JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

12 July 2018 (*)

(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Proof of the infringement — Duration of participation — Public distancing — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)

In Case T‑422/14,

Viscas Corp., established in Tokyo (Japan), represented by J.-F. Bellis, lawyer,

applicant,

supported by

Furukawa Electric Co. Ltd, established in Tokyo, represented by C. Pouncey, A. Luke and L. Geary, Solicitors,

intervener,

v

European Commission, represented by C. Giolito, L. Parpala, H. van Vliet and A. Biolan, acting as Agents, and by B. Doherty, Barrister,

defendant,

ACTION pursuant to Article 263 TFEU for partial annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicant and, in the alternative, an application for a reduction in the amount of the fine imposed on the applicant in that decision,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 5 May 2017,

gives the following

Judgment

 Background to the dispute

 The applicant and the sector concerned

1        The applicant, Viscas Corp., is a company owned in equal shares by Furukawa Electric Co. Ltd (‘Furukawa’) and Fujikura Ltd. On 1 October 2001, when Viscas Corp. was formed, those companies transferred to it their activities in the design and sale of underground and submarine power cables for projects outside Japan, while retaining their production capabilities and their sales in Japan and abroad to Japanese customers. At the beginning of 2005, Furukawa and Fujikura transferred their respective power cable manufacturing facilities and certain sales to the applicant, while retaining their sales in Japan to certain reserved customers. Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage, and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of the power cable and the necessary additional equipment, installation and services. Power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.

 The administrative procedure

2        By letter of 17 October 2008, the Swedish company ABB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were provided in support of an application for immunity submitted in accordance with the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’).

3        From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and the French companies Nexans SA and Nexans France SAS.

4        On 2 February 2009, the Japanese companies Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction in their amount, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.

5        During the course of the investigation, the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector, pursuant to 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 [101] and [102 TFEU] (OJ 2003 L 1, p. 1), and point 12 of the Leniency Notice.

6        On 30 June 2011, the Commission opened a procedure and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group Inc., Nexans, Nexans France, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Furukawa, Fujikura, SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicant.

7        Between 11 and 18 June 2012, the addressees of the statement of objections, with the exception of Furukawa, took part in an administrative hearing before the Commission.

8        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, not published, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those two judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.

9        On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’).

 The contested decision

 The infringement at issue

10      Article 1 of the contested decision states that several undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cable sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).

11      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel comprised:

–        the ‘A/R cartel configuration’, which included the European undertakings, generally referred to as the ‘R’ members, the Japanese undertakings, referred to as the ‘A’ members, and lastly the South Korean undertakings, referred to as the ‘K’ members. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home territory’, under which the Japanese and Korean producers would refrain from competing for projects in the European producers’ ‘home territory’, while the European producers stayed out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time that allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers; and

–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be implemented within the European ‘home’ territory or allocated to the European producers (see Section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).

12      The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).

13      The Commission classified the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group of the cartel, which included, on the one hand, the European undertakings Nexans France, the subsidiary undertakings of Pirelli & C., formerly Pirelli SpA, which participated successively in the cartel (‘Pirelli’) and Prysmian Cavi e Sistemi Energia and, on the other hand, the Japanese undertakings Furukawa, Fujikura and their joint venture, namely the applicant, as well as Sumitomo Electric Industries, Hitachi Cable and their joint venture J-Power Systems (recitals 545 to 561 of the contested decision). Next, it identified a group of undertakings which were not part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of the contested decision). Lastly, the Commission considered that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of the contested decision).

 The applicant’s liability

14      The applicant was found liable on the basis of its participation in the cartel from 1 October 2001 to 28 January 2009 (recitals 811 to 853 and 955 of the contested decision).

 The fine imposed

15      Under Article 2(p) of the contested decision a fine of EUR 34 992 000 was imposed on the applicant, ‘jointly and severally’ with Furukawa and Fujikura, for its participation in the cartel from 1 October 2001 to 28 January 2009.

16      In calculating the amount of those fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on the method of setting fines’).

17      In the first place, as regards the basic amount of the fines, after establishing the appropriate value of sales, in accordance with point 18 of the 2006 Guidelines on the method of setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement, in accordance with points 22 and 23 of those guidelines. In that regard it considered that the infringement, by its nature, constituted one of the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity percentage by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the European Economic Area (EEA). The Commission also considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had shared cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of that decision).

18      As regards the multiplier relating to the duration of the infringement, for the applicant, the Commission applied a multiplier of 7.25, for the period from 1 October 2001 to 28 January 2009. The basic amount of the fine thus calculated came to EUR 34 992 000 for the applicant (recitals 1011 to 1016 of the contested decision).

19      In the second place, as regards adjustments to the basic amounts of the fines, the Commission found there to be no aggravating circumstances that could affect the basic amount of the fine of the cartel participants, with the exception of ABB. By contrast, as regards mitigating circumstances, it decided to reflect in the amount of the fine the role played by each of the various undertakings in the implementation of the cartel. Accordingly, it reduced the basic amount of the fines to be imposed on the fringe cartel participants by 10% and the basic amount of the fines to be imposed on the undertakings whose involvement had been moderate by 5%. The Commission also granted Mitsubishi Cable Industries and SWCC Showa Holdings an additional reduction of 1% in respect of the period preceding the creation of Exsym, and LS Cable & System and Taihan Electric Wire, on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. By contrast, no reduction in the basic amount of the fines was granted to the undertakings belonging to the core group, which includes the applicant (recitals 1017 to 1020 of the contested decision). Moreover, pursuant to the 2006 Guidelines on the method of setting fines, the Commission granted Mitsubishi Cable Industries an additional reduction of 3% of its fine on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).

20      Furthermore, the Commission decided to grant ABB immunity from fines and to reduce the amount of the fine imposed on J-Power Systems, Sumitomo Electric Industries and Hitachi Cable by 45%, in order to take account of the cooperation which those undertakings had offered within the framework of the Leniency Notice.

 Procedure and forms of order sought

21      By application lodged at the Court Registry on 11 June 2014, the applicant brought the present action.

22      By document lodged at the Court Registry on 27 October 2014, Furukawa applied for leave to intervene in support of the form of order sought by the applicant.

23      By letter of 22 December 2014, the Commission requested confidential treatment of certain documents with regard to Furukawa, pursuant to Article 116(2) of the Rules of Procedure of the General Court of 2 May 1991.

24      By orders of 25 June 2015, the President of the Second Chamber of the General Court granted Furukawa leave to intervene and ordered that it should receive a confidential version of each procedural document served on the parties.

25      The intervener lodged its statement in intervention on 24 September 2015. By letters of 31 March and 8 April 2016, the applicant and the Commission submitted their respective observations on the intervener’s statement in intervention.

26      As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has therefore been assigned.

27      On 12 January 2017, under the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the Court put a written question to the Commission. The Commission complied with the Court’s request by letter of 23 January 2017.

28      On 13 February 2017, by way of measures of organisation of procedure provided for under Article 89 of the Rules of Procedure, the Court asked the applicant to submit written observations on the Commission’s reply to the question put by the Court on 12 January 2017. The applicant replied to the Court’s question by letter of 24 February 2017.

29      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 5 May 2017.

30      The applicant claims that the Court should:

–        annul the contested decision in so far as it finds an infringement covering the period from 1 October 2001 to 28 January 2009;

–        annul or reduce the amount of the fine imposed;

–        order the Commission to pay the costs.

31      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

32      In its application, the applicant puts forward a claim for annulment of the contested decision as well as a claim for a reduction of the fine imposed on it.

 The claim for annulment

33      The applicant puts forward seven pleas in law in support of its claim for annulment. The first plea in law alleges an infringement of the principles governing the burden of proof, the principle of equal treatment and the principle of personal responsibility in the Commission’s finding regarding the date on which the applicant’s participation in the cartel began. The second plea in law alleges an infringement of the principles governing the burden of proof and the principle of equal treatment in setting the date on which the applicant’s participation in the cartel ended. The third plea in law alleges an infringement of the principle of proportionality and the principle of equal treatment in that the Commission did not apply a reduction to the hypothetical value of the applicant’s sales similar to the reduction in the amount of the fines generally incurred by the European cartel participants under point 18 of the 2006 Guidelines on the method of setting fines. The fourth plea in law alleges an infringement of the principle of proportionality and the principle of equal treatment in that the Commission did not reduce the notional EEA market share which it ascribed to the applicant to reflect its actual ‘weight’ in the cartel. The fifth plea in law alleges an infringement of the fundamental principles of personal responsibility and fault and the principle of equal treatment in that the Commission wrongly relied on the sales figures of Fujikura and Furukawa in calculating the applicant’s notional worldwide market share. The sixth plea in law alleges an error on the Commission’s part in its assessment of the gravity of the infringement, inasmuch as it concluded, without relevant evidence, that the combined market share in the EEA of the addressees of the contested decision justified an increase of 2% in the proportion of the value of sales to be taken into account. The seventh plea in law alleges an infringement of the principle of personal responsibility and of the principle of equal treatment in that the Commission wrongly concluded that the applicant was part of the core group of the cartel and consequently refused to grant it a reduction in its fine in accordance with point 29 of the 2006 Guidelines on the method of setting fines.

 The pleas in law relating to the finding of infringement

–       The first plea in law, alleging an infringement of the principles governing the burden of proof, the principle of equal treatment and the principle of personal responsibility in the Commission’s finding regarding the date on which the applicant’s participation in the cartel began

34      The applicant takes issue with the Commission for setting the starting date of its participation in the cartel as the date on which it was formed, 1 October 2001. It maintains that the starting point of its participation in the cartel should be set at 12 November 2001, that being the date of the first cartel meeting attended by one of its employees, Mr T. The Commission has no evidence that the applicant participated in the cartel before that date. In particular, the Commission cannot claim that the applicant continued the alleged collusive practices of its parent companies from the moment it was formed without adducing any evidence in that regard. Equally, there is no evidence that the applicant’s parent companies took part in any cartel meetings or discussed the alleged infringements with the applicant prior to the applicant attending the meeting of 12 November 2001.

35      In addition, the applicant submits, in response to the Commission’s argument, that the fact that one of its employees, who attended the A/R meeting on 12 November 2001, had attended an earlier A/R meeting on 7 September 2001 on behalf of one of the applicant’s parent companies is in itself insufficient to establish that it participated in the cartel prior to 12 November 2001. The applicant maintains in this connection that, in accordance with the case-law, it cannot be inferred from the fact that a company employs a person who has previously participated in a cartel on behalf of another undertaking that the company will ipso facto participate in the same cartel.

36      According to the applicant, the Commission’s argument that the applicant continued the alleged collusive practices of its parent companies from 1 October 2001 onwards is also disproved by the intervener, one of its parent companies, which stated in its observations that its direct participation in the cartel had ended prior to 30 September 2001.

37      The intervener maintains that the contested decision does not show that any agreement was concluded during the period from 18 February 1999 to 30 September 2001. In particular, the Commission failed to show that during that period the intervener took part in the ‘home territory’ agreement. There was, therefore, no cartel involving the intervener in which the applicant might have continued to participate from 1 October 2001 onwards. In addition, according to the intervener, the last meeting it attended took place on 11 June 2001. It thus cannot, in any event, be maintained that the applicant continued to participate, from 1 October 2001 onwards, in a cartel in which the intervener itself had ceased to participate several months earlier.

38      The Commission disputes the arguments of the applicant and the intervener. In addition, it argues that the observations by which the intervener calls into question the findings in the contested decision concerning its participation in the infringement are inadmissible, in that they do not support the applicant’s claim for annulment of the contested decision in so far as it finds that the applicant participated in the infringement from 1 October 2001 to 28 January 2009.

39      In that regard. it should be noted that Article 101(1) TFEU prohibits agreements and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which share markets or sources of supply.

40      In order for there to be an agreement within the meaning of Article 101(1) TFEU, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of Article 101(1) TFEU can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraphs 85 and 86 and the case-law cited). In that regard, the question whether the undertakings concerned considered themselves bound — in law, in fact or morally — to adopt the agreed conduct is therefore irrelevant (judgment of 14 May 1998, Mayr-Melnhof v Commission, T‑347/94, EU:T:1998:101, paragraph 65).

41      The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraph 87 and the case-law cited).

42      To that effect, Article 101(1) TFEU precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. The disclosure of information to one’s competitors in preparation for an anticompetitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 101(1) TFEU (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraphs 88 and 89 and the case-law cited).

