JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
2 February 2012 (*)
(Competition – Agreements, decisions and concerted practices – Market for chloroprene rubber – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Price-fixing – Market-sharing – Proof of participation in the cartel − Proof of having distanced oneself from the cartel − Duration of the infringement – Rights of the defence – Access to the file − Guidelines on the method of setting − Non-retroactivity – Legitimate expectation – Principle of proportionality – Mitigating circumstances)
In Case T‑83/08,
Denki Kagaku Kogyo Kabushiki Kaisha, established in Tokyo (Japan),
Denka Chemicals GmbH, established in Düsseldorf (Germany),
represented initially by G. van Gerven, T. Franchoo and D. Fessenko, and subsequently by T. Franchoo, B. Bär-Bouyssière and A. de Beaugrenier, lawyers,
applicants,
v
European Commission, represented by S. Noë and V. Bottka, acting as Agents,
defendant,
APPLICATION for, principally, annulment of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.629 – Chloroprene Rubber), in that it concerns the applicants and, in the alternative, a reduction in the amount of the fine imposed jointly and severally on the applicants by that decision,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 16 February 2011,
gives the following
Judgment
Background to the dispute
The applicants and the product concerned
1 The present action was brought by two companies to which Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.629 – Chloroprene Rubber) (‘the contested decision’) was addressed, namely Denki Kagaku Kogyo Kabushiki Kaisha, a quoted company having its headquarters in Tokyo (Japan), and its wholly-owned subsidiary, Denka Chemicals GmbH, having its headquarters in Düsseldorf (Germany).
2 Denki Kagaku Kogyo entered the chloroprene rubber (‘CR’) market in 1962 and formed Denka Chemicals in 1990 as a subsidiary responsible, in particular, for distributing CR in Europe.
3 CR is a synthetic rubber which is an artificially-made polymer acting as an elastomer. It is used mainly in the manufacture of technical rubber parts, such as cables, hoses or power transmission belts, in the manufacture of adhesives, in particular for the shoe and furniture industries, such as soles, heels and coated fabrics, and in the manufacture of latex for diving equipment, bitumen modifications and the inner soles of shoes (see recitals 7 to 11 of the contested decision).
4 The other undertakings to which the contested decision was addressed are: Bayer AG, EI du Pont de Nemours and Company (‘EI DuPont’), DuPont Performance Elastomers LLC, DuPont Performance Elastomers SA, The Dow Chemical Company (‘Dow’), ENI SpA, Polimeri Europa SpA, Tosoh Corp. and Tosoh Europe BV.
The procedure before the Commission
5 On 18 December 2002 Bayer informed the Commission of the European Communities [confidential] (1) and expressed its willingness to cooperate with the Commission under the terms of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). By decision of 27 January 2003 the Commission granted Bayer conditional immunity from fines (see recital 60 of the contested decision).
6 Following the communication of information from Bayer, the Commission carried out unannounced inspections at the premises of Dow Deutschland Inc. on 27 March 2003 and at the premises of Denka Chemicals on 9 July 2003 (see recitals 61 and 62 of the contested decision).
7 On 15 July 2003 Tosoh Corp. and Tosoh Europe, and on 21 November 2003 DuPont Dow Elastomers LLC (‘DDE’), a joint venture held in equal shares by EI DuPont and Dow, applied for leniency in accordance with the 2002 Leniency Notice.
8 In March 2005 the Commission sent the first requests for information to the addressees of the contested decision, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
9 Upon receiving the first request for information, [confidential] and Polimeri Europa submitted leniency applications on [confidential]. [confidential] submitted ‘further’ statements in connection with that application in [confidential] and [confidential] (see recitals 63 to 66 of the contested decision).
10 By letters of 7 March 2007 the Commission informed Tosoh Corp., Tosoh Europe and DDE that it had reached the provisional conclusion that the evidence which they had submitted presented significant added value within the meaning of point 22 of the 2002 Leniency Notice and that it therefore intended to apply a reduction to the amount of the fine to be imposed on them within one of the bands referred to in the first paragraph of point 23(b) of that notice, namely a reduction of 30% to 50% for Tosoh Corp. and Tosoh Europe and a reduction of 20% to 30% for DDE (see recitals 63 to 66 of the contested decision). By letters of the same date, [confidential] and Polimeri Europa were informed that their applications did not meet the conditions set out in point 8(a) or (b) of the 2002 Leniency Notice and that, in application of points 15 and 17 of that notice, they would not be granted conditional immunity from fines (see recital 67 of the contested decision).
11 On 13 March 2007 the Commission initiated the administrative procedure and adopted a statement of objections concerning an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’), addressed to 12 undertakings, including Denki Kagaku Kogyo and Denka Chemicals. All the addressees of the statement of objections submitted observations in writing in response to the objections raised by the Commission and exercised their right to be heard, at a hearing which took place on 21 June 2007 (see recitals 68 to 72 of the contested decision).
The contested decision
12 On 5 December 2007 the Commission adopted the contested decision, which was notified to Denki Kagaku Kogyo and Denka Chemicals on 10 December 2007. A summary of the contested decision, as amended by Commission Decision C(2008) 2974 final of 23 June 2008, addressed solely to EI DuPont, DuPont Performance Elastomers LLC, DuPont Performance Elastomers SA and Dow, was published in the Official Journal of the European Union of 3 October 2008 (OJ 2008 C 251, p. 11).
13 It follows from the contested decision that between 1993 and 2002 several producers of CR participated in a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the entire territory of the European Economic Area (EEA), consisting of agreements and concerted practices concerning the allocation and the stabilisation of markets, market shares and sales quotas for CR, coordinating and implementing several price increases, agreeing upon minimum prices, allocating customers and exchanging competitively sensitive information (see recitals 2, 3 and 81 to 122 of the contested decision). Those producers met on a regular basis several times a year, in multilateral, trilateral and bilateral meetings (see recitals 94 to 116 of the contested decision).
14 According to Articles 1 to 3 of the decision of 5 December 2007:
‘Article 1
The following undertakings have infringed Article 81 [EC] and – from 1 January 1994 – Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuing agreement and/or concerted practice in the [CR] sector:
(a) Bayer …: from 13 May 1993 to 13 May 2002;
(b) [EI DuPont]: from 13 May 1993 to 13 May 2002; DuPont Performance Elastomers SA, DuPont Performance Elastomers LLC and [Dow]: from 1 April 1996 to 13 May 2002;
(c) Denki Kagaku Kogyo … and Denka Chemicals …: from 13 May 1993 to 13 May 2002;
(d) ENI … and Polimeri Europa …: from 13 May 1993 to 13 May 2002;
(e) Tosoh Corp[.] and Tosoh Europe …: from 13 May 1993 to 13 May 2002.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a) Bayer …: EUR 0;
(b) [EI DuPont]: EUR 59 250 000; of which jointly and severally with
(i) DuPont Performance Elastomers SA: EUR 44 250 000 and
(ii) DuPont Performance Elastomers LLC: EUR 44 250 000 and
(iii) [Dow]: EUR 44 250 000;
(c) Denki Kagaku Kogyo … and Denka Chemicals …: jointly and severally EUR 47 000 000;
(d) ENI … and Polimeri Europa …, jointly and severally: EUR 132 160 000;
(e) Tosoh Corp[.] and Tosoh Europe …, jointly and severally: EUR 4 800 000
(f) [Dow] EUR 4 425 000.
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article in so far as they have not already done so.
They shall 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.’
15 In determining the basic amount of the fines, the Commission relied on its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’). It took into account a proportion of the value of the sales of CR made by each undertaking within the EEA during the 2001 calendar year, the last full year of participation in the infringement, multiplied by the number of years of infringement (see recitals 521 and 523 of the contested decision).
16 In order to determine the proportion of the value of sales to be taken into account, the Commission considered that the horizontal market-sharing and price-fixing were by their very nature among the most serious restrictions of competition (see recital 525 of the contested decision). In that regard, the Commission also considered that the combined market share of the undertakings participating in the infringement came to 100% within the EEA, that the geographic scope of the infringement was worldwide and that the infringement had been systematically implemented (see recital 526 of the contested decision).
17 The Commission decided that the proportion of the value of sales of each undertaking involved to be taken into account for the purpose of establishing the basic amount of the fine to be imposed was 21% (see recital 535 of the contested decision).
18 As the participation in the infringement had lasted for nine years for EI DuPont, Bayer, Denka Kagaku Kogyo and Denka Chemicals (together, ‘Denka’ or ‘the applicants’), ENI and Polimeri Europa (together, ‘EniChem’) and Tosoh Corp. and Tosoh Europe (together, ‘Tosoh’), and for six years and one month for DuPont Performance Elastomers SA and DuPont Performance Elastomers LLC (together, ‘DPE’) and Dow, the Commission, in application of point 24 of the 2006 Guidelines, multiplied the starting amounts of the fines determined by reference to the value of sales by 9 for EI DuPont, Bayer, Denka, EniChem and Tosoh and by 6.5 for DPE and Dow (see recital 536 of the contested decision).
19 In order to deter the undertakings from participating in an agreement relating to market-sharing or horizontal price-fixing agreements such as those in issue in the present case, and taking into account in particular the factors referred to at paragraph 15 above, the Commission, in application of point 25 of the 2006 Guidelines, included in the basic amount of the fines an additional amount of 20% of the value of sales (see recital 537 of the contested decision).
20 In the light of those factors, the basic amount of the fine to be imposed on the applicants was fixed at EUR 47 million (see recital 539 of the contested decision).
21 As regards the adjustments to the basic amounts of the fines for, first, aggravating circumstances, no increase was applied to the fine to be imposed on the applicants, since no aggravating circumstance was found to exist in their case. Conversely, the basic amount of the fine to be imposed on EniChem was increased by 60% and the basic amount of the fine to be imposed on Bayer was increased by 50% on the ground that those undertakings had committed a repeated infringement (see recitals 540 to 542 of the contested decision). Second, no reduction was granted for the mitigating circumstances referred to in point 29 of the 2006 Guidelines, as the Commission rejected all the applications for a reduction which had been submitted on that basis (see recitals 543 to 582 of the contested decision).
22 The Commission then applied a specific increase to the fines of certain addressees of the contested decision in order to ensure that the fines would have a sufficiently deterrent effect, taking account for that purpose of those undertakings’ turnovers beyond the goods and services to which the infringement related. No specific increase was applied to the basic amount of the applicants’ fine, but, conversely, the basic amount of the fine to be imposed on EniChem was multiplied by 1.4 and the basic amount of the fine to be imposed on Dow was multiplied by 1.1 (see recitals 583 to 586 of the contested decision).
23 Accordingly, the basic amount of the fine to be imposed on the applicants was not adjusted, but remained the same (see recital 587 of the contested decision).
24 As regards the application of the 2002 Leniency Notice, the Commission granted a 100% reduction in the basic amount of the fine to Bayer, 50% to Tosoh and 25% to EI DuPont, DPE LLC, DPE SA and Dow (see recitals 591 to 638 of the contested decision). The Commission rejected the applications submitted under that notice by [confidential] and Polimeri Europa (see recitals 639 to 654 of the contested decision).
25 The amount of the fine imposed on the applicants was thus fixed at EUR 47 million, to be paid jointly and severally (see recital 655 of the contested decision).
Procedure
26 By application lodged at the Court Registry on 19 February 2008 the applicants brought the present action.
27 Acting upon a report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure.
28 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 16 February 2011.
29 By order of 30 March 2011, the Court ordered a measure of inquiry by virtue of which the Commission was requested to produce certain documents. The Commission was also requested to specify, among the documents that it was required to produce, those documents which benefited from special protection pursuant to the leniency programme.
30 The Commission complied with that request within the period prescribed. The applicants were therefore able to consult the documents which benefited from special protection pursuant to the leniency programme at the Court Registry.
31 On 16 May 2011, the applicants lodged observations on the documents produced by the Commission.
32 The oral procedure was closed on 12 July 2011.
Forms of order sought by the parties
33 The applicants claim that the Court should:
– annul Articles 1, 2 and 3 of the contested decision in so far as they concern the applicants;
– in the alternative, substantially reduce the amount of the fine imposed on them;
– order the Commission to pay the costs.
34 The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicants to pay the costs.
Law
35 In support of their action, the applicants put forward six pleas in law. Two main pleas seek annulment of the contested decision and allege (i) manifest errors of assessment of the facts in relation to the applicants’ participation in an infringement of Article 81 EC; and (ii) breach of the rights of the defence, of the obligation to state reasons and of the principle of sound administration. Four pleas, raised in the alternative, seek a reduction in the amount of the fine and allege (iii) breach of the principles of legal certainty and non-retroactivity owing to the application of the 2006 Guidelines; (iv) manifest errors of assessment of the facts and breach of the principle of proportionality in the calculation of the value of sales; (v) incorrect determination of the duration of the applicants’ participation in the cartel; and (vi) manifest errors of assessment of the facts, failure to state reasons and breach of the principles of proportionality and equal treatment in relation to the mitigating circumstances.
The main pleas, seeking annulment of the contested decision
First plea: manifest errors of assessment of the facts in relation to the applicants’ participation in an infringement of Article 81 EC
– Wording of the contested decision
36 In recitals 338 and 339 of the contested decision, the Commission stated, as regards the requisite standard of proof, as follows:
‘(338) … [T]he 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 any other plausible explanation, constitute evidence of an infringement of the competition rules.
(339) … Whilst sufficiently precise and consistent evidence must be produced to support the firm conviction that the alleged infringement took place, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. Rather, it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.’
37 In recital 340 of the contested decision, as regards first of all the applicants’ participation in the agreements and concerted practices, the Commission observed as follows:
‘Denka’s arguments that it did not participate in any anticompetitive arrangements … should be assessed in the light of recitals 338 and 339 [of the contested decision]. Denka admits its presence in a large number of bilateral and multilateral competitor contacts and meetings (see recitals 142, 150, 155, 156, 161, 164, 175, 178, 187, 189, 208, 211, 222, 240, 261, 265, 269, 280, 281, 287, 292, 296, 302, 305 [of the contested decision]). The direct evidence available from some of those meetings … as well as the explanatory submissions from the immunity and leniency applicants in this case clearly identify the anticompetitive scope and nature of those meetings. The direct evidence consists of documents drafted at the time the various contacts between competitors were taking place (that is, documents drafted at a non suspicious point in time). Moreover, Denka’s assertions are in contradiction with the statements of Bayer, Tosoh, DDE and [confidential] who have, incriminating themselves, admitted the history of collusion in the CR industry and the collusion which heavily involved Denka.’
38 Next, as regards the applicants’ assertion that they were coerced by the European CR producers to attend certain meetings, the Commission observed, in recital 341 of the contested decision, that ‘there is no evidence in the file to support that allegation’ and that, ‘[e]ven if coercion could be proved, th[at] would not change the legal qualification of the contacts admitted to by Denka and those established otherwise by the Commission as collusive agreements and concerted practices’. It went on to state in that recital that ‘[c]oercion can, at the most, be an attenuating circumstance for the undertaking subject to threats’ and ‘does not, however, change the fact that Denka actively participated in anticompetitive arrangements’.
39 Moreover, as regards the applicants’ claims that there was no common objective with the other producers of CR and therefore no agreement between the applicants and their competitors, the Commission observed, in recitals 342 to 344 of the contested decision, as follows:
‘(342) … [T]he agreement [in question] was part of a worldwide cartel scheme aimed at establishing a balance between the CR producers throughout the world. Denka’s interest in the European market and behaviour in the cartel cannot be seen in isolation of its interests in other regions of the world also covered by the arrangements. The participants limited their activities in Asia and supported common price increases in other regions of the world, which was clearly also in Denka’s interest. …
(343) … [E]ven if Denka had participated in the meetings and contacts with its competitors with a different objective than the competitors, this would be irrelevant for the qualification of its participation as a collusive agreement and/or concerted practice, as long as Denka did not declare that attitude manifestly and openly towards its competitors. …
(344) Denka’s claim that it could not openly distance itself from the agreements and cooperate with the Commission as it feared retaliation through anti-dumping action is neither convincing nor relevant. First of all, and with a real spirit of cooperation, the Commission would have been the best placed to deal with such a claim as it would have been competent to address the cartel violation as well as the allegedly abusive antidumping complaint. Secondly, Denka could have kept evidence to prove that it actually wanted to distance itself but did not do so for fear of retaliation. However, even after an explicit request from the Commission in the Oral Hearing, Denka was not able to present such evidence to the Commission. Thirdly, even if Denka only participated due to its fear of retaliation, this would not change the legal qualification of its participation as anticompetitive agreements.’
