JUDGMENT OF THE GENERAL COURT (Third Chamber)

27 June 2012 (*)

(Competition – Agreements, decisions and concerted practices – Markets for zip fasteners and ‘other fasteners’, and for attaching machines – Decision finding an infringement of Article 81 EC – Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information – Single and continuous infringement – Evidence – Nature and implementation of the infringement – Real impact – Leniency Notice – Fines – Upper limit – Dissuasive effect of the fine – Equal treatment – Proportionality)

In Case T‑448/07,

YKK Corp., established in Tokyo (Japan),

YKK Holding Europe BV, established in Sneek (Netherlands),

YKK Stocko Fasteners GmbH, established in Wuppertal (Germany),

represented initially by H. Kaneko and C. Verannemann, lawyers, and subsequently by H. Kaneko, G. Williamson, Solicitor, and N. Green QC,

applicants,

v

European Commission, represented by A. Bouquet and K. Mojzesowicz, acting as Agents,

defendant,

APPLICATION for, primarily, annulment of Commission Decision C (2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 – PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicants and, in the alternative, annulment or reduction of their respective fines,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 5 July 2011,

gives the following

Judgment

 Background to the dispute

1        The first applicant, YKK Corp., is a Japanese company. It is a global leader in the market for zip fasteners, but also operates in the ‘other fasteners’ sector.

2        The second applicant, YKK Holding Europe BV (‘YKK Holding’) is an undertaking established in the Netherlands. It has 24 subsidiaries, including YKK Stocko Fasteners GmbH. YKK Holding is a wholly-owned subsidiary of YKK Corp. Its subsidiaries manufacture buttons and fasteners. It is not active in the manufacturing, selling or distributing of any of those products, and is a purely financial holding company.

3        The third applicant, YKK Stocko Fasteners GmbH, formerly Stocko Fasteners GmbH and Stocko Verschlußtechnik GmbH & Co. KG, is a German company based in Wuppertal. It was created in 1901 and registered as YKK Stocko Fasteners in September 1995, when YKK Holding purchased 76% of its shares, before acquiring 100% ownership in March 1997.

4        The fastener manufacturing sector can be divided into two main categories: (i) zip fasteners; and (ii) ‘other fasteners’, consisting of different types of press buttons/snap buttons/press fasteners, clamp fasteners, hooks, eyelets, jeans buttons, rivets and accessories in metal and plastic for the leather and garments industries.

5        On 7 and 8 November 2001 the Commission of the European Communities (now the European Commission) carried out investigations pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] EC and [82] EC (OJ English Special Edition 1952 1962, p. 87) at the premises of several Community producers of hard haberdashery, other haberdashery and thread (including Entaco Ltd, Coats plc and William Prym GmbH & Co. KG), and also at the premises of the Fachverband Verbindungs- und Befestigungstechnik (‘VBT’).

6        On 26 November 2001 the Prym and Coats groups, relying on the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), applied for leniency in relation to the zip fastener sector.

7        By letter of 22 February 2002 Coats supplied certain information to the Commission.

8        On 8 August 2003 Stocko (now YKK Stocko Fasteners), relying on the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (‘the 2002 Leniency Notice’), applied for leniency in relation to ‘other fasteners’.

9        The Commission subsequently sent several requests for information under Article 11 of Regulation No 17 to a number of parties concerned.

10      On 16 September 2004 the Commission addressed a statement of objections (‘the statement of objections’) concerning ‘other fasteners’, attaching machines and zip fasteners to Prym Fashion, William Prym, Éclair Prym, Fiocchi Prym, Fiocchi Snaps France, YKK Stocko Fasteners, YKK Holding, YKK Corp., Coats, A. Raymond, Berning & Söhne, Berning France, Scovill Fasteners Europe (formerly Unifast), Scovill Fasteners and VBT.

11      Those undertakings and the association in question had access to the Commission’s investigation file in the form of a CD-ROM copy, which was sent to them on 1 October 2004.

12      On 12 November 2004 the Prym group, relying on the 2002 Leniency Notice, submitted an application for immunity or, in the alternative, a reduction in the amount of the fines relating to ‘other fasteners’.

13      By fax of 18 November 2004 the Prym group submitted a supplement to its application. By e-mails of 3, 4 and 11 January 2005 respectively the Prym group sent further information to the Commission. By e-mail of 27 January 2005 the Prym group sent an additional application for leniency pursuant to the 2002 Leniency Notice.

14      On 18 February 2005 the YKK group, relying on the 2002 Leniency Notice, submitted an application for a reduction in the amount of the fines relating to ‘other fasteners’.

15      On 25 February 2005 the YKK group supplemented that application.

16      The evidence provided in support of the applications submitted by the Prym group and the YKK group pursuant to the 2002 Leniency Notice enabled the Commission to send, on 7 March 2006, a supplementary statement of objections (‘the supplementary statement of objections’).

17      That supplementary statement of objections relating to ‘other fasteners’, attaching machines and zip fasteners was addressed to A. Raymond, Berning & Söhne and Berning France, Coats and Coats Deutschland, Éclair Prym, Prym Fashion, Fiocchi Prym, Scovill Fasteners Europe, Scovill Fasteners, William Prym, YKK Corp., YKK Holding, YKK Stocko Fasteners, and VBT. The CD-ROM containing the Commission’s file was sent to the parties on 13 March 2006.

18      The supplementary statement of objections covered the same products as the statement of objections and, where necessary, corrected, refined, consolidated and widened the objections identified therein. In the supplementary statement of objections the Commission did not systematically mention all the infringements defined in the statement of objections, notably when there had been no change in relation to those infringements following the applications made pursuant to the 2002 Leniency Notice.

19      A hearing took place on 11 July 2006.

20      After consulting the Advisory Committee on Restrictive Practices and Monopolies and in the light of the final report of the hearing officer, the Commission adopted on 19 September 2007 Decision C (2007) 4257 final relating to a proceeding pursuant to Article 81 [EC] (Case COMP/39.168 – PO/Hard Haberdashery: Fasteners) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union of 26 February 2009 (OJ 2009 C 47, p. 8).

21      According to Article 1(1) of the contested decision, in respect of the cooperation between the Baseler-Wuppertaler Circle and the Amsterdamer Circle on the ‘other fasteners’ and attaching machines markets (‘Baseler-Wuppertaler and Amsterdamer cooperation’), the following undertakings, amongst others, infringed Article 81 EC, for the periods indicated, by coordinating price increases and by exchanging confidential information on prices and implementing price increases:

–        YKK Corp., from 1 March 1997 to 15 March 2001;

–        YKK Holding, from 1 March 1997 to 15 March 2001;

–        YKK Stocko Fasteners, from 24 May 1991 to 15 March 2001.

22      According to Article 1(2) of the contested decision, in respect of the cooperation between Prym Fashion, on the one hand, and YKK Stocko Fasteners and YKK Corp., on the other, on the markets for ‘other fasteners’ and attaching machines (‘bilateral cooperation between the Prym and YKK groups’), the following undertakings, amongst others, infringed Article 81 EC by agreeing, for the periods indicated, in Europe and world-wide to fix prices, notably minimum, average and target prices, to monitor price increases through the regular exchanges of price lists and frequent bilateral contacts, and to allocate customers by not undercutting each other’s offers to clients:

–        YKK Corp., from 13 August 1999 to 13 January 2003;

–        YKK Holding, from 13 August 1999 to 13 January 2003;

–        YKK Stocko Fasteners, from 13 August 1999 to 13 January 2003.

23      According to Article 1(3) of the operative part of the contested decision, in respect of the cooperation between, first, YKK Holding and YKK Europe Ltd, second, Coats Holdings and Coats Deutschland and, third, Prym Fashion and Éclair Prym Group on the zip fasteners market (‘the tripartite cooperation between the YKK, Coats and Prym groups’), the following undertakings, amongst others, infringed Article 81 EC, for the periods indicated, by discussing prices and price increases, and by agreeing on a methodology to fix minimum prices for standard products on the European market:

–        YKK Corp., from 28 April 1998 to 12 November 1999;

–        YKK Holding, from 28 April 1998 to 12 November 1999.

24      On the basis of the findings of fact and the legal assessments made in the contested decision, the Commission imposed on the undertakings concerned fines calculated pursuant to the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the [CS] Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’) and the 1996 and 2002 Leniency Notices.

25      The fifth indent of Article 2(1) of the contested decision provides for the imposition of the following fine for the Baseler-Wuppertal and Amsterdamer cooperation: YKK Stocko Fasteners: EUR 68 250 000, of which YKK Corp. and YKK Holding are jointly and severally liable for EUR 49 000 000.

26      The first indent of Article 2(3) of the contested decision provides for the imposition of the following fine for the tripartite cooperation between the YKK, Coats and Prym groups: YKK Corp. and YKK Holding are jointly and severally liable for EUR 62 500 000.

27      In Article 4 of the contested decision, the undertakings listed in Article 1 are ordered to immediately bring to an end the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.

28      By Decision C (2011) 2070 final of 31 March 2011, the Commission decided, after evaluating the impact of the fines on the financial situation of one of the companies concerned, other than the applicants, and after examining the claim made by that company that it was not in a position to pay the fine, to reduce in part the initial amount of the fine imposed on it.

 Procedure and forms of order sought by the parties

29      By application lodged at the Registry of the Court on 7 December 2007, the applicants brought the present action.