43      The concepts of ‘agreement’ and ‘concerted practice’ within the meaning of Article 101(1) TFEU are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It is therefore sufficient that proof of the constituent elements of either of those forms of infringement referred to in that provision has been established in order in any event for it to apply (judgment of 5 December 2013, Solvay v Commission, C‑455/11 P, not published, EU:C:2013:796, paragraph 53).

44      It follows from the case-law that it is for the Commission to prove not only the existence of the agreement but also its duration (judgment of 14 July 2005, ThyssenKrupp v Commission, C‑65/02 P and C‑73/02 P, EU:C:2005:454, paragraph 31).

45      However, while the Commission must produce sufficiently precise and consistent evidence to establish an infringement of Article 101(1) TFEU, it is not necessary for every item of evidence produced by it to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement. Thus, the indicia on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 101(1) TFEU by an undertaking must not be assessed separately, but as a whole (see judgments of 17 May 2013, Trelleborg Industrie and Trelleborg v Commission, T‑147/09 and T‑148/09, EU:T:2013:259, paragraph 50 and the case-law cited, and of 12 December 2014, Repsol Lubricantes y Especialidades and Others v Commission, T‑562/08, not published, EU:T:2014:1078, paragraph 152 and 153 and the case-law cited).

46      In most cases, the existence of an anticompetitive 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 (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26).

47      It must also be borne in mind that, according to settled case-law, the principle of equal treatment or non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 19 January 2016, Mitsubishi Electric v Commission, T‑409/12, EU:T:2016:17, paragraph 108 and the case-law cited).

48      In the present case, it is apparent from recital 909 of the contested decision that, in the majority of cases, the Commission set the date marking the start of participation in the cartel of the addressees of the contested decision as the date of their initial involvement in a cartel meeting. For the addressees of the contested decision that were held liable for the infringement in their capacity a parent company, the Commission set the starting date of their participation in the cartel as the date on which they became ‘jointly and severally’ liable with their subsidiary or joint venture. As regards joint ventures, the Commission set the starting date of their participation in the cartel as the date on which operations were assigned to them by their parent companies.

49      Consequently, as is apparent from recital 914 of the contested decision, the Commission set the starting date of the applicant’s participation in the cartel as 1 October 2001, the date on which its parent companies, Furukawa and Fujikura, assigned activities to it.

50      The Commission justified that difference in treatment, as regards joint ventures and more particularly the applicant, in recital 917 of the contested decision, in which it indicated that the applicant was not in the same situation as certain other addressees of the contested decision since, as explained in point 5 of that decision, its parent companies had continued to participate through it in the cartel which had started on 18 February 1999. The Commission states, first, that an employee of the applicant, Mr T., who took part in the A/R cartel meeting of 12 November 2001 on behalf of the applicant, had previously taken part in the A/R cartel meeting of 5 September 2001 on behalf of Fujikura and, second, that the applicant took over the power cable activities of Furukawa and Fujikura.

51      The Commission’s reasoning is based on the finding, in Sections 3 and 5 of the contested decision, that on the one hand, Furukawa and Fujikura, which participated directly in the cartel as from 18 February 1999, transferred to the applicant certain activities which were covered by the cartel from the start of its operation and, on the other hand, the applicant itself took part in the cartel under the decisive influence of Furukawa and Fujikura from the time of its creation until 28 January 2009.

52      It must be noted that the applicant maintains that there is no proof that it participated in the cartel before 12 November 2001, the fact that one of its employees had previously participated in an A/R meeting on behalf of Fujikura not being, in itself, sufficient in that regard. In those circumstances, according to the applicant, if the Commission intended to rely on the fact that the parent companies allegedly had continued to participate in the cartel through it as from 1 October 2001, it should have established that employees of those companies had participated in cartel meetings during that period or that they had held discussions with the applicant concerning the infringement. The applicant argues that the lack of proof concerning the applicant’s taking over of its parent companies’ collusive activities as from the time of its creation explains why the Commission acknowledged in recitals 811 and 818 of the contested decision that the direct participation of Furukawa and Fujikura in the cartel ended on 30 September 2001, namely the day before the applicant’s creation.

53      The applicant’s argument cannot succeed.

54      It is true that, in accordance with the case-law, it cannot be inferred from the fact that an undertaking employs a person who has previously participated in a cartel on behalf of another undertaking that the first mentioned undertaking is participating in the same cartel (judgment of 13 July 2011, Dow Chemical and Others v Commission, T‑42/07, EU:T:2011:357, paragraph 93). Accordingly, the fact that Mr T., then an employee of Fujikura, participated in the A/R meeting in Kuala Lumpur on 5 September 2001 and that he was transferred to the applicant as from 1 October 2001 does not demonstrate, in itself, that the applicant participated in the cartel.

55      However, it must be noted that it is apparent from the contested decision and undisputed by the applicant that Mr T., who was then general manager of Fujikura’s ‘1st International Trade Division, Overseas Marketing and Projects’, participated in the A/R meeting of 5 September 2001 with a view to transitioning between Fujikura and the applicant and in his capacity as Viscas’s future representative in the cartel (see footnote 1199 and page 8 of Annex II to the contested decision).

56      It must also be noted that it is apparent from the contested decision and undisputed by the applicant that Mr T., who had been transferred to the applicant from the time of its creation to act as general manager of the ‘Overseas Marketing and Project Department’, participated in a trilateral cartel meeting with representatives of Sagem and a representative of J-Power Systems in London (United Kingdom) on 12 November 2001, and an A/R meeting, which was also held in London on 13 November 2001, in his capacity as the applicant’s representative (see page 7 of Annex I and page 9 of Annex II to the contested decision).

57      Furthermore, no other cartel meeting involving the Japanese producers took place between 1 October 2001 and 12 November 2001.

58      In addition, the Commission stated in recital 811 of the contested decision that it considered that Furukawa’s and Fujikura’s direct participation in the cartel ended on 30 October 2001 and it added in recital 818 of that decision that there was no evidence of direct participation by those companies in the infringement after that date. However, the Commission also indicated in recital 818 that, as from 1 October 2001, all contact relating to the cartel was made by the applicant and that it also concerned the protection of territories and consequently included the protection of the sales made by Furukawa and Fujikura in Japan. It is in the light of those circumstances that the Commission found, in that recital, that it was highly unlikely that Furukawa and Fujikura were unaware of the continuation of the cartel and of the role played by the applicant therein beyond the period of their own direct participation.

59      In those circumstances, it must be held that the Commission correctly established that, from the time of its creation, the applicant succeeded its parent companies in having collusive contact with the other cartel members.

60      The applicant claims however, with reference to the intervener’s arguments, that the power cable activities transferred to it by the latter at the time of its creation on 1 October 2001 were no longer covered by the cartel, since the Commission could not prove that the intervener participated in the cartel after 11 June 2001.

61      In that regard, it must be noted that, contrary to what the Commission maintains, the intervener’s arguments are admissible.

62      Under Article 142(1) of the Rules of Procedure, an ‘intervention shall be limited to supporting, in whole or in part, the form of order sought by one of the main parties’. In addition, under Article 142(3) of the Rules of Procedure, the ‘intervener must accept the case as he finds it at the time of his intervention’. An intervener has the right to set out arguments as well as pleas independently, in so far as they support the form of order sought by one of the main parties and are not entirely unconnected with the issues underlying the dispute, as established by the applicant and defendant, as that would otherwise change the subject matter of the dispute. It is thus for the Court, when determining the admissibility of the pleas and arguments put forward by an intervener, to determine whether they are connected with the subject matter of the dispute, as defined by the main parties (see, to that effect, judgment of 14 January 2016, Doux v Commission, T‑434/13, not published, EU:T:2016:7, paragraphs 73 and 74 and the case-law cited). In the present case, the applicant seeks the annulment of Article 1(9)(c) of the contested decision, in which the Commission found that it had participated in the cartel from 1 October 2001 to 28 January 2009, and annulment of Article 2(p) of the contested decision, in which the Commission imposed a fine on the applicant ‘jointly and severally’ with Furukawa and Fujikura for its participation in the cartel. The applicant also seeks to obtain a reduction in the amount of the fine imposed on it by Article 2(p) of the contested decision for its participation in the infringement.

63      The intervener submits that the Commission has failed to demonstrate its direct participation in the infringement and that, in any event, its last participation in a meeting dates from 11 June 2001. The Commission was therefore not justified in finding that the intervener had continued to participate in the infringement through the applicant as from 1 October 2001, since all participation on its part ended, at the latest, on 11 June 2001. It follows that the Commission was not entitled to set the start date of the applicant’s participation in the cartel as 1 October 2001.

64      It follows from the intervener’s line of argument that it calls into question the Commission’s finding in the contested decision concerning its direct participation in the cartel from 18 February 1999 to 30 September 2001. Moreover, the intervener annexed to its statement in intervention its application in Case T‑444/14, in which it sought annulment of the contested decision, inter alia, in so far as the Commission found that the intervener participated directly in the cartel from 18 February 1999 to 30 September 2001. However, in the present case, the intervener’s line of argument seeks to show that the premiss on which the reasoning used by the Commission to set the start date of the applicant’s participation in the cartel is based is incorrect.

65      In that regard, it must be held that, since the Commission’s decision to set the start date of the applicant’s participation in the cartel as the date on which its parent companies transferred activities covered by the cartel to it was justified by the assertion that they thus continued to participate indirectly in the cartel, which began on 18 February 1999, the intervener, which is one of those parent companies, is entitled to challenge that assertion.

66      Nevertheless, since the intervener’s line of argument concerns merely its direct participation in the cartel from 18 February 1999 to 30 September 2001, it is incapable of calling into question the Commission’s finding in the contested decision that the applicant’s other parent company, Fujikura, participated directly in the cartel during the same period and, subsequently, continued to participate indirectly in that cartel via the applicant. Accordingly, even if the Commission erred in finding that the intervener had participated directly in the cartel from 18 February 1999 to 30 September 2001, that error would not call into question the Commission’s reasoning in setting the start date of the applicant’s participation in the cartel.

67      It follows that the intervener’s arguments relating to its direct participation in the cartel from 18 February 1999 to 30 September 2001 must be rejected as ineffective.

68      Accordingly, it must be held that the Commission did not err in setting the start date of the applicant’s participation in the cartel as 1 October 2001.

69      In the light of the foregoing considerations, the first plea in law must be rejected.

–       The second plea in law, alleging breach of the principles governing the burden of proof and the principle of equal treatment in the Commission’s finding of the date on which the applicant’s participation in the cartel ended

70      The applicant complains that the Commission failed to adduce evidence that its participation in the cartel had ended on 28 January 2009 and that the Commission breached the principle of equal treatment by choosing that date rather than the date of the last piece of evidence in its file.

71      The applicant maintains that the last piece of evidence that could potentially connect it to the infringement is an email dated 2 August 2007, that is to say, 17 months before 28 January 2009, the date which the Commission set to mark the end of the applicant’s involvement in the cartel. The other evidence presented in the contested decision as demonstrating its involvement in the cartel at a later date should be rejected. The exchange of emails between Mr I., of Exsym, and Mr J., of Nexans France, of 9 December 2008 shows that the applicant had ceased to take part in any ongoing arrangements by that date. Equally, the email sent by Mr Y. I., an employee of the applicant, to Mr R., of Nexans France, on 9 June 2008 is irrelevant, since it concerns arrangements relating to the ‘export territories’, which do not fall within the territorial scope of Article 101 TFEU. Nor may account be taken of the email of 7 March 2008 in which Mr J. asked Mr Y. I. to clarify why J-Power Systems was involved in a submarine cable project in the United Kingdom, because Mr Y. I. did not respond to that email. Furthermore, the Commission may not take account of internal notes of Nexans France which mention a meeting with the applicant on 3 December 2007, since it is clear from the notes that the projects discussed had already been awarded.

72      According to the applicant, the Commission cannot justify setting the end date of the applicant’s participation in the cartel at 28 January 2009 by maintaining that the alleged effects of its previous collusion continued at least until the date of the Commission’s inspections without adducing evidence in this regard, or argue that the lack of evidence postdating 2 August 2007 may be explained by the fact that, during that period, Exsym was the main coordinator of the Japanese undertakings.

73      Therefore, according to the applicant, given the significant time elapsed between the last piece of evidence that could potentially demonstrate its participation in the infringement and the end of its infringement, the Commission should have applied the date of that last piece of evidence to mark the end of the applicant’s participation in the cartel, as it did in the case of other addressees of the contested decision, in particular LS Cable & System and Taihan Electric Wire.

