JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

6 March 2012 (*)

(Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality – Joint and several liability – Principle of ne bis in idem)

In Case T‑64/06,

FLS Plast A/S, established in Valby (Denmark), represented initially by K. Lasok QC and M. Thill-Tayara, lawyer, and subsequently by M. Thill-Tayara,

applicant,

v

European Commission, represented by F. Castillo de la Torre, acting as Agent, and by M. Gray, Barrister,

defendant,

APPLICATION for the partial annulment of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) and, in the alternative, for reduction of the fine imposed on the applicant by that decision,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,

Registrar: N. Rosner, Administrator,

having regard to the written procedure and further to the hearing on 22 June 2011,

gives the following

Judgment

 Facts

1        The applicant, the Danish company FLS Plast A/S, previously called Nyborg Plast International A/S, is an addressee of the decision challenged in this action in its capacity as the former parent company of Trioplast Wittenheim SA, which was a producer of plastic industrial bags, films and hoods whose registered office was in Wittenheim (France). The applicant is a subsidiary of the Danish group controlled by FLSmidth & Co. A/S (‘FLSmidth’).

2        In December 1990, the applicant acquired 60% of the share capital in Trioplast Wittenheim, then known as Silvallac SA. The remaining 40% of the shares was acquired by the applicant in December 1991. The seller was the French company Cellulose de Pin, a member of the group owned by Compagnie de Saint-Gobain SA (‘the Saint-Gobain group’).

3        In 1999, the applicant sold Silvallac to Trioplanex France SA (‘Trioplanex’), a French subsidiary of Trioplast Industrier AB. The transfer took effect on 1 January 1999. In July 1999, Silvallac was renamed Trioplast Wittenheim by its new owner.

4        In November 2001, the company British Polythene Industries informed the Commission of the existence of a cartel in the plastic industrial bags sector (‘the cartel’). It expressed its wish to cooperate with the Commission under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4, ‘the Leniency Notice’).

5        On 26 and 27 June 2002, the Commission carried out investigations pursuant to Article 14(2) and (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). Trioplast Wittenheim was one of the undertakings investigated.

6        Between 14 November 2002 and 21 February 2003, the Commission sent requests for information pursuant to Article 11 of Regulation No 17 to the undertakings concerned, including Trioplast Wittenheim.

7        By letter dated 19 December 2002, supplemented by a letter dated 16 January 2003, Trioplast Wittenheim indicated that it too wished to cooperate with the Commission’s investigation, under the Leniency Notice, and provided written explanations.

8        On 4 August 2003 the Commission sent a request for further information to Trioplast Wittenheim.

9        On 30 April 2004, the Commission initiated the administrative procedure and adopted a statement of objections against a number of companies including, inter alia, the applicant and Trioplast Wittenheim. A hearing took place from 26 to 28 July 2004.

10      On 30 November 2005, the Commission adopted – on the basis 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) – Decision C (2005) 4634 final relating to a proceeding pursuant to Article 81 EC (Case COMP/F/38.354 – Industrial bags) (the ‘contested decision’), a summary of which was published in the Official Journal of the European Union of 26 October 2007.

11      Article 1(1)(h) of the contested decision states that, from 31 December 1990 to 19 January 1999, the applicant and FLSmidth infringed Article 81 EC by participating in a complex of agreements and concerted practices in the plastic industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, concerted bidding in response to certain invitations to tender and the exchange of individualised information.

12      Point (f) of the first paragraph of Article 2 of the contested decision imposes on Trioplast Wittenheim a fine of EUR 17.85 million. Of this amount, FLSmidth and the applicant are held jointly and severally liable for the sum of EUR 15.30 million and Trioplast Industrier AB is held jointly and severally liable for the sum of EUR 7.73 million.

 Procedure and forms of order sought

13      By application lodged at the Registry of the Court on 23 February 2006, the applicant brought the present action.

14      The applicant claims that the Court should:

–        annul Article 1(1)(h) and Article 2, first paragraph, point (f), of the contested decision in so far as they concern the applicant;

–        in the alternative, vary Article 2, first paragraph, point (f) of the contested decision and substantially reduce the fine imposed jointly and severally on the applicant;

–        if need be, order that Mr T., a former member of the applicant’s management, give evidence and order any other measure of enquiry that may be required to resolve the issues of fact in this case;

–        order the Commission to pay the applicant’s legal and other costs and expenses in relation to the present case.

15      The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

 Law

16      The applicant advances five pleas in law in support of its claim.

17      The first two pleas seek the annulment of the contested decision in so far as it relates to the applicant.

18      The first plea alleges an error of law in the determination of the fine. In support of this plea, the applicant criticises the Commission in particular because the aggregate amounts for which the applicant and Trioplast Industrier are held jointly and severally liable exceed the total amount of the fine imposed on Trioplast Wittenheim.

19      The second plea concerns the fact that the applicant was found liable in its capacity as the parent company of Trioplast Wittenheim. This plea may be broken down into four parts. The first part alleges breach of the principles of equal treatment and proportionality. The second part, relates to the role of the applicant’s management and Trioplast Wittenheim’s degree of autonomy. By the third part, the applicant denies that it was aware of Trioplast Wittenheim’s anti‑competitive conduct. In the fourth part, the applicant challenges the Commission’s assessment of the means allegedly available to it to exercise control over Trioplast Wittenheim.

20      The third, fourth and fifth pleas seek a reduction of the fine and all allege an incorrect application of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the Guidelines’) and of the Commission’s practice in previous decisions in relation to setting fines.

21      By the third plea, the applicant challenges the amount of the fine imposed on Trioplast Wittenheim. The plea is divided into three parts. The first part relates to the gravity of the infringement and the difference in treatment of the undertakings involved in the infringement. The second part relates to the determination of the duration of the infringement committed by the applicant, while the third part concerns the failure to take account of mitigating circumstances.

22      The fourth plea relates to the non-application in the applicant’s case of the 10% of turnover ceiling.

23      The purpose of the fifth plea is to challenge the amount of the fine imposed jointly and severally on the applicant. It comprises five parts, the first of which concerns the disproportionate nature of the fine in view of the lack of deterrent effect on the applicant. The second part concerns the failure to take account of the duration and intensity of the infringement. The third part concerns the refusal to apply the Leniency Notice, while the fourth relies on the ne bis in idem principle and the principle that penalties should relate to the specific circumstances of the offender. Finally, in the fifth part of the plea, the applicant raises objections concerning the reasoning in the contested decision.

24      Since the second plea concerns the finding of infringement in Article 1(1)(h) of the contested decision and the first plea concerns the fine imposed in Article 2, first paragraph, point (f), as a result of that infringement, it is appropriate to examine, first, the arguments advanced in the framework of the second plea and, second, those relied on in support of the first plea.

A –  Second plea, concerning the applicant’s liability in its capacity as Trioplast Wittenheim’s parent company

1.     Preliminary observations

25      In the applicant’s submission, the anti-competitive conduct of a subsidiary may be imputed to its parent company only if the latter determines the subsidiary’s course of action and thus the parent and the subsidiary form a single economic unit. The applicant submits, in essence, that the Commission erred in its application of the presumption that a parent company and its wholly-owned subsidiary form an undertaking within the meaning of Article 81 EC, since it failed to take into account certain factors capable of rebutting that presumption.

26      It should be noted, in that regard, that the concept of ‘undertaking’ to which Article 81 EC refers covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed, that concept thus designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraphs 54 and 55 and the case-law cited).

27      When such an economic entity infringes the competition rules, it falls to it to answer for that infringement, which must be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections must be addressed to that person and indicate to it in which capacity it is called on to answer the allegations (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraphs 56 and 57 and the case-law cited).

28      In that regard, the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. The fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 58 and the case-law cited and paragraph 59).

29      Where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 60 and the case-law cited).

30      In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 61).

31      In order to assess whether a subsidiary decides independently upon its own conduct on the market, it is not appropriate merely to take account of the fact that the parent company influences pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing. Account must also be taken of all the relevant factors relating to the economic, organisational and legal links between the subsidiary and the parent company, which may vary from case to case and cannot, therefore, be exhaustively listed (see, to that effect, Akzo Nobel and Others v Commission, paragraph 26 above, paragraph 74, and Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049, paragraphs 64 and 65).

32      In the present case, it is noteworthy that the Commission’s reasoning in the contested decision, concerning the imputability of the infringement, is not unequivocal. On the one hand, recital 580 of the decision states that the Commission was entitled to assume that a wholly-owned subsidiary was carrying out, in all material respects, the instructions given to it by the parent company and that it was thus for the latter to rebut that presumption.

