JUDGMENT OF THE GENERAL COURT (First Chamber)
13 July 2011(*)
(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Participation in the cartel – Imputability of the offending conduct – Fines – Gravity and duration of the infringement – Attenuating circumstances)
In Case T‑53/07,
Trade-Stomil sp. z o.o., established in Łódź (Poland), represented by F. Carlin, Barrister, and E. Batchelor, Solicitor,
applicant,
v
European Commission, represented initially by X. Lewis and V. Bottka, and subsequently by V. Bottka and V. Di Bucci, acting as Agents,
defendant,
APPLICATION for annulment, so far as Trade-Stomil sp. z o.o. is concerned, of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or, in the alternative, annulment or reduction of the fine imposed on Trade-Stomil,
THE GENERAL COURT (First Chamber),
composed of F. Dehousse (Rapporteur), acting for the President, I. Wiszniewska‑Białecka and N. Wahl, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 20 October 2009,
gives the following
Judgment
Background to the dispute
1 By Decision C(2006) 5700 final of 29 November 2006 (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the market for those products.
2 The undertakings to which the contested decision is addressed are:
– Bayer AG, established in Leverkusen (Germany);
– The Dow Chemical Company, established in Midland, Michigan (United States) (‘Dow Chemical’);
– Dow Deutschland Inc., established in Schwalbach (Germany);
– Dow Deutschland Anlagengesellschaft mbH (formerly Dow Deutschland GmbH & Co. OHG), established in Schwalbach;
– Dow Europe, established in Horgen (Switzerland);
– Eni SpA, established in Rome (Italy);
– Polimeri Europa SpA, established in Brindisi (Italy) (‘Polimeri’);
– Shell Petroleum NV, established in The Hague (Netherlands);
– Shell Nederland BV, established in The Hague;
– Shell Nederland Chemie BV, established in Rotterdam (Netherlands);
– Unipetrol a.s., established in Prague (Czech Republic);
– Kaučuk a.s., established in Kralupy nad Vltavou (Czech Republic);
– Trade-Stomil sp. z o.o., established in Łódź (Poland) (‘Stomil’).
3 Dow Deutschland, Dow Deutschland Anlagengesellschaft and Dow Europe are wholly controlled, directly or indirectly, by Dow Chemical (collectively ‘Dow’) (recitals 16 to 21 to the contested decision).
4 Eni’s business in the relevant products was initially carried out by EniChem Elastomeri Srl, indirectly controlled by Eni through its subsidiary EniChem SpA (‘EniChem SpA’). On 1 November 1997, EniChem Elastomeri was merged into EniChem SpA. Eni controlled 99.97% of EniChem SpA. On 1 January 2002, EniChem SpA transferred its strategic chemical business (including its butadiene rubber and emulsion styrene butadiene rubber business) to its wholly-owned subsidiary Polimeri. Eni has had direct and full control of Polimeri since 21 October 2002. With effect from 1 May 2003, EniChem SpA changed its name to Syndial SpA (recitals 26 to 32 to the contested decision). The Commission uses the name ‘EniChem’ in the contested decision to refer to any company owned by Eni (‘EniChem’) (recital 36 to the contested decision).
5 Shell Nederland Chemie is a subsidiary of Shell Nederland, which is itself wholly controlled by Shell Petroleum (collectively ‘Shell’) (recitals 38 to 40 to the contested decision).
6 Kaučuk was created in 1997, following a merger between Kaučuk Group a.s. and Chemopetrol Group a.s. On 21 July 1997, Unipetrol acquired all assets, rights and obligations of the merged undertakings. Unipetrol owns 100% of the shares in Kaučuk (recitals 45 and 46 to the contested decision). Furthermore, according to the contested decision, Tavorex s.r.o. (‘Tavorex’), established in the Czech Republic, represented Kaučuk (and its predecessor Kaučuk Group) for exports between 1991 and 28 February 2003. Still according to the contested decision, from 1996 Tavorex represented Kaučuk at meetings of the European Synthetic Rubber Association (recital 49 to the contested decision).
7 Stomil, according to the contested decision, represented the Polish producer Chemical Company Dwory SA (‘Dwory’) in its export business for around 30 years, until at least 2001. Still according to the contested decision, between 1997 and 2000 Stomil represented Dwory at meetings of the European Synthetic Rubber Association (recital 51 to the contested decision).