74      The Commission disputes the arguments put forward by the applicant and the intervener.

75      In that regard, it must be recalled that it is for the Commission to prove the duration of the participation of each of the participants in a cartel (see paragraph 44 above).

76      That implies that the starting date and the end date of that participation are known (judgment of 24 March 2011, Tomkins v Commission, T‑382/06, EU:T:2011:112, paragraph 49).

77      In that regard, it should be borne in mind that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anticompetitive 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 anticompetitive 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 judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 61 and the case-law cited).

78      In order to assess whether an undertaking has actually distanced itself, it is indeed the understanding which the other participants in a cartel have of that undertaking’s intention which is of critical importance when assessing whether it sought to distance itself from the unlawful agreement (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 62).

79      Accordingly, the mere fact that an undertaking whose participation in collusive meetings has been established is no longer participating in those meetings cannot, in itself, be regarded as a public distancing from the cartel at issue and that it is for that undertaking to provide evidence that the participants in the cartel considered that it was ending its participation (judgment of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraphs 119 and 120).

80      However, an undertaking whose participation in collusive meetings has been established cannot be required to prove that it publicly distanced itself from the cartel in question when a sufficiently long period has elapsed between the last collusive contact and the end of the cartel, as established by the Commission (see, to that effect, judgment of 24 March 2011, Tomkins v Commission, T‑382/06, EU:T:2011:112, paragraph 49).

81      In the present case, it is apparent from recital 946 of the contested decision that the Commission set the end date of the applicant’s participation in the cartel as 28 January 2009 on the ground that ‘the effects of previous collusive behaviour continued until at least the day of the inspections ...’.

82      In recital 948 of the contested decision, the Commission states, in reply to the argument of the applicant and Exsym that they ceased their participation in the infringement with regard to EEA projects following the meeting of 9 June 2004 in Tokyo (Japan), that it is sufficiently established that, while the contacts between the parties to the cartel took different shapes as from the second half of 2004 onwards, they continued to adhere to the main pillars of the cartel, including the ‘home territory’ agreement and that the applicant and Exsym also failed to provide any conclusive evidence that they had publicly distanced themselves from the cartel. In the same recital, the Commission states that, on the contrary, it has demonstrated that the applicant and Exsym had continued to give the other participants the impression that they remained members of the cartel throughout its duration and refers in that regard to several passages of the contested decision, in particular, as regards the applicant, to recitals 374, 394, 401, 410, 428, 434, 438 and 445.

83      In recital 950 of the contested decision, the Commission states, in reply to the applicant’s argument that the end date of its participation in the infringement should be set at 9 April 2008, the date of the last anticompetitive meeting in which it participated, or at 9 June 2008, the date of the last email of an anticompetitive nature which it sent, that, having regard to the specific features of the cartel, the applicant’s lack of communication between 9 June 2008 and 28 January 2009 did not mean that it had withdrawn from the cartel. First, the Commission recalls that the ‘home territory’ agreement did not require frequent communication. Second, it observes that the bilateral and multilateral contact concerning projects in the ‘export territories’ took place at regular intervals when it was necessary to allocate projects. It notes that up to the end of the infringement, the parties followed the allocation decisions relating to those projects made at the Tokyo meeting in June 2007. Third, the Commission states that it is not the applicant, but Exsym, which acted as the main coordinator of the A members for the allocation of those projects and concluded that it is logical that there should be less direct evidence concerning the applicant. Fourth, the Commission indicates that it is clear from the available evidence that the applicant restricted its direct participation in the last years of the cartel and relied on Exsym as coordinator for fear of an antitrust investigation.

84      In recitals 952 and 953 of the contested decision, in reply to the applicant’s argument that the Commission infringes the principle of equal treatment by failing to use the date of the last piece of evidence in the case file to establish the end of the applicant’s participation in the cartel, the Commission states that, since there was evidence of the applicant’s continuing involvement in the cartel on 9 June 2008, and since that cartel operated until at least 9 December 2008, the time which elapsed between the date of that last piece of evidence on the file and the end of the cartel on 28 January 2009 was not sufficiently long, within the meaning of the Court’s case-law, for the Commission to use the date of the last piece of evidence as the end of the applicant’s participation in the cartel, as it did for other addressees of the contested decision.

85      In the first place, as regards the applicant’s claim that the last piece of evidence relating to its involvement in the cartel dates from 2 August 2007, it must be observed that that is contradicted by an examination of the subsequent evidence referred to in the contested decision.

86      First, it is apparent from recital 434 of the contested decision that, according to internal notes of Nexans France, two employees of that company, Mr R. and Mr J., met with two employees of the applicant, Mr Y. I. and Mr C., in Paris (France) on 3 December 2007 and discussed past orders and current projects.

87      The applicant maintains that that document does not constitute evidence of its involvement in the cartel, since the participants in the meeting did not allocate any projects. The document only reported the disqualification of Prysmian Cavi e Sistemi Energia from a project for which it and Nexans France had submitted bids.

88      However, it is apparent from the notes in question that the employee of Nexans France who drafted them expressly stated that it was an ‘A/R meeting’ which corresponds to the usual name for meetings between the representatives of the R cartel members and the A cartel members. It is also apparent from those notes that several projects which had not yet been allocated and, in respect of some of which the call for tenders had not yet been published, were the subject of discussion. Accordingly, the following is indicated, inter alia, under the heading ‘Current projects’:

‘Greece Evia Attika: Prysmian and Nexans: bid Prysmian disqualified.

Abou Dhabi: AL yassat Island postponed to January: 33kV V[iscas] not interested J[-Power Systems]??? Busy with […] crossing Exsym probably not interested

Java [Sumatra]: Prysmian + Marubeni + V[iscas] [on this] project + Siemens said to be announced early [2008]

Korea: V[iscas] and J[-Power Systems] trying to push Extruded, LS [Cable] tries but??? Early Nexans

Qatar 220 kV 7km 2 cctt Allo[cation] R

Australia: […] Olex agent for V[iscas], V[iscas] interested formation remains Exsym J[-Power Systems] and V[iscas]. At. Prebid meeting. Tender middle of December.

Maracaibo: Budget quotation by V[iscas] and N[exans France] and LS [Cable].’

89      It follows that, contrary to what the applicant claims, that document must be regarded as evidence of the applicant’s involvement in the cartel after 2 August 2007.

90      Next, recital 437 of the contested decision states that, in an email of 3 March 2008 Mr J., of Nexans France, asked Mr Y. I. the following:

‘We have noted with surprise A (JP) [J-Power Systems] involvement through a company called Eclipse in a (UK) SM project Ormonde … Please clarify.’

91      In that email, the employee of Nexans France makes express reference to the involvement on the A members’ side of the cartel through J-Power Systems, another Japanese undertaking, in a project in the European territory. It follows from that email that, on that date, the applicant was perceived unambiguously by Nexans France to be a member of the cartel. It makes no difference in that regard that Mr Y. I. has no recollection of replying to the email in question.

92      Accordingly, that document must also be regarded as an item of evidence capable of demonstrating the applicant’s involvement in the cartel after 2 August 2007.

93      Finally, the applicant essentially claims that the Commission was not entitled to take into account the email addressed to Mr R., of Nexans France, by the applicant’s employee Mr Y. I. on 9 June 2008, referred to in recital 440 of the contested decision, on the ground that it concerned the ‘export territories’ agreement, which did not fall within the scope of Article 101 TFEU. According to the applicant, since the arrangements relating to the ‘export territories’ did not concern sales in the EEA, they could not be regarded as having been ‘implemented’ in the EEA within the meaning of the case-law. Moreover, even if the ‘effects’ criterion applied by the Court in the judgment of 25 March 1999, Gencor v Commission (T‑102/96, EU:T:1999:65), in the context of the merger control regulation, was applicable for the purpose of interpreting the scope of Article 101 TFEU, the Commission should have established in the contested decision that it was foreseeable that the agreement on sales in the ‘export territories’ would have an immediate and substantial effect in the European Union. According to the applicant, the Commission has failed to satisfy that obligation and, moreover, has stated repeatedly in the contested decision that it did not examine whether the infringement had effects on the market.

94      In that regard, it should be noted that in the email referred to in recital 440 of the contested decision, an employee of the applicant, Mr Y. I. wrote the following to Mr R., of Nexans France:

‘It is our understanding that the business above is the excluded case and does not constitute any part of arrangements. [Exsym] confirmed that they have the same opinion in this regard.’

95      On the one hand, contrary to what the applicant claims, it does not follow from that email that the project referred to was located in an ‘export territory’ but only that it was a situation excluded from ‘the arrangements’, an expression which may refer both to the ‘home territory’ agreement and the ‘export territories’ agreement in general and to specific commitments under the ‘export territories’ agreement.

96      On the other hand, it must be recalled that, in accordance with Articles 4, 7 and 23 of Regulation No 1/2003, the Commission is empowered to find and put an end to infringements of Article 101 TFEU.

97      The applicant disputes, in essence, that some of the practices found by the Commission in the contested decision may constitute infringements of Article 101 TFEU in so far as they were not implemented in the EEA and the Commission had not, furthermore, proved that they had effects in the EEA. Accordingly, the applicant does not dispute the Commission’s powers, but the territorial applicability of Article 101 TFEU in the present case.

98      As regards the territorial application of Article 101 TFEU and Article 53 of the EEA agreement, it should be recalled that the EU competition rule set out in Article 101 TFEU prohibits agreements and practices which have as their object or effect the prevention, restriction or distortion of competition ‘within the internal market’.

99      It should also be noted that the conditions for the territorial application of Article 101 TFEU can be met in two situations.

100    First, the application of Article 101 TFEU is justified where the practices it covers are implemented in the territory of the internal market, irrespective of the place where they were formed. If the application of prohibitions laid down under competition law were made to depend on the place where the agreement, decision or concerted practice was formed, the result would obviously be to give undertakings an easy means of evading those prohibitions (judgment of 27 September 1988, Ahlström Osakeyhtiö and others v Commission, 89/85, 104/85, 114/85, 116/85, 117/85 and 125/85 to 129/85, EU:C:1988:447, paragraphs 16 and 17).

101    Second, as the Court has already held, the application of Article 101 TFEU is also justified under public international law when it is foreseeable that the practices it covers will have an immediate and substantial effect on the internal market (judgment of 25 November 1971, Béguelin Import, 22/71, EU:C:1971:113, paragraph 11). In that regard, it must be noted that that approach pursues the same objective as that relying on the implementation of an agreement in EU territory, namely preventing conduct which, while not adopted within the EU, has anticompetitive effects liable to have an impact on the EU market.

102    It should also be noted that the conditions for the application of Article 101 TFEU recalled in paragraphs 100 and 101 above constitute alternative and non-cumulative ways to establish the Commission’s power to find and put an end to an infringement of that provision.

103    In the contested decision, the Commission found that the condition that the cartel must be implemented in the EEA and that relating to the qualified effects produced by that cartel in the EEA were both satisfied in the present case (recitals 467 to 469 of the contested decision).

104    The applicant claims that, since the ‘export territories’ agreement was not implemented in the EEA, the Commission should have shown that it had a sufficient effect in the EEA to justify, within the meaning of the case-law, the territorial application of Article 101 TFEU to that part of the infringement in question, which it failed to do in the present case.

105    That line of argument cannot succeed.

106    It should be noted that the ‘export territories’ agreement was implemented in the EEA. Thus, it is apparent from recital 79 and recital 247 of the contested decision, to which recital 468 of the contested decision refers, that Greece was not part of the ‘European home territory’ within the meaning of the ‘home territory’ agreement and that projects in Greece were part of the allocation of projects in line with the ‘60/40 quota’ under the ‘export territories’ agreement. In addition, it is clear from recitals 81 and 82 of the contested decision that the A members of the cartel considered that projects linking an EU Member State to a third country were to be part of the 60% quota allocated to the R members of the cartel, such as a project linking Spain to Morocco, referred to in recital 232 of the contested decision.

107    Moreover, as is apparent from the case-law referred to in paragraph 101 above, the Commission was entitled to base the application of Article 101 TFEU to the single and continuous infringement found in the contested decision on the foreseeable, immediate and substantial effects of that infringement in the internal market.

108    In that regard, it should be noted that Article 101 TFEU may apply to practices and agreements with the same anticompetitive object, provided that it is foreseeable that, taken together, those practices and agreements have immediate and substantial effects in the EEA. Undertakings cannot be allowed to escape application of EU competition rules by combining several practices pursuing the same objective, when each practice viewed in isolation is not liable to produce an immediate and substantial effect in the EEA but the practices, taken together, are liable to produce such an effect.