33      On the other hand, recitals 715 to 732 of the contested decision, which deal with the links between the applicant and Trioplast Wittenheim, do not expressly refer to the rebuttable presumption mentioned above. The Commission observes, first, in recital 715 of the contested decision, that the applicant held 60% of the equity in Trioplast Wittenheim in 1991 and 100% thereof from 1992. Next, recitals 718 to 725 do not distinguish between the situation in which the applicant held 60% of the equity in Trioplast Wittenheim and the situation in which it held all the equity. Finally, recitals 726 to 732 mention some further evidence that allegedly shows that the applicant exercised decisive influence over the conduct of Trioplast Wittenheim.

34      Before the Court, the Commission has clarified its position, explaining that it relied on the principle of the rebuttable presumption only in respect of the period during which the applicant had a 100% shareholding in Trioplast Wittenheim, that is to say, the period from 1 January 1992 to 19 January 1999 (‘the period 1992 to 1998’). Thus, the Commission appears to indicate that it did not reason on the basis of that presumption in respect of the period from 31 December 1990 to 31 December 1991, during which the former parent company, which belonged to the Saint-Gobain group, still held 40% of the shares in Trioplast Wittenheim. According to the defence, the strong personnel links between the two companies are the basis for attributing Trioplast Wittenheim’s conduct to the applicant.

35      In those circumstances, it is appropriate to consider, in relation to each of the two periods mentioned above, whether the Commission has established to the required legal standard whether the applicant exercised decisive influence over the conduct of Trioplast Wittenheim. The Court will first consider the year 1991, during which the applicant had only a 60% shareholding, and will then look at the period 1992 to 1998, during which the applicant owned 100% of the shares in Trioplast Wittenheim.

2.     1991

36      The applicant affirms that it was not in sole control of Trioplast Wittenheim during 1991, as it had only a 60% shareholding. Since it did not hold 100% of the equity in its subsidiary, it cannot be presumed that it actually exercised control. Since the company holding the remaining 40% of the shares had significant interests in that subsidiary and Trioplast Wittenheim had to be run in the interests of all of its shareholders, it cannot be assumed that the applicant and Trioplast Wittenheim constituted an economic unit during that period.

37      The Commission points out, however, that during 1991, not only did the applicant hold 60% of the shares in Trioplast Wittenheim, but there were also strong personnel links between the two companies comprising the undertaking.

38      It should be borne in mind that, throughout 1991, the applicant held 60% of the shares in Trioplast Wittenheim, while the former parent company, which belonged to the Saint-Gobain group, held the remaining 40%. Thus, it is important to ascertain whether, during 1991, Trioplast Wittenheim was controlled solely by the applicant or in actual fact jointly by the applicant and the Saint-Gobain group. In the absence of any indicia, such as a shareholder agreement or the existence of special voting rights, which show otherwise, the fact that the applicant controlled the majority of the shares gives grounds for assuming that it had sole control of the subsidiary in question.

39      The applicant rightly observes, however, that the exercise of such control cannot be presumed since, with a 40% shareholding, the former owner was also able to exercise influence over the conduct of Trioplast Wittenheim. In those circumstances, it was for the Commission to show (i) that Trioplast Wittenheim did not determine its commercial conduct independently and (ii) that that lack of independence, supposing it to be established, was explained by the decisive influence unilaterally exerted by the applicant over its subsidiary.

40      The Court will therefore start by identifying the evidence advanced by the Commission to establish that the applicant exercised control throughout 1991 and then go on to ascertain whether the evidence thus identified was sufficient to establish that the applicant exercised decisive influence during that period.

41      With regard to the first question, it is undisputed that none of the evidence listed in recitals 715 to 732 of the contested decision or produced by the Commission before the Court (Annex 1 to the rejoinder) concerns the year 1991, with the exception of the fact that Mr H. and Mr T. were in 1991 members of the board of Trioplast Wittenheim and also held management positions with the applicant. That finding is confirmed by the position taken by the Commission at point 111 of the defence.

42      With regard to the second question, consideration should be given to whether the fact that those posts were held concurrently was a sufficient basis for concluding, in this case, that the subsidiary concerned and its parent company together formed an economic unit.

43      In that regard, it must first be stated that the Commission has not provided any explanation concerning the power of the representatives of the group headed by the applicant within the board of directors of Trioplast Wittenheim. It is therefore not established that they had the power to impose actual control on the board as a whole, particularly during a transitional phase such as the year 1991.

44      Next, it is not established that Mr T., who represented FLSmidth, and Mr H. who represented the applicant, knew, or ought to have known, that the subsidiary that had recently been acquired was involved in anti-competitive conduct.

45      Finally and above all, the Court notes that the Commission does not dispute that the day-to-day management of the subsidiary was among the responsibilities of the subsidiary’s managing director. The applicant has explained that Mr L., a representative of the Saint-Gobain group, had retained the post of managing director throughout 1991.

46      In those circumstances, the Commission has not established to the required legal standard that the applicant exercised actual control over Trioplast Wittenheim throughout the year 1991. The second plea must therefore be accepted in so far as it concerns the imputability of the infringement to the applicant for the period from 31 December 1990 to 31 December 1991.

3.     The period 1992 to 1998

a)     Second part of the second plea: the role of the applicant’s managers and the degree of autonomy of Trioplast Wittenheim

47      In the applicant’s submission, the Commission has not put forward any evidence showing that it sought to exercise control over Trioplast Wittenheim’s commercial conduct. It argues that residual control over ‘strategic decisions’ and financial supervision are not enough to found a conclusion that it actually exercised control over its subsidiary. The fact of appointing a manager does not equate to determining the commercial conduct of a subsidiary. It is true that Mr H. was the chairman of Trioplast Wittenheim between 1990 and 1994, while also occupying a managerial post with the applicant, and that Mr T., a member and chairman of the board of directors of Trioplast Wittenheim, had also been the applicant’s chairman since 1987, but those facts do not support the Commission’s allegation. The Nyborg Plast Group Strategy Plan concerning the period 1993 to 1995 shows that the FLS group had a decentralised management and that many subsidiaries were run by their local managers. The latter reported on various commercial, mainly financial, aspects to the chairman of the board of directors concerned.

48      In this connection, the applicant refers to two witness statements made during the arbitration proceedings initiated by Trioplanex against the applicant and FLSmidth before the International Court of Arbitration. The abovementioned Mr T., and Mr G., Trioplast Wittenheim’s managing director at the time, confirmed, on the one hand, that the reports to the chairman of the board of directors were purely financial and, on the other hand, that all the day-to-day management was carried out by the managers running the subsidiary concerned.

49      The applicant also points out that, when Mr T. was the chairman of Trioplast Wittenheim, he was at the same time the chairman of the board of directors of around 20 other companies, a member of the boards of directors of approximately 20 further companies and the vice-chairman/managing director of FLSmidth. However, the Commission failed to take into account the fact that a single man could not be physically involved in the management of over 40 companies to the degree required for the purpose of establishing the existence of an undertaking within the meaning of Article 81 EC.

50      In so far as the arbitration decision of the International Court of Arbitration given in the case between Trioplanex and the applicant does not in itself constitute evidence of the facts at issue, the applicant asks the Court to examine Mr T. as a witness.

51      The Commission refutes those arguments and contends that there is no reason to call Mr T. as a witness.

52      In that regard, it should be recalled, first, that the answer to the question whether the applicant has succeeded in rebutting the presumption that, during the period 1992 to 1998, it exercised influence over its wholly-owned subsidiary’s market conduct will depend upon an analysis of all the organisational, economic and legal links between the subsidiary and its parent company (see paragraph 31 above).

53      Next, the Court notes that Mr H. and Mr T. both exercised functions in parallel within the applicant and within the subsidiary concerned during the period of the infringement. Mr. H., the Chairman of Trioplast Wittenheim from 1990 to 1994, held at the same time a managerial post with the applicant and Mr T., a member of the board of directors of Trioplast Wittenheim from 1990, then Chairman from 1994 to 1999, was also Chairman of the applicant from 1987. Such factors constitute organisational links between the subsidiary and its parent company (see, to that effect, judgment of 18 December 2008 in Case T‑85/06 General Química and Others v Commission, not published in the ECR, paragraph 66).

54      In so far as the applicant seeks to demonstrate that the positions occupied by Mr H. and Mr T. were purely formal, its arguments cannot be accepted for the following reasons.

55      In the first place, the position of member of the board of directors of a company entails, by its very nature, legal responsibility for the activities of the company as a whole, including the company’s market conduct. The applicant’s proposition – that the position is purely formal – would amount to negating its legal substance. Once Mr H. and Mr T. assumed those responsibilities, it is of little significance that they did not, in practice, deal with the undertaking’s commercial strategy. That circumstance cannot therefore be put forward in order to rebut the presumption in question.