30      The composition of the Chambers of the Court having been altered, the Judge‑Rapporteur was attached to the Third Chamber, to which this case has therefore been assigned.

31      In the context of measures of organisation of procedure adopted on 17 May 2011, the Court asked the Commission to produce a document. The Commission complied with that request within the prescribed period.

32      Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.

33      By letter lodged at the Court Registry on 24 June 2011, the applicants made certain observations on the report for the hearing which had been sent to them on 17 May 2011.

34      The parties presented oral argument and answered questions put by the Court at the hearing, which took place on 5 July 2011.

35      The applicants claim that the Court should:

–        primarily, annul the contested decision in so far as it concerns them and, consequently, annul the fines imposed on them;

–        in the alternative, annul Article 2 of the contested decision in so far as it concerns them and, at least, annul or reduce the fines imposed on them,

–        order the Commission to pay the costs.

36      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Law

37      Following confirmation by the applicants that the arguments relating to the global dimension of the infringement related to the bilateral cooperation between the Prym and YKK groups do not constitute a plea, the Court is required to examine the merits of only eight pleas in law.

38      First, the Court will examine the pleas relating to the tripartite cooperation between the YKK, Coats and Prym groups, alleging, in essence:

–        an absence of evidence of the existence of the infringement,

–        an erroneous assessment of the nature and implementation of the infringement;

–        an erroneous assessment of the real impact of the infringement;

–        an incorrect application of the Leniency Notices.

39      Second, the Court will examine the pleas relating to the Baseler-Wuppertaler and Amsterdamer cooperation, alleging:

–        an incorrect application of the limitation of the fine for the period preceding the acquisition of YKK Stocko Fasteners;

–        an incorrect application of the multiplier for the period preceding the acquisition of YKK Stocko Fasteners

40      Third, the Court will examine the plea common to all the infringements related to the tripartite cooperation between the YKK, Coats and Prym groups and the Baseler-Wuppertaler and Amsterdamer cooperation, alleging an infringement of the principles of equal treatment and proportionality in relation to the application of the multiplier of 1.25.

41      Before examining the eight pleas, it is none the less necessary to rule on the application for measures of inquiry.

A –  The application for measures of inquiry

42      In the application, the applicants request the Court to examine Mr B., to determine whether, as a representative of the applicants, he openly distanced himself, on their behalf, from any discussions on prices or other economic information at the zip fastener meeting of 12 November 1999 and ensured that only non-sensitive issues were discussed.

43      The Court notes that, according to the final subparagraph of Article 68(1) of the Rules of Procedure of the General Court, an application by a party for the examination of a witness is to state precisely about what facts and for what reasons the witness should be examined.

44      It is for the Court to assess whether it is necessary to supplement the information on cases at its disposal and the relevance of the application to the subject-matter of the dispute and the need to examine the witness or witnesses named (see, to that effect, the judgment of 7 July 2010 in Case T‑44/06 Commission v Hellenic Ventures and Others, not published in the ECR, paragraph 117 and the case‑law cited).

45      In the present case, in the light of the documents in the file and the purpose of the action, it is not indispensable to examine the witness named for the Court to be able to give judgment in the present case. Consequently, the application for measures of inquiry must be rejected.

B –  The pleas relating to the tripartite cooperation between the YKK, Coats and Prym groups

46      In the context of the examination of the pleas relating to the tripartite cooperation between the YKK, Coats and Prym groups, the issue of the existence of the alleged infringement will first be addressed, then, the characterisation of the alleged infringement as ‘very serious’ and, finally, the issue of the application of the Leniency Notices.

1.     The plea alleging an absence of evidence of the existence of the infringement

47      This plea can be broken down into four parts. The first part concerns the reliability of the applications of the Coats and Prym groups pursuant to the 1996 Leniency Notice. The second and third parts concern the absence of an agreement on minimum prices and/or of a concerted practice. The fourth part relates to public distancing.

48      It should be noted, in that regard, that so far as concerns proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of facts constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 86). Any doubt of the Court must benefit the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 215).

a)     The first part, concerning the reliability and, consequently, the probative value of the applications of the Coats and Prym groups pursuant to the 1996 Leniency Notice.

 Arguments of the parties

49      The applicants claim that the Commission has not shown that there had been an agreement or a concerted practice on minimum prices by relying on the applications of the Coats and Prym groups pursuant to the 1996 Leniency Notice. The applicants maintain that those statements are unreliable and therefore have no probative value that would enable the Commission to conclude that there had been an infringement with respect to the five meetings.

50      At the hearing, the applicants also referred, in that regard, to the Commission’s duty to use its powers to take statements, in accordance with Article 19 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), to obtain more information from Mr G. (Coats) and Mr P. (Prym). They submit that, had that additional information been obtained, the Commission’s claims would probably have been refuted.

51      The Commission contests all the complaints put forward by the applicants.

 Findings of the Court

52      It should be noted that the mere fact that the information was provided by the undertakings which applied for leniency pursuant to the 1996 Leniency Notice does not call its probative value into question.

53      In addition, according to settled case‑law, no provision or general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings concerned. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (see Joined Cases T-67/00, T‑68/00, T-71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 192 and the case‑law cited).

54      Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. None the less, in view of the logic inherent in the procedure provided for in the Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction in the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70, and the judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 58).

55      In particular, it must be concluded that where a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (JFE Engineering and Others v Commission, paragraph 53 above, paragraphs 211 and 212; Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 166; and Lafarge v Commission, paragraph 54 above, paragraph 59).

56      None the less, statements made by the incriminated undertakings in the context of an application pursuant to the 1996 Leniency Notice must be assessed with caution and, in general, cannot be regarded as particularly reliable evidence if they have not been corroborated by other evidence.

57      According to settled case‑law, the statement of an undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (JFE Engineering and Others v Commission, paragraph 53 above, paragraph 219; Groupe Danone v Commission, paragraph 48 above, paragraph 285; Bolloré and Others v Commission, paragraph 55 above, paragraph 167; and Lafarge v Commission, paragraph 54 above, paragraph 293; see also, to that effect, Case T‑337/94 Enso‑Gutzeit v Commission [1998] ECR II‑1571, paragraph 91).

58      In order to examine the probative value of statements of undertakings which have made an application pursuant to the 1996 Leniency Notice, the Court takes into account inter alia (i) the weight of consistent indicia supporting those statements and (ii) the absence of indicia that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings (see, to that effect, Peróxidos Orgánicos v Commission, paragraph 54 above, paragraph 70, and Lafarge v Commission, paragraph 54 above, paragraphs 62 and 295).

59      In the present case, it is apparent from recitals 191 to 209 of the contested decision that the Commission did not rely solely on the application made by Coats and Prym pursuant to the 1996 Leniency Notice. On the contrary, it based its decision to a large extent on the documents found during the investigations which it carried out or which were provided by other undertakings. Those documents constitute evidence produced at the time at which events unfolded and which, therefore, are of significant probative value, in so far as such evidence is, in principle, more reliable than evidence drafted at a later date. Moreover, the Commission also based its decision on the applicants’ responses to the statement of objections.

60      So far as concerns the complaint alleging very close and unlawful cooperation between the Coats and Prym groups (the bilateral cooperation on the markets for ‘other fasteners’ and zip fasteners, the cooperation between Prym, Coats and Entaco on the needles market and Coats’ participation in the cartel on the thread market), it should be noted that the applicants themselves are involved in unlawful cooperation other than the Baseler-Wuppertaler and Amsterdamer cooperation and the bilateral cooperation between the Prym and YKK groups (until 2003), that they waited until February 2005 to apply for leniency pursuant to the Leniency Notice and, as a result, they were in possession of a larger amount of information than the Coats and Prym groups when those groups applied for leniency pursuant to the 2001 Leniency Notice, and that included, in particular, the statement of objections and the Commission’s file which included the leniency applications.

61      In any event, the mere fact that a given undertaking was involved in other infringements does not constitute a ground for excluding it from benefiting from the Leniency Notice, since, if that were not the case, such an undertaking would be strongly discouraged from denouncing other secret cartels in which it participates, which would significantly impair the effectiveness of the Leniency Notice.

62      Next, as regards the applicants’ statement that the simultaneous and coordinated nature of the Prym and Coats groups’ leniency applications undermines their credibility, it should be noted that those applications were made after the Commission’s inspections, during which incriminating evidence regarding the tripartite cooperation between the YKK, Coats and Prym groups was discovered. Therefore, as the Commission rightly submits, there was no risk of jeopardising the surprise effect of the inspection. It is true that the Coats and Prym groups applied for leniency simultaneously. Similarly, the Prym group had informed the Coats group of its intention to apply for leniency and of what it intended to include in its application. However, it is not apparent from the documents in the file that the Coats and Prym groups coordinated their actions in relation to applying for leniency. The information provided in those leniency applications corroborates the evidence discovered during the inspections which were carried out and the evidence furnished by other undertakings.

63      Moreover, it is apparent from recitals 550 to 553 of the contested decision that the Commission evaluated the claims relating to the attempt to coordinate responses to the statement of objections and concluded that it did not have sufficient evidence in that regard. Furthermore, it must be found that the initiative taken by the Prym group as towards the applicants did not bear fruit and must therefore be qualified as an attempt. Therefore, the reliability of the documents provided as part of the leniency applications cannot be called into question.