8 The period taken to be the duration of the infringement is from 20 May 1996 to 28 November 2002 (for Bayer, Eni and Polimeri), from 20 May 1996 to 31 May 1999 (for Shell Petroleum, Shell Nederland and Shell Nederland Chemie), from 1 July 1996 to 28 November 2002 (for Dow Chemical), from 1 July 1996 to 27 November 2001 (for Dow Deutschland), from 16 November 1999 to 28 November 2002 (for Unipetrol and Kaučuk), from 16 November 1999 to 22 February 2000 (for Stomil), from 22 February 2001 to 28 February 2002 (for Dow Deutschland Anlagengesellschaft) and from 26 November 2001 to 28 November 2002 (for Dow Europe) (recitals 476 to 485 to and Article 1 of the operative part of the contested decision).
9 Butadiene rubber (‘BR’) and emulsion styrene butadiene rubber (‘ESBR’) are synthetic rubbers used essentially in tyre production. The two products are substitutable for each other and also for other synthetic rubbers and for natural rubber (recitals 3 to 6 to the contested decision).
10 In addition to the producers referred to in the contested decision, other producers located in Asia and in Eastern Europe sold limited quantities of BR and ESBR in the EEA. Moreover, a considerable amount of BR is produced directly by large tyre manufacturers (recital 54 to the contested decision).
11 On 20 December 2002 Bayer approached the Commission and expressed its desire to cooperate pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) with regard to BR and ESBR. As regards ESBR, Bayer provided an oral statement describing the activities of the cartel. That oral statement was recorded on tape (recital 67 to the contested decision).
12 On 14 January 2003 Bayer made an oral statement describing the activities of the cartel with respect to BR. That oral statement was recorded on tape. Bayer also provided minutes of meetings of the BR committee of the European Synthetic Rubber Association (recital 68 to the contested decision).
13 On 5 February 2003 the Commission notified Bayer of its decision to grant it conditional immunity from a fine (recital 69 to the contested decision).
14 On 27 March 2003 the Commission carried out an inspection pursuant to 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) at the premises of Dow Deutschland & Co. (recital 70 to the contested decision).
15 Between September 2003 and July 2006 the Commission sent the undertakings to which the contested decision is addressed a number of requests for information pursuant to Article 11 of Regulation No 17 and 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) (recital 71 to the contested decision).
16 On 16 October 2003 Dow Deutschland and Dow Deutschland & Co. met Commission staff and expressed their desire to cooperate pursuant to the Leniency Notice. At that meeting, an oral presentation of the cartel’s activities with respect to BR and ESBR was given. That oral presentation was recorded. A file containing documents relating to the cartel was also handed over (recital 72 to the contested decision).
17 On 4 March 2005 Dow Deutschland was informed of the Commission’s intention to grant it a reduction in its fine of between 30% and 50% (recital 73 to the contested decision).
18 On 7 June 2005 the Commission initiated the procedure and sent a first statement of objections to the undertakings to which the contested decision is addressed – with the exception of Unipetrol – and also to Dwory. The first statement of objections was also adopted against Tavorex but was not notified to that undertaking since it had been in liquidation since October 2004. The procedure against Tavorex was therefore closed (recitals 49 and 74 to the contested decision).
19 The undertakings concerned lodged written comments in relation to that first statement of objections (recital 75 to the contested decision). They also had access to the file, in the form of a CD-ROM, and to the oral statements and documents relating thereto at the Commission’s premises (recital 76 to the contested decision).
20 On 3 November 2005 Manufacture française des pneumatiques Michelin (‘Michelin’) requested to intervene. It submitted written comments on 13 January 2006 (recital 78 to the contested decision).
21 On 6 April 2006 the Commission adopted a second statement of objections addressed to the undertakings to which the contested decision is addressed. The undertakings concerned lodged written comments in that regard (recital 84 to the contested decision).
22 On 12 May 2006 Michelin lodged a complaint pursuant to Article 5 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) (recital 85 to the contested decision).
23 On 22 June 2006 the undertakings to which the contested decision is addressed (with the exception of Stomil) and Michelin took part in the hearing before the Commission (recital 86 to the contested decision).