56      In the second place, it is not apparent from the Nyborg Plast Group Strategy Plan that those managers had only a formal role. Admittedly, the plan mentions ‘decentralised structures’ and a ‘philosophy of decentralised decision-making’, terms which could actually indicate a certain degree of independence on the part of the subsidiaries belonging to the applicant. However, the document contains a number of passages which reveal a desire to retain control over management of the group subsidiaries. Indeed, the summary of the said plan includes the following passage:

‘At the acquisitions of Silvallac …, SMS SA and IPEL Ltd., NP presumed economies of scale and group synergies. … Actions will be taken in order to secure a corporate understanding of potential synergies. Hopefully, this will create a corporate image/culture as well.’

As regards the philosophy of decentralised decision-making, the plan in question states that a ‘relatively strict follow-up on budgets and performance is needed due to among other things the information required by the Danish Stock Exchange’. Furthermore, it follows from the chapter dealing with ‘[a]ction plans’ that the applicant’s senior management was seeking to create a degree of uniformity in the management of the various group subsidiaries. The spirit of that plan therefore does not seem to have been to distance the subsidiaries and give them complete freedom of action.

57      In the third place, the witness statements of Mr T. and Mr G., submitted in 2004 in the course of the arbitration proceedings between Trioplanex and the applicant, do not provide grounds for concluding that the positions occupied by the applicant’s officers within Trioplast Wittenheim were purely formal. Although it is true that those witness statements do not clearly confirm that the applicant’s senior managers were dealing with the management of Trioplast Wittenheim, they show at the very least a degree of involvement in its management.

58      It is true that Mr T. stated that he had no knowledge of the day-to-day operations of Trioplast Wittenheim, since his role was not ‘hands-on’. However, he acknowledged that Mr G., who was the Managing Director of Trioplast Wittenheim at that time, reported directly to him, explaining that this reporting ‘essentially concerned the financials of the company, not the specifics of operations and sales’. The word ‘essentially’ seems important, since it reveals some definite involvement in operational management. Mr T. also admits that he worked, for a certain time, directly with Mr S., a deputy reporting to the managing director, Mr G.

59      Mr G’s statement, which mainly concerns events at the time of the applicant’s sale of Trioplast Wittenheim to Trioplanex, includes the following passage: ‘I had contacts with [Mr T.] on finance reports and on major moves, and that was about three times a year’. He also mentions the fact that ‘[M. T. was] a financial man, not a sales and marketing man’. It can thus be seen that conversations between Mr T. and Mr G. were only occasional and did not concern day-to-day management. However, some of Mr G.’s remarks on Mr H’s role indicate that the latter was involved in that management:

‘I said [to Mr H.] that is going to take two to three months and during these months do not interfere with the persons. Especially he wanted to buy a printing machine for Silvallac. I said do not buy it for the moment otherwise I will have problems on the lay-off’.

60      Finally, it is clear from the witness statements that the fact that Mr T. was, at the same time, a board member of around 40 other companies did not prevent him from dealing fairly intensively with Trioplast Wittenheim. Moreover, this argument concerns only Mr T. and not Mr H., who was both Chairman of Trioplast Wittenheim and an officer of the applicant between 1990 and 1994, that is to say, for half the period of the infringement imputed to the applicant.

61      In light of the foregoing, the second part of the second plea must be rejected. The request to call Mr T. as a witness should also be rejected, since the Court has already taken formal note of the statement made by him in the arbitration proceedings and lodged before the Court.

b)     Third part of the second plea: the applicant’s knowledge of Trioplast Wittenheim’s anti-competitive conduct

62      The applicant challenges the finding in recital 723 of the contested decision that the applicant’s management ‘knew, or could not have been unaware’ of Trioplast Wittenheim’s involvement in the cartel. It also challenges the claim that Mr G. had informed Mr H. of Trioplast Wittenheim’s participation in the cartel and that the latter had advised him to continue it. It submits that the extract from the witness statement in question is imprecise and shows that Mr H. was not involved in determining Trioplast Wittenheim’s commercial conduct.

63      Furthermore, the applicant argues that the alleged presence of Mr H. at a single meeting of the European Association of Plastic Valve Bag Manufacturers (‘Valveplast’) on 21 December 1993, as a representative of Trioplast Wittenheim, is also not sufficient to establish its own liability. In that respect, the applicant maintains that it has not been established that Mr H. informed the applicant of this. In addition, the handwritten notes from 1994 found on the premises of Bischof & Klein, which refer to Mr H., Silvallac and Nyborg Plast International, are not evidence of anti-competitive practices. In fact, they are notes of a meeting concerning ‘the UCF (United Chicken Farm) project’ (recital 245 of the contested decision), a joint venture that had nothing to do with Valveplast.

64      The Commission considers that these arguments are not well founded.

65      First of all, it should be recalled that the Commission’s ability to impute to a parent company liability for an infringement committed by its subsidiary does not depend upon whether the parent company was aware of the anti-competitive practices involving its subsidiary but upon whether the subsidiary and its parent formed a single undertaking (see paragraph 28 above).

66      Second, the Commission has relied, in support of its allegation that Mr H. and, consequently, the applicant were aware of Trioplast Wittenheim’s participation in the cartel on a passage in Mr G’s witness statement provided in the arbitration proceedings and reproduced below:

‘He did not give me instructions. I talked with [Mr H.] on Valveplast and he said, “… do you have the possibility to withdraw? You have a volume problem”, and I said “Yes, you are right …”, so he said, “You better continue”. As far as I remember that was in 1992... . No, not at all. The Valveplast issue was covered somewhere in October or September 1992 and that was all. We never talked about it again. It was clear. I am saying that the attitude of Mr H. was not on the Valveplast, which was a very small point, but on other big issues like social issues in Silvallac and so on.’

67      Since the document in question is a statement made in arbitration proceedings which concerns facts that occurred in 1992, that is to say, 12 years previously, it must be interpreted with care. Nevertheless, the Commission’s interpretation, according to which Mr H. was referring to participation in the cartel, appears more plausible than that of the applicant, according to which Mr H. was referring to other actions that Mr G. was supposed to take, such as dismissals. Indeed, Mr H. appears to have given an instruction to ‘continue’ and to do so in view of Trioplast Wittenheim’s ‘volume problem’. It is likely that that was a reference to the unlawful discussions within Valveplast that sought to set quotas and delivery volumes.

68      The Commission has also raised the fact that Mr H., Trioplast Wittenheim’s representative, had attended the Valveplast meeting on 21 December 1993, during which anti-competitive discussions had taken place. At the material time, Mr H. occupied management positions within the applicant and was authorised to act on its behalf. Given that the applicant has not asserted, let alone established, that Mr H.’s participation in those meetings was without any anti-competitive intention or that he had publicly distanced himself from what was discussed at the meeting (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraphs 81 and 82), his presence thus implies that the applicant was aware of the anti-competitive conduct of Trioplast Wittenheim.

69      The premiss, advanced by the applicant, that Mr H. did not inform it about Trioplast Wittenheim’s unlawful conduct, assuming he knew about it, is not such as to call that finding into question. If natural persons could not be equated with the undertakings that they represent at meetings, it would become impossible to enforce the prohibition laid down by Article 81 EC. Moreover, it is settled case‑law that the Commission’s power to impose a penalty on an undertaking where it has committed an infringement requires only the unlawful action of a person who is generally authorised to act on behalf of the undertaking (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 277, and Case T‑141/08 E.ON Energie v Commission [2010] ECR II‑0000, paragraph 258).

70      Finally, the Commission based its conclusions on notes found at the premises of Bischof & Klein concerning a meeting on 14 April 1994 in Brussels (Belgium) at which Mr H. and Mr T. were present. It is not, however, clear that the notes in question relate to the cartel, particularly in the light of the applicant’s alternative explanation concerning the UCF project. Merely because the notes in question concern potentially anti-competitive discussions and show that the applicant’s managers took part in that particular meeting, that does not mean that those discussions concerned the cartel or that the participants were aware of the latter. The applicant is held liable only for the participation of its subsidiary in the cartel. The Commission cannot therefore rely on the notes concerning the meeting on 14 April 1994.

71      However, the Court must reject the argument that the applicant’s knowledge of the anti-competitive practices was restricted to the period from September/October 1992 until 1994 and that a fine relating to an infringement concerning a longer period is not justified. The applicant’s liability is not diminished because Mr H. stopped working for the applicant in 1994. Indeed, it was for the applicant, as parent company, to adopt in regard to its subsidiaries any measure necessary to prevent the continuation of an infringement of which it was aware (see, to that effect, Case T‑309/94 KNP BT v Commission [1998] ECR II‑1007, paragraph 49).

72      It is clear from the foregoing considerations that, although the applicant’s complaint concerning the notes relating to the UCF project does not appear to be without foundation, the applicant has not succeeded in calling in question the Commission’s findings concerning the knowledge that it had of Trioplast Wittenheim’s anti-competitive conduct.