109    In the present case, it should be noted that the single objective of the cartel was to restrict competition for (extra) high voltage underground and submarine power cable projects to be carried out in specific territories, by agreeing on market and customer allocation, thereby distorting the normal competitive process.

110    It follows that, contrary to what the applicant claims, it is in the light of the effects, taken together, of the various practices described in recital 493 of the contested decision, including the ‘export territories’ agreement, that it was necessary to assess whether Article 101 TFEU was applicable in the present case.

111    It must be held that the Commission did not err in finding, in recital 469 of the contested decision that the effects on competition in the EEA of the practices and agreements in which the cartel members participated were foreseeable, substantial and immediate.

112    In that regard, it is sufficient to take account of the probable effects of conduct on competition in order for the foreseeability criterion to be satisfied.

113    As regards the immediate nature of the effects of the practices in question on the territory of the EEA, it must be observed that they necessarily had a direct influence on the supply of high and extra high voltage power cables in the EEA, since that was the object of the various meetings and contact between the cartel participants (recital 66 of the contested decision). In addition, the allocation made by the parties to the cartel, both directly in the EEA and outside that territory, had foreseeable effects on competition in the EEA, as the Commission correctly found.

114    As regards the substantial nature of the effects in the EU, it is necessary to note the number and size of the producers participating in the cartel, which accounted for almost all of the market, and the broad range of products affected by the various agreements and the gravity of the practices in question. The significant duration of the single and continuous infringement which took place over 10 years must also be noted. All those factors, assessed together, contribute to demonstrating the substantial nature of the effects of the practices in question on the territory of the European Union (recitals 66 and 492, 493 and 620 of the contested decision).

115    It must therefore be held that the single and continuous infringement defined by the Commission in the contested decision fell within the scope of Article 101(1) TFEU. 

116    It follows that the Commission was entitled to take into account the email sent by the applicant’s employee Mr Y. I. to Mr R., on 9 June 2008, relating to the ‘export territories’ agreement in order to establish the applicant’s participation in the cartel. In any event, the Commission’s powers of investigation concerning the existence and extent of an infringement are not subject to the same geographical limitations as its powers to impose sanctions for those infringements under Article 101 TFEU. In the absence of any other claim of unlawfulness affecting the investigation carried out by the Commission, the argument that the Commission cannot take into account the email dated 9 June 2008 must be rejected.

117    It must therefore be held that, contrary to what the applicant claims, the last piece of evidence on the Commission’s file capable of demonstrating its involvement in the cartel does not date from 2 August 2007, but 9 June 2008.

118    In the second place, as regards the applicant’s claim that it follows from the emails sent on 8 and 9 December 2008 by Mr I. of Exsym and Mr J. of Nexans France that it was no longer participating in the cartel on that date, it must be held that that is not supported by the evidence on the Commission’s file.

119    In that regard, it must be noted that, in an email of 8 December 2008, Mr I. of Exsym stated the following to Mr J. of Nexans France:

‘Regret we can not give you any concrete idea about compensation for QR 3rd CCT because of an involvement of others like V[iscas], J-P[ower Systems], etc. and especially with an understanding that this CCT is an additional to Ph8 and is naturally understood that this would be A unconditionally.

Our previous agreement is:

QTR Ph8: 132 km: A

ABD Mussafah-SAN: 156 km: R

We will maintain the above as agreed.’

120    It follows from that email that, when questioned about the possibility of providing compensation for a cable project in Qatar that it considered to be supplementary to another cable project initially allocated to the A cartel members, the employee of Exsym stated that he could not reply with certainty because of the involvement in that project of other undertakings such as the applicant and J-Power Systems.

121    According to the applicant, it would be logical to infer that it was no longer participating in the cartel at that time in the same way as J-Power Systems, which ceased to participate in the cartel on 10 April 2008. Accordingly, the reference to J-Power Systems and the applicant indicates that the Exsym employee could not give an idea of possible compensation on the ground that those cartel members had ended their participation in the cartel.

122    However, it may also be inferred from that email that the Exsym employee could not give concrete information concerning possible compensation because Exsym was not the only undertaking involved in the cable project in question and that the position of the other undertakings in that regard was not known. It is important to note that the Exsym employee refers to the ‘involvement of others like [the applicant], [J-Power Systems], etc.’ and not solely to those two undertakings. In addition, the fact that J-Power Systems withdrew from the cartel on 10 April 2008 is not necessarily relevant in so far as the discussion concerns a project which, in the view of the Exsym employee had already been allocated to the A members of the cartel. Contrary to what the applicant claims, it cannot be inferred from that email that, in the view of the other cartel members, it had ceased to participate in the cartel.

123    Nor is the applicant’s contention reinforced by the content of a second email from Mr I. to Mr J. on 9 December 2008 in reply to an email of the same date from Mr J. In that email, referred to in recital 445 of the contested decision, Mr I. states the following:

‘Your objection is quite understandable because you have received this [call for tenders] as an additional of Ph7 [although] we have received the same as an additional to Ph8.

However, it would be noted that this additional was originally considered and treated as variation order of Ph8 and we were working on this since more than 4 months back. To be noted that this new RFQ was issued to provide the procurement facilities [of a potential buyer’s general tender committee] and this is reason why we are entreating our position even, if a cooperation of [the applicant] cannot be granted.

On the other hand, the inconveniences caused during Ph7 and Ph8 [negotiation] stage was due to intervention of others which was originally expected and totally [beyond] our control and a repetition of same accident can not be avoided. Under the strong position of others and due to a tough [surveillance] of our internal control, a perfect [arrangement] is no longer feasible and bring us a numerous difficulties and risks. Therefore, we are obliged to inform you that we back out from the scheme except the cases we already committed. Please be noted that we are not intending to collapse the market situation, but proceed with due [solemnity].’

124    Two pieces of information appear clearly from that email. On the one hand, Mr I. sought to retain the benefit of the cable project in question, even though he could not give Mr J. a guarantee that the applicant would cooperate in granting him compensation, given the fact that that project had initially been regarded as supplementary to a project allocated to the A members of the cartel. On the other hand, Mr I. told Mr J. that Exsym intended to end its participation in the cartel while assuring him that all the commitments made up to that point by Exsym would be met and that he had no intention of collapsing the market.

125    In the light of the content of the emails set out above, it cannot be inferred from them that, from the point of view of the other participants in the cartel, the applicant had ceased to participate in it.

126    The applicant’s claim that its participation in the cartel had ended on 9 December 2008 at the latest must therefore be rejected.

127    In the third place, as regards the applicant’s argument that the Commission ought to have demonstrated that the effects of the collusive conduct had continued until the date selected to mark the end of its participation in the infringement, it must be noted that having indicated, in recital 644 of the contested decision, that the object of the applicant’s practices was to restrict competition within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement, without being challenged in that regard by the applicant, the Commission was not required, in accordance with the case-law, to establish the concrete effects of those practices on competition on the market (see judgment of 13 December 2012, Expedia, C‑226/11, EU:C:2012:795, paragraph 35 and the case-law cited).

128    It is true that, in the present case, the Commission stated in recital 947 of the contested decision that it had decided to set the end date of the applicant’s participation as 28 January 2009, the inspection date, on the ground that the effects of its previous collusive conduct continued up to that date.

129    However, it is clear from recitals 948 to 953 of the contested decision that the Commission decided to set the end date of the applicant’s participation as the date of the inspections, since, on the one hand, there was evidence of its continuous participation in collusion up to 9 June 2008, which was implemented until at least 9 December 2008, and, on the other hand, the characteristics of the cartel could explain the lack of communication on the part of the applicant between 9 June 2008 and 28 January 2009.

130    In that sense, the reference, in recital 947 of the contested decision, to the fact that the effects of the applicant’s previous collusive behaviour continued until 28 January 2009, the date of the inspections carried out by the Commission, must be understood as confirmation that the cartel, in which it is established that the applicant participated on a continuous basis, continued to be implemented until the Commission’s inspections took place.

131    It must be stressed that the Commission did not consider that the implementation of the cartel had ended on 9 December 2008 but that the last piece of evidence of the implementation of the cartel was dated 9 December 2008. It should, moreover, be recalled that, as is apparent from the email sent by Mr I. to Mr J. on 9 December 2008, Exsym merely announced on that occasion that it would withdraw from the cartel with regard to the future, without calling into question its commitments made up to that time.

132    It follows that the applicant’s argument that the Commission has failed to prove that the collusive arrangements in which the applicant participated produced further effects, in the sense that they continued to be implemented, has no basis in fact.

133    In addition, in so far as that argument must be interpreted as claiming that the Commission failed to demonstrate that the arrangements which directly benefited the applicant were still being implemented on 28 January 2009, it suffices to recall that, in accordance with the case-law, in order to demonstrate the participation of an undertaking in a cartel, the Commission is not obliged to establish the commercial interest derived by that undertaking from that participation (see, to that effect, judgments of 8 July 2004, JFE Engineering v Commission, T‑67/00, T‑68/00, T‑71/00 and T‑78/00, EU:T:2004:221, paragraph 185, and of 29 June 2012, GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 70).

134    In the fourth place, as regards the applicant’s argument that the Commission’s decision to set the date of the end of its participation in the cartel as 28 January 2009, although its situation does not differ from that of the other addressees of the contested decision, for which the Commission applied the date of the last piece of evidence on the file, constitutes an infringement of the principle of equal treatment, it must be held that that argument is based on an incorrect premiss.

135    It is apparent from the contested decision, that the Commission found that a considerable period had elapsed between the date of the last piece of evidence of the continuous involvement of certain participants in the cartel and the end of the cartel, but that, by contrast, the period between the date of the last piece of evidence of the applicant’s involvement in the cartel and the end of the cartel was much shorter. That objective difference justified a difference in treatment in the method of setting the end date of participation in the cartel (recital 953 of the contested decision).

136    The Commission thus found that, in the light of the case-law, the period which had elapsed between the date of the last piece of evidence of the participation of Taihan Electric Wire and LS Cable & System in the cartel was sufficiently long to require it to demonstrate that those undertakings had continued to participate in the cartel until its end. Therefore, it decided, in the absence of any other conclusive evidence in that regard, to set the date of the end of the participation of those undertakings in the cartel as the date of the last piece of evidence of their participation.

137    By contrast, the Commission found that, in the light of the duration of the cartel, the reduced frequency of contact between the participants during the final years of its existence and their particularly cautious approach with regard to potentially incriminating evidence, the period separating the date of the last piece of evidence of the applicant’s participation in the cartel and the end date cannot be regarded as sufficiently long within the meaning of that same case-law.

138    It is in the light of that finding that the Commission considered, in recital 954 of the contested decision, that, in the absence of any proof or any evidence capable of being interpreted as a declared intention of the applicant to distance itself from the object of the cartel, the Commission was entitled to conclude that there was adequate evidence that their participation in the cartel continued until the date of the inspections.

139    In the regard, as was held in paragraph 117 above, it must be recalled that the last piece of evidence of the applicant’s participation in the cartel dates from 9 June 2008, that is to say seven months before the inspections which put an end to the cartel on 28 January 2009.

140    It must be held that, in that regard, the applicant was in a situation which was objectively different from that of LS Cable & System and Taihan Electric Wire, for which the last piece of evidence on the file dates from 1 July 2005 and 1 July 2004 respectively, with the result that it cannot claim infringement of the principle of equal treatment.

141    In the fifth place, as regards the applicant’s argument that the Commission was incorrect to find that the period between the date of the last piece of evidence relating to its participation in the cartel and its end date was sufficiently short to require the applicant to demonstrate that it had publicly distanced itself from the cartel, it must be noted that the Commission did not carry out that assessment in an abstract manner but took into account the specific features of the cartel and the applicant’s approach.

142    The Commission thus stated that the particular features of the cartel, in particular the ‘home territory’ principle and the irregular allocation of projects in the ‘export territories’, reduced the need for the participants to have frequent contact. The Commission also found that the participants in the cartel had adopted a particularly cautious approach with regard to potentially incriminating evidence.

143    That approach may be illustrated by Mr Y. I.’s witness statement, cited by the applicant itself, to the effect that, on 9 April 2008, he once again informed the applicant’s competitors that he would no longer even meet with them (recital 949 of the contested decision).