64      Consequently, the statements of the Prym and Coats groups in their leniency applications, on which the Commission based its findings, are sufficiently substantiated by other evidence. As a result, the applicants’ argument seeking to cast doubt upon their credibility cannot be upheld. The first part must therefore be rejected.

65      In so far as, at the hearing, the applicants sought to broaden the scope of the complaints which they initially raised in relation to that aspect of the contested decision, by referring to a duty on the part of the Commission to use its powers of investigation, they raised a new plea, without basing it on elements of law and fact which came to light during the proceedings. In accordance with the first subparagraph of Article 48(2) of the Rules of Procedure, such a plea must be rejected as inadmissible.

b)     The second and third parts, concerning the absence of an agreement on minimum prices and/or of a concerted practice

 Arguments of the parties

66      In the context of the second part of the present plea, the applicants claim that they did not reach an agreement on minimum prices. They observe that the Commission takes issue with them for having participated in discussions with the representatives of the other two undertakings which were held so that each of the undertakings would harmonise its own pricing practices in the European Union in the future. They further maintain that those discussions were linked with the introduction of the single currency, which would have the effect that the prices applied by the same undertaking in different Member States should become transparent for customers. They claim that the Commission did not accuse them of having harmonised their prices or of having fixed minimum prices applicable to the three undertakings represented at the meetings. They assert that the five meetings can be characterised only as preparations or negotiations concerning a potential future agreement that would be entered into only as of the year 2000. The applicants cite passages from the Coats and Prym groups’ leniency applications in order to demonstrate that the discussions were of a preliminary nature and submit that those passages show that the discussions did not come to fruition.

67      Next, the applicants maintain that the Commission has not demonstrated that the negotiations initiated by the applicants in the context of the five meetings constituted agreements within the meaning of Article 81(1) EC, owing to the abundant case-law of the European Union Courts and the Commission’s own practice in previous decisions.

68      Last, the applicants state that the Commission itself has admitted that it did not have sufficient evidence as to the final implementation of the alleged agreement.

69      In the context of the third part of the present plea, the applicants maintain that, even if the facts established by the Commission were correct, the meetings did not correspond to a concerted practice within the meaning of Article 81 EC either.

70      The Commission disputes the applicants’ arguments.

 Findings of the Court

71      According to the case‑law, it is for the Commission to gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement constitutes an agreement or a concerted practice within the meaning of Article 81(1) EC (Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47).

72      In the present case, in the contested decision, the Commission did not comment expressly on the issue whether the conduct imputed to the applicants constituted an agreement or a concerted practice. In recital 325 of the decision, it merely observed that the complex of conducts presented all the characteristics of an agreement and/or concerted practice.

73      Article 81(1) EC prohibits as incompatible with the common market all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.

74      In order for there to be an agreement within the meaning of Article 81(1) EC it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way (Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256, and Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 199).

75      An agreement within the meaning of Article 81(1) EC 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, to that effect, HFB Holding and Others v Commission, paragraph 74 above, paragraphs 151 to 157 and 206).

76      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 (Commission v Anic Partecipazioni, paragraph 48 above, paragraph 115, and Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 158).

77      In this respect, Article 81(1) EC 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 an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition (see, to that effect, Commission v Anic Partecipazioni, paragraph 48 above, paragraphs 116 and 117).

78      The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC (Case T‑148/89 Tréfilunion v Commission [1995] ECR II‑1063, paragraph 82, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 178).

79      According to settled case‑law, the concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (Commission v Anic Partecipazioni, paragraph 48 above, paragraphs 131 and 132, and HFB and Others v Commission, paragraph 74 above, paragraph 190).

80      It is also necessary to take account of the fact that anti‑competitive activities take place clandestinely, and accordingly, in most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 55 to 57).

81      The question whether, in the present case, the Commission established that the alleged infringement constituted an agreement and/or concerted practice within the meaning of Article 81 EC must be examined in the light of those considerations.

82      In the present case, the Court observes, in relation to the five meetings which the applicants do not dispute having attended, namely those of 28 April 1998, 13 January 1999, 2 June 1999, 29 September 1999 and 12 November 1999, that, contrary to what the applicants claim, subjects of an anti‑competitive nature were discussed at those meetings.

–       The meeting of 28 April 1998 (recitals 188 to 190 of the contested decision)

83      In that regard, it is apparent from the leniency application of the YKK group that, during that meeting, the participants discussed prices in Portugal, Finland, Germany and Turkey, for certain types of product, as well as sales in those countries.

84      The applicants provided the Commission with a translation of an internal email, dated 12 May 1998, annexed to their leniency applications, in which Mr N. sets out how the meeting of 28 April 1998 was conducted and its content.

85      The internal email referred to in paragraph 84 above reads as follows:

‘I got the following information from Mr. L and Mr. P on [28 April 1998].

Portugal

YKK is attacking other companies by discounting prices. Could you confirm whether YKK changed the price policy?

…

The German market

We have the target of sales amount 20-23 and 22-24. We will be able to achieve it in autumn. We want to discuss the next target from October, 1998. (Prym and Opti)

[Mr N.’s] answer to the above comment is as follows:

“YKK have wanted to raise the prices to cover the cost of the inflation. We feel it is uncertain to raise the product prices (in Germany) because of the introduction of EURO. After we raise prices for big clients appropriately, we will gradually raise prices for small clients. We need to narrow the price differential between big clients and small clients, and the quantity to be purchased will be taken into account by the pricing policy.”’

–       The meeting of 13 January 1999 (recitals 191 to 195 of the contested decision)

86      In that regard, it is clear from the YKK group’s leniency application that, during that meeting, the participants discussed price differences between various geographical markets and exchanged information on prices charged to individual customers. According to the YKK group, that meeting may be regarded as an ‘extension’ of the three other meetings organised in 1999, which will be examined below, since the same subjects were discussed there, namely the impact of the euro on the business, European regulations regarding the prohibition of nickel, the 85% price differentiation under the euro, and the general development of the European markets.

87      The applicants provided the Commission with a translation of a memorandum, concerning the meeting of 13 January 1999, annexed to their leniency applications. It can be seen from that memorandum that the participants discussed, in addition to general subjects such as the impact of the introduction of the euro, price differences between different national markets under the heading ‘The price information’. In addition, Coats quoted its future prices to be charged to Steilman in Germany: ‘We will increase the amount to 21.59 DM from August 1, 1999’.

–       The meeting of 2 June 1999 (recitals 196 to 200 of the contested decision)

88      In that regard, it is apparent from the leniency applications of Coats, Prym and YKK, and from an email dated 4 June 1999, which was discovered during the inspections carried out at Coats’ premises, that the applicants agreed to harmonise their minimum prices for standard products Europe-wide before the end of 2000, in accordance with a method based on a benchmark price of 85% of the price applied in Germany at the time. However, the applicants claim that the main purpose of that meeting was to organise a face-to-face meeting with Mr I. of YKK [Corp.] and two new directors of Coats, Mr G. and M. Ü. According to the YKK group, they discussed general issues concerning the sector and did not agree to fix prices.

89      In addition, in Coat’s leniency application, the following is stated:

‘I attended the meeting of 2 June 1999 with [Mr Ü.], then Chief Executive Thread Europe on behalf of Coats. Prym was represented by [Mr P.]. YKK was represented by their Chief Operating Officer for zips, [Mr I.], by their German managing director, [Mr. N], and by their European managing director [Mr C.]. The concern expressed by YKK was that there were huge price differences between Member States of the EU and other countries in Europe, North Africa and the Middle East. This was leading to significant levels of parallel imports and price erosion in certain Member States. As recorded in my note …, it was agreed that we should seek to reduce these differences by ensuring that standard products were not priced at less than 85% of a German benchmark price. [Mr N.] agreed to prepare a list of standard prices which could be worked on at the next meeting. He said that it ought to be possible to improve zip prices in Europe in this way. A follow-up meeting was arranged for 29 September for the issues to be examined at technical level.

On 13 August 1999, [Mr P.] telephoned me. He had received the list of standard products from [Mr N.] and faxed it to me. I sent an email to [Mr Ü.] … In fact, what I meant was that we would look at countries where average prices were less than 85% of the German benchmark as agreed at the meeting on 2 June 1999.’

90      Moreover, the email referred to in paragraph 88 above states as follows:

‘Agreed in principle to work towards establishing minimum price levels for standard products … in Europe … by end 2000.

Methodology

Take standard products … as defined by YKK …

Take current German market prices in Euro (plus 5%?).

Set 85% of these benchmark prices as minimum to be achieved.

Define priority markets.

Take appropriate action in markets preferably involving as few people as possible.

…’

91      Furthermore, it is apparent from the email referred to in paragraph 89 above that:

‘[Mr P.] called me today about the planning for our meeting.

He had a constructive meeting today with [Mr N.] on many subjects and received from him the promised list of products covered by our study.

…

Are you happy with the list? …

The methodology which would be followed at the meeting would be for each of us to table our average prices by agreed product for each European market and thereby to agree which markets need to be examined in greater detail i.e. where there is a more than 85% divergence from the benchmark (Germany).

…

How do you wish to proceed with putting together our average prices by market?’