73      The third part of the second plea must therefore be rejected.

c)     Fourth part of the second plea: the applicant’s means of exercising control over Trioplast Wittenheim

74      The applicant observes that the fact that a parent company has the means to exercise control over a subsidiary does not, in itself, justify the conclusion that it exercises such control or that the two companies form a single undertaking. In this respect, it reiterates its assertion that the only relevant issue is whether it acted repeatedly to influence Trioplast Wittenheim and, in particular, its commercial conduct. It refers in that regard to a number of factors mentioned in the contested decision.

75      The Commission considers that those arguments are not well founded.

76      First of all, it is clear from the case-law cited at paragraph 30 above that the Commission is entitled to presume that a parent company exercises influence over the market conduct of its subsidiary once the parent holds 100% of the shares in the subsidiary. In so far as the applicant tends to argue in the application that it was for the Commission to establish that it had, in its capacity as parent company, repeatedly acted to influence Trioplast Wittenheim’s conduct, its complaint cannot be accepted. In fact, it was for the applicant to prove, by whatever means, the opposite.

77      In that regard, the applicant disputes the three additional factors put forward by the Commission in recitals 726 to 732 of the contested decision in concluding that the applicant and Trioplast Wittenheim formed an economic unit. That challenge is, however, unconvincing.

78      In the first place, the employment contracts of 28 April 1992 and 17 March 1994, concluded between the applicant and Mr G., stipulated that Mr G. was required to follow the instructions given by the chairman. Moreover, examination of the witness statements of Mr T and Mr G. does not show that such instructions were not given at the time. In addition, the applicant does not support its claim that the clauses referring to the said instructions were inserted in the contracts only for the purpose of ensuring greater social protection for Mr G. In those circumstances, the contractual clauses were relevant to any assessment of the links that existed between Trioplast Wittenheim and the applicant.

79      Concerning the employment contract of 25 April 1996, in particular, reference should be made to the witness statements of Mr T. and Mr G., which indicate that the latter had also acted on behalf of the FLS Group when he had taken part in negotiations concerning the possible acquisition by the group of a shareholding in the company Aer Lingus. It follows that Mr G.’s responsibilities extended beyond the framework of Trioplast Wittenheim.

80      In the second place, although it is true the temporary absence of the managing director of a subsidiary does not amount to evidence of the influence of a parent company over its wholly-owned subsidiary, the fact remains that, according to Mr G’s witness statement, the degree of Mr H.’s intervention in the management of Trioplast Wittenheim was not welcome and had led, or at least contributed, to Mr G’s departure.

81      In the third place, although for the period from 1995 to 1998, Mr G. reported to the applicant on a monthly basis and his reports were not limited to financial data. The reports were detailed and contained market assessments, figures for orders and sales by type of product, including the margins achieved, stocks and cash flow. They also mentioned measures that were envisaged in order to improve results. In addition, the reports presented various forecasts. Finally, the documents showing that there were telephone conversations between Mr G. and Mr T. confirm that the two managers frequently discussed Trioplast Wittenheim’s situation. The applicant does not advance any argument such as to call those findings into question.

82      In view of the foregoing observations, and in the absence of elements serving to rebut the presumption against the applicant, the fourth part of the second plea must be rejected.

d)     The first part of the second plea, concerning the infringement of the principles of equal treatment and proportionality

83      The applicant points out that the Commission stated, in recital 585 of the contested decision, that the decision would not be addressed to intermediate holding companies such as the applicant. For most of the participants in the cartel, the Commission addressed the ultimate parent company, not the intermediate holding company. Since the applicant was nevertheless an addressee of the decision, it submits that the latter is contradictory, discriminatory and disproportionate.

84      The Commission contends that the principle set out in recital 585 of the contested decision does not prevent it from adapting its assessment to the circumstances of each undertaking involved in the investigation.

85      Recital 585 of the contested decision, referred to by the applicant, is worded as follows:

‘The Statement of Objections in this case was addressed to a number of companies that proved to be intermediate holding companies with no commercial activity of their own. The Commission takes the view that in such situations the ultimate parent and the operating subsidiary or subsidiaries involved in the infringement are, in principle, proper representatives of the undertaking which is responsible for the purposes of Community law, and that it is not necessary for any intermediate holding companies to also be held liable. This Decision will therefore not be addressed to intermediate holding companies.’

86      It is undisputed that the applicant was, throughout the entire period of the infringement imputed to it, an intermediate holding company of Trioplast Wittenheim with no commercial activity of its own. The fact that the Commission addressed the contested decision to the applicant cannot, therefore, be reconciled with the statement in recital 585 of the decision. Nor has the Commission denied that the principle thus expressed was observed in the case of numerous other undertakings concerned by the procedure and in whose case the intermediate holding company was not held liable.

87      However, those findings do not mean that the contested decision is unlawful. As has been established at paragraphs 47 to 82 above, the Commission did not make any error of fact or law in imputing Trioplast Wittenheim’s unlawful conduct to the applicant in respect of the period 1992 to 1998.

88      Furthermore, it is settled case-law that an undertaking that has acted in breach of Article 81(1) EC cannot escape being penalised altogether on the ground that another trader has not been fined, when that trader’s circumstances are not even the subject of proceedings before the Courts of the European Union (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 197, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 142). Thus, the applicant’s argument that other undertakings, which were allegedly in a comparable situation to the applicant’s, were not fined, must be rejected.

89      The first part of the second plea must therefore be rejected.

4.     Conclusion

90      Consequently, the Court upholds the second plea in so far as it concerns the imputability of Trioplast Wittenheim’s conduct in 1991 to the applicant and rejects the plea as to the remainder.

B –  First plea, concerning the determination of the amount of the fine

91      By this plea, the applicant disputes, in essence, the merits of the method used by the Commission to calculate the amounts for payment of which the parent companies are held jointly and severally liable.

92      In that regard, it must be recalled that, according to Article 1 of the contested decision, Trioplast Wittenheim, the applicant, FLSmidth and Trioplast Industrier infringed Article 81 EC. It is stated there that Trioplast Wittenheim’s infringement went on from 6 January 1982 to 26 June 2002, that of the applicant and FLSmidth from 31 December 1990 to 19 January 1999 and that of Trioplast Industrier from 21 January 1991 to 26 June 2002. Under point (f) of the first paragraph of Article 2 of the contested decision, a fine of EUR 17.85 million was imposed on Trioplast Wittenheim, and, of that amount, the applicant and FLSmidth were held jointly and severally liable for EUR 15.30 million and Trioplast Industrier for EUR 7.73 million (Case T‑40/06 Trioplast Industrier v Commission [2010] ECR II‑0000, paragraph 63).

93      As regards, first of all, the calculation of the amount ascribed to Trioplast Wittenheim, the Commission arrived at the final amount of EUR 17.85 million by applying differential treatment, referring to the market share which the company had achieved with the product in question in the relevant territory, placing the undertaking in the fifth category and setting a starting amount for it of EUR 8.5 million. The Commission then increased that figure by 200% to reflect the duration of Trioplast Wittenheim’s involvement in the infringement, which was 20 years and 5 months, giving a basic amount of EUR 25.5 million. Then, there being no aggravating or mitigating circumstances, and the 10% of turnover limit having, in this instance, no effect, the Commission merely reduced the basic amount by 30% in application of the Leniency Notice (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 67).

94      Next, as regards the calculation of the amount ascribed to Trioplast Industrier, the Commission set the same starting amount as it did for Trioplast Wittenheim. It then increased that starting amount by 30% so that the basic amount would reflect the duration of Trioplast Industrier’s involvement in the infringement, that is to say, three years. The basic amount of EUR 11.05 million was then reduced by 30% pursuant to the Leniency Notice, as a result of which the amount finally ascribed to Trioplast Industrier was EUR 7.73 million (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 68).

95      The same method was applied to the applicant and FLSmidth, to which companies an amount of EUR 15.3 million was ascribed. In their case there was no increase or reduction to take account of aggravating or mitigating circumstances, nor, by contrast with the case of Trioplast Industrier, was there any reduction under the Leniency Notice (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 69).

96      In the light of those considerations, it must be held, subject to the other pleas in law put forward by the applicant, that the latter has failed to establish that, in determining the amount of the fine imposed on the applicant, the Commission infringed Regulation No 1/2003 or departed from the Guidelines. Indeed, under the present plea, the applicant has advanced no argument which would enable the Court to find that the Commission’s method of calculation, as such, was fundamentally flawed or inconsistent with the principles established by the case‑law (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 70).

97      Moreover, in the first place, the Court cannot accept that the applicant’s assertion that the principles established by the case-law preclude an individualised approach whereby the starting amount ascribed to a parent company is subsequently adapted on the basis of the circumstances specific to it.