24 Since it did not have sufficient evidence of Dwory’s participation in the cartel, the Commission decided to close the procedure against that undertaking (recital 88 to the contested decision). The Commission also decided to close the procedure against Syndial (recital 89 to the contested decision).
25 Furthermore, although two different case numbers (one for BR and one for ESBR) had initially been used (COMP/E‑1/38.637 and COMP/E‑1/38.638), after the first statement of objections the Commission used a single number (COMP/F/38.638) (recitals 90 and 91 to the contested decision).
26 The administrative procedure led to the adoption of the contested decision by the Commission on 29 November 2006.
27 According to Article 1 of the operative part of the contested decision, the following undertakings had infringed Article 81 EC and Article 53 EEA by participating, for the periods indicated, in a single and continuous infringement by which they agreed on price targets, shared customers by non-aggression agreements and exchanged sensitive information on prices, competitors and customers in the BR and ESBR sectors:
(a) Bayer, from 20 May 1996 to 28 November 2002;
(b) Dow Chemical, from 1 July 1996 to 28 November 2002; Dow Deutschland, from 1 July 1996 to 27 November 2001; Dow Deutschland Anlagengesellschaft, from 22 February 2001 to 28 February 2002; Dow Europe, from 26 November 2001 to 28 November 2002;
(c) Eni, from 20 May 1996 to 28 November 2002; Polimeri, from 20 May 1996 to 28 November 2002;
(d) Shell Petroleum, from 20 May 1996 to 31 May 1999; Shell Nederland, from 20 May 1996 to 31 May 1999; Shell Nederland Chemie, from 20 May 1996 to 31 May 1999;
(e) Unipetrol, from 16 November 1999 to 28 November 2002; Kaučuk, from 16 November 1999 to 28 November 2002;
(f) Stomil, from 16 November 1999 to 22 February 2000.
28 On the basis of the findings of fact and legal assessments set out in the contested decision, the Commission imposed fines on the undertakings concerned calculated pursuant to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and in the Leniency Notice.
29 Article 2 of the operative part of the contested decision imposes the following fines:
(a) Bayer: EUR 0;
(b) Dow Chemical: EUR 64.575 million, of which:
(i) EUR 60.27 million jointly and severally with Dow Deutschland;
(ii) EUR 47.355 million jointly and severally with Dow Deutschland Anlagengesellschaft and Dow Europe;
(c) Eni and Polimeri, jointly and severally: EUR 272.25 million;
(d) Shell Petroleum, Shell Nederland and Shell Nederland Chemie, jointly and severally: EUR 160.875 million;
(e) Unipetrol and Kaučuk, jointly and severally: EUR 17.55 million;
(f) Stomil: EUR 3.8 million.
30 Article 3 of the operative part of the contested decision orders the undertakings listed in Article 1 immediately to bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from any act or conduct having the same or similar object or effect.
Procedure and forms of order sought by the parties
31 By application lodged at the Registry of the Court on 19 February 2007, Stomil brought the present action.
32 By decision of the President of the General Court of 2 April 2009, N. Wahl was designated to complete the Chamber as one of its members was prevented from attending.
33 Upon hearing the report of the Judge-Rapporteur, the Court (First Chamber) decided to open the oral procedure.
34 In the context of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, the Court requested the parties to answer certain questions and to produce certain documents. The parties complied with those requests within the periods prescribed.
35 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 20 October 2009.
36 Stomil claims that the Court should:
– primarily, annul the contested decision, in particular Articles 1 to 4 thereof, in so far as it is addressed to Stomil;
– in the alternative:
– annul Article 2 of the contested decision in so far as it is addressed to Stomil; or
– amend Article 2 of the contested decision, in so far as it is addressed to Stomil, in such a way as to annul or substantially reduce the amount of the fine;
– order the Commission to pay the costs.
37 The Commission contends that the Court should:
– dismiss the action;
– order Stomil to pay the costs.
Law
38 Stomil’s action is based on 14 pleas in law. By those pleas Stomil seeks, in essence, to challenge the finding that it participated in the cartel, the fact that the Commission could have held it liable when it was acting as Dwory’s agent, the duration of the infringement and the amount of the fine. Furthermore, Stomil requests that measures of organisation of procedure be adopted, inter alia, to order the Commission to provide it with access to the statements of undertakings made in the context of the Leniency Notice.