92      Prym’s leniency application confirms that YKK was preparing a list of standard products, which was not supposed to state prices, and also that the list was received by Prym and sent to Coats Opti. At the meeting of 2 June 1999 referred to in paragraph 89 above, Mr I. is said to have pointed out that he feared that, with the introduction of the euro, existing price differences would become more transparent in the various Member States of the European Union, with the result that the prices on markets which are still sufficient would adapt to the levels of the countries with the weaker prices. To avoid that, it would be necessary to envisage an average price equivalent to 85% of the average German price.

93      The applicants admit, in their response of 14 December 2004 to the statement of objections, that Mr I. noted during the meeting that, with the arrival of the euro, YKK was also considering the possibility of harmonising its prices for identical products in the various Member States of the European Union, that the YKK group could set, as a starting point, the current price charged in Germany, and that Mr I. could have referred to the 85% price rate quoted in the press.

94      It is apparent from all of the above that the parties strived to reduce price differences between the Member States of the European Union by ensuring that their standard products were not offered at a price lower than 85% of the German benchmark price, that the YKK group committed itself to preparing a list of standard products, which could be worked on at the next meeting, scheduled for 29 September 1999, and that the method agreed consisted of selecting standard products in accordance with the definition given by YKK, using the prices on the German market (in euros) as a benchmark, setting 85% of those benchmark prices as the minimum to be attained, defining priority markets and taking appropriate measures on the markets.

–       The meeting of 29 September 1999 (recitals 201 to 204 of the contested decision)

95      In this regard, it is apparent from Coats’ leniency application that the participants discussed ‘methodology and [set] out [their] lists of average prices for standard products’ and began to ‘examine the countries where those prices were below the benchmark price of 85% of the German price’.

96      According to Prym’s leniency application, the participants set out their price lists, which were only exchanged orally. The prices read out at that meeting related to two to three standard products for the German, Belgian and Netherlands markets.

97      The applicants claim never to have participated in any form of price exchange. In their response to the statement of objections, they state, however, that the participants at the meeting discussed the single market and the introduction of the euro, but did not exchange any lists. The list at issue was said not to contain any information on prices and was simply intended to serve as a model.

–       The meeting of 12 November 1999 (recitals 205 to 209 of the contested decision)

98      In that regard, it should be noted that this meeting constituted an extension of the two meetings organised on 2 June 1999 and 29 September 1999.

99      It is clear from Coats’ leniency application that the discussion was difficult in so far as there was not real cooperation between the participants or consensus on average prices for zip fasteners or on how to apply the proposed price increases. As regards those latter proposals, Coats affirmed, in its application, that YKK put pressure on Éclair Prym for it to increase its prices in Spain, France and Belgium.

100    It is apparent from Coats’ leniency application that: 

‘The discussion proved to be difficult. YKK had good information about our price levels and shared those with us. But there was no real co-operation or consensus as to what average prices for standard zip products were or on implementation of the proposed increases. My impression was that the participants were probing for information which they could use to their own advantage. I do recall YKK putting pressure on Prym to raise their prices in Spain, France and Belgium. No consensus was arrived at to increase prices. Coats had hardly any zip business in Spain and we were not concerned by … Benelux where our zip business was profitable.’

101    According to the Commission, the remark concerning the pressure which YKK put on Prym is supported by the Prym group. Indeed, it is apparent from the file that the Prym group stated that ‘[a]ccording to the written statement of Mr G. of Coats, annexed to Coats leniency application of 26 November 2001, YKK put pressure on Éclair Prym for it to increase its prices in Spain, France and Belgium. This is correct’. However, the applicants dispute the argument raised by Coats and Prym that the YKK group put pressure on Prym to increases its prices.

102    It should be noted that, emails concerning the practical organisation of that meeting were annexed to Coats’ leniency application. The participants at that meeting are also listed therein. The applicants admitted in their response to the statement of objections that that meeting was organised at the initiative of YKK Europe, stating that ‘Mr B. contacted Prym and Coats to set up the meeting, as evidenced by e‑mail correspondence attached to Coats’ leniency application’.

103    The applicants claim, in their response to the statement of objections, that the other participants tried to address the issue of prices, but Mr B. of YKK Europe explained that all additional discussions had to be exclusively of a general nature. The issue of public distancing will be examined below in the fourth part of the present plea.

104    It is apparent from all of the foregoing that, even though the applicants dispute the unlawful scope of the meetings of 2 June 1999, 29 September 1999 and 12 November 1999, they stated, as regards the meeting of 13 January 1999, that the participants had discussed the same subjects as at the three other meetings held in 1999 concerning zip fasteners and that they regarded that meeting as an ‘extension’ of the three other meetings (see paragraph 86 above).

 Conclusion

105    The Court notes that the items of evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (see BPB v Commission, paragraph 78 above, paragraph 185 and the case-law cited).

106    Following the examination set out in paragraphs 83 to 104 above, the Court finds that the body of evidence analysed demonstrates, to the requisite legal standard, that the common understanding constituted an agreement and/or concerted practice.

107    For each of the circumstances constituting that infringement, the Commission adduced credible evidence and, in a large number of cases, this was directly corroborated by other evidence. It is clear from the written evidence discovered during the inspections, the leniency applications of the Coats and Prym groups and the written evidence furnished by those two groups in relation to those meetings, that the Coats, Prym and YKK groups participated in five meetings during the period from 28 April 1998 to 12 November 1999, at which, they at least:

–        exchanged price information (at the meetings of 13 January (see paragraphs 86 and 87 above) and 29 September 1999 (see paragraphs 95 to 97 above);

–        discussed prices and price increases (at the meetings of 28 April 1998 (see paragraphs 83 to 85 above), of 13 January 1999 (see paragraphs 86 and 87 above), and 12 November 1999 (see paragraphs 98 to 103 above);

–        decided to establish a method to fix minimum prices for their standard products throughout Europe and discussed the application thereof (at the meetings of 2 June 1999 (see paragraphs 88 to 94 above), 29 September 1999 (see paragraphs 95 to 97 above), and 12 November 1999 (see paragraphs 98 to 103 above).

108    By participating in those meetings, they took part, along with their competitors, in collusive conduct aimed at distorting prices and standardising the European zip fastener market and preventing any price competition in relation to zip fasteners, in so far as, for example, minimum prices were fixed for standard products and a method was devised to adapt current prices to a certain level using German prices as the benchmark.

109    It follows that, as a result of its object, the Commission was legitimately able to classify as an agreement and/or concerted practices within the meaning of Article 81 EC all of the conduct of the participants to the tripartite cooperation between the YKK, Coats and Prym groups, and that it was not required to prove that that their concerted action manifested itself on the market.

110    In the light of all of the foregoing considerations, the Court finds that the second and third parts are unfounded and must consequently be rejected.

c)     The fourth part, concerning public distancing from the meeting of 12 November 1999

 Arguments of the parties

111    The applicants claim that at the last meeting, held on 12 November 1999, they distanced themselves from the exchanges which occurred at the meetings in the context of the tripartite cooperation between the YKK, Coats and Prym groups, and assert that they took the initiative to put an end to those meetings, in accordance with case-law of the Court of Justice (Hüls v Commission, paragraph 76 above, paragraph 155). In the contested decision the Commission did not take account of the evidence submitted to it by the applicants and did not assess it in any way.

112    The Commission disputes the applicants’ arguments.

 Findings of the Court

113    It is settled case-law that it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Hüls v Commission, paragraph 76 above, paragraph 155; Commission v Anic Partecipazioni, paragraph 48 above, paragraph 96; and Aalborg Portland and Others v Commission, paragraph 80 above, paragraph 81).

114    The reason for that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it (Aalborg Portland and Others v Commission, paragraph 80 above, paragraph 82).

115    Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive object such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (Aalborg Portland and Others v Commission, paragraph 80 above, paragraph 85).

116    Furthermore, it has been held that the notion of publicly distancing oneself as a means of excluding liability must be interpreted narrowly. In particular, silence by an operator in a meeting during which the parties colluded unlawfully on a precise question of pricing policy cannot be regarded an expression of firm and unambiguous disapproval (see, to that effect, Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] II‑4567, paragraphs 103 and 124).

117    It should also be noted, however, that the case-law referred to in paragraph 114 above is based on the premiss that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded (see, to that effect, Aalborg Portland and Others v Commission, paragraph 80 above, paragraph 81) or at which manifestly anti-competitive agreements were concluded (see, to that effect, Hüls v Commission, paragraph 76 above, paragraph 155). Consequently, where the anti-competitive nature or manifestly anti-competitive nature of a meeting has not been established beyond doubt, that case-law does not apply (see, to that effect, the judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 91).

118    In the present case, the applicants claim to have distanced themselves, at the last meeting of 12 November 1999, from the exchanges during the meetings in the context of the tripartite cooperation between the YKK, Coats and Prym groups. However, it is clear, first of all, from the applicants’ response to a question put at the hearing that that statement relates only to that meeting.

119    Moreover, the applicants’ statement that they distanced themselves at the meeting of 12 November 1999 is not supported by any evidence. Furthermore, the Commission’s file does not contain any evidence dating from the time of the facts enabling it to be found that the YKK group distanced itself publicly from the other undertakings which participated in the cartel.

120    For the sake of completeness, even if it were to be considered that the applicants distanced themselves from the matters discussed at the meeting of 12 November 1999, that would not affect the fact that an infringement had taken place up until that date.