98      In fact, the reference made to the judgment in Case T‑354/94 Stora Kopparbergs Bergslags v Commission [1998] ECR II‑2111, set aside in part by the Court of Justice in Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraphs 70 to 74, is irrelevant, since in that case what was at issue were the conditions that have to be met for the Commission to be able to impute the conduct of one undertaking to another. In this case, it has already been established, at paragraph 90 above, that the Commission was entitled, at the least for the period 1992 to 1998, to impute Trioplast Wittenheim’s anti-competitive conduct to the applicant. As regards the reference made to the Opinion of Advocate General Stix-Hackl in Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, I‑11011, point 177), it is sufficient to note that the applicant has failed to explain why those general observations concerning the concept of joint and several liability are not compatible with an individualised approach such as that taken by the Commission.

99      In the second place, with regard to the complaint that the aggregate joint and several liability of two of the parent companies of Trioplast Wittenheim exceeds the amount required to be paid by the company that actually participated in the infringement throughout the entire period of the cartel, it should be observed that the fact that the combined value of the amounts ascribed to the applicant and FLSmidth, on the one hand, and to Trioplast Industrier, on the other, is greater than the amount ascribed to their subsidiary Trioplast Wittenheim cannot, by itself, lead to the conclusion that the Commission’s calculation method was manifestly wrong. Given the methodology set out in the Guidelines and the principle that penalties must be specific to the offender and to the offence, it is indeed permissible for the Commission, once it has proved that an economic unit has participated in an infringement, to hold one of the legal persons belonging to that economic unit, or once having belonged to it, whether it be a parent company or a subsidiary, liable for the payment of a greater sum than that for which the other legal person or persons forming, or having formed, that economic unit is or are liable. It follows that, where an infringement is committed by a subsidiary which has belonged to various successive economic units during the course of the infringement, it cannot be considered a priori inappropriate for the combined value of the amounts ascribed to the parent companies to be greater than the amount, or combined amounts, ascribed to the subsidiary (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 76).

100    In the third place, the complaint that the applicant’s liability is manifestly disproportionate to the period during which it held shares in Trioplast Wittenheim is unfounded. No rule or principle of law provides that it is for the Commission to ensure such proportionality. It is true that the Commission must, under the Guidelines, take account of the duration of the infringement. In the present case, it has, however, been established, at paragraph 93 above, that, in the applicant’s case, the Commission had increased the starting amount ascribed to the applicant by 10% for each year of the applicant’s involvement (see, to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 72).

101    In the fourth place, the Court cannot accept the contention that the Commission should have divided up the starting amount before varying it by reference to other factors on the ground that Trioplast Wittenheim had belonged in turn to the Saint‑Gobain group, to the applicant and to Trioplast Industrier. First, the applicant has not advanced any rule or principle of law that imposes such an obligation. Second, the approach of ascribing to a parent company the same starting amount as that set for a subsidiary participating directly in a cartel, without dividing up that starting amount where there are several successive parent companies, is not in and of itself inappropriate. Indeed, the objective pursued by the Commission in using this calculation method is to make it possible to ascribe to a parent company which is liable for an infringement by virtue of the attribution of liability the same starting amount as would have been ascribed to it if it itself had been directly involved in the cartel. That is quite in line with the objective of competition policy and, in particular, with the objective of the instrument used to implement that policy, namely fines, which is to guide the conduct of undertakings towards observance of the competition rules (see, to that effect, Case T‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59, and Trioplast Industrier v Commission, paragraph 92 above, paragraph 74).

102    In any event, the mere fact that the starting amount was so divided in earlier cases, such as the Organic peroxides case (Case COMP/E‑2/37.857 – Organic Peroxides (OJ 2005 L 110, p. 44), does not mean that the Commission is obliged to make such a division, as the applicant claims it should. The mere fact that the Commission can be said to have had, at the time of the decisions referred to by the applicant, one established practice with regard to the method for calculating the starting amounts of fines would not prevent it from departing from that practice in this case, or altering it. It is settled case-law that the Commission’s practice in previous decisions does not in and of itself constitute a legal framework for the calculation of fines in competition cases, since that framework is established solely by Regulation No 1/2003 (see, to that effect, 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 233, and Trioplast Industrier v Commission, paragraph 92 above, paragraph 75).

103    In the fifth place, consideration should be given to the argument that the Commission did not accept all the consequences of an individualised approach, inasmuch as it refrained from examining separately the aggravating and mitigating circumstances which could have applied to the applicant. It is true that the individualised method which the Commission claims to have applied does not seem to have been implemented coherently and consistently in that regard. The Commission did not examine the mitigating circumstances which might have applied in the applicant’s individual situation, but merely looked at the circumstances relating to the case of Trioplast Wittenheim.

104    However, it is clear from the reply of the applicant to the statement of objections that, during the administrative procedure, the applicant advanced only arguments concerning the passive role that Trioplast Wittenheim allegedly played in the cartel. It has made no mention at all of the individual circumstances which ought to have been taken into account for the purpose of assessing its own conduct. Furthermore, although the applicant’s complaint concerning the Commission’s inconsistency on this point appears justified, before the Court the applicant has not put forward any mitigating circumstances relating to it. In those circumstances, and subject to the appraisal of the third part of the third plea, the fact that the Commission was in breach of its obligation to assess, when applying an individualised approach, all the circumstances specific to the applicant remains irrelevant to the outcome of the proceedings and consequently the applicant’s argument must be held to be ineffective.

105    In view of the foregoing, it must be concluded that the plea relating to the method for calculating the fines is partly unfounded and partly ineffective.

106    The first plea must therefore be rejected.

C –  Third plea, concerning the amount of the fine imposed on Trioplast Wittenheim

1.     Admissibility

107    As a preliminary matter, the Commission argues that the plea challenging the level of the fine imposed on Trioplast Wittenheim is admissible only in so far as it directly concerns the level of the fine imposed on the applicant.

108    In that regard, the Court observes that the contested decision must be treated as a bundle of individual decisions finding in respect of each of the undertakings to which it is addressed the infringement alleged against it and, where appropriate, imposing one or more fines. It follows that the plea put forward by the applicant against the contested decision is admissible only in so far as it relates to the penalty imposed on the applicant. The Court will consider the admissibility of the various arguments raised by the applicant in the light of those principles.

2.     First part of the third plea: the gravity of the infringement and the division of the undertakings into categories

109    The applicant submits that the basic amount of Trioplast Wittenheim’s fine, namely EUR 8.5 million, is not justified, in view in particular of the Guidelines and the Commission’s practice in previous decisions. It refers in that regard to the relatively limited market shares held by the members of the cartel and to the limited gravity of certain of the practices dealt with by the cartel. Furthermore, the applicant submits that the method of applying differential treatment followed by the Commission in the contested decision is not coherent and led to an overly deterrent effect with regard to the small undertakings.

110    The Commission disputes the merits of those arguments.

111    First of all, the Court rejects the applicant’s complaint that the Commission, first, departed from the Guidelines and, second, failed to provide adequate justification for doing so. In fact, the applicant, as will be seen from paragraphs 112 to 117 below, did not advance any argument on the basis of which it could be established that, in this case, the Commission unduly departed from the Guidelines when calculating the fine imposed on the applicant. Furthermore, as regards the difference between this case and the Commission’s practice in previous decisions, it should be recalled that, even if the Commission had, at the time of the decisions referred to by the applicant, an established practice concerning the starting amounts of fines there would be nothing to prevent it departing from that practice in the present case or from altering it (Erste Group Bank and Others v Commission, paragraph 102 above, paragraph 233). The Commission decisions relied on by the applicant are, accordingly, irrelevant. In any event, the approach advocated by the applicant, whereby the starting amount must be comparable to those set in similar cases, is too inflexible and does not take account of the fact that the gravity of a cartel and its effect on the market must be assessed in the light of the specific features of each individual case.

112    Next, although the applicant does not deny the very serious nature of the infringement imputed to it, it submits that the starting amount of EUR 8.5 million is excessive in view of the limited effects of the infringement. This argument cannot be accepted for the following reasons.

113    Firstly, it is not correct that the effect on competition was limited because of the share of the market – around 70 to 80% – controlled by the members of the cartel. That in fact involves a not insignificant degree of market coverage. Furthermore, the allegation that the Commission had itself, during the administrative procedure, regarded certain aspects of the cartel as less serious, such as the allocation of customers, the price calculation model and the absence of any penalties mechanism, does not call in question the classification of the infringement, which involves, moreover, numerous other serious elements.

114    Similarly, the Court does not accept the contention that the starting amount was likely to lead to the disappearance of Trioplast Wittenheim. According to the case-law, the Commission is not obliged, when determining the amount of the fine, to take account of the poor financial situation of the undertaking concerned, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market (Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraphs 161 and 162).