40 Lastly, in recital 345 of the contested decision, the Commission observed, as regards the existence of a concerted practice between competitors, as follows:
‘Denka’s argument that the Commission did not establish a concerted practice between the competitors as the contacts between them never had the object or effect of influencing the market contradicts the submissions of Bayer, Tosoh, DDE and [confidential], which admitted that the aim of the agreements was the allocation of market shares and the stabilization of prices. Denka’s argument is also contradicted by the market behaviour of the cartelists, which implemented most of the agreed market and price strategies … . Even if Denka did not abide by the agreements and behaved independently on the market, which is not the case, it knew that its mere presence in the meetings had a direct effect on the behaviour of its competitors, which trusted, at least to a certain extent, in Denka’s participation and implementation. Consequently, Denka’s argument that the contacts did not have any effect on the market cannot be accepted.’
41 The Commission therefore found, in recital 347 of the contested decision, that ‘even if Denka contests certain events throughout the period of its participation in anticompetitive arrangements and even if it provides alternative interpretations to certain pieces of evidence, it has not succeeded in weakening the Commission’s position, based on all the evidence and indicia taken together, that Denka was involved in agreements and/or concerted practices with its competitors throughout the lifetime of the cartel’.
– Arguments of the parties
42 The applicants claim that the Commission has not shown to the requisite legal standard that they participated in the cartel on the CR market. They admit having ‘attended’ a ‘limited number of meetings’, either out of courtesy or because of the coercion exercised by the European CR producers, but claim that that circumstance alone cannot prove that they participated in the cartel, since they did not share a common objective with the participants in the cartel. The applicants did not therefore participate in an agreement contrary to Article 81 EC. As the contacts with their competitors did not have either the object or the effect of influencing the applicants’ conduct on the market, the Commission has also failed to demonstrate that they adopted anti-competitive behaviour.
43 First of all, the existence of a common objective is an essential element required by the case-law on the application of Article 81 EC. The lack of a common objective in the present case is the consequence of the applicants’ strategy and commercial behaviour, which were contrary to the objectives of the cartel, and of the fact that the applicants were coerced to attend the meetings.
44 Thus, first, the cartel’s main purpose was to share the European market between the European producers, which initially involved controlling the market share of the Japanese CR producers and, in particular, the applicants, then involved expelling the Japanese producers from the European market (the ‘regionalisation’ strategy). That purpose was entirely contrary to the applicants’ commercial strategy, which essentially consisted in maximising their sales in Europe.
45 Second, the applicants were actually present at a limited number of meetings of the cartel, but only because they had been coerced to attend by the European CR producers. The applicants also state that they were unable to distance themselves publicly from the cartel. In those circumstances, they cannot be held liable for an infringement of Article 81 EC. The coercion took the form of threats by the European CR producers to lodge anti-dumping complaints against the Japanese CR producers. By accepting Bayer’s statement that [confidential], when that statement was self-serving, the Commission wrongly rejected the applicants’ [confidential] claims. Furthermore, by claiming that the applicants had not provided direct evidence of the threats, the Commission ignored the examples of threats produced by the applicants following a request made by the Commission at the hearing. Moreover, the Commission never used its investigative powers to question the other producers about the specific point of threats of anti-dumping complaints. In any event, the applicants’ assertions are corroborated indirectly, namely by (i) Bayer’s statement; (ii) the European CR producers’ complaints about the Japanese CR producers’ conduct on the market; (iii) the object of the cartel, which was to limit the Japanese CR producers’ activities on the European market; (iv) the anti-dumping measures already adopted against the applicants; and (v) the fact that the applicants had no positive interest in participating in meetings at which they were the target of complaints and threats. The Commission’s argument that the applicants could have reported the coercion to the competent authorities reveals its misunderstanding of the anti‑dumping measures, which are a protectionist tool which the European producers have at their disposal in order to protect their market, and which in the present case would probably have resulted in anti-dumping duties being imposed on the applicants. Thus the coercion exerted on the applicants changes the legal qualification of the facts.
46 Accordingly, in considering that there was a common interest between the applicants and their competitors on a global level, the Commission made manifest errors of assessment of the facts.
47 Next, it also follows from the case-law that, in order to establish the existence of an agreement, the Commission must demonstrate a concurrence of wills. Owing to the existence of coercion, the mere fact that the applicants participated in certain meetings does not suffice. The applicants observe, however, that they do not dispute the anti‑competitive nature of ‘certain’ meetings. However, the applicants’ commercial behaviour shows that they were firmly and consistently opposed to the market-sharing agreement and the Commission has adduced no documentary evidence showing that the applicants had concluded anti-competitive agreements with the participants in the cartel. According to the case-law, moreover, non-implementation is an indication of the absence of an agreement.
48 The applicants emphasise, in the interest of completeness, that they did not participate in concerted practices, since their contacts with their competitors at meetings did not have the object or the effect of influencing their conduct on the market. First, the applicants never shared the European CR producers’ objective of freezing market shares in the EEA and excluding the Japanese producers from the European market. Second, the contacts had no effect on the applicants’ behaviour. Even if there was a presumption that the applicants’ behaviour was influenced by their presence at the meetings, their independent commercial behaviour would rebut that presumption. Nor did the applicants’ presence at the meetings have a direct effect on the behaviour of their competitors, who never trusted the Japanese producers. The applicants deny having taken account of the information that ‘would have been exchanged’ at those meetings.
49 Lastly, the applicants submit in the reply statements by members of their staff, which show that those staff members never agreed to market-sharing or price-fixing and never took account of any information that ‘would have been exchanged’ at the meetings.
50 The Commission disputes the applicants’ arguments.
– Findings of the Court
51 According to settled case‑law, for the purposes of applying Article 81(1) EC, it is sufficient, in order for an agreement to fall within its scope, that the object of an agreement should be to restrict, prevent or distort competition, irrespective of the actual effects of that agreement. Consequently, in the case of agreements reached at meetings of competing undertakings, first, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market and, second, the liability of a particular undertaking for participation in the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraphs 508 and 509).
52 When agreements of an anti-competitive nature are reached at meetings of competing undertakings, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti‑competitive nature were concluded in order to prove 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. The reason underlying that rule 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 (see Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraphs 47 and 48 and the case-law cited).
53 It must be pointed out in this regard that the notion of publicly distancing oneself as a means of excluding liability must be interpreted narrowly. In order to disassociate itself effectively from anti‑competitive discussions, it is for the undertaking concerned to indicate to its competitors that it does not in any way wish to be regarded as a member of the cartel and to participate in anti‑competitive meetings. In any event, silence by an operator in a meeting during which an unlawful anti-competitive discussion takes place cannot be regarded as an expression of firm and unambiguous disapproval. A party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery (see, to that effect, Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR I‑4567, paragraphs 103 and 124).
54 As regards the assessment of the evidence, it is normal for the activities entailed by anti-competitive agreements and practices to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (see Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 52 above, paragraph 51, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 22 and the case-law cited).
55 In the present case, the applicants do not contest the findings in the contested decision that, during the period 1993 to 2002, they attended at least 36 multilateral, trilateral or bilateral meetings with their competitors: on 12 and/or 13 May 1993 in Florence (Italy), on 11 April 1994 in Zurich (Switzerland), between 20 and 22 April 1994 in Singapore (Singapore), on 28 June 1994 in Düsseldorf, on 15 and/or 16 September 1994 in Zurich, on 2 December 1994 in Zurich, between 8 and 10 December 1994 in Tokyo, on 8 February 1995 in Düsseldorf, on 3 May 1995 in Amsterdam (Netherlands), on 8 or 9 May 1995 in London (United Kingdom), on 29 August 1995 in Milan (Italy), on 23 January 1996 in Milan, between 8 and 10 February 1996 in Tokyo, between 5 and 8 May 1996 in Bath (United Kingdom), on 18 July 1997 in London, on 7 November 1997 in Singapore, on 2 December 1997 in Düsseldorf, on 4 February 1998 in London, on 22 April 1998 in Düsseldorf, on 5 May 1998 in Singapore, on 20 May 1998 in Düsseldorf, on 10 June 1998 in Milan, between 18 and 23 July 1998 in Tokyo, on 14 September 1998 in London, between 2 and 5 March 1999 in Tokyo, on 9 May 1999 in Taipei (Taiwan), on 3 or 4 August 1999 in Tokyo, on 2 November 1999 in Düsseldorf, on 16 June 2000 in Tokyo, on 7 November 2000 in Düsseldorf, on 5 December 2000 in Tokyo, in May 2001 in Düsseldorf, between 25 November and 1 December 2001 in Tokyo, on 18 April 2002 in Tokyo, on 25 April 2002 in Düsseldorf and on 13 May 2002 in Naples (Italy).
56 Moreover, the applicants explicitly acknowledge having attended two multilateral meetings, on 11 April 1994 in Zurich and on 14 September 1998 in London, during which anti-competitive discussions took place. More generally, the applicants dispute that they attended meetings that could be regarded as anti-competitive before 11 April 1994 and after 14 September 1998. As regards the 21 meetings that took place between those dates, the applicants do not contest either the anti‑competitive nature or their presence at 20 of those meetings. However, the applicants submit that the Commission has failed to establish to the requisite legal standard that they participated in an anti-competitive meeting organised on 5 or 6 November 1996 in Singapore.
57 Furthermore, the Court notes that, during the administrative procedure, the applicants contested, in respect of all the meetings, that their competitors discussed anti‑competitive matters in their presence at those meetings. However, in this plea, the applicants do not contest the anti‑competitive nature of ‘certain’ meetings or that they ‘attended’ ‘a limited number’ of cartel meetings. From the point of view of European Union competition law, the distinction drawn by the applicants between (i) having ‘attended’ (that is having simply been present) at a meeting and (ii) having ‘participated’ in a meeting is purely artificial, as is clear from the case-law cited in paragraphs 51 and 52 above.
58 Lastly, by asserting merely that it did not share a common objective with the participants in the cartel, they do not dispute the findings made in the contested decision, according to which, between 1993 and 2002, the other CR producers which were members of the cartel and addressees of the contested decision met on a regular basis several times a year, in multilateral, trilateral and bilateral meetings – at which the applicants were also present (see paragraphs 55 and 56 above) − in order to agree upon the allocation and the stabilisation of markets, market shares and sales quotas for CR, to coordinate and implement several price increases, agree upon minimum prices, allocate customers and exchange competitively sensitive information.
59 It must therefore be stated that the applicants participated in anti-competitive meetings with competing undertakings which also produced CR, with knowledge of their common objective, which was to organise artificially the operation of the CR market.
60 It is apparent from the foregoing that the Commission established to the requisite legal standard that the applicants had participated in an infringement of Article 81 EC. That finding cannot be called into question by the applicants’ arguments.
61 As regards the argument that the applicants were coerced to participate in the meetings, and that, as a result, they were unable to distance themselves publicly from the cartel and that their participation in certain meetings does not therefore suffice to establish the existence of an agreement, it must be held that they did not indicate to their competitors that they were participating in the meetings in a spirit that was different from theirs and that they did not publicly distance themselves from the anti-competitive discussions for the purposes of the case‑law. The applicants’ silence in the meetings during which an unlawful anti-competitive discussion took place cannot be regarded as an expression of firm and unambiguous disapproval. On the contrary, the tacit approval of those unlawful meetings in effect encouraged the continuation of the infringement whilst compromising its discovery. The applicants have failed to establish that they were coerced to participate in those meetings.
62 In any event, the argument alleging the existence of coercion is ineffective. The applicants could have reported the pressure and the threats of anti-dumping proceedings to which they were subject to the competent authorities and lodged a complaint with the Commission under Article 3 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87), and Article 7 of Regulation No 1/2003, rather than participate in the cartel. The existence of such pressure or threats does nothing to alter the reality and the gravity of the infringement committed by an undertaking (see, to that effect, 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, paragraphs 369 and 370).
63 The argument that the applicants participated in meetings out of mere ‘courtesy’ is, on the same grounds, ineffective.
64 Moreover the applicants’ assertion, set out in their fifth plea, that they openly rejected at least one aspect of the cartel, namely the regionalisation strategy, cannot invalidate that conclusion. In that regard, the Commission rightly submits that the applicants fail to establish that the criterion required by the case-law cited in paragraphs 52 and 53 above in order for a participant in the cartel to be relieved of its liability, namely complete and open dissociation from the whole cartel, is met in the present case, as was already found in paragraph 61 above.
65 As regards the applicants’ argument that the Commission is required to establish that all the participants in the cartel took part in it by pursuing the same objective on account of common commercial interests and, therefore, that it establishes the existence of a concurrence of wills between all the participants, beyond proof of their participation in anti-competitive meetings, the Court would point out that, according to settled case-law (see paragraphs 52 to 54 above), the liability of a particular undertaking for participation in the infringement is properly established where it participated in anti‑competitive meetings of competing undertakings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that it publicly distanced itself from the content of that meeting. By their reasoning, the applicants are effectively asking the General Court to impose stricter requirements with respect to the standard of proof required of the Commission and this reasoning runs counter to the settled case‑law of the Court of Justice. It is therefore not necessary to examine the question whether the applicants shared a common objective with the other cartel participants other than the artificial organisation of the operation of the CR market or whether a concurrence of wills between the applicants and the other participants manifested itself during each of the cartel meetings.
66 Moreover, the case-law cited on that point by the applicants (Case T‑41/96 Bayer v Commission [2000] ECR II‑3383) is irrelevant. The case which gave rise to that judgment raised the question of the standard of proof required of the Commission in order to establish the existence of an agreement for the purposes of Article 81 EC between a manufacturer and wholesalers of pharmaceutical products which was designed to prevent parallel imports, namely proof of the existence of a concurrence of wills between the manufacturer and the wholesalers. In the present case, what is at issue is proof not of the existence of a cartel but of participation therein and proof that a participant publicly distanced itself during the anti-competitive meetings of competing undertakings.
67 The Court would also point out that, in the contested decision, the Commission found the existence not only of an agreement but also of concerted practices contrary to Article 81 EC. The concept of a concerted practice within the meaning of Article 81(1) EC refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 179 and the case-law cited). According to settled case-law, in order to prove that there has been a concerted practice, and although that concept implies the existence of reciprocal contacts, that condition is met where the disclosure by one competitor to another of its future intentions or conduct on the market was requested or, at the very least, accepted by the latter. It is not necessary to show that the competitor in question formally undertook, in respect of one or several other competitors, to adopt a particular course of conduct or that the competitors colluded over their future conduct on the market. It is sufficient that, by its statement of intention, the competitor eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect from it on the market (see, to that effect, BPB v Commission, paragraphs 153 and 182 and the case-law cited).
68 It follows that, in those circumstances, the applicants’ argument that the Commission is required to establish a concurrence of wills between participants at meetings relating specifically to price‑fixing and market‑sharing must be rejected.
69 Lastly, as regards the statements by members of the applicants’ staff submitted as an annex to the reply, it should be pointed out that, pursuant to Article 48(1) of the Rules of Procedure of the General Court, the parties may offer evidence in support of their arguments in the reply or rejoinder, but must give reasons for the delay in offering it. However, that provision concerns offers of fresh evidence and must be read in the light of Article 66(2) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 72, judgment of 12 September 2007 in Case T‑448/04 Commission v Trends, not published in the ECR, paragraph 52).
70 In the present case, the statements of the six members of the applicants’ staff, who are named in the contested decision, were made after the application was lodged and were attached to the reply in order to support the applicants’ assertion that they did not share the common objective of the European CR producers of concluding a cartel relating to the European CR market. The applicants did not put forward any reason why that evidence was not submitted with the application. It is also apparent from the applicants’ assertions, according to which those statements were submitted to ‘further support’ their arguments, that they do not seek to reply in detail to the Commission’s arguments in the defence and that that evidence is not related to evidence that had already been submitted by the applicants at the stage of the application. It follows that the documents attached by the applicants as annex 37 to their reply must be removed from the file before the Court because they were submitted late.
71 It follows from the foregoing that the first plea must be rejected.
Second plea: breach of the rights of the defence, of the obligation to state reasons and of the principle of sound administration
– Wording of the contested decision
72 In recitals 399 and 400 of the contested decision, the Commission stated as follows:
‘(399) In its reply to the Statement of Objections Denka also claims that it was coerced by the European [CR] producers to join the competitor meetings … . Denka submits that the European producers (including Bayer, DuPont/DDE and Eni[C]hem) threatened to file an anti-dumping complaint in Europe against the Japanese producers. Denka further submits that the threats prevented Denka from reporting the cartel to the Commission because of the potential impact of the European producers’ retaliation. Denka contends that even Bayer admits that coercion when it states that if somebody did not implement the agreements, threats were made to attack the key accounts of the respective producer … . Denka identified in its reply, as well as in an additional submission made in reaction to a question of the Commission during the Oral Hearing, several meetings during which such threats were allegedly made … .