39 It is appropriate to begin by examining the first plea raised by Stomil, alleging a failure to demonstrate that Stomil participated in the cartel.
First plea in law: failure to demonstrate that Stomil participated in the cartel
Arguments of the parties
– Arguments of Stomil
40 Stomil maintains that the Commission infringed Article 81 EC by failing to demonstrate to the requisite legal standard that it participated in the cartel.
41 The Commission found that Stomil had participated in two cartel meetings, namely the meeting held in Frankfurt (Germany) on 16 November 1999 and the meeting held in Wermelskirchen (Germany) on 22 February 2000. In Stomil’s submission, the Commission’s findings are unfounded. Stomil further maintains that there is no other evidence to show that it participated in the cartel at issue.
– Stomil’s participation in the meeting held in Frankfurt on 16 November 1999
42 In Stomil’s submission, the evidence on which the Commission relies does not demonstrate that Stomil attended in the evening of 16 November 1999 at the Meridien Hotel an unofficial meeting on the fringes of the European Synthetic Rubber Association.
43 In particular, Stomil states that Mr L. (Stomil) did not stay at the Meridien Hotel and that he left after the meeting of the European Synthetic Rubber Association, which ended at 11 a.m. on 16 November 1999. Stomil supplies, in that regard, two statements of Mr L. (Stomil) and a hotel bill. Stomil maintains that it has not changed its story, as the Commission asserts in its written pleadings. Stomil has always denied having participated in the unlawful meeting in question. The evidence submitted by Stomil is admissible and the Commission’s reference to Case T‑339/04 France Télécom v Commission [2007] ECR II‑521 is erroneous.
44 Dow’s statement set out in recital 202 to the contested decision is unreliable in so far as it is confirmed only by Mr P. (Bayer), who was not present in Frankfurt in the evening of 16 November 1999. Stomil refers in that regard to a number of documents in the investigation file. Therefore, according to Stomil, and in accordance with the case-law, Dow’s unsupported allegation, which was contested by Stomil and the other defendants during the administrative procedure, does not constitute adequate proof that Stomil participated in that meeting. Stomil also contends that Mr L. (EniChem) could not have been present in Frankfurt in the evening of 16 November 1999.
45 None of the evidence corroborates the presence of Mr L. (Stomil). The expenses report of Mr F. (Dow) does not identify the items paid for or the persons who may have been present at a meeting. As to the handwritten notes of Mr N. (Dow), they do not mention Mr L. (Stomil) or Stomil. It is very likely that those notes are in fact an aide-mémoire for Mr N. Admittedly, Dwory is referred to in those notes (by the reference ‘OS’). However, a number of factors, on which Stomil elaborates, show that Stomil cannot have been the source of the information in the notes in question. The handwritten notes are therefore Mr N.’s personal estimates or come from public sources. In particular, Stomil states that, as regards Michelin, Stomil had never had any contact with that customer since the second half of 1998, when Dwory informed it that it would take over that customer’s ESBR sales. As regards the company Goodyear, Stomil did not supply that customer in 1999 or 2000. As regards the company ‘TGA’, Stomil does not know of that customer. Last, Stomil could not have known Dwory’s ‘domestic’ potential in relation to ESBR, as Dwory was purely an exporter. Moreover, three of Stomil’s key customers are omitted from the list, namely Vredestein, Nokian and Pegasus. Stomil observes, moreover, that the members of the cartel had regularly and repeatedly confused Stomil with Dwory.
46 Stomil further submits that the Commission concedes, in the defence, that the meeting on 16 November 1999 referred to in the contested decision did not in fact take place. The Commission thus seeks to replace the findings of fact made in the contested decision by a theory that an unlawful meeting was held on 15 November 1999. Stomil emphasises that there is no evidence to support that theory. The only evidence supplied by the Commission is a receipt of the same date showing that drinks were served at the bar to the value of DEM 89.50. In Stomil’s submission, that receipt provides no evidence of what was discussed or whether the discussion could have amounted to illegal conduct. It follows from the contested decision, moreover, that the bar bill was paid by Mr F. (Dow) and not by Mr P. (Bayer) and that it was paid on 16 November 1999. Last, Stomil emphasises that the Commission contends that Mr T. (Kralupy) participated in the illegal discussions whereas it follows from Mr P.’s expenses report that Mr T. was not present.