144    The fact that the applicant adopted a cautious approach in the last years of the cartel’s operation is also evidenced by an email, cited in recital 427 of the contested decision and addressed on 24 July 2007 to Mr J., of Nexans France, in which Mr I. of Exsym declared with regard to the applicant:

‘We have the same frustration you have. The have declined all our past invitations [relating to projects in the export territories] for the reason of high disclosure risks, dissolution of scheme, involvement of K, old fashion? Etc. all of which was to secure those subjected projects irrespective of price level ...’

145    It follows from that email that the applicant’s refusal to attend meetings relating to the allocation of projects in the ‘export territories’ was based not on its intention to leave the cartel, but on its fear that its participation in the cartel would be discovered.

146    Given the specific circumstances of the cartel, and the relatively short duration of the period between the date of the last piece of evidence of the applicant’s participation in the cartel and the end of the cartel, compared with the overall duration of its participation in the cartel, it must be held that, in the light of the case-law referred to in paragraph 80 above, the Commission did not err in finding that it was for the applicant to demonstrate that it had publicly distanced itself from the cartel.

147    In the light of the above findings, it must be held that the Commission did not err in setting the date of the end of the applicant’s participation in the cartel as 28 January 2009.

148    Consequently, the second plea in law must be rejected.

 The pleas in law relating to the amount of the fine

149    The applicant puts forward five pleas in law in support of its application for annulment of Article 2(p) of the contested decision, in which the Commission imposed on it a fine for its participation in the cartel, ‘jointly and severally’ with Furukawa and Fujikura. The third, fourth, fifth and sixth pleas in law of the action, relating to the calculation of the basic amount of the fine must be examined before the seventh plea in law, which concerns the adjustment of that amount.

 Preliminary observations

150    By its third, fourth and fifth pleas in law, the applicant essentially disputes the application by the Commission of point 18 of the 2006 Guidelines on the method of setting fines and, more particularly, the way in which the Commission determined the value of sales pursuant to that point. By its sixth plea in law, the applicant claims that the Commission committed an error of assessment in determining the proportion of the value of sales applied for the gravity of the infringement.

151    Before examining the pleas in law in question, it is necessary to recall the principles governing the calculation of the fine and the way in which the Commission acted in the present case.

152    According to the case-law, it follows from Article 49(3) of the Charter of Fundamental Rights of the European Union that the severity of penalties must not be disproportionate to the offence in question and that, pursuant to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. The principle of proportionality and the principle that the penalty must be appropriate to the offence also require that the amount of the fine imposed must be proportionate to the gravity and the duration of the infringement (judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 308 and the case-law cited).

153    In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 309 and the case-law cited).

154    In addition, according to the case-law, when determining the amount of the fine, objective factors such as the content and duration of the anticompetitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements. In the interests of transparency, the Commission adopted the 2006 Guidelines on the method of setting fines in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine (judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 310 and the case-law cited).

155    It is apparent from points 19 to 26 of the 2006 Guidelines on the method of setting fines that the basic amount of the fine consists of a variable amount of up to 30% of the sales in question of a given undertaking in the EEA, depending on the degree of gravity of the infringement and multiplied by the number of years of infringement, and, if necessary, an additional amount, namely the ‘entry fee’, of between 15% and 25% of that value of the undertaking’s relevant sales, irrespective of the duration.

156    Pursuant to point 13 of the 2006 Guidelines on the method of setting fines, in determining the basic amount of the fine to be imposed, the Commission will use the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates. To that end, the Commission will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.

157    Point 18 of the 2006 Guidelines on the method of setting fines, however, provides as follows:

‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.

In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’

158    The basic amount of the fine thus calculated may be adjusted. It may be increased if there are aggravating circumstances, such as those laid down in point 28 of the 2006 Guidelines on the method of setting fines or reduced where the Commission finds the existence of mitigating circumstances, such as those referred to in point 29 of those guidelines.

159    The Commission may also, by virtue of point 30 of the 2006 Guidelines on the method of setting fines, increase the amount of the fine to be imposed on undertakings which have a particularly high turnover beyond the sales of goods or services to which the infringement relates in order to ensure that the fine acts as deterrent.

160    In any event, for each undertaking, the total amount of the fine may not exceed 10% of its total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003.

161    It is apparent from the contested decision that, in order to determine the value of sales constituting the starting point for calculating the basic amount of the fine, the Commission decided to depart from the method set out in point 13 of the 2006 Guidelines on the method of setting fines and to apply the method laid down in point 18 of those guidelines on the ground that the sales made by certain undertakings belonging to the cartel within the EEA did not properly reflect their weight in the infringement, the territory covered by the cartel was wider than the EEA and all parties to the cartel were major producers active on a worldwide basis (recital 968 of the contested decision).

162    Moreover, the Commission decided to use to the value of the sales of the undertakings concerned in 2004 and not the value of sales in each of the undertakings’ last full year of participation. In order to justify that approach, first, the Commission stated that the sales of power cables at both EEA and worldwide level increased significantly as from 2006. The sales of the last full business year were therefore not sufficiently representative of the infringement period, particularly for those undertakings whose participation in the infringement ended after 2006. According to the Commission, relying on the sales made in 2004 provides a more accurate approximation of the economic significance of the infringement throughout its duration as well as of the relative weight of the relevant undertakings in the infringement. Second, the Commission stated that the use of the 2004 sales made it possible to avoid discriminatory treatment between the undertakings that ended their direct participation in the cartel earlier and those that continued. According to the Commission, it follows from point 13 of the 2006 Guidelines on the method of setting fines that, in that situation, it may decide not to use the preceding year’s sales. The Commission added that the choice of a single reference year was preferable for the purposes of applying point 18 of the 2006 Guidelines on the method of setting fines. According to the Commission, in the present case, accepting different reference years for all the participants would seriously undermine the purpose and the application of point 18 (recitals 965 and 966).

163    Consequently, in accordance with the method described in point 18 of the 2006 Guidelines on the method of setting fines, first, the Commission determined the value of the sales of submarine power cables and the value of sales of the underground power cables concerned as a whole realised worldwide in 2004 by all the members of the cartel, except for the United States. Next it identified the shares of those sales made by each of the undertakings participating in the cartel (recital 991; Table 4 of the contested decision). Finally, it applied the share percentages thus established to the value of the sales of submarine power cables and to the value of the sales of underground power cables realised by the cartel members in the EEA in 2004. Finally, in order to take into account the territorial expansion of the EEA, the Commission decided to establish three values of sales: for the EEA comprising 18 members, the EEA comprising 28 members and the EEA comprising 30 members (recitals 967 and 990 and Tables 5 to 7 of the contested decision).

164    The Commission therefore applied a coefficient corresponding to the gravity of the infringement to each of those three sales values. The latter was 15% for all undertakings which took part in the cartel, plus 2% for the combined market share held by those undertakings and the geographical scope of the cartel. An additional coefficient of 2% was imposed on the European undertakings which took part in the ‘A/R cartel configuration’ and the ‘European cartel configuration’. Next, the Commission applied the multiplier corresponding to the duration of the infringement committed in the EEA of 18 members (from 18 February 1999 to 30 April 2004), 28 members (from 1 May 2004 to 31 December 2006), and 30 members (from 1 January 2007 to 28 January 2009) to the figure obtained for each of those periods.

165    In order to determine the basic amount of the fine for each participant in the cartel, in accordance with point 25 of the 2006 Guidelines on the method of setting fines, the Commission added the ‘entry fee’ corresponding to a proportion of the value of sales of between 17% and 19%, to the figure obtained after applying the multiplier. That additional amount, however, was not applied to the joint ventures, including the applicant.

166    Finally, after finding that there were no aggravating circumstances, the Commission took into account, as mitigating circumstances, the limited participation of several undertakings in the cartel and, for some, their lack of awareness of specific aspects of the cartel, reducing the total amount of their fine by 5% to 10%. The Commission did not find any mitigating circumstance with regard to the applicant. Moreover, the Commission did not consider it necessary to increase the amount of the fines in order to confer a deterrent effect within the meaning of point 30 of the 2006 Guidelines on the method of setting fines.

167    More particularly as regards setting of the value of sales of the Japanese undertakings for the purposes of applying point 18 of the 2006 Guidelines on the method of setting fines, first, the Commission found that the participation of those undertakings in the cartel was divided into two periods, namely an initial period of direct participation in the cartel by Sumitomo Electric Industries, Hitachi Cable, Furukawa, Fujikura, SWCC Showa Holdings and Mitsubishi Cable Industries and a second period during which those undertakings participated in the cartel through their respective joint ventures, J-Power Systems, the applicant and Exsym. The Commission found that, since the parent companies continued to participate in the cartel through their respective joint ventures, it would be artificial to use a different reference year to establish the value of sales taken into account for the purposes of calculating the amount of the fine for the first period and for the second period. Accepting a different reference year would discriminate between the Japanese undertakings and the other addressees of the contested decision, simply because the Japanese undertakings had decided to form joint ventures (recitals 977 and 978 of the contested decision).

168    Second, the Commission stated, with reference to its observations in the statement of objections, that the sales to be applied for the joint ventures and their parent companies included not only the 2004 sales made by each joint venture to third parties but also the sales of their parent companies to third parties that were retained as reserved customers during the joint venture period. The Commission noted, in that regard, that, during the administrative procedure, Furukawa, Fujikura and the applicant claimed that that approach was contrary to point 13 of the 2006 Guidelines on the method of setting fines, in so far as the sales of Furukawa and Fujikura made after the applicant was formed are not directly or indirectly related to the infringement. The Commission rejected their arguments, noting, in recital 980 of the contested decision, that the sales that, prior to the formation of the joint ventures had been cartelised, had afterwards been shared between the parent companies and the joint ventures according to clear criteria based on types of customers and geographic scope. The Commission added that, under the home territory agreement, all the sales made by the parent companies after the formation of the joint ventures were equally protected by the collusive agreements through the participation of those joint ventures in the cartel.

169    Third, in order to reflect each parent company’s economic strength and weight in the infringement during the period prior to the formation of the joint ventures, the Commission decided to share the sales determined for the joint venture among the parent companies proportionally to the individual sales achieved by each parent company in the full business year prior to the formation of their joint venture (recitals 981 and 982 of the contested decision).

–       The third and fourth pleas in law, alleging infringement of the principle of proportionality and the principle of equal treatment in determining the basic amount of the fine

170    In the context of the third and fourth pleas in law, which must be examined together, the applicant criticises the Commission for having applied the method laid down in point 18 of the 2006 Guidelines on the method of setting fines with a view to determining the amount of sales made in the EEA by the participants in the cartel, an amount which was used as the basis for the calculation of the fines imposed on them by the contested decision.

171    The applicant maintains that the application of that method in the present case cannot correctly reflect the relative weight of the European and Asian producers in the infringement and, consequently, infringes the principle of equal treatment in setting the amount of the fine.

172    Accordingly, first, the applicant maintains that, given the barriers to entry into the EEA market created by European producers in 1962 and maintained ever since, and the weak position in which the Japanese producers found themselves in this regard, its own share of this market remained very small, irrespective of any infringement. The harm caused by the applicant would therefore have been adequately reflected by its share of sales in the EEA. On the other hand, its share of worldwide (excluding the United States) sales, which was far greater than its share of sales in the EEA, even without the infringement, did not properly reflect the harm it caused.

173    Consequently, the applicant considers that its share of sales in the EEA should have been reduced to 5% or less to reflect properly the harm caused by those undertakings that abstained from competing in the EEA.

174    In addition, the applicant disputes the Commission’s argument, put forward in recital 971 of the contested decision, that it could not modify its approach of applying worldwide (excluding the United States) shares because that would, contrary to established case-law, require it to demonstrate the actual effects of the cartel for each of the addressees and/or the actual individual sales that were affected by the cartel. According to the applicant, nothing in the case-law prevents the Commission from taking account of the effects of an infringement if it chooses to do so, and indeed the Commission justified its recourse to the methodology in point 18 of the 2006 Guidelines on the method of setting fines by the need to take the actual effects into account.

175    Second, the applicant maintains that the application by the Commission of the method in point 18 of the 2006 Guidelines on the method of setting fines led to the weight of the European producers in the cartel being undervalued and, consequently, the relative weight of the Asian producers being overvalued.