(400) The Commission could not establish to a sufficient standard of proof any coercion by Bayer, DuPont/DDE or Eni[C]hem. In the whole file there is no direct evidence of such coercion (documents drafted … at the time the infringement took place) and the only indirect evidence available before the Statement of Objections was issued were the submissions made by Tosoh … . Those statements were self-serving (and not inculpatory statements, which have more probative value) and could not be corroborated sufficiently. Denka’s confirmation that there were threats by the European [CR] producers was only given in reply to the facts of the case as set out in the Statement of Objections. Consequently they cannot be treated as an independent source of corroboration and have, as such, no evidential value. Even after a specific request by the Commission during the Oral Hearing Denka was not able to provide any direct evidence of the allegedly regular threats. To that extent … it is also not credible that Denka had a real intention to cooperate with the Commission … . Denka’s claim that even Bayer admits the coercion is not consistent with the facts, as Bayer does not specify that threats were made against the Japanese producers but that such threats were used against anybody who did not stick to the agreements … . Furthermore Bayer does not submit that the threats were made in order to coerce somebody to join the cartel arrangements but, rather, that such threats were used to monitor and to assure the proper implementation of the agreements.’
73 As to whether Bayer satisfied the conditions set out in the 2002 Leniency Notice, the Commission concluded in recitals 599 and 601 of the contested decision that ‘Bayer had not provided it expeditiously and spontaneously with all the evidence available relating to the suspected infringement’ and that ‘[a]s a consequence the Commission set out its doubts as to whether Bayer had fulfilled its cooperation obligations pursuant to point 11(a) of the [2002] Leniency Notice in a separate chapter in the Statement of Objections, which was only addressed to Bayer’. Bayer was ‘further given the opportunity to comment on the Commission’s allegations in the … Hearing’.
74 However, the Commission stated, in recital 614 of the contested decision, that ‘it is undisputable that it was Bayer’s contribution that triggered the Commission’s investigation in this case’. Furthermore the Commission took the view, in the same recital, that it could not ‘establish that Bayer’s failure to provide the four documents in discussion was the result of unwillingness to genuinely cooperate’, given that, ‘[o]n the contrary, Bayer, as an immunity applicant, would not have obtained any advantage from withholding information in respect of a certain cartel meeting while having previously disclosed the full duration of the cartel’.
75 The Commission concluded, in recital 617 of the contested decision, that ‘it would be disproportionate to withdraw immunity from Bayer’ and that ‘[c]onsequently’, Bayer should ‘be granted immunity from any fines that would otherwise have been imposed on it’.
– Arguments of the parties
76 The applicants claim, first of all, that the Commission breached their rights of defence by refusing to give them access to the non-confidential version of the transcript of the statement made by Bayer in camera. They were unable to examine in full the arguments and the reasoning on which the Commission relied in order to reject the central argument of their defence, namely the coercion exerted by the European CR producers. The contested decision states that Bayer explained how the threats were made, but that assertion is not supported by a specific statement forming part of the Commission’s administrative file. In the applicants’ submission, it is ‘most likely’ that Bayer attempted to refute the applicants’ assertions at a hearing held in camera which they were not permitted to attend. The Commission also denied the applicants access to the non-confidential version of the transcript of Bayer’s statement, on the ground that no statement had been made in relation to the applicants or which could affect their situation, which constitutes a breach of their rights of defence. The applicants claim that it is not for the Commission alone to determine whether Bayer’s statement might constitute exculpatory evidence.
77 The applicants propose in that regard that the Court should request the Commission, by way of a measure of organisation of procedure, to produce a non-confidential version of the transcript of the statement which Bayer made in camera so that they can examine it or, in the alternative, so that the Court can verify the Commission’s assertion.
78 Next, the Commission breached the obligation to state reasons under Article 253 EC by not clearly referring to Bayer’s statement in the contested decision and not stating its reasons for rejecting the applicants’ allegations of coercion. It is thus impossible for the applicants and for the Court to understand the contested decision in so far as it rejects the applicants’ arguments concerning coercion. Nor did the Commission respond to, or take account of, the applicants’ letter of 28 June 2007, which was none the less submitted at the Commission’s express request. It follows, in the applicants’ submission, that the Commission has breached its obligation to state reasons under Article 253 EC.
79 Last, the Commission has breached the principle of sound administration by failing to produce a non-confidential version of the summary of the matters discussed at the hearing in camera and by not allowing the applicants to review for themselves whether Bayer’s statement was relevant for their defence, by means of such a non-confidential summary.
80 Each of those three complaints is sufficient to entail the annulment of the contested decision in its entirety.
81 The Commission disputes the applicants’ arguments.
– Findings of the Court
82 According to settled case‑law, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 94, and 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 270). It requires that the undertakings concerned be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances put forward by the Commission (Case 85/76 Hoffmann-La Roche [1979] ECR 461, paragraph 11, and Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 49).
83 The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means that the Commission provides the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 145).
84 As regards inculpatory evidence, the undertaking concerned must demonstrate that the result which the Commission reached in its decision would have been different if an undisclosed document on which the Commission relied to make a finding of infringement against that undertaking ought to have been excluded as inculpatory evidence. As regards exculpatory evidence, the undertaking concerned must establish that its non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, if it had been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine. The possibility that a document that had not been disclosed might have had an influence on the conduct of the procedure and the content of the Commission’s decision can be established only after a provisional examination of certain evidence showing that the undisclosed documents might – in the light of that evidence – have had a significance which ought not to have been overlooked (Aalborg Portland and Others v Commission, paragraph 83 above, paragraphs 73 to 76, and Hoechst v Commission, paragraph 83 above, paragraph 146).
85 In the present case, first, in relation to the applicants’ complaint that, by refusing them access to the non-confidential version of the transcript of a statement by Bayer at an in camera hearing, allegedly relating to coercion exerted by the European producers, the Commission infringed their rights of defence, it is apparent from the file that the Commission refused to divulge the content of that hearing, because the in camera hearing related only to issues relevant to Bayer, and thus sought to protect the legitimate interest of the undertakings − in this instance Bayer – in non‑disclosure of their business secrets and other confidential information.
86 Moreover, having found that it had had been unable to establish that Bayer had exerted coercion over the Japanese undertakings to join the cartel arrangements, the Commission examined, in recitals 594 to 617 of the contested decision, Bayer’s cooperation in accordance with point 11(a) of the 2002 Leniency Notice, which states that ‘[to qualify for any immunity from a fine], the undertaking [must cooperate] fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure and [must provide] the Commission with all evidence that comes into its possession or is available to it relating to the suspected infringement’ and ‘[i]n particular, [must remain] at the Commission’s disposal to answer swiftly any request that may contribute to the establishment of the facts concerned’. It is also apparent from the contested decision that the Commission’s doubts as to whether Bayer had fulfilled its cooperation obligations pursuant to point 11(a) of the 2002 Leniency Notice were set out in a separate chapter in the statement of objections, which was only addressed to Bayer, and that Bayer was given the opportunity to comment on the Commission’s allegations at a hearing. The Commission then found, referring to the opportunity given to Bayer to comment on the Commission’s allegations at the hearing, that the condition relating to cooperation was satisfied in the present case.
87 Any coercion that Bayer might have exerted over the other participants relates to satisfaction of the condition set out in point 11(c) of the 2002 Leniency Notice, pursuant to which it is necessary, to qualify for any immunity from a fine, that the undertaking did not take steps to coerce other undertakings to participate in the infringement. It does not deal with the obligations to cooperate with the Commission laid down in point 11(a) of that notice. Moreover, it is apparent from the contested decision that, in concluding that it ‘could not establish that Bayer exerted pressure on the Japanese undertakings to join the cartel arrangements, despite the allegations of Tosoh and [the applicants]’ (see recital 594 of the contested decision), the Commission harboured no doubts that Bayer had satisfied its cooperation obligations under point 11(c) of that notice.
88 It must therefore be held that, contrary to the applicants’ assertion, there is no indication that the question of any coercion on the applicants was discussed at the hearing of Bayer held in camera, as that hearing dealt with the doubts that the Commission harboured as to whether Bayer satisfied the cooperation obligations laid down in point 11(a) of the 2002 Leniency Notice with which Bayer had undertaken to comply.
89 It is not therefore appropriate to grant the application for measures of organisation of procedure proposed to the Court by which the applicants seek access to a non-confidential version of the transcript of the statement made at the hearing held in camera (or to the file relating to that hearing)
90 It follows from the foregoing that the complaint alleging infringement of the applicants’ rights of defence is based on an incorrect premiss and must therefore be rejected.
91 Second, as regards the complaint alleging infringement of the obligation to state reasons, it should be borne in mind that, according to settled case-law, although, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the European Union Courts and the persons concerned the circumstances in which it has applied the Treaty (see Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95 and the case-law cited).
92 In the present case, it is apparent from the analysis carried out in paragraphs 85 to 89 above that the Commission gave proper reasons for its decision. Moreover, contrary to the applicants’ assertion, the Commission assessed their arguments concerning the issue of coercion in recitals 399 and 400 of the contested decision.
93 It follows that the complaint alleging infringement of the obligation to state reasons must be rejected.
94 Third, as regards the complaint alleging breach of the principle of sound administration, the applicants in fact repeat the same argument as that already put forward and analysed in paragraphs 85 to 89 above. The applicants cannot, in any event, claim that the contested decision should be annulled because the Commission refused, in breach of the principle of sound administration, to give them access to a non‑confidential version of a transcript of the statement made by Bayer at the in camera hearing, as the rights of the defence were not infringed.
95 Accordingly, the plea alleging breach of the principle of sound administration must be rejected.
96 It follows that the second plea must be rejected.
The pleas put forward in the alternative, seeking a reduction in the amount of the fine
Third plea: breach of the principles of legal certainty and non‑retroactivity owing to the application of the 2006 Guidelines
– Wording of the contested decision
97 In recitals 519 to 520 of the contested decision, the Commission stated as follows:
‘(519) Under Article 23(2) of Regulation (EC) No 1/2003, the Commission may by decision impose fines on undertakings where either intentionally or negligently, they infringe Article 81 [EC] and/or Article 53 of the EEA Agreement. Under Article 15(2) of Regulation No 17 … which was applicable at the time of the infringement, the fine imposed on each undertaking participating in the infringement could not exceed 10% of its total turnover in the preceding business year. The same limitation results from Article 23(2) of Regulation … No 1/2003.
(520) In fixing the amount of any fine, pursuant to Article 23(3)[(a)] of Regulation … No 1/2003, regard must be had both to the gravity and to the duration of the infringement. In setting the fines to be imposed, the Commission will refer to the principles laid down in its [2006] Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation … No 1/2003 … .’
– Arguments of the parties
98 The applicants claim that, by applying the 2006 Guidelines instead of the 1998 Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’), the Commission breached the principles of legal certainty and non‑retroactivity. They request the Court to recalculate and reduce accordingly the amount of the fine imposed on them.
99 As regards the breach of the principle of legal certainty, the applicants observe that, according to settled case-law, the Commission could not depart from the 1998 Guidelines without being found to have breached general principles of law. The applicants emphasise that the 1998 Guidelines entailed a self-imposed limitation of the Commission’s discretion and created a legitimate expectation on the part of the applicants as to the determination of the amount of the fines. The Commission was not entitled to apply amended guidelines in the course of the proceedings. In the present case, however, the Commission calculated the amount of the fine imposed on the applicants on the basis of new guidelines on the method of setting fines which were adopted after the proceedings against them had been initiated. Furthermore, the case-law on the introduction and application of the 1998 Guidelines is irrelevant, as the factual circumstances are different: before the introduction of the 1998 Guidelines the Commission had not yet limited its discretion and there was no basis for a legitimate expectation as to the determination of the amount of fines, whereas in adopting the 1998 Guidelines the Commission limited its discretion and created a legitimate expectation.
100 As regards breach of the principle of non-retroactivity, the applicants maintain that the amount of the fine calculated on the basis of the 1998 Guidelines, which were in force when the administrative procedure was initiated, would have been EUR 38 million at the most, and not EUR 47 million. In support of that calculation, the applicants rely on Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (former Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corp. (former Crompton Corp.), General Química SA, Repsol Química SA and Repsol YPF SA (Case No COMP/F/C.38.443 — Rubber chemicals) (OJ 2006 L 353, p. 50). The applicants claim in that regard that the 2006 Guidelines constitute a radically different approach to the general competition policy in relation to fines which was not reasonably foreseeable at the time when the infringements were committed. Nor do the 1998 Guidelines provide for periodic revision. The applicants refer to Article 7(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and maintain that the application of the 2006 Guidelines is subject to the principle of non-retroactivity. Thus, by failing to respect the applicants’ legitimate expectation as to the method of calculating the amount of the fines, the Commission also breached the principle of non-retroactivity.
101 In response to the Commission’s argument that they did not comment on this point in their response to the statement of objections, the applicants state in the reply that they could raise complaints in relation to the principles of legal certainty and non-retroactivity only from ‘the moment it was known what the result of the application of the 2006 Guidelines would be’. In that regard, they rely on the lex mitior principle, which allows the Commission to apply a more favourable regime but precludes the application of a less favourable regime.
102 The Commission disputes the applicants’ arguments.
– Findings of the Court
103 As a preliminary point, it should be borne in mind that the fines that the Commission imposed in the present case are governed by Article 23 of Regulation No 1/2003, which corresponds to Article 15 of Regulation No 17, which was in force when the infringement was committed. In order to determine the amount of the fine, the Commission applied the 2006 Guidelines. Those guidelines were published before the statement of objections was sent to the applicants on 13 March 2007.
104 Pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe Article 81 EC or 82 EC.
105 For each undertaking and association of undertakings participating in the infringement, the fine cannot exceed the limits indicated in the second subparagraph of Article 23(2) of Regulation No 1/2003, namely 10% of its total turnover in the preceding business year.
106 According to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine to be imposed on undertakings guilty of infringements of the competition rules, regard is to be had both to the gravity and to the duration of the infringement.
107 It has been consistently held that, within the limits laid down in Regulation No 1/2003, the Commission enjoys a wide discretion when exercising its power to impose such fines (Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 172, and Erste Group Bank and Others v Commission, paragraph 82 above, paragraph 123). That power is however limited; where the Commission adopts guidelines which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, the Commission itself then limits that discretion in that it must comply with the guidelines which it has imposed upon itself (see, to that effect Lafarge v Commission, paragraph 54 above, paragraph 95, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 192 and the case-law cited). The Commission may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment (Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 209).
108 Thus, although the Guidelines on the method of setting fines do not constitute the legal basis of the decision by which the Commission establishes an infringement and imposes a fine, they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by that decision and, consequently, ensure legal certainty on the part of the undertakings (see, as regards the 1998 Guidelines, Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 213).
109 As the Court of Justice held in Dansk Rørindustri and Others v Commission, paragraph 62 above (paragraph 225), the main innovation in the 1998 Guidelines consisted in taking as a starting point for the calculation a basic amount, determined on the basis of brackets laid down for that purpose by those guidelines; those brackets reflect the various degrees of gravity of the infringements but, as such, bear no relation to the relevant turnover. The essential feature of that method was thus that fines were determined on a tariff basis, albeit one that was relative and flexible.
110 When calculating fines imposed on undertakings which have participated in a cartel, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers in that area and, in exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of those undertakings in order to ensure that, in each case, the European Union competition rules are fully effective. Thus, in determining the basic amount of the fines, the Commission may take account of the specific weight of each of the undertakings involved in relation to the other undertakings and therefore the real impact of each undertaking’s offending conduct on competition (judgment of 12 November 2009 in Case C‑564/08 P SGL Carbon v Commission, not published in the ECR, paragraphs 43 and 47).
111 According to point 3 of the 2006 Guidelines:
‘In order to ensure the transparency and impartiality of its decisions, the Commission published on 14 January 1998 guidelines on the method of setting fines. After more than eight years of implementation, the Commission has acquired sufficient experience to develop further and refine its policy on fines.’