47 The introduction of this alleged new meeting amounts to a breach of the rights of the defence and of the obligation to state reasons with respect to Stomil, which never had the opportunity to respond to that allegation during the administrative procedure.
48 Furthermore, the error on the Commission’s part vitiates Article 1 of the contested decision, which finds that Stomil participated in the infringement in question from 16 November 1999. Referring to Case T‑59/99 Ventouris v Commission [2003] ECR II‑5257, paragraphs 31 to 33, Stomil adds that the operative part of a decision may be interpreted in the light of the statement of reasons only where there is a lack of clarity in the terms used in the operative part. In the present case, Stomil contends that there is no ambiguity in the operative part of the contested decision.
– Stomil’s participation in the meeting held in Wermelskirchen on 22 February 2000
49 Stomil maintains that there is no evidence that the participants in a meeting of a sub-committee of the European Synthetic Rubber Association held in Wermelskirchen on 22 February 2000 engaged in unlawful conduct.
50 The Commission concludes, however, in recital 446 to the contested decision, that that meeting marked the end of Stomil’s participation in the cartel.
– The absence of further evidence that Stomil participated in the cartel
51 Stomil submits that, since the only evidence adduced by the Commission does not show that it participated in the cartel, the other general assertions in the contested decision cannot be probative.
52 In particular, Stomil emphasises, first, that there is no evidence that it was involved in any pricing arrangement. Stomil observes, in that regard, that Bayer is referring to Dwory in the statement set out in recital 114 to the contested decision and not to Stomil, as the Commission asserts. Stomil states that it participated, with Dwory, in meetings of the European Synthetic Rubber Association in the post-1999 period. Nor does Dow identify Stomil as having participated in the pricing discussions. Stomil refers, in that regard, to recital 115 to the contested decision. The same applies to Shell’s evidence, which relates to the period from 30 August 1995 to 31 May 1999 (recitals 119, 120 and 123 to the contested decision).
53 Second, Stomil maintains that there is no evidence of its having participated in market sharing. Dow’s statement, set out in recital 125 to the contested decision, does not explain either the object of the agreement or its date or indeed whether Stomil or Dwory was involved. The Commission’s conclusion that Dow meant to refer to Stomil is wholly unfounded.
54 Third, as regards the exchange of sensitive commercial information, Stomil observes that the only meeting concerned is the meeting held in Frankfurt on 16 November 1999. Furthermore, Shell’s corroboration in recital 133 to the contested decision has no value in respect of the period relating to Stomil. As already demonstrated, moreover, Stomil had no sensitive information concerning Dwory’s ESBR supplies for the period identified in the contested decision.
55 The other general assertions in the contested decision are also insufficient to demonstrate that Stomil participated in the cartel. Recitals 155, 156, 158 and 159 to the contested decision either refer to Dwory or do not demonstrate the existence of unlawful conduct with respect to Stomil.
Arguments of the Commission
– Stomil’s participation in the meeting held in Frankfurt on 16 November 1999
56 The Commission states, first of all, that it is clear from the description in the contested decision (recitals 199 to 212 to the contested decision) that an unofficial meeting took place in the early hours of 16 November 1999 at which price arrangements were concluded and information on key customers was exchanged.
57 The Commission contends that Stomil changed its version of the facts in the application. Stomil now bases its denial of its participation in the unlawful meeting at issue on the whereabouts of Mr L. (Stomil) in the evening of 16 November 1999. Yet Stomil did not rely on those facts during the administrative procedure. Consequently, in accordance with the case-law, the Court should consider the evidence put forward by Stomil in support of its arguments (namely the two statements of Mr L. (Stomil) and his hotel bill) inadmissible. The Commission adds that those documents are in fact irrelevant. Furthermore, the Commission has evidence that an unofficial meeting did take place in the evening of 15 November 1999 and that Mr L. (Stomil) attended that meeting. The Commission provides, in particular, a hotel receipt and also Mr P.’s expenses report form, which are in the investigation file.
