststoffwerk GmbH (C-205/02 P), LR af 1998 A/S (C-206/02 P), Brugg Rohrsysteme GmbH (C-207/02 P), LR af 1998 (Deutschland) GmbH (C-208/02 P) and ABB Asea Brown Boveri Ltd (C-213/02 P) v Commission of the European Communities.
Date: 2005-06-28
67. In that regard, it should be borne in mind that the Court of First Instance is the sole judge of whether the information available concerning the cases before it needs to be supplemented (see, in particular, Joined Cases C-57/00 P and C-61/00 P Freistaat Sachsen and Others  v Commission  [2003] ECR I-9975, paragraph 47, and Case C-136/02 P Mag Instrument  v OHIM  [2004] ECR I-0000, paragraph 76).
68. Furthermore, as the Court has held in another case concerning competition law, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the Court of First Instance to assess the relevance of the application to the subject-matter of the dispute and the need to examine the witnesses named (Case C-185/95 P Baustahlgewebe  v Commission  [1998] ECR I-8417, paragraph 70).
72. In the present case, it is common ground, as may be seen from paragraph 21 of the judgment in HFB and Others  v Commission , that the Court of First Instance, by way of a measure of organisation of procedure, requested the Henss/Isoplus group to answer certain written questions and to produce certain documents and that the parties complied with those requests. The Court of First Instance cannot therefore be accused of having been in breach of its duty to investigate the facts (see, to that effect, Baustahlgewebe  v Commission , paragraph 76).
96. In that regard, it follows from that case-law that that obligation is not satisfied if the Commission’s complaints are set out in the application only in the form of a reference to the grounds stated in the formal letter and in the reasoned opinion, or again in the part of the application devoted to the legal background (see, to that effect, inter alia, Case C-52/90 Commission  v Denmark  [1992] ECR I-2187, paragraphs 17 and 18; Case C-375/95 Commission  v Greece  [1997] ECR I-5981, paragraph 35; and Case C-202/99 Commission  v Italy  [2001] ECR I-9319, paragraphs 20 and 21).
112. In that regard, it should be observed that, according to settled case-law, in the field of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see, in particular, Case C-309/99 Wouters and Others  [2002] ECR I-1577, paragraph 46 and the case-law cited).
117. In that regard, it is settled case-law that the anti-competitive conduct of an undertaking can 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 (see, in particular, Case C-294/98 P Metsä-Serla and Others  v Commission  [2000] ECR I-10065, paragraph 27).
118. It is true that the mere fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those companies are a single economic unit with the result that, under Community competition law, the actions of one company can be attributed to the other and that one can be held liable to pay the fine for the other (see Case C-196/99 P Aristrain  v Commission  [2003] ECR I-11005, paragraph 99).
122. In that regard, it should be observed that considerations such as those set out by the Court of First Instance at paragraphs 56 to 64 of the judgment in HFB and Others  v Commission , which seek to establish the existence of an economic unit, are based on a series of findings of fact which are not amenable to discussion on appeal, unless the relevant facts or evidence adduced before the Court of First Instance have been distorted or the material inaccuracy of the findings of the Court of First Instance is apparent from the documents placed on the case-file (see, to that effect, in particular, Metsä-Serla and Others  v Commission , paragraph 37, and Mag Instrument  v OHIM , paragraphs 39 and 76).
129. That complaint is inadmissible, since it raises the question as to whether the conditions of the existence of an economic unit were satisfied in this case. Such an examination, which is based on an appraisal of the facts, cannot as such be challenged in an appeal (see Metsä-Serla and Others  v Commission , paragraph 30).
142. It is settled case-law that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see, in particular, Joined Cases C-204/00 P, C-205/00 P, C‑211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I-123, paragraph 81 and the case-law cited).
143. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement (see Aalborg Portland and Others  v Commission , cited above, paragraph 84).
144. Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive object such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see Aalborg Portland and Others  v Commission , paragraph 85 and the case-law cited).
145. For the purposes of applying Article 85(1) of the Treaty, it is sufficient that the object of an agreement should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement. Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see Joined Cases C‑238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C‑250/99 P to C‑252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I-8375, paragraphs 508 to 510).