112 Thus, in point 4 of the 2006 Guidelines, it is stated as follows:
‘The Commission’s power to impose fines … is one of the means conferred on it in order for it to carry out the task of supervision entrusted to it by the Treaty. That task not only includes the duty to investigate and sanction individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to steer the conduct of undertakings in the light of those principles … . For this purpose, the Commission must ensure that its action has the necessary deterrent effect … . Accordingly, when the Commission discovers that Article 81 [EC] or 82 [EC] has been infringed, it may be necessary to impose a fine on those who have acted in breach of the law. Fines should have a sufficiently deterrent effect, not only in order to sanction the undertakings concerned (specific deterrence) but also in order to deter other undertakings from engaging in, or continuing, behaviour that is contrary to Articles 81 [EC] and 82 [EC] (general deterrence).’
113 Moreover, pursuant to point 38 thereof, the 2006 Guidelines apply in all cases where a statement of objections is notified after their date of publication in the Official Journal, namely 1 September 2006, regardless of whether the fine is imposed pursuant to Article 23(2) of Regulation No 1/2003 or Article 15(2) of Regulation No 17.
114 The main innovation in the 2006 Guidelines, as is apparent from points 5 to 7 thereof, consists in taking as a starting point for the calculation of the fine a basic amount, determined according to the value of the sales of goods or services to which the infringement relates and the number of years during which the undertaking participated in the infringement; a specific amount is included in the fine in order to deter companies from entering into illegal practices. Accordingly, contrary to the applicants’ assertion, the 2006 Guidelines are based on criteria which were already taken into account in the 1998 Guidelines.
115 As regards the arguments that the Commission infringed the principle of legal certainty because it applied the 2006 Guidelines, the Court would point out that, according to the case-law, within the limits of the ceiling set by Article 15(2) of Regulation No 17, which corresponds to Article 23(2) of Regulation No 1/2003, the effective enforcement of the competition rules requires that the Commission may at any time raise the level of fines if that is necessary to ensure the implementation of competition policy. It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines, but, on the contrary, that those undertakings must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past, either by raising the level of the amount of fines in imposing fines in individual decisions, or by the application, in particular cases, of rules of conduct of general application, such as the Guidelines (Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraphs 227 to 230).
116 Accordingly, the Court must reject the applicants’ argument that the 1998 Guidelines entailed a self-imposed limitation of the Commission’s discretion and created a legitimate expectation on the part of the applicants as to the determination of the amount of the fines on the basis of those guidelines. Even in the absence of any express reference relating to a periodic revision of the 1998 Guidelines, the applicants ought, in the light of the existing case‑law, to have taken into account the possibility that, after the infringement had been committed, the Commission would decide to adopt and apply new Guidelines on the method of setting fines.
117 It must be concluded not only that the 2006 Guidelines and, in particular, the new method of calculating fines contained therein – on the assumption that this new method had the effect of increasing the level of the fines imposed – remained within the legal framework laid down by Regulation No 1/2003, as is apparent from points 32 and 33 of those guidelines, but that they were reasonably foreseeable for undertakings such as the applicants at the time when the infringement concerned was committed.
118 Moreover, even if a prudent trader may not know in advance precisely the level of the fines which the Commission will impose in each individual case, since the objectives of punishment and deterrence justify preventing undertakings from being in a position to assess the benefits which they would derive from their participation in an infringement, that trader is able, if need be by taking legal advice, to foresee in a sufficiently precise manner the method and order of magnitude of the fines which he incurs for a given line of conduct (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 83, upheld by the judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission and Council, not published in the ECR, paragraph 55). As the Court noted in paragraph 114 above, the 2006 Guidelines are based on criteria which were already taken into account in the 1998 Guidelines.
119 Accordingly, by applying the 2006 Guidelines in the contested decision to calculate the fine to be imposed on the applicants in respect of an infringement committed before those guidelines were adopted, the Commission did not infringe the principle of legal certainty.
120 With respect to the applicants’ arguments that the Commission infringed the principle of non‑retroactivity of penal provisions by applying the 2006 Guidelines, it must be borne in mind that the principle that penal provisions may not have retroactive effect is one that is common to all the legal orders of the Member States and forms an integral part of the general principles of law whose observance is ensured by the Courts of the European Union. In particular, Article 7(1) of the ECHR, which enshrines in particular the principle that offences and punishments are to be strictly defined by law (nullum crimen, nulla poena sine lege), may preclude the retroactive application of a new interpretation of a rule establishing an offence. That is particularly true where an interpretation by a court produces a result which was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation of the provision in the case-law at the material time (see Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 87 to 89 and the case-law cited).
121 It should however be stated that the scope of what is foreseeable depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is true particularly in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that their actions entail (Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 219).
122 Moreover, according to the case‑law, although Article 23(5) of Regulation No 1/2003 provides that Commission decisions imposing fines for infringement of competition law are not of a criminal nature, the Commission is none the less required to observe the general principles of European Union law, and in particular the principle of non-retroactivity, in any administrative procedure capable of leading to fines under the Treaty rules on competition (see Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 202, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraphs 40 and 41 and the case-law cited).
123 The adoption of guidelines capable of modifying the general competition policy of the Commission as regards fines may therefore, in principle, fall within the scope of the principle of non‑retroactivity. In order to ensure that that principle is observed, it is necessary to ascertain whether the modification, which consisted in the new method of calculating fines under the 2006 Guidelines, was reasonably foreseeable at the time when the infringements at issue were committed (see, to that effect, Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraphs 209 to 212 and 215 to 233).
124 In the present case, it has been held in paragraph 117 above that that was indeed the case. Accordingly, by applying the 2006 Guidelines in the contested decision to calculate the fine to be imposed on the applicants in respect of an infringement committed before those guidelines were adopted, the Commission did not infringe the principle of non-retroactivity.
125 Lastly, the applicants’ arguments in their reply, concerning the lex mitior principle, must be rejected and it is not necessary to adjudicate on their admissibility.
126 It follows from the foregoing that the principle of non-retroactivity does not preclude the application of guidelines which, ex hypothesi, have the effect of increasing the level of the fines imposed for infringements committed before they were adopted, on condition that the policy which they implement was reasonably foreseeable at the time when the infringements concerned were committed. Consequently, the fact that the Commission is entitled, albeit conditionally, to apply retroactively, to the detriment of those concerned, rules of conduct designed to produce external effects, such as the Guidelines, means that it is under no obligation to apply the lex mitior (see Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraphs 233 and 234 and the case-law cited).
127 It follows from the foregoing that the third plea must be rejected.
Fourth plea: manifest errors of assessment of the facts and breach of the principle of proportionality in the calculation of the value of sales
– Wording of the contested decision
128 In recitals 521 and 522 of the contested decision, the Commission stated as follows:
‘(521) In determining the basic amount of the fine to be imposed, the Commission takes the value of each undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. In this case, the sales of [CR] made by each undertaking in the EEA during the business year ended on 31 December 2001 (the last full business year of the infringement) will be considered … .
(522) As regards [the applicants’] claim that the basic amount of the fine to be imposed should not be calculated on the basis of the market shares in 2001, as [the applicants] constantly increased [their] market share, the Commission’s consistent practice of relying on the last full year of the cartel’s operation as the relevant year for determining the basic amount of the fine has been accepted by the Community courts … . In this case there are no indications that the market shares in 2001 were not representative also for the time the infringement took place. Therefore [the applicants’] claim in that regard has to be rejected. … ‘
– Arguments of the parties
129 The applicants maintain that, if the Court should consider that the Commission was correct to apply the 2006 Guidelines, the Commission, by using 2001 as a reference year for determining the value of sales for the purpose of calculating the fine, made a manifest error of assessment of the facts and breached the principle of proportionality.
130 In the applicants’ submission, in so far as the 1993 market shares were expressly agreed upon between the participants in the cartel, it is those market shares that reflect the weight of each undertaking on the market and their actual capacity to harm competition. The Commission therefore made a manifest error of assessment in considering that the market shares held in 2001 were representative of the period during which the infringement took place. The 2006 Guidelines did not oblige the Commission to take 2001 as the reference year. Furthermore, contrary to the stated objectives of the cartel, the applicants continuously increased their market shares between 1993 and 2002. Their 2001 market share was therefore not representative of their alleged contribution to the cartel throughout its duration. The applicants submit that, in any event, even if they are considered to have participated in the infringement, the last complete year of their participation was 1997. Contrary to the Commission’s contention, the relative importance of an undertaking in the sector is only a tool to be used when assessing the undertaking’s role in the infringement, and the fine imposed must correspond to the relative weight of each undertaking in the infringement.
131 The applicants further submit that, by taking 2001 into account as the reference year, the Commission imposed a double penalty on the applicants, in breach of the principle of proportionality. The Commission punished the applicants, first, because they did not apply the agreements and, second, despite the fact that they did not apply the agreements. The applicants were therefore punished more severely than undertakings that did apply the agreements. In that regard, the applicants claim that if their market share were stabilised at the 1993 level according to the terms of the agreement, the fine imposed on them would have been EUR 33.02 million and not EUR 47 million. Furthermore, if the applicants had left the EEA market in accordance with the terms of the regionalisation strategy, the fine could even have been zero. Accordingly, respecting the principle of equality, the Commission ought to have taken the 1993 business year as the reference year for the calculation of the amount of the fine for all the addressees of the contested decision.
132 Consequently, the fine imposed on the applicants should be reduced.
133 The Commission disputes the applicants’ arguments.
– Findings of the Court
134 According to the case‑law, the taking into account of the turnover of each of the undertakings during the reference year, namely the last full year of the infringement found, makes it possible to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those factors being relevant to an assessment of the gravity of the infringement committed by each undertaking (see judgment of 30 September 2009 in Case T‑175/05 Akzo Nobel and Others v Commission, not published in the ECR, paragraph 143 and the case-law cited).
135 Thus, point 13 of the 2006 Guidelines states as follows:
‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”).’
136 In the present case, it is not disputed that the Commission took 13 May 2002 to be the date on which the infringement ended for all the undertakings to which the contested decision was addressed. Accordingly, by using, when calculating the fines, each undertaking’s sales of CR within the EEA during the 2001 calendar year, the Commission took into account the last full year of participation in the infringement and thus complied with the rules which it imposed upon itself in the 2006 Guidelines. It did not therefore exceed the limits of its discretion.
137 In that regard, the Court considers that, first, the Commission was correct to find that the value of sales during the last full year of participation in the infringement made it possible to assess the cartel globally, while avoiding any discrimination between the participants. Second, the applicants fail to demonstrate that their turnover during the last full calendar year of the infringement is not an indication of their real size, their economic power or the scale of the infringement that they committed.
138 The applicants’ arguments that their 1993 market shares are more representative of their actual capacity to harm competition, in so far as the Commission itself takes the view that their market shares were expressly agreed upon between the participants in the cartel, cannot be accepted. The applicants themselves assert that they continuously increased their market shares between 1993 and 2002, which illustrates their growing power on the CR market during the infringement, and that power is precisely the element that the value of sales criterion must reflect. Moreover, as the Commission observed, the cartel concerned not only market-sharing but also price-fixing. Accordingly, even on the assumption that, by increasing their market share throughout the cartel, the applicants did not respect the market‑sharing aspect of the cartel, it is not possible to take the view that they did not profit from the anti-competitive effects of the cartel and, therefore, that they did not implement it. The fact that the 1993 market shares were expressly agreed upon between the participants in the cartel does not therefore permit the conclusion that the Commission ought, in the specific case of the applicants, to have disregarded the 2006 Guidelines by relying on the turnover achieved during a period other than the last full year of participation in the infringement.
139 Consequently, by relying on the value of the applicants’ CR sales in the EEA during 2001, the Commission correctly took account of the scale of the infringement committed by the applicants. It follows that the argument that the Commission, by taking 2001 as the reference year, imposed a double penalty on the applicants, in breach of the principle of proportionality, is not well founded. Moreover, in so far as that argument is tantamount, in essence, to submitting that the Commission ought to have taken account of that alleged (partial) non‑implementation of the cartel as a mitigating circumstance, it falls within the scope of the sixth plea and will be analysed below.
140 It follows from the foregoing that the fourth plea in law must be rejected.
Fifth plea: incorrect determination of the duration of the applicants’ participation in the cartel
– Wording of the contested decision
141 With respect to the starting date of the cartel, the Commission stated as follows in recital 495 of the contested decision:
‘… while there are strong indications that collusive arrangements among the producers of [CR] occurred already in the 1980’s … and the early 1990’s … , the exact date on which the infringement started can no longer be established with certainty. Hence, the Commission’s assessment under competition rules and the application of any fines is limited to the period from 13 May 1993, which is the date of the first cartel meeting which is confirmed by Bayer and Tosoh and which is supported by indirect evidence submitted by DDE and [confidential] … ’
142 In recital 498 of the contested decision, the Commission observed as follows:
‘[The applicants’] claim that the meeting on 13 May 1993 in Florence did not have any anticompetitive purpose cannot be accepted. Not only does Tosoh submit that the topic of the meeting was the allocation of market shares, but Bayer … and [confidential] … remember, independently of each other (without having being present at the meeting), that the market share plan was agreed upon during the Florence meeting in March 1993 … , which is indirectly further confirmed by Bayer … . That [EI] DuPont had booked the necessary meeting room for the side meeting can already be seen from … travel expenses … . Consequently, three competitors have corroborated independently from each other that the meeting in Florence in May 1993 had an anticompetitive background. [The applicants have] not succeeded in weakening the Commission’s position, based on all the evidence and indicia taken together.’
143 With respect to the date on which the cartel ended, the Commission made the following points in recital 502 of the contested decision:
‘While there are strong indications that collusive arrangements among the producers of [CR] continued until the end of 2002 … and produced effects even until April 2003 … , the exact date on which the infringement ended can no longer be established with certainty. Hence, the assessment under competition rules and the application of any fines in this case will be limited to the period until 13 May 2002, which is the date of the [International Institute of Synthetic Rubber Producers; ‘the IISRP’] meeting held in Naples.’
144 In recitals 503 and 505 of the contested decision, the Commission explained that ‘[t]he end date chosen by the Commission is based on a document drafted at the time the infringement took [place], constituting direct evidence’ on account of the fact that ‘the market share agreements between the competitors were still in place on 13 May 2002’.
145 With respect specifically to the period after September 1998, the Commission stated as follows in recital 506 of the contested decision:
‘It is only natural that the evidence relating to the cartel arrangements in the … file … is less complete than for the period before that date. It is corroborated by Bayer and Tosoh … that, due to Bayer’s antitrust compliance programme, the competitors became more cautious. Contacts were mostly held bilaterally and arrangements were increasingly made by telephone. Against that background it is obvious, taking together all the evidence and indicia in the file, that the agreements continued uninterrupted at least until May 2002. This conclusion is strengthened by the submissions made by Bayer, Tosoh and DDE which report that the illicit contacts took place even long after that date.’
146 Next, in recitals 509 and 510 of the contested decision the Commission observed as follows:
‘(509) [The applicants’] claims that, after September 1998, the competitors only held courtesy visits and that there is no evidence for anticompetitive behaviour after that date must also be rejected.
(510) … Bayer, Tosoh, [confidential] and DDE corroborate that the form of competitor contacts changed after 1998, but all of them confirm that the contacts did not cease and that the arrangements stayed in place. Bayer and DDE submit that the focus of the meetings changed to price discussions … ‘
147 Lastly, in recital 511 of the contested decision, the Commission made the following findings.
‘… there is plenty of evidence showing Denka’s involvement in the cartel agreements … . The bilateral and trilateral meetings regularly dealt with topics such as regionalisation, price policies, price increases and the market share agreements, which can be seen not only from the submissions made by Bayer, DDE, Tosoh and [confidential] but also from documents drafted at a time the infringement took place … . The evidence set out … shows that the anticompetitive agreements were in place without interruption at least until May 2002 and that [the applicants were] frequently involved in those illicit contacts.’
148 In recital 514 of the contested decision, the Commission found that, ‘even if [confidential], Polimeri and [the applicants] contest certain events covering the later cartel period and even if they provide alternative interpretations to certain pieces of evidence, they have not succeeded in weakening the Commission’s position, based on all the evidence and indicia taken together, that Eni[C]hem and [the applicants] were also involved in agreements and/or concerted practices with their competitors from 13 May 1993 to 13 May 2002’.