121    It follows that the fourth part must be rejected, as must consequently the third plea in its entirety.

2.     The pleas relating to the wrong characterisation of the tripartite cooperation between the YKK, Coats and Prym groups as ‘very serious’

122    The applicants raise three pleas seeking to call into question the Commission’s determination of the gravity of the infringement. The first plea alleges an erroneous assessment of the nature and implementation of the infringement. The second and third pleas allege an erroneous assessment of the real impact of the infringement.

123    It should be observed that Article 23(3) of Regulation No 1/2003 lays down that, to determine the amount of a fine, it is necessary to take into account the duration of the infringement as well as its gravity.

124    According to settled case-law, the gravity of an infringement is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C‑208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 241, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 43).

125    In particular, according to the first paragraph of Section 1A of the Guidelines, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

126    The three factors in the assessment of the gravity of the infringement do not have the same weight in the context of an overall assessment. The nature of the infringement plays a primary role, in particular in characterising infringements as ‘very serious’. In that regard, it follows from the description of ‘very serious’ infringements in the Guidelines that agreements or concerted practices involving in particular, as in the present case, price-fixing and customer-sharing may be characterised as ‘very serious’ on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is supported by the fact that, whilst the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 178; Groupe Danone v Commission, paragraph 48 above, paragraph 150; Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 345; and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 171).

127    In the present case, in characterising the infringement as ‘very serious’, the Commission took account of the nature of the infringement, which consisted of conduct amongst the most serious infringements of Article 81 EC, namely the fixing of minimum prices for a whole series of standard zip fasteners in accordance with a method agreed by the parties, together with the exchange of confidential commercial information aimed at facilitating the conclusion and implementation by the parties of anti‑competitive agreements, and the fact that that infringement must have had an impact on the market, even if it was not measurable (see recitals 507 to 509 of the contested decision).

a)     Arguments of the parties

128    In the context of the first part of their plea alleging an erroneous assessment of the nature and implementation of the infringement, the applicants maintain that the starting amount of EUR 50 million is not justified, on the ground that the discussions on the fixing of minimum prices that took place between 28 April 1998 and 12 November 1999 did not constitute either an agreement or a concerted practice (see their objection in the context of the third plea) and that the exchanges of information and discussions on pricing (the existence of which is acknowledged by the applicants) should not be regarded as ‘very serious’ infringements within the meaning of the Guidelines.

129    In so far as concerns the second part of their plea alleging an erroneous assessment of the nature and implementation of the infringement, the applicants consider that, even if the Commission’s characterisations were correct, the absence of implementation of what was discussed at those meetings ought to have led it to classify the infringement in question as ‘serious’. In support of their arguments, the applicants rely on earlier Commission decisions.

130    Moreover, in the present case the Commission ought at least to have stated the reasons why the lack of implementation had not influenced its decision to characterise the meetings in question as ‘very serious’.

131    In the context of their pleas alleging an erroneous assessment of the real impact of the infringement, the applicants claim, in the first place, that the Commission did not evaluate the potential impact of the cooperation on the market. They observe, in that regard, that the Commission concluded, in recital 497 of the contested decision, that ‘it is impossible to demonstrate the precise effects of the infringements since it is not possible to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation, and others) [in the absence of] the infringements’.

132    In the second place, in the applicants’ submission, it follows from the significant differences in prices between the various national markets (see recital 34 to the contested decision) that no measure had been adopted at the five meetings and that the meetings had no impact on the European Union market. The applicants submit that the Commission confuses the object (the reasons of those participating in the meetings) with the effect of the meetings. The infringement should have been characterised at most as ‘serious’.

133    In the third place, the applicants claim that the initial amount of the fine is disproportionate, since no impact on the market has been demonstrated. They dismiss the Commission’s conclusion that object takes precedence over effect for the purpose of characterising the infringement as ‘very serious’ (see recital 508 of the contested decision). However, while a restrictive object is very relevant for the purpose of assessing the gravity of an infringement, that does not mean that that consideration can wholly replace the assessment of impact in cases where implementation has not been established. The applicants maintain that if the meetings in question must be characterised as ‘very serious’, the fact that they had no impact on the European Union market should be reflected in the starting amount of the fine. This would be in line with the Commission’s decision-making practice.

134    The Commission disputes the applicants’ arguments.

b)     Findings of the Court

135    As regards the nature of the infringement, the Court notes that it has been established that the tripartite cooperation between the YKK, Coats and Prym groups aimed to fix minimum prices for a whole series of standard zip fasteners in accordance with a method agreed by the parties, together with the exchange of confidential commercial information aimed at facilitating the conclusion and implementation by the parties of anti‑competitive agreements. Such practices constitute horizontal restrictions of the ‘price cartel’ type within the meaning of the Guidelines and, accordingly, are inherently ‘very serious’ (see Section 1A, third indent, of the Guidelines). Consequently, given the definition laid down in the Guidelines, the characterisation of the infringement in the contested decision as ‘very serious’ was justified.

136    The applicants’ argument that the initial amount of EUR 50 million was not justified, on the ground that there was no agreement or a concerted practice and that the infringement was wrongly characterised as ‘very serious’, cannot be upheld. In that regard, it should be noted that the Court has found, in paragraph 109 above, that the common understanding constituted an agreement and/or concerted practice and, in paragraph 135 above, that the characterisation of the infringement as ‘very serious’ was justified. Pursuant to the Guidelines, the likely fine for infringements characterised as ‘very serious’ is more than EUR 20 million.

137    So far as concerns the applicants’ argument that the infringement was not implemented, the Court notes that the Commission itself admitted, in recital 508 of the contested decision, that it did not possess sufficient evidence of the final implementation of the agreement to harmonise prices.

138    Moreover, it should be noted that the nature of the infringement plays a primary role, in particular in characterising infringements as ‘very serious’. In that regard, it is clear from the description of ‘very serious’ infringements in the Guidelines that agreements or concerted practices involving in particular, as in the present case, price-fixing may be characterised as ‘very serious’ on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area (see paragraph 126 above).

139    Thus, since the Commission found anti‑competitive agreements and/or concerted practices to exist, the infringement must be characterised as ‘very serious’ even if the anti‑competitive agreements were not applied or if they did not affect the market.

140    As regards the actual impact of the unlawful conduct of each undertaking on the market and on competition, that impact must be taken into consideration, in accordance with Section 1A, first paragraph, of the Guidelines, ‘where this can be measured’ (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, ‘Tokai I’, paragraph 207).

141    In the present case, the Commission did not attempt to demonstrate the precise effects of the infringement since it was impossible to determine with sufficient certainty the relevant competitive parameters (price, commercial terms, quality, innovation, and others) in the absence of the infringements, it was likely that the price-fixing agreement and the exchange of commercially sensitive information affected the zip fastener markets in the European Union. It made a more in-depth analysis of the effects of the impact of the infringement, which is set out in recitals 507 to 509 of the contested decision.

142    The Commission concluded that that agreement, in so far as it concerned the European market, was likely to have an impact on the market, even if that impact had been more limited or for a shorter duration than the participants had intended. Consequently, given also that factors relating to the object of a course of conduct may be more significant for the purposes of setting the amount of the fine than those relating to its effects, the infringement at issue could still be regarded as being particularly serious and the fine could be set at a level which did not reflect the exact impact of the infringement.

143    Since, according to the Guidelines, the Commission does not, for the purposes of assessing the seriousness of the infringement, have to take its actual market impact into account unless it is measurable, and the overall agreement was designed to restrict potential competition, the actual effect of which is ex hypothesi difficult to measure, this Court finds that the Commission was not required precisely to demonstrate the actual impact of the cartel on the market and to quantify it, but could confine itself to estimates of the probability of such an effect (see, to that effect, Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 122).

144    As regards the applicants’ assertion that the initial amount of the fine, namely EUR 50 million, is disproportionate, were the characterisation of the infringement as ‘very serious’ to be upheld, it must be found that, contrary to what the Commission claims, this does not constitute a new plea. In that regard, it should be noted that the applicants submitted, in the application, that ‘even if the tripartite zip fastener meetings were to be characterised as “very serious”, the fact that the meetings had no impact on the EU market [had to] be reflected in the starting amount of the fine’ and that ‘[i]t [was] disproportionate to choose a starting amount of EUR 50 million, i.e. an amount that is 250% of the minimum starting amount [EUR 20 million] for “very serious” infringements in this case, where the five meetings involved had no impact on the EU market’.

145    The applicants thus call into question the proportionality of the initial amount of the fine in relation to the impact of the infringement found, since no impact has been demonstrated. First, that amount is said to be significantly higher than the amount of EUR 20 million provided for in the Guidelines as the relevant amount for a fine imposed in respect of an infringement characterised as ‘very serious’. Second, the amount of the fine is neither in line with the Commission’s decision‑making practice, nor the case‑law of the European Union judicature.

146    The Court notes that, pursuant to the Guidelines, the amount foreseen for infringements characterised as ‘very serious’ is higher than EUR 20 million. Consequently, the Guidelines do not provide for a minimum amount, or for a recommended amount, as suggested by the applicants.

147    The fourth and sixth paragraphs of Section 1A of the Guidelines provide that the effective economic capacity of offenders to cause significant damage to other operators must be taken into account, as must the specific weight of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements.