58 Contrary to Stomil’s assertions, the Commission observes that Dow’s statement in recital 204 to the contested decision contains clear references to the presence of Mr L. (Stomil) during the cartel discussions. That statement is confirmed by Bayer (recital 205 to the contested decision). As regards the handwritten notes taken by Mr N. (Dow), the Commission observes that the first part of those notes refers to a market wider than that of ESBR, which was of definite interest to Stomil. Furthermore, the Commission notes that it is only recently and partly that Stomil’s relationship with Dwory has been phased out and, consequently, that the information exchanged was most likely of interest and relevance to Stomil. The Commission thus has adequate evidence of Stomil’s presence at and participation in the cartel meeting on 15 and 16 November 1999.
59 The Commission adds that, in Section 4.3.8 of the contested decision, it adduced proof that a meeting was held on ‘15-16 November 1999’. The meeting of 15 November 1999 is therefore not a ‘new’ meeting. Furthermore, Stomil is confusing two bills. Mr P. paid the Casablanca Bar bill. Mr F. paid the bill for the conference room. The sequence of events has therefore not been altered. Nor is there any inconsistency in the evidence used by the Commission.
60 Last, the Commission contends that the operative part of the contested decision, and in particular Article 1(f), does not explicitly state that Stomil attended a meeting on 15 November 1999. The contested decision states that Stomil participated in an infringement of Article 81 EC between 16 November 1999 and 22 February 2000. The Commission observes that it never alleged that the arrangements made at that meeting, in the evening of 15 November 1999, produced their effects immediately. In any event, the meeting went on until the early hours of 16 November 1999.
– Stomil’s participation in the meeting held in Wermelskirchen on 22 February 2000
61 The Commission states that, as indicated in recitals 213 to 215 to the contested decision, it does not claim that any illicit activity took place during the course of the meeting held in Wermelskirchen on 22 February 2000. Consequently, the arguments put forward by Stomil are ineffective in that respect.
– The absence of any other evidence showing that Stomil participated in the cartel
62 The Commission states that it did not assert in the contested decision that the meeting held on 15 and 16 November 1999 led to an explicit form of market sharing agreement. The Commission observes, however, that it has evidence that Stomil was present at that meeting and participated in the discussions on prices and the exchange of information. Stomil’s participation is confirmed by Dow’s handwritten notes and statements (recitals 201 and 202 to the contested decision). The participation of Mr L. (Stomil) and his status as a Stomil employee are supported by Dow and by the minutes of the official meeting supplied by the Commission. Likewise, the evidence of Bayer mentioned in recitals 155 and 156 to the contested decision confirms the participation of Mr L. (Stomil).
Findings of the Court
63 It must be noted that as regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86). It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 43 and the case-law cited). It must also be noted that in order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112; Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 86; Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256). Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 215).
64 Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57, and Joined Cases C‑403/04 P and C‑405/04 P, Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 51).
65 In the present case, it must be noted that Stomil was found to have participated in the cartel at issue only in the context of the unlawful meeting held in Frankfurt on 15 and 16 November 1999.
66 In that regard, more particularly, the Commission finds that there was a cartel meeting, on the fringes of the official meeting of the European Synthetic Rubber Association, in ‘the evening and night of 16 November 1999’ (recital 212 to the contested decision). That unlawful meeting is said to have involved Mr P. (Bayer), Mr F., Mr N., Mr V. (Dow), Mr L. (Stomil), Mr L. (EniChem) and Mr T. (Tavorex). The persons concerned initially met in the bar of a hotel before renting a conference room (recital 202 to the contested decision).
67 As a preliminary point, the Court must reject the Commission’s arguments that Stomil’s denial of the presence of Mr L. (Stomil) in Frankfurt in the evening of 16 November, and the documents on the file relating thereto, are inadmissible. Stomil must be regarded as merely challenging, before the Court, the objection in the contested decision concerning Stomil. Furthermore, it is apparent from the evidence in the file that Stomil has, throughout the administrative procedure, always denied that it participated in the unlawful meeting. In any event, and for the reasons set out below, it must be noted that the documents in question are not relevant for the purposes of determining the dispute, as the Commission contends, moreover, in its written pleadings.
68 On the substance, first of all, it is apparent from the evidence in the file that, as Stomil maintains, Mr P. (Bayer) was not present in Frankfurt on 16 November 1999 in the evening. The Commission acknowledges that fact.