– Arguments of the parties
149 The applicants claim that the contested decision does not contain sufficiently precise and coherent evidence in support of the Commission’s allegations to preclude all doubt as to the existence of the infringement. More specifically, there is no direct convincing evidence against the applicants. The Commission, relying on the statements made in connection with the leniency applications, merely infers from the fact that the applicants attended certain meetings that they participated in the infringement. As regards the meetings for which there is no evidence of the applicants’ attendance, the Commission merely assumes that they were present. In so far as they are ‘vague, inconsistent or even contradictory, provoked by the Commission and/or self serving – and thus unreliable’, the abovementioned statements cannot be taken as incriminating evidence against the applicants. Furthermore, contrary to the Commission’s contention, such statements are probative only if they are corroborated by other evidence. Any doubt must operate to the advantage of the applicants.
150 Thus, the Commission made a manifest error of assessment when setting the dates of the beginning and the end of the applicants’ participation in the cartel at 13 May 1993 and 13 May 2002 respectively and asserting that the applicants participated in the cartel between May 1996 and July 1997. While admitting that they were ‘present’ at ‘certain meetings’ between April 1994 and September 1998 at which other participants may have exchanged commercial information, without, however, having ‘participated’ at a meeting having an anti-competitive object, the applicants assert that they never attended any meeting that could be considered anti-competitive, either before 11 April 1994 or after 14 September 1998.
151 First, as regards the starting date of their participation in the cartel, the applicants assert that the meeting held in Zurich on 11 April 1994 was the first meeting which they attended and during which their competitors had anti-competitive discussions. In the absence of sufficient evidence of their participation, the applicants cannot be held liable for any cartel activities before that date. For each of the five meetings alleged to have taken place before that date, the Commission presented a single statement uncorroborated by other evidence, which is not sufficient to prove that the applicants participated in those meetings.
152 Thus, as regards the meeting held in Florence on 12 and/or 13 May 1993, the applicants state that the evidence of their participation in the anti-competitive discussions is based on a single statement, which is contradicted by other evidence in the file and disputed by the applicants. The applicants admit having attended an official meeting of the IISRP at that time and having received threats in the margin of that meeting, but add that it is possible that anti-competitive side meetings took place alongside that official meeting, which the applicants did not attend. In addition, the Commission’s assertion that the producers expressed their views on the target market shares, based on the 1993 data, is not plausible, since those data were not yet available.
153 As regards the meeting held in Zurich on 13 July 1993, the applicants claim that proof of the existence of that meeting is based on a general statement by one leniency applicant, which is not corroborated by other evidence and is contradicted by two undertakings. The applicants deny having attended that meeting.
154 As regards the meeting held in Frankfurt on 11 November 1993, the applicants maintain that proof that that meeting took place and their attendance at it is based on a single statement, which contains contradictory elements concerning the applicants’ participation and the content of which is contested by three undertakings, including the applicants.
155 As regards the meeting held in Düsseldorf on 18 November 1993, the applicants submit that the Commission’s assertions are not supported by a consistent body of evidence. The existence of the meeting is mentioned by a single undertaking, which was unable to identify the representative of the applicants who is alleged to have attended it.
156 As regards the bilateral meeting held in Tokyo on 8 or 9 February 1994, the applicants claim that proof that that meeting took place and that the applicants participated in the anti-competitive discussions is based on a single statement by the other alleged participant in that meeting, which they contest. That statement has no probative value. However, it cannot be precluded that a courtesy meeting was held, at a different time.
157 Second, as regards the date on which their participation in the cartel ceased, the applicants assert that the meeting held in London on 14 September 1998 was the last meeting which they attended and during which anti-competitive discussions took place. Contrary to the Commission’s assumptions, after that date the applicants were not involved in any meetings having an anti‑competitive object. The applicants admit having had bilateral contacts with their competitors after that meeting, but these were courtesy meetings with no anti-competitive object. The allegedly anti-competitive nature of the bilateral meetings cannot be based on the statement of just one of the parties, with no corroborating proof, if the statement is disputed by the applicants. Even though the European CR producers continued to share the EEA market, there is no proof that the applicants participated in such market-sharing. The applicants maintain in that regard that they openly rejected the regionalisation strategy which had been suggested to them by another undertaking in 1998.
158 Thus, as regards the meeting held in Tokyo between 2 and 5 March 1999, the applicants maintain that proof of their participation in an anti-competitive discussion is based on a misinterpretation of the statement of a single participant. The meeting was merely a courtesy visit. Although the regionalisation strategy was mentioned at that meeting, the applicants assert that they openly rejected that idea. The Commission has no evidence establishing the object or the nature of the meeting.
159 As regards the meeting held in Taipei on 9 May 1999, the applicants state that proof that they participated in a meeting held during the IISRP conference is based on a single statement, which is contradicted by other material in the file and contested by the applicants.
160 As regards the meeting held in Tokyo on 3 or 4 August 1999, proof that the applicants participated in the anti-competitive discussions is, in their submission, based on a single statement, which is not corroborated by the notes referred to in the contested decision or by any other evidence. Although the regionalisation strategy was again discussed at that meeting, the applicants assert that they continued to show their opposition to that idea.
161 As regards the meeting held in Düsseldorf on 2 November 1999, proof of the applicants’ participation in an anti-competitive discussion is based on a misinterpretation of a single statement, which is disputed by the applicants. The bill to which the Commission refers is irrelevant.
162 As regards the meeting held in Tokyo on 16 June 2000, the applicants maintain that their participation in an anti-competitive discussion is not proved. They assert that they were present at a meeting with two other undertakings, but that there were no unlawful discussions. As the applicants’ representative had to leave the meeting early, it is possible that prices were discussed during his absence. Furthermore, the notes mentioned in the contested decision, and on which the Commission relies, are unreliable and the e-mail referred to in the contested decision does not mention collusion. Last, the description of the events by a single participant is insufficient to support the Commission’s allegations.
163 As regards the meeting held in Düsseldorf on 7 November 2000, the applicants claim that the Commission has failed to prove its illegal nature. As the statement of the other participant in that meeting confirms, the matters discussed were of a general nature. The applicants deny having wanted to discuss prices. The assertion concerning discussions on the regionalisation strategy is based on a mere presumption.
164 As regards the meeting held in Tokyo on 5 December 2000, the applicants assert that proof of their participation in an anti‑competitive discussion is based on a misinterpretation of the statements, which they dispute. In addition, the Commission changed the description of the facts given in the statement of objections, in which it confirmed the applicants’ assertion that they joined only for a courtesy dinner, after market shares had been discussed. By altering the factual description in the contested decision without having given the applicants the opportunity to defend themselves, the Commission breached their rights of defence. The applicants add that, even though one undertaking again mentioned the regionalisation strategy, that shows only that the applicants were opposed to that strategy.
165 As regards the meeting held in Düsseldorf in May 2001, the applicants claim that proof that they participated in an anti-competitive discussion is based on a single internal preparatory document of the applicants, which is not corroborated by other evidence and is not confirmed by the other participant in the meeting. Furthermore, the note, which was drawn up by one of the applicants’ employees, does not reflect the actual content of the discussions alleged to have taken place.
166 As regards the meeting held in Tokyo in late November or early December 2001, the applicants submit that proof of their participation in an anti-competitive discussion is based on a single statement, which is not corroborated by other evidence and which they dispute. The meeting in question was merely a dinner and a courtesy visit.
167 As regards the meeting held in Tokyo on 18 April 2002, the applicants claim that proof of their participation in an anti-competitive discussion is based on a single statement, which is not corroborated by other evidence and which they dispute.
168 As regards the meeting held in Düsseldorf on 25 April 2002, the applicants claim that proof of their participation in an anti-competitive discussion is based on a single, incoherent and imprecise statement, which is not corroborated by other evidence and which they dispute.
169 Last, as regards the meeting held in Naples on 13 May 2002, the applicants assert that they never attended any allegedly anti-competitive meetings held alongside the official IISRP meeting. As the Commission has neither adduced evidence nor made any observation to that effect in the contested decision, it cannot impute to the applicants their participation in such discussions by setting the end date of their participation in the cartel at 13 May 2002.
170 Third, as regards the applicants’ participation in the cartel between May 1996 and July 1997, apart from the general and unsubstantiated reference – which should be discarded on that ground – to contacts alleged to have taken place during the second half of 1996, the Commission refers only to the applicants’ participation in a single meeting. The Commission has therefore failed to prove to the requisite legal standard that an infringement was committed during that period. Conversely, the Commission’s file contains abundant evidence that the cartel ceased to function because the applicants did not implement the cartel. In any event, the applicants assert that they did not participate in any anti-competitive meeting during that period and that they shaped their commercial policy independently. It follows that, so far as the period before May 1996 is concerned, the period within which the Commission was entitled to impose a fine on the applicants had elapsed, as the five-year limitation period had expired. The fine should therefore be reduced accordingly.
171 As regards, in particular, the contacts alleged to have taken place during the second half of 1996, proof that the applicants participated in anti-competitive discussions in August, September and December 1996 is based on general assertions which are not supported by any specific evidence in the decision. As regards the meeting held in Singapore on 5 or 6 November 1996, the applicants claim in their application that proof of their participation in an anti-competitive discussion is based on a single imprecise statement, which is not corroborated by other evidence and which they dispute. The applicants emphasise that, even according to the contested decision, the discussion related only to general, legal matters, except perhaps during the bilateral meeting held the previous evening, which the applicants did not attend. Moreover, in the observations on the documents lodged by the Commission in reply to the measure of inquiry ordered by the Court, the applicants claim that those documents do not convincingly establish their presence at the meetings of 5 or 6 November 1996 in Singapore.
172 The Commission disputes the applicants’ arguments.
– Findings of the Court
173 It should be borne in mind, first, that the Commission must prove the infringements found by it and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Baustahlgewebe v Commission, paragraph 69 above, paragraph 58, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86). The Commission must show precise and consistent evidence in order to establish the existence of the infringement (Case T‑36/05 Coats Holdings and Coats v Commission [2007] ECR II‑110, paragraph 71).
174 Second, in proceedings for annulment, all that is required of the Courts of the European Union is to verify the legality of the contested measure. Thus, the role of the Court when hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (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, paragraphs 174 and 175 and the case-law cited).
175 In proceedings for annulment of a decision imposing a fine, the Court cannot conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point. It is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the ECHR, which is one of the fundamental rights which, according to the case-law of the Court of Justice, are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies inter alia to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. Thus, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed (see JFE Engineering and Others v Commission, paragraph 174 above, paragraphs 177 and 178 and the case-law cited).
176 However, it is not necessary for every item of evidence produced by the Commission to satisfy the criteria of precision and consistency in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets the requirements set out in paragraph 173 above (JFE Engineering and Others v Commission, paragraph 174 above, paragraph 180, upheld by the Court of Justice in Sumitomo Metal Industries and Nippon Steel v Commission, paragraph 52 above, paragraphs 41 to 45).
177 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 (Aalborg Portland and Others v Commission, paragraph 83 above, paragraph 57).
178 It is for the party or the authority alleging an infringement of the competition rules to prove it and it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence. Even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (see Lafarge v Commission, paragraph 54 above, paragraphs 29 and 30 and the case-law cited).
179 No provision or any general principle of Community law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. 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. However, an admission by one 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. That applies particularly to a statement which seeks to attenuate the responsibility of the undertaking in whose name it was made by emphasising the responsibility of another undertaking (see Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285 and the case-law cited).
180 Moreover, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. It would be artificial to subdivide into a number of distinct actions an anti‑competitive agreement which is characterised by a series of efforts pursuing a single economic end. Thus, in the context of an overall agreement extending over several years, a gap of several months between the manifestations of the agreement is immaterial (Aalborg Portland and Others v Commission, paragraph 83 above, paragraphs 258 to 260).
181 Lastly, it follows from the actual wording of Article 81(1) EC that agreements between undertakings are prohibited, regardless of their effect, where they have an anti-competitive object (Commission v Anic Partecipazioni, paragraph 173 above, paragraph 123).
182 In the present case, as is apparent from the analysis of the first plea, the applicants’ participation in the cartel was proved to the requisite legal standard by the Commission. In the context of this plea, it is therefore necessary to examine only whether the Commission erred in determining the duration of the applicants’ participation in the cartel, which was categorised by the Commission as a single and continuous infringement.
183 First, as regards the starting date of the applicants’ participation in the cartel, which was set as being the meeting of 12 or 13 May 1993 in Florence, it is apparent from the documents before the Court that the applicants confirmed that they were present at the official meeting of the IISRP from 11 to 14 May 1993 and at a side meeting organised by EI DuPont that took place on the margins of that official meeting, and that during that side meeting the applicants were allegedly threatened with a possible anti‑dumping proceeding. In addition, the applicants do not dispute the part of Tosoh’s statement according to which Bayer and EI DuPont requested the Japanese producers ‘to leave Western Europe or at least lower their market shares in that region’ and to ‘transfer a part of the Asian market to the Non-Japanese suppliers’ (see recital 138 of the contested decision). The applicants dispute Tosoh’s statement merely in so far as it confirms that each of the undertakings disclosed its sales figures in six to seven regions of the world to the other producers for the first time, and they claim that they ‘did not disclose any figures at the side meeting’ and that, accordingly, they ‘did not engage in any exchange of information’ (see recital 142 of the contested decision).
184 In those circumstances, the Commission was right to find that the applicants could not claim that they did not participate on 12 or 13 May 1993 in Florence in an anti-competitive meeting aimed at freezing the competitors’ market shares on the CR market and at allocating certain geographical markets. In that regard, it should be recalled, as was noted in paragraph 53 above, that silence by an operator in a meeting during which a discussion relating to the freezing and allocation of market shares takes place cannot be regarded as an expression of firm and unambiguous disapproval. According to the case-law cited in that paragraph, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. Moreover, as was pointed out in paragraph 65 above, when agreements of an anti-competitive nature are reached at meetings of competing undertakings, it is not necessary to examine the question whether the applicants in question shared a common objective with the other cartel participants or whether there was a concurrence of wills between those applicants and the other participants in the sense understood by the applicants.
185 It is true that, as was observed in recital 139 of the contested decision, according to one of the three Bayer representatives present at the official meeting of IISRP, there were ‘[no] agreements at the IISRP meeting’, the ‘kick-off meeting’ for the agreements on CR having been the meeting of 11 November 1993. However, that cannot call into question the Commission’s finding that at the meeting in question anti‑competitive matters were addressed. Another Bayer representative, who did not participate at the meeting but had subsequent contact with competitors, did in fact identify the meeting of May 1993 in Florence as the start of the cartel, stating that, ‘as far as he understood, a target market share plan was worked out in Florence’ (see recital 140 of the contested decision). Moreover, EI DuPont, which organised the anti-competitive meeting on the margins of the IISRP official meeting (see paragraph 183 above), did not dispute that the cartel had started at the meeting of 12 or 13 May 1993 in Florence. Lastly, it follows from the statement of one of the companies in the Eni group, cited in recital 150 of the contested decision, that during a meeting in Tokyo between 6 and 9 February 1994, one of its employees was informed for the first time by the applicants or by Tosoh of ‘the market share agreement reached among the cartel participants in Florence in May 1993’.
186 Contrary to the applicants’ contention, it is not credible that the participants did not have a precise idea of their market shares at that time, for example in the light of the market shares of previous years or of the sales already achieved in 1993. Moreover, it is also apparent from the annexes attached to the application that, in a second statement, the Bayer representative who was not present at the meeting in question supplemented his first statement by specifying that he assumed that the participants agreed on the definitive market shares at the meeting in Zurich in April 1994 by which point the 1993 figures were known. Thus, it must be stated that, even if the cartel participants’ market shares were established definitively only in April 1994, the agreement in principle whose object was to allocate specific market shares to each competitor was concluded as of May 1993 in Florence. The Commission was therefore quite correct to take the view that the cartel was initially conceived on that basis and was implemented only subsequently, when the 1993 figures were known.