115    Secondly, it is clear from the case-law that the Commission may divide the members of a cartel into different categories, provided that those categories are defined in a coherent and objective manner in order to comply with the principle of equal treatment (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraphs 385 and 416 to 418). In this case, that condition was met. Contrary to the applicant’s contention, the Commission did not treat the company Sachsa more favourably than Trioplast Wittenheim. The difference of EUR 3 million between the starting amount of EUR 5.5 million set for the sixth category, in which Sachsa was placed, and that of EUR 8.5 million for the fifth category, in which Trioplast Wittenheim was placed, is not intended to reflect the specific difference of 0.5% between Sachsa’s market share (2.3%) and Trioplast Wittenheim’s market share (2.8%) but rather the difference between the categories in which the various groups of companies were placed. Thus, it can be seen that the disparities between the categories are actually greater than the difference within the categories. For example, the difference within the fifth category between the undertaking having the largest market share (3.1%) and the undertaking having the smallest share (2.8%) is just 0.3%, which is a smaller difference than the 0.5% disparity between the market shares of Sachsa and Trioplast Wittenheim.

116    Furthermore, the assertion that the division into categories has led to an overly deterrent effect with regard to the small undertakings is not well founded. The starting amount of EUR 35 million ascribed to undertakings placed in the first category is in reasonable proportion to the starting amount of EUR 5.5 million applied to those placed in the last category. Moreover, the amounts for the first three categories, namely EUR 35, 26 and 20 million, are higher than or equal to the starting amount envisaged in the Guidelines for a very serious infringement, namely EUR 20 million. The amounts applied to the undertakings placed in the other categories are much less high.

117    In the light of the foregoing, the first part of the third plea must be rejected.

3.     Second part of the third plea: the duration of the infringement,

118    The applicant claims that only the Saint-Gobain group can be held liable for the infringement committed by Trioplast Wittenheim between 1982 and 1988, because the Wittenheim plant had no separate legal personality at the time. Since Trioplast Wittenheim became a separate entity in 1988, it could have infringed the competition rules only for a period of 14 years, rather than 20 years as the Commission maintained. Had the fine imposed on Trioplast Wittenheim been reduced in the light of that finding, the applicant’s share of liability would have been reduced accordingly.

119    The Commission draws attention to the fact that the applicant has not been held liable for the period between 1982 and 1988, but only for the period from 31 December 1990 to 19 January 1999. Moreover, the duration of the infringement imputed to Trioplast Wittenheim, on the one hand, and that of the infringement imputed to the applicant, on the other, were calculated separately, since the applicant was held liable only in respect of an infringement covering a period of eight years.

120    Regardless of whether the applicant’s argument is admissible, the Court observes that it cannot, in any event, succeed. It is clear from settled case law that European Union (‘EU’) competition law is aimed at the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, most recently, Case C‑437/09 AG2R Prévoyance [2011] ECR I‑0000, paragraph 41). Such an economic entity consists in a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and which can contribute to the commission of an infringement of the kind referred to in Article 81 EC (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 311). When such an entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement (Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39).

121    In the case in point, the set of personal, tangible and intangible elements which contributed to the commission of the infringement arising from the cartel is attached to Trioplast Wittenheim, so that it must be first to answer for the infringement. It is of no relevance that Trioplast Wittenheim did not have legal personality for part of the time it was involved in the cartel, since it was the perpetrator of the infringement for the purposes of Article 81 EC.

122    The second part of the third plea must therefore be rejected.

4.     Third part of the third plea: the failure to take account of mitigating circumstances

123    The applicant claims that Trioplast Wittenheim played a passive role in the cartel, at least during the period when it was controlled by the applicant. Referring to a number of previous Commission decisions, it points out that Trioplast Wittenheim did not participate systematically in Valveplast’s European meetings. During the applicant’s period of ownership of Trioplast Wittenheim, the latter attended only 44% of the meetings organised at the highest level of the cartel. Moreover, Trioplast Wittenheim was not a member of the ‘Belgium’, ‘Germany’, ‘Teppema’ or ‘block bags’ sub-groups and was rarely present at meetings of the other national sub-groups.

124    According to the case‑law, where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623) in order to determine whether there are any aggravating or mitigating circumstances relating to them.

125    In accordance with Section 3, first indent, of the Guidelines, an ‘exclusively passive or “follow-my-leader” role’ played by an undertaking in the infringement may, if established, constitute a mitigating circumstance. A passive role implies that the undertaking adopts a ‘low profile’, that is to say, does 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).

126    In that connection, it is clear from the case-law that the factors capable of revealing the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the ‘ordinary’ members of the cartel and likewise its late entry on the market where the infringement occurred, regardless of the duration of its participation in the infringement, and also the existence of express statements to that effect made by representatives of other undertakings which participated in the infringement (Cheil Jedang v Commission, paragraph 125 above, paragraph 168; Tokai Carbon and Others v Commission, paragraph 69 above, paragraph 331).

127    Moreover, the Court has already had occasion to say that the fact that other undertakings participating in a single cartel may have been more active than a given participant does not necessarily mean that the latter had an exclusively passive or follow-my-leader role. In fact, only complete passivity could be taken into account as a factor, and must be proved by the party alleging it (see, to that effect, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 611).

128    In this case, none of the arguments concerning the passive and follow-my-leader role allegedly played by Trioplast Wittenheim in the cartel can be accepted.

129    With regard to Trioplast Wittenheim’s allegedly regular absences from cartel meetings, it can be seen from Annex 1 to the contested decision that, except for the period following 1999, Trioplast Wittenheim regularly attended Valveplast meetings and sent its apologies on only a few occasions. In that respect, the Commission cannot be criticised for not having found that its role was passive or follow my leader (see to that effect, the judgment of 13 September 2010 in Case T‑26/06 Trioplast Wittenheim v Commission, not published in the ECR, paragraph 96).

130    Nor is the fact that Trioplast Wittenheim took part in only three of the six national sub-groups and that it did not attend their meetings a ground for concluding that the Commission made a manifest error of assessment. In that regard, it should be noted, first, that participation in three sub-groups is not an especially low degree of involvement in relation to that of the other members. Indeed, it is clear from recitals 173 to 185 of the contested decision that only Wavin and Fardem Packaging attended the meetings of more than three sub-groups. Second, given that Trioplast Wittenheim actually participated in the three sub-groups for approximately three-quarters of the infringement’s duration, it cannot be concluded that withdrawal from those sub-groups, or possibly relatively frequent non-attendance, meant that the applicant had a passive role (see, to that effect, Trioplast Wittenheim v Commission, paragraph 129 above, paragraph 100).

131    Furthermore, the applicant’s argument that Trioplast Wittenheim was a marginal market player experiencing a difficult financial situation is not capable of establishing a passive role in the cartel. It should be pointed out that Trioplast Wittenheim’s market share was in fact over 2.8% during the period prior to 1996 and that a difficult financial situation is often likely to make an undertaking more willing to take part in anti-competitive practices.

132    In the light of the foregoing, the third part of the third plea must be rejected.

D –  Fourth plea, concerning the 10% of turnover ceiling

133    In the applicant’s view, the contested decision does not impose a fine on it. Recitals 586 and 782 to the contested decision show that it was only declared liable for a share of the fine imposed on Trioplast Wittenheim in its capacity as Trioplast Wittenheim’s former parent company. However, the 10% of turnover ceiling which the Commission must respect where fines are imposed relates to the economic unit, as it existed in the business year preceding the adoption of the decision imposing the fine. Because the applicant was not part of that undertaking, the Commission should have explained how it approached the question of the 10% of turnover ceiling so far as Trioplast Wittenheim and the applicant are concerned.

134    The Commission does not accept those arguments.

135    Article 23(2) of Regulation (EC) No 1/2003 provides that for each undertaking and association of undertakings participating in the infringement the fine is not to exceed 10% of its total turnover in the preceding business year.

136    According to Section 5(a) of the Guidelines, the final amount calculated according to Article 23(2) of Regulation No 1/2003 may not in any case exceed 10% of the worldwide turnover.

137    The 10% of turnover ceiling relates, according to settled case-law, to the worldwide turnover of the undertaking concerned since that alone gives an indication of that undertaking’s size and influence on the market (see Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 5022 and the case-law cited). Thus, the ceiling is intended, inter alia, to safeguard undertakings against excessive fines which could destroy them commercially (judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 389).

138    It follows that the objective sought by the introduction of the 10% ceiling can be realised only if that ceiling is applied initially to each separate addressee of the decision imposing the fine. It is only if it subsequently transpires that several addressees constitute the ‘undertaking’, that is, the economic entity responsible for the infringement penalised, again at the date when the decision is adopted, that the ceiling can be calculated on the basis of the overall turnover of that undertaking, that is to say, of all its constituent parts taken together. By contrast, if that economic unit has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it (Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, paragraph 390, and Trioplast Wittenheim v Commission, paragraph 129 above, paragraph 113).