148    The proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of an infringement on the relevant market (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 91). Although an undertaking’s market shares (determined on the basis of turnover or volume of sales) cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity, they are nevertheless relevant in determining the influence which it may exert on the market (Baustahlgewebe v Commission, paragraph 48 above, paragraph 139). It is in the light of those principles that the Commission considered that the turnover made by the undertakings concerned from the product at issue, namely zip fasteners in relation to the tripartite cooperation between the YKK, Coats and Prym groups, provided a precise estimation of the relative capacity of each company and of its contribution to the overall harm caused to competition. In the present case, it is clear from recital 529 of the contested decision that, in 1999 (that is the last full year of the infringement), the YKK group, which held some 46% of the market concerned, was placed in the first category. The Coats and Prym groups were placed in the second and third categories, respectively. In the Commission’s view, the appropriate initial amount of the fine for the YKK group was EUR 50 000 000.

149    As regards the Commission’s practice in previous decisions, referred to by the applicants, suffice it to note that this does not serve as a legal framework for setting fines in competition matters, since the Commission enjoys a wide discretion in that area and, when exercising that discretion, is not bound by its past assessments (Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 123).

150    However, the Commission is required to respect the general principles of law, among which the principle of equal treatment, which implies that the Commission may not treat comparable situations differently or different situations in the same way, unless such difference in treatment is objectively justified (see Case C‑174/89 Hoche [1990] ECR I‑2681, paragraph 25 and the case‑law cited).

151    In that regard, it follows from the case-law that comparisons drawn with other Commission decisions imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as the markets, products, countries, undertakings and periods concerned, are comparable to those of the present case. It is also apparent from the case-law that it is important to refer to contemporaneous decisions for the purposes of comparison (see Case T‑378/06 IMI and Others v Commission [2011] ECR II‑0000, paragraph 42).

152    In the present case, by making references to other cases by way of comparison, the applicants seek, first of all, to call into question the characterisation of the infringement as ‘very serious’.

153    The Commission considers that the decisions referred to do not corroborate the applicants’ line of argument, in so far as they are not all cases in which implementation had not been established, but also cases in which the geographical scope was more limited or in which the duration was extremely short.

154    In any event, it must be found that those references are incorrect, since in certain cases in which the implementation and the impact had not been examined or established, the Commission still characterised the infringement as ‘very serious’.

155    For the sake of completeness, in the Plasterboard cases (BPB v Commission, paragraph 78 above, and Lafarge v Commission, paragraph 54 above), the Court confirmed the Commission’s assessment that the practices aimed at ‘[putting] an end to the price war and to stabilise the market through exchanges of confidential information’ constituted very serious infringements.

156    Secondly, the applicants seek to challenge the starting amount of the fine set for the participants in the infringement at issue, which, in their view, is disproportionate to the starting amount of the fine set for the undertakings in the Commission’s decisions in the cases referred to above.

157    It should be noted that the starting amount of the fine set for the applicants, namely EUR 50 million is, in the Commission’s view, similar to the fine set in the Commission’s decisions of 3 May 2006 in Case 38.620 – Hydrogen Peroxide and Perborate, which concerned a market worth in the region of EUR 475 million, and of 21 November 2006 in Case 38.638 – Butadiene Rubber and Emulsion Styrene Butadiene Rubber, which concerned a market worth some EUR 550 million.

158    The applicants cannot thus usefully rely on those decisions to allege that they were discriminated against.

159    The applicants’ argument based on Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 254, and the judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 190, cannot be upheld either since, in those cases, the Court considered that, in determining the starting amount, the Commission had not correctly taken account of the fact that the cartel had no impact for a certain period of time. It is apparent from recitals 507 to 509 of the contested decision that the Commission took account of the impact, including the lack of final implementation of the price harmonisation agreement.

160    It results from all of the foregoing that this plea must be rejected.

3.     Conclusion

161    As set out in the examination of the pleas concerning the erroneous characterisation of the tripartite cooperation between the YKK, Coats and Prym groups, it must be concluded that the infringement constituted a very serious infringement by its very nature. It follows that, on the sole basis of the nature of the infringement, its characterisation as ‘very serious’ remains appropriate (see paragraph 127 above). Therefore, the Commission did not err in characterising the infringement as ‘very serious’.

162    Consequently, it is apparent from all of the foregoing considerations that the pleas alleging an erroneous characterisation of the infringement must be rejected.

4.     The plea alleging an incorrect application of the Leniency Notices

163    The applicants submit, in the alternative, that even if the Court were to conclude that the five meetings constituted an infringement of Article 81 EC, they ought to have been granted a reduction in their fine to take account of their cooperation under the Leniency Notices. This plea is divided into two parts, alleging (i) an incorrect application of the 1996 Leniency Notice, and (ii) a failure to apply the 2002 Leniency Notice.

164    The Commission observes that, as the Prym and Coats groups’ first applications were submitted on 26 November 2001, it is the 1996 Leniency Notice that applies in the present case. By the present plea, the applicants seek to obtain a second reduction for that cooperation. In the Commission’s submission, there can be no ground for rewarding the same cooperation twice, once in the form of de facto partial immunity (under the attenuating circumstance of cooperation outside the 1996 Leniency Notice) and again as cooperation within the context of the Leniency Notices (either under Section C and the first indent of Section D(2) of the 1996 Leniency Notice or under the 2002 Leniency Notice).

165    It should also be noted at the outset that, in assessing the cooperation provided by members of a cartel, only an obvious error of assessment by the Commission is capable of being censured, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, paragraph 124 above, paragraph 88).

a)     The first part, alleging an incorrect application of the 1996 Leniency Notice

 Arguments of the parties

166    The applicants claim, as regards the application of Section C of the 1996 Leniency Notice, that the Commission’s argument in recitals 625 to 633 of the contested decision, where it is explained why the applicants were not entitled to a reduction in the fine under the 1996 Leniency Notice, is inconsistent with that notice, because, first, the applicants were the first to provide evidence of the meetings held before 2 June 1999, and thus enabled the Commission to extend the duration of the infringement (see recital 588 of the contested decision), thus satisfying the condition set out in Section B(b) of the 1996 Leniency Notice, and, second, they also provided all relevant information, contrary to the Commission’s assertion, and all the documents and evidence available to them concerning the cartel, and maintained full and continuous cooperation throughout the investigation, thus satisfying the condition set out in Section B(d) of the 1996 Leniency Notice.

167    So far as the application of Section D of the 1996 Leniency Notice is concerned, the applicants consider that, in any event, they satisfy the criteria laid down in that section, on the ground that their leniency application materially contributed to establishing the existence of an infringement before the supplementary statement of objections was sent. In their view, should the Court reject the applicants’ arguments that the five zip fastener meetings did not constitute an agreement or a concerted practice contrary to Article 81 EC, the applicants would be entitled to a reduction of the fine pursuant to the first indent of Section D(2) of the 1996 Leniency Notice.

168    The Commission observes that it considered, with respect to Section C of the 1996 Leniency Notice, that two conditions were not satisfied, namely conditions (b) and (d) of Section C. It claims to have clearly indicated in the contested decision that the applicants had provided it with contemporaneous documents of the meetings of 28 April 1998 and 13 January 1999 which allowed it to extend the duration of the infringement. Moreover, the Commission stated that it did not take that extension of the duration into account for the purpose of calculating the fine to be imposed on the applicants. It therefore granted them, as an attenuating circumstance, a reduction of EUR 9 375 000 of the basic amount of the fine (see recitals 588 to 589 of the contested decision). The applicants are therefore not being penalised by their cooperation with the Commission, but rather are being rewarded by being given de facto immunity for the period 28 April 1998 to 2 June 1999.

169    The Commission observes, with respect to the argument relating to the applicability of Section D in the present case, that although the applicants remain silent with regard to the second indent (non-contestation of the facts), they vigorously contested, contrary to the contemporaneous evidence, the content of the meetings of 2 June 1999, 29 September 1999 and 12 November 1999. As for the first indent (a contribution to the establishment of the existence of the infringement), it should first of all be borne in mind that that contribution was made after the first statement of objections, when the zip fasteners infringement had already been raised (for a shorter period). Consequently, the applicants have also failed to satisfy the conditions laid down in the first and second indents of Section D(2).

 Findings of the Court

170    It is apparent from the case-law that a reduction in the amount of a fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily, and, where relevant, to bring it to an end (see, to that effect, Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 36). It is also apparent from the case-law that a reduction of the fine under the 1996 Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned could be considered to demonstrate genuine cooperation on its part (Dansk Rørindustri and Others v Commission, paragraph 124 above, paragraphs 388 to 403, in particular paragraph 395, and SGL Carbon v Commission, paragraph 124 above, paragraph 68).

171    The Court notes that, in assessing the cooperation provided by members of a cartel, only an obvious error of assessment by the Commission is capable of being censured, since the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, paragraph 124 above, paragraph 88). In making that assessment, however, it cannot ignore the principle of equal treatment.

172    In order to benefit from a reduction of a fine on grounds of cooperation during the administrative procedure, the conduct of the undertaking concerned must facilitate the Commission’s task of finding and bringing to an end infringements of the European Union competition rules (see, to that effect, Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraphs 309 and 332) and the Commission must, in each individual case, consider whether that actually made its task easier (see, to that effect, Case T-48/00 Corus UK v Commission [2004] ECR II-2325, paragraph 193, and Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraph 559).

173    In the light of those principles, it needs to be determined whether the Commission committed a manifest error of assessment in considering that the statements of the YKK group did not satisfy the conditions to benefit from a reduction of the fine pursuant to Section C or Section D of the 1996 Leniency Notice, both as regards the quality and the usefulness of the evidence furnished by the applicants and the time at which that evidence was communicated.