147. It is true, as Brugg maintains, and contrary to the finding made by the Court of First Instance at paragraph 62 of the judgment in Brugg Rohrsysteme  v Commission , that it is irrelevant in that regard whether Brugg had an interest in any boycott of one of its direct competitors by other participants in the cartel (see, to that effect, Aalborg Portland and Others  v Commission , paragraph 335).
148. However, that is a complaint directed against a ground included in the judgment purely for the sake of completeness which cannot lead to the judgment being set aside and is therefore nugatory (see, in particular, Case C-184/01 P Hirschfeldt  v EEA  [2002] ECR I-10173, paragraph 48 and the case-law cited).
165. According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the Court of First Instance. In an appeal the Court’s jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, in particular, Case C-458/98 P Industrie des poudres sphériques  v Council  [2000] ECR I-8147, paragraph 74).
169. In that regard, the Court of First Instance correctly observed that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 109, and Aristrain  v Commission , cited above, paragraph 81).
170. The supervisory task conferred on the Commission by Articles 85(1) and 86 of the EC Treaty (now Article 82 EC) not only includes the duty to investigate and punish individual infringements but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles (see Musique Diffusion française and Others  v Commission , paragraph 105).
171. As the Court of First Instance appositely observed, traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Commission in the exercise of its discretionary power will be maintained (Case C-350/88 Delacre and Others  v Commission  [1990] ECR I-395, paragraph 33 and the case-law cited).
172. That principle clearly applies in the field of competition policy, which is characterised by a wide discretion on the part of the Commission, in particular as regards the determination of the amount of fines.
174. A number of the appellants submit that that case-law is called in question by the judgment in Case 344/85 Ferriere San Carlo  v Commission  [1987] ECR 4435, paragraphs 12 and 13. In that judgment, the Court of Justice held, in essence, that since the trader in question had not been individually warned in good time of the termination of a practice which the Commission had followed for two years, consisting in tolerating deliveries in excess of quotas, the fine imposed by the Commission for exceeding a quota was contrary to the trader’s legitimate expectation that the practice would be continued.
177. In that regard, it must be borne in mind that the Court of First Instance has exclusive jurisdiction to find and appraise the relevant facts and also to assess the evidence. The appraisal of those facts and the assessment of that evidence thus does not, save where they distort the evidence, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, in particular, Mag Instrument  v OHIM , cited above, paragraph 39).
180. As regards the appellants’ claim that the Commission’s previous practice in taking decisions shows that the maximum amount of the fine cannot exceed the limit of 10% of relevant turnover, that also relates to a question of a factual nature which the Court cannot settle in an appeal.
181. It should be pointed out, however, as the Commission, moreover, has observed, that such a limit does not in any event follow from Article 15(2) of Regulation No 17, since the limit provided for in that provision relates to overall turnover and not to the relevant turnover of the undertakings (see, to that effect, Musique Diffusion française and Others  v Commission , paragraph 119).
202. The Court of First Instance held, first of all and correctly, that the principle of non-retroactivity of criminal laws, enshrined in Article 7 of the ECHR as a fundamental right, constitutes a general principle of Community law which must be observed when fines are imposed for infringement of the competition rules and that that principle requires that the penalties imposed correspond with those fixed at the time when the infringement was committed.
209. The Court has already held, in a judgment concerning internal measures adopted by the administration, that although those measures may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Such measures therefore constitute a general act and the officials and other staff concerned may invoke their illegality in support of an action against the individual measures taken on the basis of the measures (see Case C-171/00 P Libéros  v Commission  [2002] ECR I-451, paragraph 35).
210. That case-law applies a fortiori  to rules of conduct designed to produce external effects, as is the case of the Guidelines, which are aimed at traders.
211. In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the institution in question imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct, which are of general application, may produce legal effects.
212. Furthermore, as the Advocate General observed in substance at point 59 of his Opinion, the case-law cited at paragraph 209 of this judgment on the legal effects of such rules of conduct confirms the correctness of the conclusion reached by the Court of First Instance at paragraph 420 of HFB and Others  v Commission  and paragraph 276 of LR AF 1998  v Commission  that even though the Guidelines do not constitute the legal basis of the contested decision, as that decision was based on Articles 3 and 15(2) of Regulation No 17, they may none the less form the subject-matter of an objection of illegality under Article 184 of the Treaty.