69 Second, it must be observed that the contested decision contains a number of contradictions as to the precise timing of the unlawful meeting at issue. Thus, the Commission refers in recital 212 to the contested decision to ‘the evening and night of 16 November 1999’, on the basis of Dow’s statement. The Commission also finds, in recital 297 to the contested decision, that the unlawful meeting at issue was held in ‘the night between 15 and 16 November 1999’. Moreover, Section 4.3.8 of the contested decision refers to 15 and 16 November 1999. Last, the operative part of the contested decision finds that, in the case of Stomil, the infringement began on 16 November 1999.
70 Third, several substantive items also reveal contradictions regarding the alleged date of the unlawful meeting at issue and the other possible explanations given by the Commission. Accordingly the expenses report of Mr P. (Bayer) relating, inter alia, to a payment of DEM 84.50 at the hotel bar refers to 15 November 1999. By contrast, payment of DEM 436 for the hire of a conference room was recorded on 16 November 1999. Furthermore, the handwritten notes of Mr N. (Dow) mention only 16 November 1999. Last, according to Dow’s statement, set out in recital 202 to the contested decision, the unlawful meeting took place after the official meeting of the European Synthetic Rubber Association, which was held on 16 November in the morning.
71 Fourth, Dow’s statement, set out in recital 202 to the contested decision, indicates that Mr P. (Bayer), Mr F., Mr N., Mr V. (Dow), Mr L. (Stomil), Mr L. (EniChem) and Mr T. (Tavorex) met in the hotel bar before renting a conference room. Yet Mr P.’s expenses report in respect of drinks paid for at the bar, to which the Commission draws attention in its written pleadings, also mentions the presence of the then general secretary of the European Synthetic Rubber Association (Ms C.). However, it is apparent from recitals 95 and 115 to the contested decision that the general secretary never participated in the meetings of the cartel. It cannot, therefore, be inferred that, just because he participated in the meeting in the hotel bar, Mr L. (Stomil) participated in an unlawful meeting.
72 Fifth, as regards the handwritten notes of Mr N. (Dow), it is common ground that the Commission did not find Stomil liable in respect of the BR cartel. The part of Mr N.’s handwritten notes that relates to BR cannot, therefore, have any probative value with respect to Stomil. As regards the part of Mr N.’s handwritten notes that relates to ESBR, it must be noted that, besides the cartel producers, other producers which are not part of the cartel are mentioned as being suppliers to certain customers. In those particular circumstances, it is conceivable that estimates of supplies were made as between certain producers only and it is not possible to determine precisely whether Stomil was involved in view, in particular, of the contradictions as to the presumed date of the unlawful meeting at issue.
73 In the light of all these particular considerations taken together in the present case, the Court considers that there is some doubt as to whether Stomil participated in an unlawful meeting in Frankfurt on 15 and 16 November 1999. That doubt must operate to the advantage of Stomil.
74 That being the case, the Court considers that, in so far as it concerns Stomil, the evidence set out in that part of the contested decision which relates to cartel meetings is not sufficient to support the conclusion that that undertaking participated in the unlawful agreements at issue.
75 The evidence referred to in the part of the contested decision that relates to the description of the cartel (Section 4.2 of the contested decision) does not alter that conclusion.
76 In that regard, the Court considers that even if some of the evidence set out in Section 4.2 of the contested decision may have a certain probative value, in particular the general statement of Bayer referred to in recital 156 to the contested decision, it is not sufficient – given the specific evidence previously referred to in relation to the meetings of the cartel and the doubt which must operate to the advantage of the applicant – to justify the finding that there was an infringement by Stomil.
77 In the light of all these considerations, and in the context of an overall assessment thereof, the Court holds that the Commission erred in finding that Stomil participated in the cartel.
78 Consequently, the contested decision must be annulled in so far as it concerns Stomil, and there is no need to examine the other pleas in law put forward in support of the action, and in particular the issue of the relationships between principals and intermediaries in the context of the infringements of the competition rules or the application for measures of organisation of procedure submitted by the applicant.
Costs
79 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. Since the Commission has been unsuccessful it must be ordered to pay the costs, in accordance with the form of order sought by Stomil.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby:
1. Annuls Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as it concerns Trade‑Stomil sp. z o.o.;
2. Orders the European Commission to pay the costs.
Dehousse | Wiszniewska-Białecka | Wahl |
Delivered in open court in Luxembourg on 13 July 2011.
[Signatures]