174    In so far as concerns those statements, it should be noted that the YKK group made an application pursuant to the Leniency Notice at a late stage in the procedure and after those made by Prym and Coats, which had already provided sufficient direct evidence of the infringement to begin the procedure which led to the contested decision. The fact that the Commission had already obtained a fairly large amount of important information through the investigations carried out and the cooperation by Coats and Prym cannot in itself diminish the importance of the applicants’ role during the administrative procedure.

175    The production of contemporaneous documents of the meetings of 28 April 1998 and 13 January 1999 by the YKK group helped the Commission to establish the existence of the infringement for the period from 28 April 1998 to 2 June 1999, since, during the inspections of 7 and 8 November 2001 at the premises of several manufacturers and of VBT, the Commission had only collected evidence that the Prym, Coats and YKK groups met, on 2 June 1999, to agree on minimum prices for standard zip fasteners in Europe. It discovered an email dated 4 June 1999 relating to the meeting of 2 June 1999. In that email it also appeared that the undertakings had agreed to meet again, on 29 September 1999, to define the essential elements of the method to be applied and to take the necessary measures. Coats’ application confirmed the existence and the content of the meeting of 2 June 1999 and that the meeting of 29 September 1999 had taken place. Those statements are corroborated by an email of 13 August 1999. Moreover, it is clear from that leniency application that the last meeting between the three undertakings took place on 12 November 1999, but that it was unsuccessful. The Coats group provided a copy of an email concerning the agenda and the content of the meeting of 12 November 1999.

176    Furthermore, the YKK group submitted that the three meetings held in 1999 between the undertakings (namely those of 2 June 1999, 29 September 1999 and 12 November 1999) were preceded by an additional meeting, on 13 January 1999, at which, according to the YKK group’s leniency application, they discussed the same subjects as at the three subsequent meetings.

177    None the less, the YKK group did not furnish any evidence for the period 2 June 1999 to 12 November 1999, and the applicants merely confirmed that those meetings had taken place and disputed their anti‑competitive object. The Commission was already in possession of contemporaneous evidence resulting from its inspections and from the leniency applications of Coats and Prym covering that period.

178    Consequently, the Commission rightly concluded, in recital 631 of the contested decision, that the applicants did not qualify for a substantial reduction, from 50% to 75%, of the fine under Section C of the 1996 Leniency Notice, as they did not meet the conditions set out therein. The applicants were not the first to provide decisive evidence of the infringement and did not provide the Commission with all the relevant information and all the evidence which they possessed.

179    The applicants also do not satisfy the conditions laid down to benefit from a 10% to 50% reduction of the fine under Section D of the 1996 Leniency Notice. Even though they provided written evidence showing that the undertakings actually discussed price increases during the meetings of 28 April 1998 ad 13 January 1999, which enabled the Commission to lengthen the duration of the infringement, they dispute the anti‑competitive nature and the content of those meetings.

180    The applicants contributed to establishing the existence of the infringement after the statement of objections, whereas the infringement regarding zip fasteners had already been denounced and the applicants failed to furnish any evidence for the period after 2 June 1999. As regards the period prior to that date, the Commission decided not to take account of the period from 28 April 1998 to 2 June 1999 to calculate the fine to be imposed on the companies of the YKK group for that infringement. The basic amount of that fine was reduced by EUR 9 375 000, so as to make it identical to the hypothetical sum which the companies in that group would have paid for an infringement lasting less than a year (see recital 589 of the contested decision).

181    It results from all of the foregoing considerations that the first part of the present plea must be rejected, given that the Commission did not misconstrue the conditions laid down in Sections C and D of the 1996 Leniency Notice.

b)     The second part, concerning the failure to apply the 2002 Leniency Notice

 Arguments of the parties

182    The applicants assert that if the interpretation of the 1996 Leniency Notice does not provide a basis for a supplementary reduction, the 2002 Leniency Notice should apply under the principle of non-retroactivity or the principle that the more lenient law is to apply (the lex mitior principle). The applicants maintain that if their leniency applications had been examined under the 2002 Leniency Notice they would probably have benefited from a reduction on the ground that they had provided evidence which represented significant added value by comparison with the evidence already in the Commission’s possession.

183    The Commission disputes the applicants’ arguments.

 Findings of the Court

184    Before examining the applicants’ complaints, it should be noted that the Prym and Coats groups made their leniency applications in relation to the infringements on the zip fastener market on 26 November 2001. On 12 November 2004 the Prym group supplemented its leniency application for the zip fastener sector. The YKK group applied for leniency on 18 February 2005 not only in relation to the ‘other fasteners’ sector, but also in relation to zip fasteners.

185    In recital 584 of the contested decision, the Commission stated that those leniency applications were examined in the light of the 1996 Leniency Notice, since the Prym and Coats groups had submitted their leniency applications to the Commission in relation to infringements concerning the zip fastener sector before 14 February 2002, the date on which the 1996 Leniency Notice was replaced by the 2002 Leniency Notice. In accordance with point 28 of the 2002 Leniency Notice, the tripartite cooperation between the YKK, Coats and Prym groups was assessed in the light of the 1996 Leniency Notice. Consequently, the parts of the YKK group’s leniency application which related to zip fasteners were examined in the light of the 1996 Leniency Notice (see, also, recitals 597 to 599 of the contested decision).

186    The Commission also noted, in recital 585 of the contested decision, that unlike point 23 of the 2002 Leniency Notice, the 1996 Leniency Notice does not provide for any specific reward to a leniency applicant that discloses facts previously unknown to the Commission and affecting the gravity or duration of the cartel. Therefore it decided to consider any such cooperation under the attenuating factors (see recitals 588 and 589 of the contested decision). It stated that the YKK group was the first to disclose the facts concerning the existence of the infringement prior to 2 June 1999 and provided it with information of which it was not aware, namely new information and written evidence regarding the duration of the infringement, enabling it to be established that the infringement had commenced on 28 April 1998. It noted that, prior to receiving the YKK group’s leniency application, it was not able to establish the duration of the infringement, namely from 28 April 1998 to 2 June 1999. According to the Commission, the YKK Group should not be penalised for its cooperation by imposing on it a higher fine than the one that it would have had to pay without its cooperation.

187    It must be found that the Commission thus did not take account of the period from 28 April 1998 to 2 June 1999 in calculating the fine to be imposed on the companies of the YKK group for that infringement. The basic amount of the fine to be imposed on those companies was reduced by EUR 9 375 000, so as to make it the same as the hypothetical amount that those companies would have had to pay for an infringement of less than one year (see recital 589 of the contested decision).

188    In light of the foregoing, the second part of the present plea – and consequently the second plea in its entirety – must be rejected.

C –  The pleas concerning the Baseler-Wuppertaler and Amsterdamer cooperation

1.     The plea alleging an incorrect application of the limitation of the fine for the period preceding the acquisition of YKK Stocko Fasteners

a)     Arguments of the parties

189    The applicants maintain that the contested decision infringes Article 23(2) of Regulation 1/2003, according to which the fine to be imposed on an undertaking shall not exceed 10% of its total turnover in the preceding business year.

190    The applicants are considered to be jointly and severally liable for a period of four years (from March 1997 until 15 March 2001), while for the rest of the period (from 24 May 1991 until March 1997) YKK Stocko Fasteners is declared to be wholly liable. They claim that the 10% maximum amount should apply to the total turnover of YKK Stocko Fasteners for the part of the fine for which YKK Stocko Fasteners is held solely liable, and that the basic amount of the fine should therefore be reduced to EUR 3 491 000.

191    The Commission disputes the applicants’ arguments.

b)     Findings of the Court

192    It should be noted that the fact that several companies are held jointly and severally liable for a fine on the ground that they form an undertaking for the purposes of Article 81 EC does not mean, as regards the application of the maximum amount of 10% of turnover laid down by Article 23(2) of Regulation No 1/2003, that the obligation of each of them is limited to 10% of the turnover which it achieved during the last business year. The maximum amount of 10% of turnover within the meaning of that provision must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (HFB and Others v Commission, paragraph 74 above, paragraphs 528 and 529).

193    That was confirmed in paragraph 390 of the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission (‘Tokai II’), not published in the ECR:

‘It is only if it subsequently transpires that several addressees constitute the “undertaking”, that is, the economic entity responsible for the infringement penalised, again at the date when the decision is adopted, that the ceiling can be calculated on the basis of the overall turnover of that undertaking, that is to say of all its constituent parts taken together.’

194    The applicants cannot therefore invoke, in this instance, Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, since YKK Holding and YKK Corp. are not held jointly and severally liable for the payment of the whole of the fine of YKK Stocko Fasteners.

195    Consequently, the Commission did not err in taking the consolidated turnover as a reference to calculate the maximum amount at issue. The present plea must therefore be rejected.

2.     The plea alleging the incorrect application of the multiplier for the period preceding the acquisition of YKK Stocko Fasteners

a)     Arguments of the parties

196    The applicants challenge, in substance, the justification for imposing a multiplier of 1.25 for the period of the infringement for which YKK Stocko Fasteners is held to be solely liable, namely from May 1991 until March 1997. They claim that the criteria used by the Commission to explain the application of a multiplier to the YKK group are not satisfied for the period in respect of which YKK Stocko Fasteners is held to be solely liable. It follows that the 1.25 multiplier must be cancelled or at least reduced in as much as it was held the applicants had superior resources compared to their competitors, as regards the infringements that occurred in the Baseler‑Wuppertaler and Amsterdamer cooperation until March 1997, at least.