213. The Court of First Instance was also correct to observe, at paragraph 418 of HFB and Others  v Commission  and paragraph 274 of LR AF 1998  v Commission , that although the Guidelines do not constitute the legal basis of the contested decision, they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by the decision and, consequently, ensure legal certainty on the part of the undertakings.
214. Just as the admissibility of an objection of illegality raised against rules of conduct such as the Guidelines is not subject to the requirement that those rules constitute the legal basis of the act alleged to be illegal, the relevance of the Guidelines in the light of the principle of non-retroactivity does not presuppose that the Guidelines form the legal basis for the fines.
215. In that context, it is appropriate to refer to the case-law of the European Court of Human Rights on Article 7(1) of the ECHR, which, moreover, is cited by a number of the applicants (see, in particular, Eur. Court H.R., S.W.  v United Kingdom  and C.R.  v United Kingdom , judgments of 22 November 1995, Series A Nos 335-B and 335-C, §§ 34 to 36 and §§ 32 to 34; Cantoni  v France , judgment of 15 November 1996, Reports of Judgments and Decisions , 1996-V, §§ 29 to 32, and Coëme and Others  v Belgium , judgment of 22 June 2000, Reports , 2000-VII, § 145).
216. It follows from that case-law that the concept of ‘law’ (‘ droit ’) for the purposes of Article 7(1) corresponds to ‘law’ (‘ loi ’) used in other provisions of the ECHR and encompasses both law of legislative origin and that deriving from case-law.
217. Although that provision, which enshrines in particular the principle that offences and punishments are to be strictly defined by law ( nullum crimen, nulla poena sine lege ), cannot be interpreted as prohibiting the gradual clarification of the rules of criminal liability, it may, according to that case-law, preclude the retroactive application of a new interpretation of a rule establishing an offence.
218. That is particularly true, according to that case-law, of a judicial interpretation which produces a result which was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time.
219. It follows from that case-law of the European Court of Human Rights that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such an activity entails (see Cantoni  v France , cited above, § 35).
220. Those principles are also consistently reflected in the case-law of the Court to the effect that the obligation on the national court to refer to the content of the directive when interpreting the relevant rules of its national law is limited by the general principles of law which form part of Community law and in particular the principles of legal certainty and non-retroactivity (see Case 80/86 Kolpinghuis Nijmegen  [1987] ECR 3969, paragraph 13).
221. According to that case-law, such an interpretation cannot lead to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, a fortiori, have the effect of determining or aggravating, on the basis of the decision and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions (see, in particular, Kolpinghuis Nijmegen , cited above, paragraph 14, and Case C-168/95 Arcaro  [1996] ECR I-4705, paragraph 42).
222. Like that case-law on new developments in case-law, a change in an enforcement policy, in this instance the Commission’s general competition policy in the matter of fines, especially where it comes about as a result of the adoption of rules of conduct such as the Guidelines, may have an impact from the aspect of the principle of non-retroactivity.
225. In that regard, it should be noted that, as a number of the appellants have pointed out, the main innovation in the Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by the Guidelines; those brackets reflect the various degrees of gravity of the infringements but, as such, bear no relation to the relevant turnover. The essential feature of that method is thus that fines are determined on a tariff basis, albeit one that is relative and flexible.
227. As already stated at paragraph 169 of this judgment in connection with the pleas alleging breach of the principle of protection of legitimate expectations, it follows from the case-law of the Court that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.
228. It follows, as already held at paragraph 173 of this judgment, that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines.
229. Consequently, the undertakings in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past.
230. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines.
231. It must be concluded that, particularly in the light of the case-law cited at paragraph 219 of this judgment, the Guidelines and, in particular, the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of the fines imposed, were reasonably foreseeable for undertakings such as the appellants at the time when the infringements concerned were committed.
232. Accordingly, in applying the Guidelines in the contested decision to infringements committed before they were adopted, the Commission did not breach the principle of non-retroactivity.