187 Lastly, it is apparent from the statements of two cartel participants that ‘there were collusive contacts between CR producers from the early 1980’s’ (see recital 123 of the contested decision). Thus, according to the statement of the first undertaking, ‘[several meetings were held until 1985 during which] the European and USA [CR] producers requested Tosoh and [the applicants] to refrain from lowering their prices and increasing their respective sales volume in Western Europe and instead, to focus on sales to Eastern Europe’ (see recital 124 of the contested decision). According to that same statement, even before 1981, ‘there was an established practice among the CR suppliers in Europe ([EI] DuPont, Bayer, Distugil and Denka) that Denka’s share of total CR sales in Europe should not exceed a certain percentage. Following Tosoh’s market entry [in 1981], Bayer and [EI] DuPont requested discussions with [the applicants’] and Tosoh’s representatives to limit the market share of the Japanese suppliers of CR in Europe to 12%. At that time there was no understanding as how to allocate the 12% between [the applicants] and Tosoh and the Japanese producers did not challenge the request in the meetings’ (see recital 126 of the contested decision). According to the statement of the second undertaking, ‘systematic breaches of competition rules go back at least as far as 1987’ (see recital 129 of the contested decision). Thus, ‘three multilateral meetings [took place] between 1989 and mid 1991 … in Düsseldorf and Paris [between] Bayer … , [EI DuPont], Distugil and probably [the applicants] … to exchange information on prices in certain countries [which] made it possible to check whether or not those prices which customers had stated were in fact true. The competitors then agreed a specific “target price” and a date on which a price increase should be announced and implemented’ (see recital 129 of the contested decision).
188 It is true that the events indicated in the previous paragraph, which the applicants do not contest, occurred outside of the infringement period alleged against the applicants. However, the Court would point out that they are elements which form part of the body of evidence correctly relied on by the Commission in order to prove the anti-competitive nature of the meeting of 12 or 13 May 1993 in Florence. It seems clear, in the light of those elements, that that meeting was not the very first anti-competitive contact between the participants in the cartel in question, including for the applicants.
189 In the light of the foregoing, the Court considers that the Commission has established to the requisite legal standard that the applicants’ participation in the cartel in question started at the time of the meeting of 12 or 13 May 1993 in Florence. The applicants’ arguments that they did not participate in anti-competitive meetings organised between the meeting of 12 or 13 May 1993 and the meeting of 11 April 1994 are therefore irrelevant for the purposes of establishing the starting date of their participation in the cartel, since they do not claim, even in the alternative, that the meetings which took place between those two dates − a period during which they dispute having participated in the cartel − are not part of the infringement alleged against them. It would moreover be artificial to subdivide into a number of distinct actions an anti‑competitive agreement which is characterised by a series of efforts pursuing a single economic end (see paragraph 180 above).
190 Second, with respect to the date on which the applicants’ participation in the cartel ended, it must be stated that the applicants do not contest the relevance of the contemporaneous documentary evidence relied on in recitals 304 and 503 of the contested decision, namely the preparatory notes drafted for a participant at the official meeting of the IISRP of 13 May 2002 in Naples, according to which ‘a concerted price increase for CR in Western Europe must not change the market shares stipulated in the “moratorium”’, that moratorium being one of the key features of the cartel. The Commission observed, also in recital 503 of the contested decision, that ‘[t]he handwritten reference to the “Moratorium market shares 2001” indicates that specific target market shares for 2002 had been established in the framework of the moratorium and on the basis of the market shares of 2001’ and that ‘[the] notes further show that [the author thereof] reflected on the possible effects of a price increase in Western Europe on the stipulated market shares and drew the conclusion that the price increase and moratorium would not necessarily harm each other’. In recital 505 of the contested decision, the Commission found that those ‘handwritten notes even indicate that not only DDE but also Eni[C]hem had already given their agreement for the next collusive price increase’.
191 It is also appropriate to cite the description of the document in question set out in recital 304 of the contested decision:
‘In preparation of the IISRP meeting, [the representative of Bayer] who did not attend the meeting in Naples drafted handwritten notes to brief [the representative of Bayer attending the meeting] on several topics that he … wanted [him] to take up with the competitors during the IISRP conference. [The representative of Bayer who did not attend the meeting in Naples] explains the notes as follows: “Price increase WE? Eni, DPDE o.k. / Jap? Moratorium MA 2001” meant that Eni[C]hem and DPDE would support an increase, whereas this was questionable for the Japanese competitors. The note “Moratorium market shares 2001” indicates that a price rise must not lead to a change of the market shares stipulated in the moratorium … . The note “[Mr K.]/EPDM” concerns among other things the product EPDM. [The representative of Bayer who did not attend the meeting in Naples] wanted [the representative of Bayer attending the meeting] to take up with Mr [K.] (DDE) a few matters related to EPDM. Bayer explains, however, that there was a link to CR, as Bayer intended to take CR market share from DDE in North America if DDE did not, in future, act less aggressively in Western Europe in relation to EPDM.’
192 As the Commission observed, that document, which was prepared for the meeting of 13 May 2002 in Naples and expressly mentions the Japanese producers (an expression which must necessarily be referring to the applicants and Tosoh, the only two Japanese producers of CR active on the European market), constitutes direct and contemporaneous evidence of the fact that the agreement allocating specific market shares to each competitor was still in force when that meeting took place and that at least three participants had already agreed to the next collusive price increase. It is also apparent from that document, which is not contested by the applicants, that, according to Bayer, the applicants were still part of the cartel. The applicants thus contributed to encouraging the continuation of the infringement and to compromising its discovery. If the applicants had publicly distanced themselves from the cartel, there would have been no express mention of them in that preparatory document for the meeting in question.
193 Moreover, according to the contested decision, the applicants participated in two further meetings after the Naples meeting of 13 May 2002: on 6 September 2002 in Düsseldorf with representatives of Bayer and on 12 November 2002, also in Düsseldorf, with a DDE representative. It is also apparent from the contested decision that the DDE representative had already met a Bayer representative the previous day and that, subsequently, after the meeting with the applicants, that same DDE representative met Tosoh representatives, who, in turn, visited EniChem representatives on 12 or 13 November in Milan. Lastly, meetings took place on 19 November 2002 and on 26 November 2002 in Milan between DDE and EniChem and on 25 November 2002 in Leverkusen (Germany) between DDE and Bayer. According to DDE’s statement, a price increase, which was discussed at the meeting of 25 November 2002, was subsequently announced in Europe for 1 April 2003 by all competitors, although it was not applied (see recitals 307 and 309 of the contested decision). Whilst it is true that those meetings occurred outside the infringement period alleged against the applicants, they none the less also form part of the body of evidence on which the Commission correctly relied in order to prove the date on which the cartel ceased.
194 It follows that the Commission was right to take the date of the meeting of 13 May 2002 in Naples as the end date of the cartel and of the applicants’ participation in the infringement on the basis of the fact that the ‘moratorium’ concerning the allocation of the markets had remained in force until that date for all the cartel participants.
195 In any event, the Court observes that the Commission has demonstrated to the requisite legal standard the applicants’ participation in an anti‑competitive meeting on 25 April 2002 in Düsseldorf. It is apparent from the parties’ pleadings that the Bayer representative who drafted the document referred to above in paragraphs 191 and 192 met a representative of the applicants at the Hotel Nikko in Düsseldorf on 25 April 2002, that is three weeks before the meeting of 13 May 2002 in Naples. Proof of the existence of that meeting of 25 April 2002 in the Hotel Nikko in Düsseldorf between Bayer and the applicants is based on a statement by Bayer and on the applicants’ confirmation, in their response to the statement of objections, of their participation, which is substantiated by travel documents of the applicants. As the Commission states in its defence, since the applicants admit having been present at that meeting, the inconsistency in Bayer’s statement as to the actual location of the meeting, namely a hotel or the applicants’ premises, is immaterial. Moreover, the applicants assert merely that it was just a ‘courtesy visit’ and that no sensitive information was exchanged. However, the statement by Bayer is clear as to the essential content of the meeting, namely the applicants’ aggressive activities on the CR market. In those circumstances, the applicants’ assertions are not credible. Accordingly, the applicants cannot reasonably claim that it was a courtesy visit. On the contrary, the Commission was right to consider that they participated in a cartel meeting on 25 April 2002.
196 Thus, even if the applicants’ participation in the meeting of 13 May 2002 in Naples was not established, the Commission was in any event right to find that the applicants participated in an infringement of Article 81 EC for a period of almost nine years. The applicants’ arguments that they did not participate in anti‑competitive meetings between March 1999 and May 2002 are therefore irrelevant for the purposes of establishing the date on which their participation in the cartel ended, for the same reasons as those already set out in paragraph 189 above.
197 Third, as regards the applicants’ participation in the cartel between May 1996 and July 1997, the Court would point out that the applicants admit having participated in an anti-competitive meeting in May 1996 (see recital 190 of the contested decision), that they do not establish, or even claim, to have distanced themselves from the cartel during that meeting or subsequently and that they also admit having again attended a multilateral meeting in July 1997 in London (see recital 208 of the contested decision). As regards that London meeting, during the administrative procedure the applicants merely denied having participated in the anti-competitive discussions and submitted no possible alternative explanation for their presence at that meeting, which was characterised as an anti-competitive meeting by all the other participants. The applicants’ arguments that the Commission failed to prove their participation in the cartel during the period between those two meetings of May 1996 and July 1997 are ineffective. It is sufficient to note, as the Commission states, (i) that the applicants did not distance themselves from the cartel in the manner required by the case-law cited in paragraphs 52 and 53 above and (ii) that it would be artificial to subdivide into a number of distinct actions an anti‑competitive agreement which is characterised by a series of efforts pursuing a single economic end (see the case-law cited in paragraph 180 above).
198 Moreover, it is apparent from the documents produced by the Commission in reply to the measure of inquiry ordered by the Court that an anti-competitive meeting took place on 5 or 6 November 1996 in Singapore and that the applicants’ participation in that meeting must be considered established. Tosoh and Bayer stated that a representative of the applicants was present at that meeting. It is true that DDE’s and EniChem’s statements diverge from Tosoh’s and Bayer’s statements, in so far as DDE submits that Tosoh and the applicants were represented in that meeting by the same person and in so far as EniChem does not expressly confirm the presence of the applicants. However, although DDE’s and EniChem’s statements do not tally on all points with those of Tosoh and Bayer, they cannot be considered to contradict Tosoh’s and Bayer’s statements. As regards the nature of the meeting in Singapore, the Court would point out that four participants in the cartel identified it as being an anti-competitive meeting.
199 Similarly, the applicants’ argument that they openly rejected at least one aspect of the cartel, namely the regionalisation strategy, cannot succeed. Apart from the fact that that argument has no bearing on the duration of the infringement alleged against them, it should also be borne in mind that, as was stated in paragraph 64 above, the applicants have failed to establish their complete and open dissociation from the whole cartel. They do not establish, or even claim, to have distanced themselves from the cartel as a whole during the period between May 1993 and May 2002. In accordance with the case‑law cited above in paragraph 180, when the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market – which the applicants do not contest – the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. Moreover, the applicants’ arguments by which they seek to establish that their participation in the meetings was without any anti-competitive intention, because they were coerced to participate in the meetings or because they did not share a common objective with the other participants, were already rejected in the first plea (see the analysis in paragraphs 58 to 66 above).
200 Moreover, with respect to the issue of the applicants’ participation in the cartel during the entire period of the infringement found by the Commission (May 1993 to May 2002), it should be recalled that the applicants dispute having ‘attended’ anti-competitive meetings before 11 April 1994 and after 14 September 1998 (see inter alia paragraph 150 above). Although those arguments are not relevant for the purposes of establishing the duration of their participation in the cartel (see paragraphs 189 and 195 above), their possible relevance for the purposes of granting the applicants the benefit of the mitigating circumstances that they claim will be examined in the sixth plea. The merits of their arguments in respect of each of those periods are therefore analysed below.
201 As regards the period from 13 May 1993 until 11 April 1994, it is apparent from the documents before the Court that, whilst the applicants’ participation in the anti-competitive meeting of 8 or 9 February 1994 must be considered established, it must be held that the Commission has failed to demonstrate to the requisite legal standard their participation in the meetings of 13 July 1993, 11 November 1993 and 18 November 1993.
202 Thus, with respect to the multilateral meeting of 13 July 1993 in Zurich, proof of the existence of that meeting is based on a submission by another participant supported by travel expense records. As regards the identification of the participants in that meeting, and although three undertakings did not contest their participation in that meeting, two undertakings, including the applicants, did contest it. In the absence of evidence of the applicants’ participation in that meeting other than that single submission, it must be concluded, in accordance with the case‑law cited in paragraph 179 above, that the Commission has failed to demonstrate that participation to the requisite legal standard.
203 With respect to the multilateral meeting of 11 November 1993 in Frankfurt, proof of the existence of that meeting and of the applicants’ participation is based on the single statement of an undertaking, which is contested by several undertakings, including the applicants. According to the Commission, five participants were involved in the meeting. However, the Commission admits that that meeting is only mentioned by a single undertaking. According to the case-law, if the applicants challenge the material contained in that undertaking’s statement, other evidence is required to substantiate it. Accordingly, it must be held that, since the statement is not corroborated by other evidence, the Commission has failed to demonstrate to the requisite legal standard the applicants’ participation in that meeting.
204 With respect to the multilateral meeting of 18 November 1993 in Düsseldorf, proof of the existence of that meeting is based on an oral statement, which is itself based on documentary evidence in the form of an entry in the diary of the representative of that undertaking participating in the meeting. In the absence of evidence of the applicants’ participation in that meeting, other than a single statement, it must be concluded that the Commission has failed to demonstrate that participation to the requisite legal standard.
205 With respect to the bilateral meeting of 8 or 9 February 1994 in Tokyo, proof of the existence of that meeting and of its anti-competitive nature is based on an oral statement by the other participant in that meeting, Eni. In that regard, in accordance with the case-law cited in paragraph 176 above, the Court must first of all reject the applicants’ argument that Eni’s statement cannot be regarded as probative. Next, although the existence of that meeting was not contested during the administrative procedure, the applicants contest it in their written pleadings before the Court, adding that it cannot be precluded that a courtesy meeting was held, ‘at a different time’. It must therefore be determined whether Eni’s statement is supported by other evidence. In that context, it is important to note that on 7 February 1994, that is to say one or two days before the contested meeting, Eni met Tosoh in Tokyo. That meeting was attested to by Tosoh and Eni’s statements and by documentary evidence. It is also appropriate to cite the description of that meeting set out in recital 150 of the contested decision: ‘The purpose of the meetings was to introduce [Mr C.] to the Japanese producers. The agenda of [Mr T.], who organized the meeting on 7 February but did not personally attend the meeting, mentions for 7 February “Pansuke in JPN afternoon with Dinner 8:30 at office Mercuri 9:00” … . … “Pansuke” was the code-name used by [Mr T.] for [Mr P.] of Eni[C]hem (former Rhône-Poulenc/Distugil). [A company of the Eni group] explains that the discussions concerned the current trends of the CR business but not prices and that, during those meetings, Denka and/or Tosoh probably mentioned to [Mr. C.] (Eni[C]hem) for the first time the market share agreement reached among the cartel participants in Florence in May 1993 … ‘It is also apparent from the contested decision that the meeting of 7 February 1994 was characterised as an anti-competitive meeting by both Eni and Tosoh (see, as regards Eni, recital 493 of the contested decision: ‘In its reply to the Statement of Objections, [confidential] contests that it was involved in any collusive agreements prior to February 1994.’ The bilateral meeting of 7 February 1994 therefore constitutes the start of the cartel according to Eni, in the words of its own statements; see, as regards Tosoh, recital 494 of the contested decision which states that: Tosoh did not contest the duration of the cartel established by the Commission). The Commission therefore demonstrated, on the basis of Eni’s and Tosoh’s consistent statements, the existence of two consecutive bilateral contacts, firstly between Eni and Tosoh and secondly between Eni and the applicants, as set out in detail above. It follows from the foregoing that Eni’s statement about the meeting with the applicants is supported by Eni’s and Tosoh’s statements about their meeting one or two days before. Accordingly the applicants cannot reasonably claim that the Commission has failed to demonstrate to the requisite legal standard their participation in an anti‑competitive meeting on 8 or 9 February 1994 in Tokyo.
206 With respect to the period from 14 September 1998 to 13 May 2002, whilst the documents before the Court show that the applicants’ participation in the anti-competitive meetings between 2 and 5 March 1999, of 3 or 4 August 1999, of 2 November 1999, of 16 June 2000, of 7 November 2000, of 5 December 2000, of May 2001, at the end of November or the beginning of December 2001 and of 18 April 2002 must be considered established, the Court holds that the Commission has, however, failed to demonstrate to the requisite legal standard their participation in the meeting of 9 May 1999.