139    In the present case, Trioplast Wittenheim and the applicant did not form, at the date of the contested decision, an undertaking in the sense of an economic entity responsible for the infringement penalised (see paragraph 169 below). Consequently, the Commission did not make an error in taking as its basis, in the application of the 10% of turnover ceiling, the turnover of the group headed by FLSmidth in 2004.

140    That finding is not called in question by the argument that the applicant was held liable for a part of Trioplast Wittenheim’s fine solely in its capacity as the latter’s parent company. In that regard, it is sufficient to recall that the applicant, to which the anti-competitive actions of Trioplast Wittenheim from 31 December 1990 to 19 January 1999 were imputed, received a fine under Article 23(2) of Regulation No 1/2003 for its liability for an infringement which, as a result of that imputation of liability, it itself is deemed to have committed (see Case C‑294/98 P Metsä‑Serla and Others v Commission [2000] ECR I‑10065, paragraph 28, and Trioplast Industrier v Commission, paragraph 92 above, paragraph 71).

141    Finally, and in so far as the plea alleges an infringement of the obligation to state reasons, suffice it to note that the amount of EUR 15.3 million did not represent 10% of the turnover of the group headed by FLSmidth in 2004. That turnover figure was provided by the applicant itself during the administrative procedure. The Commission was not therefore required to explain, in the contested decision, the reasons why it had not limited the amount set for the applicant on the basis of the rule concerning the 10% of turnover ceiling.

142    In the light of the foregoing, the fourth plea should be rejected.

E –  Fifth plea, concerning the amount of the fine imposed on the applicant

1.     First part of the fifth plea: the lack of deterrent effect

143    The applicant claims first of all that it never took part in the cartel itself and that it was not aware of it. In addition, it has not been active in the market since the sale of Trioplast Wittenheim. As a consequence, the penalty imposed on the applicant does not, in its view, have a deterrent purpose but has only a punitive one. Inasmuch as the Commission failed to take into account the degree of liability of each legal person, the final amount of the fine imposed on the applicant is disproportionate.

144    Next, concerning the Commission’s statement that parent companies must ensure that subsidiaries comply with competition law and that, consequently, any fine imposed on a parent company necessarily acts as a deterrent, the applicant observes that that explanation does not appear in the contested decision and that it is in contradiction with recital 585 thereof, reproduced at paragraph 85 above, according to which the Commission had stated that it would not address its decision to intermediate holding companies.

145    The Commission considers that these arguments are not well founded.

146    First of all, the Court observes that it is settled case law that the fines imposed for infringements of Article 81 EC and laid down in Article 23(2) of Regulation No 1/2003 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the EU competition rules in future (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraphs 105 and 106, and Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 16).

147    That objective cannot be reconciled with the applicant’s argument, according to which, for a fine to be imposed, an undertaking must still be active on the cartelised market at the date of the decision imposing the fine. The objective of deterrence is not in fact linked to a specific market but is aimed at all the economic players that might become involved in anti-competitive practices, regardless of the market on which they are operating or have operated. Thus, the penalty imposed on an operator which has left the market will have a deterrent effect on the operators that remain on the market as well as on its own future conduct on another market.

148    As regards the circumstance that the applicant never took part in the cartel and was not aware of it, it is sufficient to refer to the examination of the second plea at paragraphs 26 to 90 above. It follows that those arguments cannot succeed, at least for the period 1992 to 1998.

149    Finally, with regard to the argument that the Commission was not required to impute the infringement committed by Trioplast Wittenheim to its parent company, no rule or principle of law prevented it from doing so. It is irrelevant that under the case-law the opposite outcome is also conceivable. In so far as the applicant relies on the fact that it was an intermediate parent company, reference should be made to the analysis at paragraphs 83 to 87 above.

150    It follows from the foregoing considerations that the first part of the fifth plea must be rejected.

2.     Second part of the fifth plea: the duration and intensity of the infringement

151    The applicant recalls that it can be held liable as a parent company only for the period during which it and Trioplast Wittenheim constituted a single undertaking. According to the applicant, that was a period of 7 years at most, since, between December 1990 and December 1991, it held only 60% of the shares in Trioplast Wittenheim and thus did not have sole control of that company.

152    The applicant then claims that the increase of 10% per year in the starting amount is unreasonable in view of the low intensity of the infringement. In this regard, it points out that Trioplast Wittenheim’s participation in the cartel meetings was sporadic and that the Commission recognised the weak intensity of the infringement in recitals 252 and 279 of the contested decision, in particular as regards the price calculation model and the allocation of customers.

153    The Commission observes first of all that, during the period from December 1990 to December 1991, in which the applicant held only 60% of the shares in Trioplast Wittenheim, there were also strong personnel links between the two companies comprising the undertaking. Next, as to the increase in the starting amount of 10% per year, the Commission points out that, if the applicant’s participation had been sporadic, that fact would have been dealt with in the context of mitigating circumstances.

154    With regard to the duration of the infringement, it has already been established, at paragraph 90 above, that the Commission made an error in imputing Trioplast Wittenheim’s infringement to the applicant for the year 1991. As will be explained at paragraphs 197 to 199 below, it is as a result appropriate to adjust the amount of the fine imposed on the applicant.

155    With regard to the increase of 10% which the Commission applied for each year of participation in the infringement, reference should be made to Section B, third indent, of the Guidelines, which provides for an increase of up to 10% per year in the starting amount in the case of infringements of long duration, that is to say, of more than five years.

156    In this case, since the infringement lasted more than five years, the Commission did not make an error in increasing the starting amount of EUR 8.5 million attributed to the applicant by 10% per year.

157    The fact that the Commission is said in the past to have applied a lower rate does not call that finding into question. In that regard, account should be taken of the fact that, according to the data which the parties have produced before the Court, the 10% rate has been applied systematically since 2003. In any event, it is open to the Commission to raise that rate should that prove necessary in order to ensure the implementation of EU competition policy (Musique Diffusion Française and Others v Commission, paragraph 146 above, paragraph 109).

158    The second part of the fifth plea should therefore be upheld in so far as it concerns the duration of the infringement and should be rejected as to the remainder.

3.     Third part of the fifth plea: refusal to apply the Leniency Notice

159    The applicant observes that the Commission granted Trioplast Wittenheim a 30% reduction in the amount of its fine under the Leniency Notice. That reduction benefited Trioplast Industrier but not the applicant. The Commission therefore infringed the principle of equal treatment and the Leniency Notice.

160    In the first place, the applicant submits that the Commission’s approach was contradictory in that it held, on the one hand, that the applicant had formed a single undertaking with Trioplast Wittenheim while, on the other, refusing to grant it a 30% reduction in the fine on account of Trioplast Wittenheim’s cooperation. The applicant further submits that, although only the subsidiary Trioplast Wittenheim actually cooperated, the Commission none the less granted an equivalent reduction to Trioplast Industrier. However, the applicant, although being held liable for Trioplast Wittenheim’s conduct in the same way as Trioplast Industrier, did not benefit from the 30% reduction. That represents a breach of the principle of equal treatment, particularly since the applicant in actual fact no longer had access to the documentation which would have permitted it to offer comparable cooperation itself.

161    In the second place, the applicant considers that Sections D and E of the Leniency Notice and the Commission’s established practice in this field justify the grant of a reduction of 10% to 50%, when an undertaking does not substantially contest the facts on which the Commission bases its allegations. The applicant states that it did not contest the facts in its reply to the statement of objections. The fact that it formally disputed having exercised decisive influence over Trioplast Wittenheim should not come into play, since Bonar Technical Fabrics raised a similar denial without that having led the Commission to refuse it a 10% reduction.

162    The Commission considers that these arguments are not well founded.

163    It should be borne in mind that the Commission has a broad discretion as regards the method of calculating fines and that it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81, and Trioplast Industrier v Commission, paragraph 92 above, paragraph 122).

164    The Commission enjoys, in that regard, a broad discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, paragraph 163 above, paragraph 88). In exercising that discretion, however, the Commission cannot disregard the principle of equal treatment (Case T‑452/05 BST v Commission [2010] II‑0000, paragraph 142).

165    Under the second indent of Section D.2 of the Leniency Notice, an undertaking may benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated if, inter alia, after receiving a statement of objections, it informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations. According to the case-law, in order to benefit from such a reduction in the fine, an undertaking must expressly inform the Commission, after perusing the statement of objections, that it has no intention of substantially contesting the facts (Case T‑347/94 Mayr-Melnhof v Commission [1998] Rec. p. II‑1751, paragraph 309).

166    Moreover, in order to justify a reduction in the amount of a fine on grounds of cooperation, an undertaking’s conduct must facilitate the Commission’s task of finding and bringing to an end infringements of the EU competition rules and reflect a true spirit of cooperation. It is not sufficient for an undertaking to state in general terms that it does not contest the facts alleged for the purposes of the Leniency Notice if, in the circumstances of the case, that statement is not of any help to the Commission at all (Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 193).