197    The Commission disputes the applicants’ arguments.

b)     Findings of the Court

198    In the present case, the Commission noted the following in recital 533 of the contested decision:

‘Within the category of very serious infringements, the scale of likely fines also makes it possible to set the fines at a level which ensures that they have sufficient deterrent effect, taking into account the size of each undertaking.’

199    It is apparent from recital 537 of the contested decision that ‘[t]he Commission considers the usage of the turnover to ensure equal deterrence to all relevant undertakings’, that ‘turnover is applied as the Commission’s proxy in this case against all undertakings equally, as it serves as a sensible and useful indication of economic capacity and strength’, and that ‘[t]he multiplier should only be applied where there is considerable disparity in size of the undertakings participating in the infringement’.

200    The Commission then indicated, for each of the undertakings concerned, worldwide turnover in 2006 and the multiplier applied, information which it reproduced in recital 538 of the contested decision. The YKK group, with a worldwide turnover of EUR 4 507 793 000 in 2005 had a multiplier of 1.25 applied to it.

201    It is thus apparent from recital 538 of the contested decision that the Commission considered that it was necessary to revise upwards the appropriate starting amount of the fine to take account of the size and global resources of the YKK group. It is also clear that, in that regard, the Commission relied on the global turnover for 2006.

202    In that respect, it is necessary to bear in mind the settled case-law according to which worldwide turnover gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121; Baustahlgewebe v Commission, paragraph 48 above, paragraph 139; and Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 212).

203    The Court notes that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. It is settled case-law (Musique Diffusion française and Others v Commission, paragraph 202 above, paragraphs 105 and 106) that the fines imposed for infringements of Article 81 EC are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the rules of European Union competition law in future.

204    It follows that the global turnover for 2006 of the applicants, as a single economic entity, could be taken into account by the Commission, first, to calculate the maximum amount provided for in Article 23(2) of Regulation No 1/2003 and, second, to determine the ‘deterrence multiplier’. The relevant year to be taken into account by the Commission for its assessment was thus the year preceding the contested decision and not the duration of the infringement at issue or a specific point in time during the period of infringement, as claimed by the applicants.

205    In those circumstances, the plea must be rejected.

D –  The plea common to the infringements related to the tripartite cooperation between the YKK, Coats and Prym groups and to the Baseler-Wuppertaler and Amsterdamer cooperation, alleging an infringement of the principles of equal treatment and proportionality as regards the application of the multiplier of 1.25

1.     Arguments of the parties

206    The applicants maintain that it is discriminatory and contrary to the principle of proportionality to apply to them, for their first anti-competitive conduct, under the heading of ‘sufficient deterrence’, a multiplier of 1.25, whereas no multiplier was applied to the Coats and Prym groups, which the applicants describe as repeat offenders.

207    The Commission disputes the applicants’ arguments.

2.     Findings of the Court

208    The Court notes, first of all, that the purpose of a multiplier is to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the rules of European Union competition law in future. Accordingly, when the Commission calculates the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (see paragraph 202 above).

209    In the context of the examination of the plea alleging a wrongful application of the multiplier for the period prior to the acquisition of YKK Stocko Fasteners, it was found that the Commission had considered that it was necessary to revise upwards the appropriate initial amount of the fine to take account of the size and global resources of the YKK group, which was ‘a much larger player than the other addressees’. As regards the Baseler-Wuppertaler and Amsterdamer cooperation, the applicants’ worldwide turnover was almost 13 times that of the second-largest undertaking (EUR 355 million for Prym) and 400 times that of the smallest undertaking (Berning) to have been fined. As regards the bilateral cooperation between the Prym and YKK groups, the applicants’ worldwide turnover was almost 13 times that of the Prym group. As regards the tripartite cooperation between the YKK, Coats and Prym groups, the disparity in size is equally significant with respect to the other two undertakings involved; the applicants’ turnover was four times that of the Coats group and 13 times that of the Prym group (see recital 538 of the contested decision).

210    Secondly, as regards the applicants’ argument that it is discriminatory to apply a dissuasive multiplier to the YKK group for its first infringement, without treating the ‘repeat offenders’ (the Coats and Prym groups) in the same way, the Court finds, like the Commission, that the three decisions concerning the haberdashery sector, namely Decision C (2005) 3765 final of 14 September 2005 (Case 38.337 – PO/Thread), Decision C (2004) 4221 final of 26 October 2004 (Case 38.338 – PO/Needles) and the contested decision were all taken following the inspections carried out by the Commission, in November 2001, at the premises of several producers of hard haberdashery items. Although the Commission found it appropriate to adopt three separate decisions (on the ground, inter alia, that different products were involved), it considered that it would not have been possible to impose an increase for repeated infringement on the Coats and Prym groups, because those infringements all ended at more or less the same time.

211    In that regard, a repeated infringement constitutes proof that the sanction previously imposed was not sufficiently deterrent (Case T‑203/01 Michelin v Commission [2003] ECR II-4071, paragraph 293; Groupe Danone v Commission, paragraph 48 above, paragraph 348; and BPB v Commission, paragraph 78 above, paragraph 398).

212    The finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion (Groupe Danone v Commission, paragraph 48 above, paragraph 38).

213    Moreover, it should also be noted that, like the Coats and Prym groups, the applicants were also held liable for several infringements (the Baseler-Wuppertaler and Amsterdamer cooperation, the bilateral cooperation between the Prym and YKK groups and the tripartite cooperation between the YKK, Coats and Prym groups). The only difference was that the three infringements in respect of which the applicants have been held responsible are the subject of one and the same decision – the contested decision.

214    In any event, the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way and such treatment is not objectively justified (Case 106/83 Sermide [1984] ECR 4209, paragraph 28; Hoche, paragraph 150 above, paragraph 25; and Westfalen Gassen Nederland v Commission, paragraph 116 above, paragraph 152).

215    In the present case, although the applicants submit that they were treated differently, they cannot claim that the situations at issue were identical (see paragraph 206 above).

216    Consequently, the plea must be rejected as unfounded.

217    It is apparent from all of the foregoing that none of the pleas in law put forward by the applicants is well founded. The action for annulment must therefore be rejected in its entirety, and there is no need, in the circumstances of the case, for the Court to exercise its unlimited jurisdiction to adjust the amount of the fines imposed on the applicants.

 Costs

218    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

      On those grounds,

THE GENERAL COURT (Third Chamber)

      hereby:

1.      Dismisses the action;

2.      Orders YKK Corp., YKK Holding Europe BV and YKK Stocko Fasteners GmbH to pay the costs.

Czúcz Labucka Gratsias

Delivered in open court in Luxembourg on 27 June 2012.

[Signatures]

Table of contents

Background to the dispute

Procedure and forms of order sought by the parties

Law

A –  The application for measures of inquiry

B –  The pleas relating to the tripartite cooperation between the YKK, Coats and Prym groups

1.  The plea alleging an absence of evidence of the existence of the infringement

a)  The first part, concerning the reliability and, consequently, the probative value of the applications of the Coats and Prym groups pursuant to the 1996 Leniency Notice.

Arguments of the parties

Findings of the Court

b)  The second and third parts, concerning the absence of an agreement on minimum prices and/or of a concerted practice

Arguments of the parties

Findings of the Court

–  The meeting of 28 April 1998 (recitals 188 to 190 of the contested decision)

–  The meeting of 13 January 1999 (recitals 191 to 195 of the contested decision)

–  The meeting of 2 June 1999 (recitals 196 to 200 of the contested decision)

–  The meeting of 29 September 1999 (recitals 201 to 204 of the contested decision)

–  The meeting of 12 November 1999 (recitals 205 to 209 of the contested decision)

Conclusion

c)  The fourth part, concerning public distancing from the meeting of 12 November 1999

Arguments of the parties

Findings of the Court

2.  The pleas relating to the wrong characterisation of the tripartite cooperation between the YKK, Coats and Prym groups as ‘very serious’

a)  Arguments of the parties

b)  Findings of the Court

3.  Conclusion

4.  The plea alleging an incorrect application of the Leniency Notices

a)  The first part, alleging an incorrect application of the 1996 Leniency Notice

Arguments of the parties

Findings of the Court

b)  The second part, concerning the failure to apply the 2002 Leniency Notice

Arguments of the parties

Findings of the Court

C –  The pleas concerning the Baseler-Wuppertaler and Amsterdamer cooperation

1.  The plea alleging an incorrect application of the limitation of the fine for the period preceding the acquisition of YKK Stocko Fasteners

a)  Arguments of the parties

b)  Findings of the Court

2.  The plea alleging the incorrect application of the multiplier for the period preceding the acquisition of YKK Stocko Fasteners

a)  Arguments of the parties

b)  Findings of the Court

D –  The plea common to the infringements related to the tripartite cooperation between the YKK, Coats and Prym groups and to the Baseler-Wuppertaler and Amsterdamer cooperation, alleging an infringement of the principles of equal treatment and proportionality as regards the application of the multiplier of 1.25

1.  Arguments of the parties

2.  Findings of the Court

Costs

* Language of the case: English.