176    In particular, the applicant submits that the application of that method had the effect, through the use of the worldwide market shares of the participants in the cartel, of allocating to the European producers 56% of the value of sales actually made in the EEA instead of almost all of those sales as would have been the case had the Commission applied the method laid down in point 13 of those guidelines. This led to the fines imposed on the European producers being reduced by approximately 44% compared with those that would have been imposed pursuant to point 13 of the 2006 Guidelines on the method of setting fines, even though the Commission recognised that they had participated in the ‘European cartel configuration’ and the ‘A/R cartel configuration’. At the same time, the application of point 18 of the 2006 Guidelines on the method of setting fines had the effect of allocating to the Asian producers 44% of the value of sales actually made in the EEA and led to a significant increase in their fines compared with those that would have been imposed on them if point 13 of those guidelines had been applied, even though the Commission recognised that they only took part in the ‘A/R cartel configuration’.

177    Consequently, the applicant submits that the Commission should have reduced the values of the sales actually made in the EEA assigned to the Asian producers in an equal proportion to the reduction of the value of sales actually made in the EEA from which the European producers benefited, that is to say 44%.

178    The Commission disputes the applicant’s arguments and contends that the present plea in law should be rejected.

179    In that regard, it must be recalled that point 18 of the 2006 Guidelines on the method of setting fines provides that ‘where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement’ and that ‘this may be the case in particular with worldwide market-sharing arrangements’.

180    First of all, it must be held that, since the applicant participated in a market-sharing agreement designed, inter alia, to reserve access to the EEA for European producers, the Commission was right to find that it would not be appropriate to apply a methodology based on its actual sales in the EEA. As the Commission pointed out, that would amount to not penalising the applicant for its participation in the cartel.

181    Next, in the light of the nature of the infringement in question, a methodology which takes into account the worldwide market shares is appropriate for reflecting the weight of the infringement (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 282).

182    Finally, as the Court has already held in respect of a market-sharing agreement between undertakings competing at a worldwide level, the worldwide market shares give the best adapted representation of the capacity of those undertakings to cause significant damage to other operators in the European market and give an indication of their contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel had they not participated (see, to that effect, judgments of 29 April 2004, Tokai Carbon and Others v Commission, T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01, EU:T:2004:118, paragraph 198, and of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 186).

183    Having regard to the extremely harmful nature of a market-sharing agreement, one of the most serious infringements of Article 101 TFEU, the imposition of sufficiently dissuasive penalties against non-European producers which undertake not to compete with European producers in their territory is justified (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 284).

184    The suitability of the methodology used by the Commission in the present case to calculate the value of the sales made in the EEA attributed to the various participants in the cartel cannot be called into question by the applicant’s arguments.

185    In the first place, the applicant cannot succeed in its contention that, since the Commission had intended to depart from the methodology laid down in point 13 of the 2006 Guidelines on the method of setting fines in order to reflect the appropriate weight of the undertakings in the infringement, it should have focused on the actual effects of the infringement on the EEA market and, accordingly, taken into account the fact that, on account of the barriers to entry to the EEA market, the applicant had a very low market share in the EEA, even in the absence of the ‘home territory’ agreement.

186    Contrary to what the applicant claims, the Commission’s assertion, in recital 971 of the contested decision, that relying solely on each addressee’s individual sales in the EEA ‘would not properly reflect the harm caused by those that abstained from competing in the EEA’ does not mean that it intended to depart from the ordinary application of that method in order to take into account the actual effects of the cartel on the EEA market. On the contrary, the Commission stated in the same recital that it would be artificial to depart from the method laid down in point 18 of the 2006 Guidelines on the method of setting fines to take account of the actual ability to compete or commercial interest in competing for individual projects in the EEA and that furthermore, contrary to the established case-law, that would require the Commission to demonstrate the actual effects of the cartel for each of the addressees ‘and/or’ the individual sales affected by the cartel.

187    Moreover, it must be noted that, in accordance with the case-law, by participating in a market-sharing agreement which was aimed, inter alia, at restricting the access of Japanese producers to the EEA, the applicant itself contributed to circumstances in which its actual sales in the EEA could not be used as a factor reflecting its relative weight in the infringement (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 286).

188    In addition, it must be held that, as the Court has ruled previously, an approach based on the applicant’s worldwide market shares takes into account, even if only in aggregated form, the possible barriers to entry that may exist in the various geographic segments of the worldwide market (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 288). It must be recalled that, as has been set out in paragraph 163 above, in the present case, the Commission used, pursuant to point 18 of the 2006 Guidelines on the method of setting fines, an approach based on the shares of the worldwide market of the undertaking, within the meaning of Article 101(1) TFEU, formed by Furukawa, Fujikura and the applicant.

189    Accordingly, it must be held that, contrary to what the applicant submits, the Commission has sufficiently taken into account the existence of barriers to entry to the EEA market in determining the value of sales.

190    In the second place, as regards the applicant’s contention that, in applying the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines, the Commission underestimated the weight of the European producers in the infringement, it must be held that that argument cannot succeed either.

191    As the applicant explained at the hearing, it does not dispute the Commission’s ability to apply the method laid down in point 18 of the 2006 Guidelines on the method of setting fines in order to reflect the relative weight of the participants in a cartel when, as was the situation in the case giving rise to the judgment of 21 May 2014, Toshiba v Commission (T‑519/09, not published, EU:T:2014:263), the European producers, on the one hand, and the Japanese producers, on the other hand, agreed not to enter each other’s domestic markets. It claims, however, that the application of that method does not correctly reflect the relative weight of the participants in the cartel where, as in the present case, the European producers did not merely abstain from entering the domestic market of the Asian producers, but also divided the market in the EEA among themselves. In the applicant’s view, in such a scenario, the application of point 18 of the 2006 Guidelines on the method of setting fines would lead to the weight of the European producers in the cartel being undervalued and, accordingly, the weight of the Japanese producers being overvalued, which constitutes, in accordance with the position expressed by the court in the judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363) an infringement of the principle of equal treatment in determining the amount of the fine.

192    First, it must be observed that the applicant’s view rests on the premiss that the application of the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines favoured the European producers by reducing the share of the sales actually made in the EEA which were allocated to them pursuant to point 13 of those guidelines. However, this premiss is incorrect since, having regard to the nature of the infringement, which consisted, inter alia, of restricting access by the Japanese producers to the EEA, the share of sales actually made by the European producers in the EEA could not be used as the basis for assessing their weight in the infringement as provided for in point 13 of the 2006 Guidelines on the method of setting fines. Accordingly, the use of the share of the sales actually made by the European producers in the EEA would have led, in the present case, to their weight in the cartel being overvalued and their being penalised in excess of their participation in that cartel. It cannot therefore be held, as the applicant maintains, that the difference between the value of the sales actually made by the European producers in the EEA and that allocated to them pursuant to point 18 of the 2006 Guidelines on the method of setting fines demonstrates an advantage conferred on them by the Commission.

193    Second, it is necessary also to reject the applicant’s argument that the use of the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines, in leading to lower fines being imposed on the European producers than those which would have been imposed on them under point 13 of those guidelines, does not take into account the greater gravity of their conduct. As is apparent from points 13 to 18 of the 2006 Guidelines on the method of setting fines, the determination of the value of sales to be used in calculating the basic amount of the fine does not take into account the gravity of the conduct of the participants in the cartel. As is apparent from paragraphs 19 to 22 of the 2006 Guidelines on the method of setting fines, the gravity of that conduct, as assessed by the Commission, will determine the proportion of the value of sales to be applied for calculating the basic amount of the fine.

194    Accordingly, it must be held that, contrary to what the applicant claims, by applying the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines for the purpose of determining the value of sales to be taken into account in calculating the fine, the Commission did not infringe the principles of proportionality and equal treatment.

195    In the light of the foregoing considerations, the third and fourth pleas in law must be rejected as unfounded.

–       The fifth plea in law, alleging breach of the fundamental principles of personal responsibility and fault and the principle of equal treatment in that the Commission wrongly relied on the sales figures of Fujikura and Furukawa in calculating the applicant’s notional worldwide market share

196    The applicant takes issue with the Commission for taking into account sales made by its parent companies, namely Fujikura and Furukawa, in determining its own worldwide (excluding the United States) market share in 2004.

197    First, the applicant submits that the Commission did not maintain in the contested decision that any sales made by its parent companies after it was formed were linked to the cartel. The absence of any connection between those sales and the cartel is confirmed, moreover, by the fact that the Commission drew a distinction in the contested decision between the period prior to the applicant’s formation, in respect of which the parent companies were held liable for their own participation in the cartel, and the period following the applicant’s formation, in respect of which the Commission found that the parent companies had continued to participate in the cartel through the applicant, and consequently held them ‘jointly and severally’ liable for the applicant’s conduct. Therefore, neither the applicant nor its parent companies should be penalised on account of the sales made by the parent companies (and not by the applicant) after the applicant’s formation.

198    Second, the applicant acknowledges that, in accordance with the case-law on imputing liability for an infringement of Article 101 TFEU to an undertaking, the principle of personal responsibility does not, under certain conditions, preclude the imputation to a parent company of the conduct of its subsidiary or the imposition of a fine on the parent company as a consequence thereof. However, it observes that the case-law does not indicate that the conduct of a parent company may, in the absence of those same conditions, be imputed to its subsidiary. Since the conditions in question are not met in the present case, the sales made by Fujikura and Furukawa in Japan after its formation cannot be attributed to it.

199    Third, the applicant observes that, since the Commission took into account the sales of Fujikura and Furukawa in calculating the fine which it imposed on it, the Commission’s holding the parent companies jointly and severally liable to pay the applicant’s fine entailed holding them liable in respect of sales that they had not made. That too is contrary to the principle of personal responsibility, as the Commission recognised in its Decision of 5 December 2012 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.437 — TV and computer monitor tubes).

200    Fourth, in response to the Commission’s argument, set out in recital 980 of the contested decision, that account had to be taken of these sales because they benefited from protection under the ‘home territory’ agreement through the applicant’s own participation in the cartel, the applicant submits, first, that that protection had effect only with regard to sales in Japan, and the Commission does not have the power to deal with such conduct, and secondly that, since that protection was made possible by the adherence to the ‘home territory’ agreement of all the cartel participants, it would be contrary to the principle of equal treatment to impute such sales to it alone.

201    Fifth, the applicant maintains that the Commission breached its rights of defence in that it did not give it an opportunity during the administrative procedure to make known its views on the conduct of Fujikura and Furukawa in connection with the sales imputed to it, or to examine and confirm the underlying sales figures.

202    The Commission disputes the applicant’s arguments and contends that the fifth plea in law should be rejected.

203    In that regard, it must, first, be pointed out that the applicant’s argument that the Commission did not consider in the contested decision that the sales of high voltage power cables made by Fujikura and Furukawa in Japan after its creation were part of the cartel has no basis in fact. In recital 980 of the contested decision, the Commission stated the following:

‘The sales that prior to the formation of the joint ventures had been cartelised were afterwards shared between the parent companies and the joint ventures according to clear criteria based on types or customers and geographic scope. Through the application of the home territory principle, all the sales made by the parent companies after the formation of the joint ventures were equally protected by the cartel arrangements through the participation of their joint ventures in the cartel. As a consequence, the sales were directly related to the infringement and must therefore be considered as cartelised sales for each undertaking comprising the joint venture and its parent company for the purposes of calculating the fine to be imposed on those undertakings.’

204    Second, it must be borne in mind that, in accordance with the case-law, where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies in fact exercised decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU (judgments of 26 September 2013, Dow Chemical v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 58; of 27 September 2006, Avebe v Commission, T‑314/01, EU:T:2006:266, paragraphs 137 and 138; and of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 45).

205    In the present case, the Commission having found that Fujikura and Furukawa in fact had exercised a decisive influence on the applicant’s conduct on the market, without that finding being contested by the applicant, those three companies could be regarded as part of an economic unit forming a single undertaking, for the purpose of finding that they were liable for participation in an infringement of Article 101 TFEU. It is on that basis that the Commission held Furukawa, Fujikura and the applicant ‘jointly and severally’ liable for the fine imposed on the latter.

206    In such a situation, it cannot be held that, as a matter of principle, the Commission was not entitled to take into account sales made by Furukawa and Fujikura in order to calculate the value of the hypothetical sales made by the applicant in the EEA under point 18 of the 2006 Guidelines on the method of setting fines.

207    It must be noted that point 6 of the 2006 Guidelines on the method of setting fines states that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’. In accordance with point 13 of those guidelines, the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates must be taken into account.

208    It is true that, in general, the Commission takes into account only sales made by the joint venture for the purposes of calculating the fine ultimately imposed ‘jointly and severally’ on the parent companies, provided that it is shown that they have exercised a decisive influence on their subsidiary.

209    However, in the present case, Furukawa and Fujikura did not transfer all the activities covered by the cartel to their subsidiary, but also retained some of those activities themselves.