240. It should be noted at the outset, first, that according to the case-law of the Court, in fixing the amount of the fines, regard must be had to duration and to all the factors capable of affecting the asse ssment of the gravity of the infringements (see Musique Diffusion française and Others  v Commission , paragraph 129).
241. The gravity of the infringements must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 465).
242. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see Musique Diffusion française and Others  v Commission , paragraph 129).
243. It follows that, on the one hand, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure (see Musique Diffusion française and Others  v Commission , paragraph 121, and Case 322/81 Michelin  v Commission  [1983] ECR 3461, paragraph 111).
244. It should be borne in mind, second, that in the context of an appeal the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe  v Commission , cited above, paragraph 128, and Case C-359/01 P British Sugar  v Commission  [2004] ECR I-4933, paragraph 47).
245. As regards the allegedly disproportionate nature of the fine, on the other hand, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed for infringements of Community law (see, in particular, Baustahlgewebe  v Commission , paragraph 129, and British Sugar  v Commission , paragraph 48).
246. It follows that a plea must be declared inadmissible in so far as it seeks a general re-examination of the fines (see Baustahlgewebe  v Commission , paragraph 129, and British Sugar  v Commission , paragraph 49).
250. However, it follows from a thorough analysis of the content of the Guidelines, as carried out, in particular, at paragraphs 223 to 232 of the judgment in LR AF 1998  v Commission , that, as stated, moreover, at the first subparagraph of Section 1 of the Guidelines, the basic amount is to be determined according to the gravity and duration of the infringements, which are the only criteria referred to in Article 15(2) of Regulation No 17, and therefore in conformity with the legal framework of penalties as defined in that provision.
255. As the Court of First Instance held, in particular at paragraph 442 of the judgment in HFB and Others  v Commission  and paragraph 278 of the judgment in LR AF 1998  v Commission , the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to calculate the fines on the basis of the turnover of the undertaking concerned.
257. It follows from those principles that, subject to compliance with the upper limit provided for in that decision, which refers to total turnover (see Musique Diffusion française and Others  v Commission , paragraph 119), it is permissible for the Commission to take account of the turnover of the undertaking concerned in order to assess the gravity of the infringement when determining the amount of the fine, but that disproportionate importance must not be attributed to that turnover by comparison with other relevant factors.
266. It follows from the analysis of the terms of the Guidelines made by the Court of First Instance, as described at paragraph 251 of this judgment, that, contrary to the appellants’ contention, the Guidelines do not lay down an arithmetical calculation method which does not allow the fines imposed on each undertaking concerned to be adjusted individually to take account of the relative gravity of its participation in the infringement.
267. As the Advocate General observed at point 75 of his Opinion, that analysis shows, on the contrary, that the Guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 15 of Regulation No 17, as interpreted by the Court of Justice, whose case-law was recalled, in that regard, at paragraphs 240 to 243 of this judgment.
277. The Court of First Instance was correct to hold, in essence, that the upper limit of the amount of the fine referred to in Article 15(2) of Regulation No 17 must be understood to mean that the amount of the fine ultimately imposed on an undertaking cannot exceed that limit and that the Guidelines are consistent with that principle, as may be seen from point 5(a) thereof.
278. As the Court of First Instance rightly held, Article 15(2) of Regulation No 17 does not therefore prohibit the Commission from referring, for the purpose of its calculation, to an intermediate amount in excess of that limit. Nor does it preclude intermediate calculations that take account of the gravity and duration of the infringement from being applied to an amount above that limit.
279. Where it turns out, following the calculation, that the final amount of the fine must be reduced by the amount by which it exceeds the upper limit, the fact that certain factors such as the gravity and duration of the infringement are not actually reflected in the amount of the fine imposed is merely a consequence of the application of that upper limit to the final amount.
280. As the Commission contended, that upper limit seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (see, to that effect, Musique Diffusion française and Others  v Commission , paragraphs 119 and 121).
281. That limit is therefore one which is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate.
282. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement.
292. In fact the Court of First Instance was correct to hold at paragraphs 454 to 456 of the judgment in HFB and Others  v Commission  that it follows from the case-law of the Court of Justice that the profit which the undertakings were able to derive from their practices is one of the factors to be considered in assessing the gravity of the infringement and that taking that factor into account is designed to ensure that the fine is deterrent (see Musique Diffusion française and Others v Commission , paragraph 129).