207 Thus, as regards the trilateral meeting between 2 and 5 March 1999 in a hotel in Tokyo, the existence of that meeting and the applicants’ participation in it are confirmed by all the participants, including the applicants. As was stated by the Commission, the mere fact that the applicants purportedly stated at that meeting that regionalisation would not be an ‘acceptable solution’ for them – an assertion which moreover is not substantiated in any way at all – does not make it possible to characterise that meeting with Tosoh and DDE as a courtesy meeting, as the applicants claim. On the contrary, the anti‑competitive subject‑matter of the discussions that took place during that meeting, namely regionalisation, is confirmed and supported by the applicants themselves, when they state that they addressed the subject of regionalisation. It must also be stated that, even if that assertion were proved, quod non, the applicants did not indicate to their competitors that they were participating in the meetings in a spirit that was different from theirs for the purposes of the case‑law, that is to say that their participation in the meeting in question was without any anti-competitive intention. Having participated in that meeting without publicly distancing themselves from the cartel itself, the applicants gave the other participants to believe that they subscribed to what was decided there and would comply with it. Accordingly, the applicants cannot claim that the Commission has failed to demonstrate to the requisite legal standard their participation in an anti-competitive meeting between 2 and 5 March 1999 in Tokyo.
208 As regards the trilateral meeting of 9 May 1999 in Taipei, proof of the existence of that meeting and of the applicants’ participation is based on the statement of a single undertaking, which is contested by the applicants and is not corroborated by other evidence. Given that an admission by one 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 (see paragraph 179 above), the Commission has failed to demonstrate to the requisite legal standard the applicants’ participation in that meeting.
209 As regards the trilateral meeting of 3 or 4 August 1999 in Tokyo, proof of the existence of that meeting and of the applicants’ participation is based on the statements of two participants in that meeting. The applicants admitted that they participated in that meeting. With respect to the anti‑competitive object of the meeting, which is contested by the applicants, the Court observes that in recitals 263 and 264 of the contested decision the Commission presents the notes taken during that meeting by a representative of Tosoh as well as explanations of those notes by Tosoh. Those notes, which are contemporaneous with the infringement, and the explanations provided confirm the anti‑competitive nature of the meeting. The notes in question refer inter alia to ‘DK’ next to the figures and the instructions relating to the price increases. The fact that the notes are undated takes nothing away from their evidential value, given that, in view of the precise statements by Tosoh setting out what happened at that meeting, their origin, their probable date and their content can be determined with a sufficient degree of certainty.
210 Moreover, the applicants’ assertions which appear in recital 265 of the contested decision support the Commission’s conclusion that the meeting was of an anti-competitive nature. The applicants ‘[confirm] that DDE wanted to promote the idea of regionalization but claims that Denka did not agree to that strategy’. Given that the concept of regionalisation constituted one of the elements of the cartel, the fact that that issue was discussed during the meeting confirms that it had an anti‑competitive nature.
211 It follows from the foregoing that the applicants cannot reasonably claim that the Commission has failed to demonstrate to the requisite legal standard that they participated in an anti-competitive meeting on 3 or 4 August 1999 in Tokyo.
212 As regards the bilateral meeting of 2 November 1999 in the Hotel Nikko in Düsseldorf, proof of the existence of that meeting and of the applicants’ participation is based on Bayer’s statement. During the administrative procedure, the applicants claimed that it was a courtesy meeting. In their pleadings before the Court, they submit that ‘it is possible that [their representatives] also had lunch with Bayer … profiting from the occasion that Denka staff from Japan were in Europe to pay a courtesy visit’. It follows that Bayer’s statement is corroborated by the applicants’ statements and therefore constitutes adequate proof of that meeting. With respect to the object of that meeting, according to the contested decision, the Bayer representative, who did not have any recollection of what was discussed during that specific meeting, stated that ‘it was normally [the applicants’ representative] who contacted him … and arranged a meeting and that, during the bilateral meetings, the competitors normally discussed topics such as regionalisation’ (see recital 269 of the contested decision). The applicants, which merely denied any anti‑competitive activity, submitted no possible alternative explanation for their presence at that meeting, which was characterised as an anti-competitive meeting by the other participant. It follows from the foregoing that the Commission has demonstrated to the requisite legal standard that the applicants were present at an anti-competitive meeting on 2 November 1999, and that the applicants have failed to put forward indicia to establish that their participation in that meeting was without any anti-competitive intention by demonstrating that they had indicated to their competitor that they were participating in those meetings in a spirit that was different from that competitor’s.
213 As regards the trilateral meeting of 16 June 2000 in Tokyo, proof of the existence of that meeting and of the applicants’ participation is based on the statements of two undertakings, which are corroborated by contemporaneous written evidence, attesting to the anti-competitive nature of the meeting. The applicants’ assertion that their representative had to leave the meeting early is not substantiated in any way and, even if it were correct, does not permit the inference that they did not participate in a cartel meeting. The Court must also reject the assertion that the contemporaneous notes by a participant at the meeting are not reliable, since that assertion is not substantiated either. Moreover, the applicants are wrong to submit that the e-mail to which reference is made in recital 279 of the contested decision does not constitute evidence of the collusion between the competitors. On the contrary, by that e‑mail, which was sent two days after the meeting in question, DDE’s participant at that meeting wished to inform one of his DDE colleagues of a number of changes at Tosoh and of a promotion at the applicants, one of the participants at the meeting representing the applicants having been appointed General Manager. The DDE participant added that that representative of the applicants ‘plans to stay connected as he is right now’. It cannot therefore be claimed that the Commission has failed to demonstrate to the requisite legal standard the applicants’ participation in an anti-competitive meeting on 16 June 2000 in Tokyo.
214 As regards the bilateral meeting of 7 November 2000 in the Hotel Nikko in Düsseldorf, proof of the existence of that meeting between two Bayer representatives and three representatives of the applicants is based on a statement by Bayer, which is confirmed by the applicants. The applicants, which merely denied any anti‑competitive activity, have submitted no possible alternative explanation for their presence at that meeting, which was characterised as an anti-competitive meeting by Bayer, apart from the assertion in their response to the statement of objections that ‘that this was just a courtesy visit to limit the risk of antidumping complaints’. Accordingly, the Commission has demonstrated to the requisite legal standard that they attended an anti-competitive meeting, and the applicants have failed to put forward indicia to establish that their participation in that meeting was without any anti-competitive intention by demonstrating that they had indicated to their competitor that they were participating in those meetings in a spirit that was different from that competitor’s. They cannot therefore claim that the Commission has failed to demonstrate their participation in a cartel meeting on 7 November 2000.
215 As regards the meeting of 5 December 2000 at a restaurant in the Grand Hotel in Tokyo, proof of the existence of that meeting between two DDE representatives, two Tosoh representatives and a representative of the applicants is based on the statements of two undertakings and on the applicants’ confirmation. It is also common ground that the regionalisation strategy was discussed at that meeting. Even if the applicants’ assertion that their representative did not attend an earlier meeting at Tosoh’s office were correct, it does not therefore permit the inference that the applicants did not participate in a cartel meeting at the Grand Hotel and it is therefore ineffective. Moreover, as the Commission claims, the applicants had an opportunity to defend themselves against the Commission’s allegation made in the statement of objections that they participated in an anti-competitive trilateral meeting on that date. In their response to the statement of objections, the applicants assert that they participated in a dinner with DDE/DuPont and Tosoh during which the three competitors discussed the subject of regionalisation, but the applicants contest having participated in an earlier meeting. Furthermore, the assertion that the Commission changed the description of the facts in the contested decision, by giving the impression that the applicants had already participated in an earlier anti-competitive meeting at Tosoh’s office, has no factual basis, as is apparent from a reading of the contested decision. In any event, the cartel meeting identified by the Commission is indeed the one which took place in the Grand Hotel and not that which took place at Tosoh’s office. It follows that the argument that the Commission infringed the applicants’ rights of defence must be rejected as unfounded. Moreover, in focusing merely on the ‘courteous’ nature of their presence, the applicants have not put forward any credible explanation for their presence at that meeting, which was characterised as a cartel meeting by DDE and Tosoh. Lastly, contrary to the suggestion made by the applicants, the documents before the Court do not contain any concrete, objective evidence that they actually and publicly distanced themselves from what was discussed at that anti‑competitive meeting. Accordingly, they cannot claim that the Commission has failed to demonstrate to the requisite legal standard their participation in an anti-competitive meeting on 5 December 2000 in Tokyo.
216 As regards the meeting of May 2001 in Düsseldorf between the applicants and Bayer, the applicants admit to its existence and confirm that the preparatory note cited in recital 285 of the contested decision relates to that meeting. That contemporaneous typewritten note, which was found by the Commission and attached as an annex to the application, amounts to clear, concrete and unequivocal evidence of the existence of anti-competitive conduct by the applicants, since its content cannot be explained otherwise than by a wish to restrict competition. Thus, the applicants were willing to ‘support you to improve pricing level in this market. On the other hand you should support us in Asian market’. The applicants’ confirmation that they attended that bilateral meeting and that the internal typewritten note was prepared specifically for that meeting constitutes – contrary to the applicants’ submission – adequate proof of their participation in an anti-competitive meeting. As the Commission observed, in so far as the applicants have not even put forward an alternative theory concerning the matters discussed at the meeting, the note shows that the applicants were going to discuss with a competitor sensitive details from a competition point of view concerning customers’ reactions to a price increase, contracts with customers, prices charged/quantities sold in respect of a number of customers in Germany, France, Italy and Spain, future price increases and two-to-three year plans.
217 In addition, the handwritten comments on the typewritten document show that that note was used just before, during or just after the meeting in question. Thus, at the beginning of the preparatory note, its author added ‘Thank you for taking time out of schedule. I’m pleasure to be here’ (sic). At point 4 of the note, with respect to customers’ reactions to a price increase, contracts with customers and prices charged/quantities sold in respect of customers in Germany, France, Italy and Spain, handwritten notes appear adding quantities (for example ‘100-250 mt’ after the words ‘CF Gomma(Citroen)’), percentages (for example ‘30% difference’), comments (for example ‘they also lost’ after the information relating to Sacred) or information relating to competitors (for example the reference to DDE). There are also, inter alia, handwritten notes concerning Bayer (for example ‘Bayer → 90%’) and replies to the questions put in the note (for example the question ‘How many % is increasing price.’ was underlined, the handwritten reply being ‘10%’, which was circled). Contrary to the applicants’ submission, those handwritten notes are not ‘clearly … preparatory comments’ but can only be notes taken on the basis of a specific discussion with the Bayer representative relating to the matters set out in the preparatory typewritten document, as the Commission observes in recital 287 of the contested decision. The applicants, which merely describe the meeting as a ‘social event’ and merely assert that the note does not reflect the content of the meeting, have therefore not put forward any credible explanation with respect to that note or the object of that meeting. Accordingly, the Commission was right to find that they participated in a cartel meeting in May 2001.
218 With respect to the trilateral meeting at the end of November or the beginning of December 2001, proof of the existence of that meeting in a Tokyo restaurant between Tosoh, DDE and the applicants is based on a statement by Tosoh, which is corroborated by travel documents of DDE and by the applicants’ confirmation of their presence. As regards the anti-competitive nature of the meeting, the applicants, which describe the meeting as just a ‘social event’ (see recital 292 of the contested decision) or as just a ‘courtesy visit’ – and which moreover claim that ‘the only contact that the Commission can allege over the entire year of 2001 is one dinner’ – do not put forward any plausible alternative explanation for their presence at that meeting, which Tosoh described as anti-competitive. In addition, the meeting must be viewed in the context of a period characterised by a series of anti-competitive manifestations demonstrating a common wish to restrict competition in the CR market, in particular, an anti-competitive meeting between the applicants and Bayer, organised in May 2001 (see paragraphs 216 and 217 above), and two bilateral anti-competitive meetings between the applicants and DDE and Bayer, respectively, which were organised in April 2002 (see paragraphs 219 to 221 below and paragraph 195 above, respectively). Although a statement by a single undertaking regarding the anti-competitive object of a meeting whose existence is not disputed is not, in itself, corroborated by other specific and unequivocal evidence, so that that meeting might possibly be explained otherwise than by a wish to restrict competition, that cannot preclude that statement from constituting adequate proof of the anti‑competitive nature of the meeting when it is one of a series of other items of evidence which provide reliable indicia of the existence of contemporaneous and similar anti-competitive conduct. It follows from the foregoing that the applicants cannot reasonably claim that they participated in a social event or that it was a courtesy visit. On the contrary, the Commission was right to find that they participated in a cartel meeting at the end of November or the beginning of December 2001.
219 With respect to the bilateral meeting of 18 April 2002 in Tokyo, proof of the existence of that meeting in a hotel between DDE and the applicants is based on a statement by DDE and on the applicants’ confirmation, and is substantiated by travel documents of the two participants representing the applicants and by an agenda entry. According to DDE, the meeting was organised at the applicants’ request and related mainly to pricing, industry dynamics and in particular the applicants’ interest in increasing prices in the Asia Pacific region. In addition, the discussion concerned the joint venture with Showa Denko. DDE’s statement is partially corroborated by the applicants, which claim that ‘no anticompetitive discussions took place and that the talks focused on the dissolution of DDE’s joint venture with Showa Denko’.
220 As regards the applicants’ assertion that no anti‑competitive discussion occurred during the meeting of 18 April 2002 in Tokyo, it is necessary to take account, first, of the statements of all the other cartel participants, according to which from September 1998 onwards the competitors mainly met in bilateral meetings (see recitals 242 and 243 of the contested decision) and, second, of the fact that one week after that meeting in Tokyo with DDE, that is on 25 April 2002, the applicants met representatives of Bayer in Düsseldorf (see paragraph 195 above). However, both DDE and Bayer stated that their meetings with Denka in April 2002 were of an anti-competitive nature. In the light of those consistent statements by two competitors, Denka’s assertion that the meeting with DDE in April 2002 was just a courtesy meeting is not credible.
221 Accordingly, it must be held that the Commission was right to consider that the applicants’ meeting with DDE of 18 April 2002 in Tokyo was an anti-competitive meeting.
222 It follows from the foregoing that the applicants’ complaint that the Commission failed to demonstrate to the requisite legal standard their participation in the meetings of 13 July 1993, 11 November 1993, 18 November 1993 and 9 May 1999 is well founded. However, that is not capable of calling into question the lawfulness of the contested decision, since the fact that the applicants did not participate in those meetings does not permit the inference that the Commission has failed to establish to the requisite legal standard the applicants’ continuous participation in the cartel in question and the duration of that participation.
223 In accordance with the case-law cited in paragraph 180 above, it would be artificial to subdivide into a number of distinct actions the applicants’ participation in a cartel which is characterised by a series of efforts pursuing a single economic end. Given that the applicants’ participation in the cartel is proved by serial participation in the cartel meetings over a number of years − for the record: (i) it is established that the applicants’ participation in the cartel started on 12 or 13 May 1993 and ended on 13 May 2002, (ii) they explicitly acknowledge having attended the cartel meetings of 11 April 1994 and 14 September 1998 (see paragraphs 56, 151 and 157 above), (iii) they admit having attended another 20 anti-competitive meetings during the period between 11 April 1994 and 14 September 1998, (iv) the distinction that they attempt to draw between ‘attending’ a meeting and ‘participating’ in a meeting is purely artificial (see paragraphs 57 and 150 above), and (v) with respect to the period between 14 September 1998 and 13 May 2002, it has been held that the Commission has failed to prove only that the applicant participated in the meeting of 9 May 1999 − and given that the applicants do not dispute that those meetings pursued a single economic end, and therefore amounted to a single cartel, the fact that the Commission has failed to demonstrate to the requisite legal standard their participation in several meetings during the cartel has no bearing on the duration of their participation in the infringement as such or on their participation in it, in particular given that, as in the present case, they did not distance themselves from the cartel in the manner required by the case-law and that there are no indicia that tend to establish that they withdrew from the cartel or interrupted their participation in the infringement during a certain period. In that regard, it may also be recalled that although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (Case T‑18/05 IMI and Others v Commission [2010] ECR II‑1769, paragraph 89).
224 It follows that, in the present case, the gap of slightly less than nine months between the applicants’ participation in the cartel meeting of 12 or 13 May 1993 in Florence and their participation in the cartel meeting of 8 or 9 February 1994 in Tokyo (or a gap of eleven months between the meeting of 12 or 13 May 1993 in Florence and the meeting of 11 April 1994 in Zurich), is not relevant. The cartel extended over a number of years and, accordingly, a gap of nine months between the various manifestations of that cartel, during which the applicants did not distance themselves from it, is immaterial (see paragraph 180 above).
225 It follows from the foregoing that the Commission has established to the requisite legal standard that the applicants participated in a single and continuous infringement between 13 May 1993 and 13 May 2002.