210    The Commission found that the applicant had been incorporated on the basis of a joint venture agreement concluded in 2001 (‘the 2001 JVA’), amended in 2004 by a new agreement (‘the 2004 JVA’), which took effect on 1 January 2005. According to the 2001 JVA, the applicant acted as a foreign sales agent for its parent companies and not as a company with an independent market presence. The 2004 JVA, which took effect on 1 January 2005, expanded the scope of the applicant’s activities to include the manufacture and sale of cables to all customers of the parent companies with the exception of Japanese domestic companies other than the national electricity companies, which were retained by the parent companies (recital 828 of the contested decision). The Commission also indicated that although the 2004 JVA had weakened the relationship between the applicant and its parent companies, the latter companies did not cease to exercise a decisive influence over the former (recital 850 of the contested decision).

211    The Commission stated that, during the period from 1 October 2001 to 31 December 2004, the applicant was a foreign sales agent for its parent companies. It follows from recital 825 of the contested decision, which is not disputed by the applicant, that, during that period, Fujikura and Furukawa transferred to the applicant their respective sales of submarine and underground power cables outside Japan to non-Japanese undertakings. The manufacturing facilities and the sales activities in Japan, including in respect of Japanese companies outside Japan, were retained by the parent companies. It follows from recital 828 of the contested decision that, following the changes introduced by the 2004 JVA, as from 1 January 2005, the applicant’s activities included the manufacture and sale of cables to all customers of its parent companies with the exception of Japanese domestic companies other than the national electricity companies, which were retained by the parent companies.

212    Thus, the sales made by Furukawa and Fujikura to their reserved customers covered, first, during the period in which the 2001 JVA was valid, sales to Japanese companies both in and outside Japan, and, second, during the period in which the 2004 JVA was valid, sales to Japanese domestic companies other than the national electricity companies. In addition, those sales indeed concerned high and extra high voltage submarine and underground power cables manufactured initially by Furukawa and Fujikura then by the applicant itself. Accordingly, during the period of activity of the joint venture, sales were shared between the parent companies and the joint venture according to clear criteria based on types or customers and geographic scope (recital 980 of the contested decision).

213    In accordance with the case-law, the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement. Accordingly, the Commission was entitled to take into account the sales of the parent companies because they had been made in a market affected by the cartel (judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraphs 55 and 56) and were moreover the sales of an undertaking to which the applicant belonged (see, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 149 and 150).

214    Third, the applicant’s argument that the sales made in Japan do not fall within the territorial scope of Article 101 TFEU must be rejected. As the Commission observed, the value of sales in Japan was taken into consideration not only in order to determine the share of sales of each undertaking concerned on a worldwide level, with the exception of the United States. The only sales on whose basis the fines were imposed are those made in the EEA, redistributed according to those shares of worldwide sales.

215    Fourth, it is also necessary to reject the applicant’s argument that since the protection of the sales made by Fujukura and Furukawa in Japan had been made possible by the participation of the other Japanese undertakings in the cartel, the sales in question should also, if the principle of equal treatment was not to be infringed, have been attributed to them. The applicant fails to take into account the fact that the Commission calculated the value of sales for the two other Japanese joint ventures, namely Exsym and J-Power Systems, in the same way, with the result that the sales made by its parent companies in Japan were attributed to each Japanese joint venture.

216    Fifth, the applicant’s claims that it was not capable of examining or confirming the conduct of its parent companies in relation to the sales attributed to it and could not examine or confirm the data relating to those sales on which Furukawa and Fujikura relied in communicating their turnovers to the Commission must also be rejected. It is apparent from the case file that on 25 October 2013, the Commission allowed the applicant to consult the turnover figures for the applicant’s parent companies which it held, that is to say those provided by Furukawa and Fujikura in reply to the Commission’s request for information of 17 May 2013.

217    Sixth, it must be noted that, contrary to what the applicant claims, the inclusion in the cartel of the sales of high voltage power cables produced by Fujikura and Furukawa in Japan after its creation does not contradict the Commission’s finding in recitals 817, 977 and 978 of the contested decision that, during that period, Fujikura and Furukawa participated indirectly in the cartel through their joint venture. As was held in paragraph 51 above, in the contested decision, the Commission found that Fujikura and Furukawa had transferred to the applicant, from the start of its operation, certain activities covered by the cartel, which they themselves carried out up to that time and that they exercised a decisive influence over the applicant in relation to those activities. It cannot be inferred that, from the time of the applicant’s creation, the activities previously considered to have been covered by the cartel, but which were not transferred to it by Fujikura and Furukawa, namely the sales made in Japan, were no longer ipso facto covered by the cartel. It is precisely because the applicant, to which the power cable sales activities outside Japan had been transferred and over which Fujikura and Furukawa exercised a decisive influence, observed the ‘home territory’ agreement that Fujikura and Furukawa benefited from that agreement for the sales it made in Japan. It is in that sense that the Commission found that Fujikura and Furukawa had continued to participate indirectly in the cartel as from the date of the applicant’s creation. Furthermore, it must be recalled that, in accordance with the case-law, a legal person who is not the perpetrator of an infringement of the competition rules may nevertheless be penalised for the unlawful conduct of another legal person, if both those persons form part of the same economic entity and thus constitute the undertaking that infringed Article 101 TFEU (judgment of 17 September 2015, Total v Commission, C‑597/13 P, EU:C:2015:613, paragraph 34).

218    In the light of the foregoing considerations, the fifth plea in law of the action must be rejected as unfounded.

–       The sixth plea in law, alleging an error on the Commission’s part in its assessment of the gravity of the infringement, inasmuch as it concluded, without relevant evidence, that the combined market share in the EEA of the addressees of the contested decision justified an increase of 2% in the proportion of the value of sales to be taken into account

219    The applicant argues, in substance, that there is no evidence to support the Commission’s justification for the increase of 2% in the proportion of the value of sales taken into account in the calculation of the fines, namely that the addressees of the contested decision made up almost all of the EEA market for high voltage underwater and underground power cables.

220    The applicant maintains that the Commission indicated in the contested decision that, although the undertakings that participated in the cartel had been unable to provide reliable and coherent information estimating their share of the EEA market for the products in question, there were other indicators that could provide useful information in this regard. However, according to the applicant, while only a few of the undertakings had provided information on their market shares, ABB had nevertheless provided estimates which showed that the addressees of the contested decision together held a combined share of less than 50% of the market in the EEA. However, the Commission failed to explain why it was unable to take that estimate into account. The applicant also complains that the Commission failed to use its own powers of investigation to determine the market shares of the cartel participants, since it supposedly lacked reliable and coherent information.

221    The applicant also disputes that the factors to which the Commission referred in the contested decision make it possible to establish that the combined market share of the undertakings that participated in the cartel covers almost all of the EEA market for the products in question.

222    The Commission disputes the applicant’s arguments and contends that the present plea in law should be rejected.

223    First, as regards the argument that the Commission overlooked the market share estimates provided by ABB, it must be held that it is apparent from reading the request for information sent to ABB by the Commission on 29 November 2010, and ABB’s reply to that request for information, that the figures referred to by ABB in that reply refer to the products specified in the request for information, namely underground power cables with a voltage of 33kV and above and submarine power cables with a voltage of 1 kV or more. Since the Commission ultimately defined the scope of the cartel in the contested decision as covering underground power cables with a voltage of 110 kV and above and submarine power cables with a voltage of 33 kV and above, it must be held that the figures provided by ABB were irrelevant. Accordingly, the Commission cannot be criticised for having found that the estimates provided by ABB could not be regarded as sufficiently reliable data with regard to the products described in the contested decision.

224    Second, as regards the applicant’s complaint relating to the fact that the Commission failed to use its powers of investigation to determine the market share in the EEA of the various addressees of the contested decision, it suffices to note that, in accordance with point 22 of the 2006 Guidelines on the method of setting fines, the Commission may take into account, in assessing the gravity of the infringement, the ‘combined market share’ of all the parties concerned. Contrary to what the applicant suggests, determining that combined market share does not require precise knowledge of the market share of each of the parties concerned. The size of the combined market share of the parties concerned may also be inferred from the absence of other known competitors on the market. Accordingly, since the Commission had found that the parties concerned represented virtually all of the producers on the high voltage submarine and underground power cable market in the EEA, it was justified in assuming that they held a very extensive market share. It is, moreover, noteworthy in that regard that, while the applicant claims that the Commission has failed to establish that the parties concerned represented almost all of the market, it is not capable of referring to a single producer which did not participate in the cartel and whose presence on the market limited the market share of the participants concerned. In that regard, the applicant cannot rely on the allocation of the burden of proof or a poor understanding of the market as it claims. Since the Commission properly explained (recital 1003 of the contested decision) the reasons why it considered that the parties concerned represented almost all of the market, it is for the applicant, when challenging the merits of that explanation, to prove its own claims. In that regard, as the Commission states, it has been established that the applicant attended A/R meetings during which the overall state of the market was discussed, as evidenced by the notes from the meeting of 3 December 2007 which start with a section entitled ‘General matters’ and that it knew the EEA market sufficiently well to create a joint venture with Nexans France in 2006 (recitals 402 and 403 of the contested decision).

225    Third, as regards the applicant’s claim that the Commission was not entitled to base the assumption that the addressees of the contested decision represented almost all of the market in the EEA on the findings set out in recital 1003 of the contested decision, it must be held that that argument cannot succeed.

226    It follows from recital 1003 of the contested decision that the Commission based the assumption in question on the assertion that the addressees of that decision were the main suppliers in the high voltage submarine and underground power cable sector in the EEA, or the only supplier for some of the products covered by that decision, and on the assertion that they considered themselves and were considered to be such. The applicant submits that the documents referred to in footnotes 38 and 39 under recital 35 of the contested decision, to which recital 1003 refers, do not support the first assertion and that the second assertion is irrelevant for the purpose of assessing the combined market share of the addressees of that decision.

227    First, while it must be held that the fact that the addressees of the contested decision regard themselves as the European and worldwide leaders in the high voltage submarine and underground power cable sector and are regarded as such cannot, in itself, prove the extent of their market share, it must be noted that it constitutes a factor that may be taken into account in the context of an overall assessment of the criteria of the combined market share in the EEA, referred to in point 22 of the 2006 Guidelines on the method of setting fines.

228    Second, contrary to what the applicant claims, it must be held that the report drawn up for the Commission by the consulting firm Laboratorio di economia, antitrust, regolamentazione (LEAR, Laboratory for economics, competition and regulation), to report on the situation concerning the high voltage power cable market after the merger between Pirelli and BICC in 1999, referred to in the footnotes to recital 35 of the contested decision, proves the assertion that the addressees of that decision are the main suppliers in the high voltage submarine and underground power cable sector in the EEA. It is therefore apparent from page 107 of that report that, from 1999 to 2003, two of the addressees of the contested decision, Pirelli and Nexans France had a two-thirds share of the high voltage electric cable market in the European Union. It is also apparent from pages 107 and 108 of that report that, during the same period, in Italy, Germany and the United Kingdom, three or four of the addressees of the contested decision each held 70%, 60% and 95% of the combined market shares. The fact that the figures used in drawing up that report come from Prysmian Cavi e Sistemi Energia serves, furthermore, to demonstrate that the contention that the addressees of the contested decision regarded themselves as the main producers of high voltage power cables is well founded.

229    Moreover, it must be held that the applicant does not dispute the probative nature of the other documents referred to by the Commission, inter alia in footnotes 37 and 40 of the contested decision, to show that the addressees of that decision were the main producers of high voltage submarine and underground power cables in the world. The applicant merely claims that the report of the banking group Crédit Suisse of 12 September 2013 and the annual report of Prysmian Cavi e Sistemi Energia of 2008 were not part of the Commission’s file and that it was not therefore entitled to express a view with regard to them. However, it must be noted that, since that information is available on the internet at the address indicated by the Commission in the contested decision, the applicant has had the opportunity since that decision was adopted to be aware of that information. It must be held that the applicant has not formulated any specific objection with regard to that information. Moreover, in so far as the applicant wishes to claim infringement of its rights of the defence, it must be noted that, in accordance with the case-law, that is not capable of entailing the annulment of the contested decision, in so far as the applicant has not explained how the lack of such an infringement would have led the Commission not to have adopted that decision or to modify the content (judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 294 and 295).