312. As the Court of First Instance correctly held, in particular at paragraph 442 of the judgment in HFB and Others  v Commission  and paragraph 278 of the judgment in LR AF 1998  v Commission , it follows from the principles set out at paragraphs 240 to 243 of this judgment that the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover.
327. The Court of First Instance correctly held at that paragraph that the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking concerned, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (see, to that effect, Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ  v Commission  [1983] ECR 3369, paragraphs 54 and 55).
337. As regards KE KELIT’s argument based on the judgment in Dansk Rørindustri  v Commission , it does admittedly follow from the case-law of the Court that when the amount of fines is being decided, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 85(1) of the Treaty and that if the Court of First Instance intended, in the case of one of those undertakings, to depart specifically from the method followed by the Commission, which it had not called in question, it should have given reasons for doing so in the judgment under appeal (see, in particular, Case C-338/00 P Volkswagen  v Commission  [2003] ECR I-9189, paragraph 146).
351. As the Court of First Instance correctly recalled at paragraph 478 of the judgment in HFB and Others  v Commission , the conduct of the undertaking during the administrative procedure may be one of the factors to be taken into account when fixing the fine (see, in particular, Case C-298/98 P Finnboard  v Commission  [2000] ECR I-10157, paragraph 56).
352. As is clear from paragraph 478 of that judgment, the second indent of point 2 of the Guidelines must be taken to mean that an undertaking which disputes the Commission’s position and limits its cooperation to that which is required under Regulation No 17 will not, on that ground, have an increased fine imposed on it (see Finnboard  v Commission , cited above, paragraph 58).
369. However, the Court of First Instance cannot be criticised for having rejected that complaint, on the ground that LR A/S could have reported the pressure to the competent authorities and lodged a complaint with the Commission under Article 3 of Regulation No 17 rather than participate in the cartel.
370. The existence of such pressure does nothing to alter the reality and the gravity of the infringement committed by LR A/S.
388. The appellant submits that, unlike Sections B and C of the notice, in order to obtain a reduction under Section D the undertaking concerned is not required to give permanent and total cooperation, but is required merely, before a statement of objections is sent, to provide information, documents or other evidence which materially contribute to establishing the existence of the infringement.
389. It maintains that both the Court of First Instance, at paragraph 617 of the judgment in HFB and Others  v Commission , and the Commission, at the hearing and at points 110 and 180 of the grounds of the contested decision, acknowledged that the appellants’ cooperation and admissions, although only partial, satisfied in principle the conditions for the application of the first indent of Section D, point 2, of the Leniency Notice.
390. The Henss/Isoplus group contends that it could not be refused that reduction on the ground of aggravating circumstances or of the fact that it refrained, in the exercise of its rights of defence, to disclose certain information to the Commission, that it provided the Commission with incorrect information or that it disputed certain facts.
391. That complaint must be rejected.
392. Admittedly, as the appellant observes, it follows from paragraph 617 of the judgment in HFB and Others  v Commission  that the Court of First Instance acknowledged that the appellant had cooperated, albeit not decisively, and made admissions, although only partial.
393. However, the Court of First Instance was correct, and made no error of law capable of being condemned on appeal, to hold that the information provided by the applicant and capable, in principle, of coming within situations permitting a reduction in the fine under Section D, point 2, of the Leniency Notice, would not necessarily have had to induce the Commission to grant the applicant a reduction under that notice.
394. The Commission has a discretion in that regard, as may be seen from the very wording of that point and, in particular, from the introductory words ‘Such cases may include …’.
395. Furthermore, and above all, a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part.
396. It is clear from the very concept of cooperation, as described in the Leniency Notice, and in particular in the introduction to Section D, point 1, that it is only where the conduct of the undertaking concerned reveals such a spirit of cooperation that a reduction may be granted on the basis of that notice.
397. As the Court of First Instance found, at paragraphs 618 and 622 of the judgment under appeal, in the present case, by providing incomplete and in part inaccurate information, the Henss/Isoplus group could not claim that its conduct had been of that type.