226 The fifth plea in law must therefore be rejected.
Sixth plea: manifest errors of assessment of the facts, failure to state reasons and breach of the principles of proportionality and equal treatment with respect to the mitigating circumstances
– Wording of the contested decision
227 With respect to the extent to which the applicants did not participate in the infringement, the Commission observed as follows in recital 561 of the contested decision:
‘… there is no reason to apply a reduction in the fine for not having participated in all the years of the infringement, since this will be taken into account when determining the duration of the infringement. In addition, it has been shown … that [the applicants] were also involved in all important aspects of the cartel, in particular in market sharing, regionalisation and price increase agreements …’
228 With respect to the applicants’ non‑implementation of the cartel, the Commission stated, in recital 573 of the contested decision, that it ‘is not required to recognise non-implementation of a cartel as a mitigating circumstance unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question’. In addition, ‘[t]he Commission’s undisputed conclusion on this point is … that the arrangements were implemented’ (see recital 574 of the contested decision). Lastly, in recital 575 of the contested decision, the Commission took the view that the applicants ‘have [not] shown that they clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, or avoided giving the appearance of adhering to the agreement so as not to incite other undertakings to implement the cartel’. As they had not clearly distanced themselves from what was agreed at the anti-competitive meetings which they attended, the Commission took the view, in the same recital that ‘they retained responsibility for participation in the cartel’.
229 With respect to the passive and/or minor role, the Commission stated, in recital 545 of the contested decision, that it ‘accepts that an exclusively passive or “follow-my‑leader” role played by an undertaking in an infringement may, if established, constitute a mitigating circumstance’. It specified however that a ‘passive role implies that the undertaking adopts a “low profile”, that is to say that it does not actively participate in the creation of any anti-competitive agreements’. In recital 550 of the contested decision, the Commission found, with respect to the applicants, that ‘[t]he evidence in the file points to consistent, regular and active participation in the infringement’ and that the ‘frequency of their contacts with the other producers throughout the entire period of the infringement … and especially their regular participation in the meetings between all the competitors is incompatible with any notion of a passive player’.
230 In that regard, the Commission stated as follows in recital 578 of the contested decision:
‘… there is not sufficient evidence in the Commission’s file that either Bayer, DuPont/DDE or Eni[C]hem exerted pressure on Tosoh and/or Denka to join the cartel arrangements. In any event, even if coercion had been proven, that would not have constituted a mitigating circumstance in respect of those two undertakings. Proof of coercion may, in certain circumstances, give rise to an increase of the fine on the grounds that it constitutes an aggravating circumstance, or to the loss of preferential treatment under the [2002] Leniency Notice. However, a company that is coerced by other participants to participate in a competition law infringement should inform public authorities … . In the light of such an option, which respects the law, participation in illegal cartel activities cannot be justified. Denka’s submission that it could not publicly distance itself due to the threat of retaliation and that it could not approach the competition authorities, as it did not have enough inside knowledge, is therefore not credible … .’
– Arguments of the parties
231 The applicants claim that, by rejecting their arguments concerning mitigating circumstances, namely that (i) they did not participate in all the alleged practices; (ii) they did not implement the cartel; (iii) they played an exclusively passive role; and (iv) they were coerced by the European producers, the Commission made a manifest error of assessment of the facts, infringed Article 253 EC and breached the principles of proportionality and equal treatment.
232 As regards the fact that they did not participate in some of the alleged practices, namely the agreements and concerted practices having the object or the effect of sharing the CR market in the EEA, fixing prices on that market or reducing production capacity, the applicants claim, in the alternative, that at the very most they participated sporadically in the exchange of information which, so far as they were concerned, could not be regarded as sensitive, since that information was ‘either publicly available or incorrect’. Accordingly, it could only be held liable for a limited exchange of information, as it had no adverse effect on their competitors’ market conduct, had no impact on the applicants’ wholly independent market conduct and, accordingly, did not justify the amount of the fine imposed. In any event, the applicants did not participate in either the market-sharing agreement, or the price-fixing agreements, or the agreement to reduce capacity. Furthermore, the possibility of imputing liability requires, according to the case-law, knowledge of the offending practices, which the Commission has not established in the present case with respect to the closure of DDE’s and Bayer’s production plants. The fact that the 2006 Guidelines do not expressly provide that the fine can be reduced to take account of non-participation in all the constituent elements of the alleged infringement does not mean that such a reduction is not possible.
233 As regards the non-implementation of the cartel, the applicants maintain, first of all, that the consistent and systematic failure to comply with the terms of the cartel cannot be regarded as mere cheating against the other members of the cartel, but constituted rather a disruption of the cartel itself. As non-implementation has been established, the amount of the fine should be reduced under the principle of personal responsibility. Contrary to the Commission’s arguments, the fact that the applicants failed to distance themselves publicly from the cartel is irrelevant to the question whether non-participation can be characterised as a mitigating circumstance. The failure to implement the cartel has consequences on the extent of liability and therefore on the level of the penalty, and not on the existence of the penalty. Furthermore, if the Commission was allowed to use 2001 as the reference year for the purpose of calculating the amount of the fine to be imposed on the applicants, that amount should at least be reduced in order to avoid disproportionate and discriminatory treatment. Contrary to the Commission’s assertion, the applicants state that they never took account of the information which the other CR producers ‘may have exchanged’. The Commission does not challenge, moreover, the ample evidence of the applicants’ independent conduct set out in the application.
234 As regards their exclusively passive role, the applicants claim that they attended fewer than 21 of the 77 cartel meetings alleged to have been held between 1993 and 2002, that most of those meetings did not have any anti-competitive content and that, in any event, they did not actively participate in the cartel, played a much less active role than the other participants in the cartel and increased their market share throughout the cartel period. The minor role which the applicants played within the cartel should justify a significant reduction, of at least 20%, in the amount of the fine imposed on them.
235 As regards the coercion exerted by the European producers, the applicants, referring to their first plea, submit, in the alternative, that the fact that they were coerced into participating in the cartel constitutes a mitigating circumstance that justifies a reduction in the fine.
236 The Commission disputes the applicants’ arguments.
– Findings of the Court
237 According to the case‑law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. Recognition of a mitigating circumstance, in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement, cannot result in the fine imposed being deprived of deterrent effect and the effectiveness of Article 81(1) EC being undermined (see, to that effect, Case C‑511/06 P Archer Daniels Midland v Commission [2009] ECR I‑5843, paragraphs 104 and 105 and the case-law cited).
238 It is also clear from the case‑law that the Guidelines adopted by the Commission form rules of practice from which it may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (Dansk Rørindustri and Others v Commission, paragraph 62 above, paragraph 209; see also the judgments cited in paragraph 107 above), which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (see Case C‑101/08 Audiolux and Others [2009] ECR I‑9823, paragraph 54 and the case-law cited).
239 Point 29 of the 2006 Guidelines states as follows:
‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
– where the undertaking concerned provides evidence that it terminated the infringement as soon as the Commission intervened: this will not apply to secret agreements or practices (in particular, cartels);
– where the undertaking provides evidence that the infringement has been committed as a result of negligence;
– where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount;
– where the undertaking concerned has effectively cooperated with the Commission outside the scope of the [2002] Leniency Notice and beyond its legal obligation to do so;
– where the anti-competitive conduct of the undertaking has been authorized or encouraged by public authorities or by legislation’.
240 As is apparent from point 29 of the 2006 Guidelines, the Commission is under no obligation always to take account separately of each of the mitigating circumstances listed: it ‘may’ reduce the basic amount. Although the circumstances in the list in point 29 of the 2006 Guidelines are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances. The adoption of the Guidelines has not rendered irrelevant the previous case-law under which the Commission enjoys a discretion as to whether or not to take account of certain matters when setting the amount of the fines it intends imposing, by reference to the circumstances of the case. Thus, in the absence of any binding indication in the Guidelines regarding the mitigating circumstances that may be taken into account, it must be concluded that the Commission has retained a degree of latitude in making an overall assessment of the extent to which a reduction of fines may be made in respect of mitigating circumstances (see Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraphs 274 and 275, 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, paragraphs 472 and 473 and the case-law cited).
241 In the present case, as regards, first, the complaint that the Commission ought to have taken into consideration the fact that the applicants did not participate in some of the practices alleged, it should be borne in mind, as is apparent from the analysis of the first and fifth pleas, that the Commission was right to consider that the applicants participated in a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the entire territory of the EEA, consisting of agreements and concerted practices aimed at agreeing on the allocation and the stabilisation of markets, market shares and sales quotas for CR, coordinating and implementing several price increases, agreeing upon minimum prices, allocating customers and exchanging competitively sensitive information. In view of the Commission’s discretion when setting the amount of the fines it intends imposing, the Commission was entitled to conclude in the light of all those factors that the benefit of mitigating circumstances was not justified.
242 As for the applicants’ argument that the Commission ought to have shown that they had knowledge of the closures of DDE’s and Bayer’s production plants, it should be borne in mind that an undertaking which has participated in an infringement by virtue of its own conduct, which met the definition of an agreement or a concerted practice within the meaning of Article 81(1) EC and which was intended to help to bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or that it could reasonably have foreseen that conduct, and that it was prepared to accept the risk (see BASF and UCB v Commission, paragraph 126 above, paragraph 160 and the case-law cited).
243 In the present case, it is apparent from the contested decision (see recitals 335 and 358 to 360) that the closures of the DDE and Bayer production plants were consistent with the regionalisation strategy agreed between the competitors and therefore formed, as a concerted practice, part of the single and continuous infringement. It is also apparent from the contested decision (see recitals 205, 208, 217 and 222) and from the analysis of the first and fifth pleas that the applicants participated in the meetings during which DDE and Bayer informed their competitors, at an early stage, of the closures of their production plants. The applicants were therefore aware of the unlawful conduct implemented by Bayer and DDE in the cartel in question.
244 It follows that the Commission did not exceed the limits of its discretion in that area in not taking into account, as a mitigating circumstance which would justify a reduction of the fine, the fact – even if it were proved – that the applicants did not participate in all the constituent elements of the cartel in question. The manifest error of assessment of the facts alleged has not therefore been established.
245 Moreover, the applicants do not explain how, by thereby not granting them the benefit of a mitigating circumstance, the Commission infringed the principle of proportionality or the principle of equal treatment. In addition, it is apparent from recital 561 of the contested decision that the Commission stated reasons for its position in that regard.
246 Accordingly, the Court must reject the first complaint.
247 As regards, second, the complaint that the Commission ought to have taken into consideration the non‑implementation of the cartel, it is apparent from the analysis of the fourth plea that it is not possible to take the view that the applicants did not profit from the anti-competitive effects of the cartel and, therefore, that they did not implement it. Even on the assumption that, by increasing their market share throughout the cartel, the applicants did not respect the market share agreement, the cartel also related to prices. Accordingly, having participated in an anti‑competitive cartel for nine years, the applicants’ assertions that they conducted themselves independently on the market or that they never took account of any information that ‘would have been exchanged’ at secret cartel meetings are not credible.
248 Nor have the applicants established that they opposed the cartel to the point of disrupting its smooth functioning, the standard which is however laid down by the case-law in order for non‑implementation of the cartel justifying a reduction of the fine in respect of mitigating circumstances to be recognised. According to the case‑law, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a restrictive agreement unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the agreement, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. The fact that an undertaking which has been proved to have participated in collusion on market-sharing with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed (see Mannesmannröhren-Werke v Commission, paragraph 240 above, paragraph 277 and the case-law cited).
249 In addition, it is apparent from the analysis of the fourth plea that, by relying on the value of sales for 2001 for the purposes of calculating the fine, the Commission correctly took into account the scale of the infringement committed by the applicants, assessed globally, while avoiding any discrimination between the participants.
250 It follows that the Commission did not exceed the limits of its discretion in that area by not taking into account, as a mitigating circumstance which would justify a reduction of the fine, the alleged non‑implementation of the cartel by the applicants. The manifest error of assessment of the facts alleged has not therefore been established.
251 Moreover, the applicants do not explain, apart from when they dispute the Commission’s decision to take into account the value of sales for 2001, how, by not granting them the benefit of a mitigating circumstance for their alleged non‑implementation of the cartel, the Commission infringed the principle of proportionality or the principle of equal treatment. In addition, it is apparent from recitals 573 to 575 of the contested decision that the Commission stated reasons for its position in that regard.
252 The second complaint must therefore be rejected.
253 As regards, third, the complaint that the Commission ought to have taken into consideration the exclusively passive role of the applicants in the cartel, the Court would point out that, as the Commission states in the rejoinder, although that circumstance was expressly cited as a possible mitigating circumstance in the 1998 Guidelines, it is no longer one of the mitigating circumstances which can be taken into account under the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy.
254 Moreover, an ‘exclusively passive or follow-my-leader’ position in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anti-competitive agreements (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167). It is clear from case-law that one factor that may indicate that an undertaking has played a passive role in a cartel is where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel; another is where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, regard being had to all the relevant circumstances of the individual case (see Cheil Jedang v Commission, paragraph 168 and the case-law cited).
255 In the present case, the applicants participated in a not inconsiderable number of cartel meetings, whose anti-competitive nature has been established (see paragraphs 201 to 224 above), and admitted having provided their competitors with certain information. Even if that information was incorrect/or available elsewhere, the applicants none the less gave the impression to their competitors that they were taking part in the cartel and, therefore, contributed to encouraging it. In addition, none of the participants in the cartel in question stated that the applicants had adopted a ‘low profile’ during the infringement. For those reasons, it cannot be considered that their role was exclusively passive.
256 It follows that the Commission did not exceed the limits of its discretion in that area by not taking into account, as a mitigating circumstance justifying a reduction of the fine, the alleged exclusively passive role of the applicants. The manifest error of assessment of the facts alleged has not therefore been established.
257 Moreover, the applicants do not explain how, by thereby not granting them the benefit of a mitigating circumstance, the Commission infringed the principle of proportionality or the principle of equal treatment. In addition, it is apparent from recitals 545 and 560 of the contested decision that the Commission stated reasons for its position in that regard.
258 The third complaint must therefore be rejected.
259 As regards, fourth, the complaint that the Commission ought to have taken into consideration the coercion allegedly exerted on the applicants by the European producers, it is sufficient to note that that coercion has not been established (see the analysis in paragraph 61 above).
260 Moreover, the applicants do not explain how, by thereby not granting them the benefit of a mitigating circumstance on account of coercion (on the assumption that such coercion were proved), the Commission infringed the principle of proportionality or the principle of equal treatment. In addition, it is apparent from recital 578 of the contested decision that the Commission stated reasons for its position in that regard.
261 The fourth complaint must therefore be rejected.
262 The Court must therefore reject the sixth plea.
263 It follows from all the foregoing that the applicants’ first and second heads of claim seeking annulment of Articles 1, 2 and 3 of the contested decision, in so far they concern the applicants, must be rejected.
264 As regards the second head of claim, relating to the reduction of the fine imposed on the applicants, it is true that the power of unlimited jurisdiction conferred on the General Court in competition matters by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises that court, beyond a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR‑I 7415, paragraph 86 and the case-law cited). However, in the present case, the Court takes the view that there is no reason to reduce the amount of the fine under that power.
265 In the light of all of the foregoing, the action must be dismissed in its entirety.
Costs
266 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 (Seventh Chamber)
hereby:
1) Dismisses the action;
2) Orders Denki Kagaku Kogyo Kabushiki Kaisha and Denka Chemicals GmbH to pay the costs.
Dittrich | Wiszniewska-Białecka | Prek |
Delivered in open court in Luxembourg on 2 February 2012.
[Signatures]
Table of contents
Background to the dispute
The applicants and the product concerned
The procedure before the Commission
The contested decision
Procedure
Forms of order sought by the parties
Law
The main pleas, seeking annulment of the contested decision
First plea: manifest errors of assessment of the facts in relation to the applicants’ participation in an infringement of Article 81 EC
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
Second plea: breach of the rights of the defence, of the obligation to state reasons and of the principle of sound administration
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
The pleas put forward in the alternative, seeking a reduction in the amount of the fine
Third plea: breach of the principles of legal certainty and non‑retroactivity owing to the application of the 2006 Guidelines
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
Fourth plea: manifest errors of assessment of the facts and breach of the principle of proportionality in the calculation of the value of sales
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
Fifth plea: incorrect determination of the duration of the applicants’ participation in the cartel
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
Sixth plea: manifest errors of assessment of the facts, failure to state reasons and breach of the principles of proportionality and equal treatment with respect to the mitigating circumstances
– Wording of the contested decision
– Arguments of the parties
– Findings of the Court
Costs