230    In the light of the foregoing considerations, the sixth plea in law of the action must be rejected as unfounded.

–       The seventh plea in law, alleging breach of the principle of personal responsibility and the principle of equal treatment in that the Commission wrongly concluded that the applicant was part of the core group of the cartel and consequently refused to grant it a reduction of its fine in accordance with point 29 of the 2006 Guidelines on the method of setting fines

231    In the first place, the applicant maintains that it did not meet the criteria established by the Commission in recital 545 of the contested decision for classification among the addressees belonging to the core group of the cartel, and that it should consequently have received a reduction in its fine in accordance with point 29 of the 2006 Guidelines on the method of setting fines.

232    In particular, first, the applicant argues that it was not involved in the establishment of the cartel and that the principle of personal responsibility precludes the Commission imputing to it the conduct of its parent companies. Indeed the Commission did not do that for another cartel participant, namely Silec Cable. The Commission’s assertion that it enabled its parent companies to continue their collusive conduct after its formation is not only unfounded, but also irrelevant to the question of its involvement in the establishment of the cartel.

233    Secondly, the applicant claims that it was no more than a mere participant in the cartel. Thus, there is no evidence that it played the role of coordinator on the side of the A members of the cartel. It did not monitor compliance with any agreements, did not actively implement the ‘home territory’ agreement or contribute to any agreements concluded in the context of the cartel as the Commission maintains. On the contrary, it played a disruptive role in their application.

234    In the second place, the applicant argues that, since it was in fact in the same situation as Exsym, in accordance with the principle of equal treatment, it should have received a 5% reduction in the amount of the fine, like that company.

235    The Commission disputes the applicant’s arguments and contends that the present plea in law should be rejected.

236    In that regard, it should be noted that, in recital 545 of the contested decision, the Commission justified the composition of the core group of the cartel as follows:

‘Nexans, Pirelli/Prysmian, Sumitomo, Hitachi, and [J-Power Systems], Furukawa, Fujikura and Viscas were involved in almost all of the cartel activities described in recital 493. They (or their predecessors) took part in the negotiations leading up to the cartel and they were involved from the beginning of the cartel. In addition, representatives of these participants were involved in most of the communications and meetings of the cartel despite the existence of coordinators on each side. Through their presence in the A/R meetings, all core group participants were able to set out the parameters of the cartel. With the exception of [J-Power Systems], all participants also remained active in the cartel right to the end. Because of their key involvement in the establishment and implementation of the home territory principle and (for Nexans and Pirelli/Prysmian) their role in the European cartel configuration, these parties are considered as the core group.’

237    In recitals 560 and 561 of the contested decision, the Commission described, more particularly, the applicant’s situation in that regard. It thus stated that ‘[the applicant’s] employees [had] attended a large number of bilateral and multilateral meetings with European and Asian competitors between October 2001 and January 2009’ and that they were ‘deeply involved in the other anticompetitive contacts’, referring to several examples cited in the contested decision. The Commission also noted that ‘evidence shows that the anticompetitive meetings and other contacts between [the applicant] and the other parties concerned both [underground] and [submarine] power cables’ and that ‘in the course of those contacts, [the applicant] not only actively respected the European home territory ... but was also involved in the allocation of projects in the export territories concerning both [underground] and [submarine] power cables’, also referring to several examples cited in the contested decision.

238    In the context of the application of point 29 of the 2006 Guidelines on the method of setting fines, the Commission decided to take into account, as mitigating circumstances, the substantially limited role played by certain participants in the cartel which did not belong to the core group. It accordingly granted a reduction of 5% of the amount of the fine to the participants which did not belong to the core group but who could not at the same time be classified as fringe players, and a reduction of 10% to fringe players with regard to the cartel. In addition, the Commission granted an additional reduction of 1% to Mitsubishi Cable Industries and to SWCC Showa Holdings for the period preceding the creation of Exsym, and to LS Cable & System and Taihan Electric Wire for their lack of awareness of and liability for certain aspects of the infringement (recitals 1026 to 1033 of the contested decision).

239    First, as regards the applicant’s argument that the Commission incorrectly classified it in the core group of the cartel, it must be recalled that Furukawa and Fujikura in fact took part in the negotiations which led to the cartel in question, whose starting point has been set at 18 February 1999, and that, as was found in the context of examining the first plea in law, they continued to participate in the cartel, from the time of its creation, through the applicant with which they formed an economic unit for the purposes of Article 101 TFEU. It follows that the Commission did not err in considering that the applicant’s predecessors took part in the negotiations which led to the cartel. That finding is without prejudice to the question whether such a criterion allowed, in itself, the most active cartel participants to be identified.

240    In so far as the applicant’s arguments must be interpreted as concerning the merits of such a criterion, in the light of the principle of personal responsibility, it must be held that that criterion does not seek to impute to the subsidiary company, in this case the applicant, the conduct of one or both of its parent companies, in this case Furukawa and Fujikura, before its creation, but merely to take into account a difference in the objective situation between the cartel participants which had no link to the creation of the cartel and those whose predecessors founded the cartel in question.

241    Next, it must be held that the Commission did not base the applicant’s belonging to the core group of the cartel on the finding that it acted as coordinator of the side of the A members of the cartel or that it monitored the implementation of the cartel. Consequently, there is no need to rule on the numerous arguments set out by the parties in their pleadings in that regard, in particular, concerning evidence of the role of coordinator played by the applicant.

242    In addition, the Court rejects the applicant’s general claims that it did not actively respect the European ‘home territory’. Recital 561 of the contested decision refers to numerous examples with regard to which the applicant has not formulated specific objections.

243    Finally, the applicant’s claims that its participation in the cartel was substantially reduced since it played a disruptive role must also be rejected.

244    The applicant refers here to a certain number of factual claims made in the introduction to its application. The applicant claims that on numerous occasions, between 2005 and 2008, it had refused to allocate projects or customers and had, thus, ‘disrupted’ the efforts of other members of the cartel to allocate projects. In reality, as the Commission maintains in the defence, the examples referred to by the applicant seem to concern situations in which it appeared reluctant to participate in discussions on account of fear that the cartel would be discovered and not because it opposed it in principle. The situations invoked by the applicant indeed show tension between the members but do not demonstrate that the applicant refused to participate in the cartel. Furthermore, the examples given by the applicant practically all relate to the allocation of individual projects in the ‘export territories’. As regards the agreements as a whole, the applicant continued to participate in the cartel during that period with full knowledge, as shown by several passages of the contested decision which the applicant did not call into question.

245    Accordingly, on 20 October 2005, the applicant held a dinner for the other cartel members, during which it suggested re-establishing the previous level of cooperation (recital 369 of the contested decision). On 13 January 2006, the applicant was represented at an A/R meeting, which shows, as the Commission stressed, that it had overcome any reticence, as expressed in 2005, to meet the other cartel members (recital 374 of the contested decision). The applicant took part in another A/R meeting on 27 April 2006 (recital 394 of the contested decision). On 6 July 2006, representatives of the applicant met employees of J-Power Systems, Nexans France and Prysmian Cavi e Sistemi Energia (recital 398 of the contested decision). On 25 July 2006, one of the applicant’s employees, Mr T., announced that his colleague, Mr Y. I. would represent the applicant in future in ‘the scheme’ (recital 401 of the contested decision). The applicant was represented in another meeting, on 6 October 2006, in which J-Power Systems declared that it would not take part in any future meetings (recital 410 of the contested decision). On 9 May 2007, one of the applicant’s employees, Mr C., referred to the growing difficulty in reaching an agreement on projects concerning underground power cables in the ‘export territories’, adding that the focus from that point on would be the allocation of projects concerning submarine power cables (recital 421 of the contested decision). On 2 August 2007, Mr C. confirmed to an employee of Nexans France, Mr J., that no-one had bid for a wind-farm project in Germany (recital 428 of the contested decision). On 3 December 2007, Mr Y. I. and Mr C. had further contact with Mr J. who noted that J-Power Systems was causing difficulties, without making a similar comment about the applicant (recital 434 of the contested decision). On 9 and 10 April 2008, representatives of the applicant met representatives of Nexans France in the context of a series of bilateral meetings between Nexans France and the Japanese producers (recital 438 of the contested decision).

246    Moreover, the applicant does not dispute that its representatives, like those of all the members of the core group, were involved in most of the cartel communications and meetings, despite the existence of the respective coordinators and that they were capable, by attending A/R meetings, of establishing the parameters of the cartel. Furthermore, the applicant does not dispute that it remained active in the cartel until its end.

247    It must therefore be held that the Commission did not err in finding that the applicant met the criteria for belonging to the core group of the cartel.

248    Second, as regards the applicant’s argument that the Commission infringed the principle of equal treatment by not granting it a reduction in the amount of the fine equivalent to that granted to Exsym, when it was in the same situation, it must be noted that, in the light of the finding set out in the paragraphs above, were the Court to find that Exsym’s situation was similar to that of the applicant, it could only find that the Commission erred in finding that Exsym did not belong to the core group of the cartel. However, such a finding would be irrelevant with regard to the lack of a reduction in the amount of the fine granted to the applicant for mitigating circumstances, since the principle of equal treatment does not ground an entitlement to the non-discriminatory application of unlawful treatment (see, to that effect, judgment of 11 September 2002, Pfizer Animal Health v Council, T‑13/99, EU:T:2002:209, paragraph 479).

249    Moreover, it must be held that, although Exsym’s representatives regularly participated in A/R meetings and could, thus, determine the parameters of the cartel (recital 565 of the contested decision), the fact remains that that company was in a different situation from that of the applicant, since, on the one hand, neither it nor its parent companies participated in setting up the cartel, which they were urged to join by the other participants (recital 538 of the contested decision) and, on the other hand, its participation was limited to the high voltage underground power cable sector (recital 565 of the contested decision).

250    In the light of the foregoing considerations, the seventh plea in law must be rejected as unfounded.

251    In the light of the foregoing, it must be held that the applicant has not succeeded in demonstrating the existence of unlawful conduct on the part of the Commission justifying the annulment of the contested decision in so far as it concerns the applicant.

 The claim for reduction of the fine imposed on the applicant

252    It must be noted that the specific plea in law raised by the applicant in support of its claim for reduction of the amount of the fine imposed on it alleges that the fine is disproportionate and that the principle of equal treatment has been infringed with regard to the European producers. It must be held that the arguments put forward in support of that plea in law are the same as those which the applicant has put forward in the context of the third and fourth pleas in law raised in support of the claim for annulment. Since those pleas in law have been rejected, there is no need to examine the eighth plea in law independently or, consequently, to address the claim for reduction of the fine imposed on the applicant.

253    In the light of all the foregoing considerations, the action must be dismissed in its entirety.

 Costs

254    Under Article 134(1) 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 applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. The intervener must bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Viscas Corp. to bear its own costs and to pay those of the European Commission;

3.      Orders Furukawa Electric Co. Ltd to bear its own costs.

Collins Kancheva Barents

Delivered in open court in Luxembourg on 12 July 2018.

E. Coulon A.M. Collins

Registrar President

Table of contents

Background to the dispute

The applicant and the sector concerned

The administrative procedure

The contested decision

The infringement at issue

The applicant’s liability

The fine imposed

Procedure and forms of order sought

Law

The claim for annulment

The pleas in law relating to the finding of infringement

– The first plea in law, alleging an infringement of the principles governing the burden of proof, the principle of equal treatment and the principle of personal responsibility in the Commission’s finding regarding the date on which the applicant’s participation in the cartel began

– The second plea in law, alleging breach of the principles governing the burden of proof and the principle of equal treatment in the Commission’s finding of the date on which the applicant’s participation in the cartel ended

The pleas in law relating to the amount of the fine

Preliminary observations

– The third and fourth pleas in law, alleging infringement of the principle of proportionality and the principle of equal treatment in determining the basic amount of the fine

– The fifth plea in law, alleging breach of the fundamental principles of personal responsibility and fault and the principle of equal treatment in that the Commission wrongly relied on the sales figures of Fujikura and Furukawa in calculating the applicant’s notional worldwide market share

– The sixth plea in law, alleging an error on the Commission’s part in its assessment of the gravity of the infringement, inasmuch as it concluded, without relevant evidence, that the combined market share in the EEA of the addressees of the contested decision justified an increase of 2% in the proportion of the value of sales to be taken into account

– The seventh plea in law, alleging breach of the principle of personal responsibility and the principle of equal treatment in that the Commission wrongly concluded that the applicant was part of the core group of the cartel and consequently refused to grant it a reduction of its fine in accordance with point 29 of the 2006 Guidelines on the method of setting fines

The claim for reduction of the fine imposed on the applicant

Costs

* Language of the case: English.