398. Contrary to the appellant’s contention, the Court of First Instance did not breach what the appellant alleges to be the criminal-law principle that an admission, even where it is only a partial admission, must necessarily lead to a reduction in the fine, nor did it breach the rights of the defence or the principle non bis in idem .
399. As regards a reduction in the amount of the fine designed to reward an undertaking for a contribution during the administrative procedure which enabled the Commission to establish an infringement with less difficulty and, where appropriate, to put an end to that infringement, it would be absurd, as the Commission contends, if the latter were required to grant such a reduction where the contribution in question does not enable it to attain that objective, but, on the contrary, even prevented it from doing so.
400. As the Court has already held at paragraphs 358 to 362 of this judgment, the Henss/Isoplus group cannot claim in a situation such as this that its rights of defence were infringed.
401. The appellant was not required to cooperate or to make any admission. Furthermore, the rights of the defence do not entail a right to be able to communicate incomplete and partly inaccurate information.
402. Nor can a breach of the principle non bis in idem  be established, if it was based on the fact that the conduct in question has already been taken into account as an aggravating circumstance.
403. The fact that an undertaking is not rewarded for cooperation which did not allow the Commission to establish an infringement with less difficulty and, where appropriate, to put an end to it cannot be classified as a sanction additional to the punishment consisting in recognition of an aggravating circumstance.
426. It must be borne in mind that, according to consistent case-law, it follows from Article 168a of the EC Treaty (now Article 225 EC), the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see, inter alia, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 497 and the case-law cited).
428. In those judgments, the Court of First Instance first of all correctly observed that, according to a consistent line of decisions of the Court of Justice, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. The Court of First Instance also correctly held that, in doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see, to that effect, in particular, Musique Diffusion française and Others  v Commission , paragraph 21).
430. As regards an assessment of the evidence, namely the statement of objections of each of those appellants, review by the Court at the stage of the appeal is limited to cases where that evidence has been distorted (see, in particular, Mag Instrument  v OHIM , paragraph 39).
434. In that regard, the Court of First Instance was correct to observe that, according to a consistent line of decisions of the Court of Justice, to give indications of the level of the contemplated fines, when the undertakings have not been in a position to put forward their observations on the objections held against them, would be tantamount to anticipate inappropriately the Commission’s decision (see Musique Diffusion française and Others  v Commission , paragraph 21, and Michelin  v Commission , paragraph 19).
435. The Court of First Instance further held, also correctly, that according to that same line of decisions the Commission was not required to indicate in the statement of objections the possibility that it might change its policy as regards the level of the amount of the fines, a possibility which depends on general competition policy considerations with no direct bearing on the particular circumstances of the cases in question (see Musique Diffusion française and Others  v Commission , paragraph 22).
437. However, it is clear from the rejection of the complaints relating to the alleged illegality of the Guidelines, as held at paragraphs 250 to 253 of this judgment that that new method is founded on the imperative criteria of the gravity and the duration of the infringement provided for in Article 15(2) of Regulation No 17 in that it consists essentially in specifying the way in which the Commission proposes to employ those criteria when determining the amount of the fines.
438. It is true that the Guidelines contain important details on that point and that it may be desirable that the Commission should provide the undertakings with those details, provided that that does not mean that it anticipates its decision in an inappropriate manner.
439. The fact remains that, as the Court of First Instance correctly held, the right to be heard in respect of the calculation of the amount of the fines does not cover the way in which the Commission proposes to employ the imperative criteria of the gravity and the duration of the infringement when determining the amount of the fines.
453. In that regard, it must be borne in mind, first of all, that according to the case-law of the Court, the extent of the obligation to state reasons is a question of law reviewable by the Court on appeal, since a review of the legality of a decision carried out in that context must necessarily take into consideration the facts on which the Court of First Instance based itself in reaching its conclusion as to the adequacy or inadequac y of the statement of reasons (see to that effect Case C-188/96 P Commission  v V  [1997] ECR I-6561, paragraph 24).
462. According to a consistent body of case-law, the purpose of the obligation to state reasons is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (see, in particular, Case C-199/99 P Corus UK  v Commission  [2003] ECR I-11177, paragraph 145).
463. The statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court (Case 195/80 Michel  v Parliament  [1981] ECR 2861, paragraph 22).