167    In this instance, the applicant, firstly, takes objection to the Commission’s not having granted it a 30% reduction in its fine, although it formed an economic entity with Trioplast Wittenheim.

168    As has been established in the assessment of the first plea, at paragraphs 91 to 105 above, there is no ground for holding contradictory or illegal the Commission’s imputation of Trioplast Wittenheim’s infringement to the applicant – because the two legal persons had formed an economic entity during the infringement – whilst applying an individualised calculation method to determine the amount that the applicant was required to pay in respect of joint and several liability. By extension, the Court must reject the applicant’s argument that it should have been granted the 30% reduction in the fine granted to Trioplast Wittenheim, since it was for the Commission to consider the two companies’ cooperation in the investigation on an individual basis.

169    In that regard, it should be noted that Trioplast Wittenheim’s application under the Leniency Notice, made by letter of 19 December 2002, did not concern the applicant. It must be recalled, in fact, that the applicant and Trioplast Wittenheim are two companies with distinct legal personalities which, at the date of the contested decision, were part of two separate undertakings within the meaning of Article 81 EC. Trioplast Wittenheim’s application under the Leniency Notice can thus benefit only the undertaking of which Trioplast Wittenheim formed part, but not the applicant (see, to that effect, Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 75).

170    As regards the argument that the Commission infringed the principle of equal treatment by failing to apply the 30% reduction to the applicant, it is to be recalled that that principle is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 237).

171    In that regard, the Commission contends that the applicant was not in a comparable situation to that of Trioplast Industrier, since Trioplast Industrier and Trioplast Wittenheim formed a single undertaking at the time the application to cooperate was made.

172    The Commission’s argument cannot be accepted for the following reasons. Once the Commission decided to take an individualised approach, it was required to consider the individual situation of each addressee of the future decision in order to determine the penalty that it was going to apply to it. Thus, Trioplast Wittenheim, Trioplast Industrier and the applicant were, correctly, assigned individual starting amounts, which were subsequently adjusted according to the circumstances specific to them.

173    However, the Commission partially departed from that method in the case of Trioplast Industrier. In fact, it is not apparent from either the contested decision or the documents produced before the Court that Trioplast Industrier provided information justifying a reduction of 30% on account of cooperation or that it joined in with the cooperation offered by Trioplast Wittenheim. The Commission none the less granted Trioplast Industrier such a reduction on the ground that it and Trioplast Wittenheim were part of the same undertaking at the time the contested decision was adopted. The Commission has thus confused the question relating to the fact that Trioplast Industrier has incurred liability as a result of the actions of Trioplast Wittenheim with the question relating to the methods for calculating fines.

174    Since the basis for the applicant’s liability – Trioplast Wittenheim’s conduct – was identical to the basis for Trioplast Industrier’s liability and since neither of the successive parent companies provided the Commission with relevant information, the Commission has treated two comparable situations differently. It follows that the Commission has discriminated against the applicant in relation to Trioplast Industrier, by refusing to grant the applicant the same percentage reduction as that granted to Trioplast Industrier.

175    However, according to the case-law, respect for the principle of equal treatment must be reconciled with the principle of legality, which means that a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14; and Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 259).

176    It follows that the applicant cannot rely on the fact that the Commission, wrongly, extended the benefit of Trioplast Wittenheim’s cooperation to Trioplast Industrier, in order to benefit from the same illegality in the form of a comparable 30% reduction in the basic amount of the fine imposed on it by the contested decision.

177    With regard to the complaint concerning the applicant’s contention that it did not substantially contest the facts alleged against it in the statement of objections, it should be observed that the applicant’s position during the administrative procedure was ambiguous. Admittedly, the applicant stated that its challenge was limited to the facts which the Commission took as its basis in order to hold it jointly and severally liable for the infringement in respect of the period from 31 December 1991 to 19 January 1999. However, contrary to what occurred in the case of Low & Bonar, the applicant’s challenge affected the very basis of the infringement. Thus, the applicant, in particular, contested Mr H’s attendance of the Valveplast meeting on 21 December 1993.

178    Furthermore, it is clear from the case-law cited above that a reduction in the basic amount may be granted only if the undertaking displays a genuine spirit of cooperation. The fact of denying facts which, according to the Commission, were established, such as Mr H’s presence at the said Valveplast meeting and the knowledge which Mr H. must necessarily have had of the anti-competitive discussions held in the course of that meeting, do not reveal such a spirit. Finally, the applicant has not put forward any argument establishing that its cooperation had facilitated the Commission’s task, as is required by the judgment cited at paragraph 166 above.

179    In those circumstances, the Commission did not exceed the limits of its discretion in granting Low & Bonar a 10% reduction for not having contested the facts and in refusing to grant the applicant such a reduction.

180    The third part of the fifth plea must therefore be rejected.

4.     Fourth part of the fifth plea: the infringement of the principle of ne bis in idem and the principle that penalties must be specific to the offender and to the offence

181    The applicant complains that the Commission did not hold any company in the Saint-Gobain group liable for Trioplast Wittenheim’s infringement. In addition, the applicant recalls that the amount of its fine and that of Trioplast Industrier together exceed the fine imposed on Trioplast Wittenheim. Finally, the amount for payment of which the applicant is held jointly and severally liable is set at an unreasonably high level. In fact, the applicant is liable to pay 87.5% of Trioplast Wittenheim’s fine although it controlled that company for a period of 7 years, representing 35% of the duration of the infringement committed by Trioplast Wittenheim.

182    According to the applicant, the Commission could have reached that conclusion only if it was seeking to impose upon the applicant a liability over and above that imposed on Trioplast Wittenheim. In such circumstances, the contested decision is unlawful in that it infringes the principle of ne bis in idem. The threefold condition of identity of facts, unity of offender and unity of the legal interest protected, which has been established by the case law, is satisfied in this case. The liability imposed on the persons allegedly comprising the infringing undertaking in the period from 1990 to 1999 thus entails a fresh penalty.

183    In any event, the disproportionate nature of the amount for payment of which the applicant is liable is contrary to the principle that penalties should relate to the specific circumstances of each applicant. As the applicant was the parent company of Trioplast Wittenheim for only 35% of the period of duration of the cartel, its liability should not exceed that percentage of the fine.

184    The Commission disputes those arguments.

185    First of all, the Commission cannot be criticised for not having imposed a fine on any legal person in the Saint-Gobain group for its direct or indirect involvement in the cartel during the period from 1982 to 1991, since the rules on limitation provided for in Article 25 of Regulation No 1/2003 precluded any such penalty.

186    Second, the Court rejects the applicant’s argument that the Commission should have determined an amount for Trioplast Wittenheim’s fine and held the parent companies involved in the procedure jointly and severally liable pro rata temporis, on the basis of the period during which they owned the share capital of Trioplast Wittenheim. It has already been established, in the course of examining the first plea, that the individualised method of calculating fines cannot be regarded as unlawful and that the Commission was not required to use the method advocated by the applicant.

187    In so far as the applicant seeks to show that the Commission did not take account of the duration of its involvement in the cartel, reference should be made to paragraph 100 above. It can be seen from that that a 10% increase was applied for each year of the applicant’s involvement in the infringement, in accordance with the Guidelines.

188    Third, the applicant has advanced no argument giving grounds for a finding that the Commission infringed the principle of ne bis in idem. In a case of joint and several liability, all creditors see the amount of the debt owed to them, as regards both the principal debtor and the parties co-liable with that debtor, diminish on any payment by any party. There is no double counting, therefore, in joint and several liability (see to that effect, Trioplast Industrier v Commission, paragraph 92 above, paragraph 79).

189    Finally, as regards the alleged infringement of the principle that penalties should relate to the specific circumstances of each offender, the applicant has put forward no evidence establishing such an infringement. It merely relies upon the argument that the amount for which it is held jointly and severally liable should not have exceeded 35% of the fine imposed on Trioplast Wittenheim. It is clear from the analysis undertaken in particular in the context of the first plea that that argument cannot succeed.

190    Consequently, the fourth part of the fifth plea must be rejected.

5.     Fifth part of the fifth plea: the statement of reasons

191    The applicant notes that the total of the final amounts imposed on the applicant and Trioplast Industrier exceeds the final fine imposed on Trioplast Wittenheim and that the reasoning in the contested decision does not make it possible to understand the – in its view – inconsistent results stemming from that approach.

192    The Commission denies that the statement of reasons is inadequate, referring to the explanations given concerning the determination of the level of the fine imposed on the applicant.

193    As regards any failure in the contested decision to state the reasons regarding the determination of the amount of the fine imposed on the applicant, it must be recalled that the statement of reasons required by Article 253 EC must be appropriate to the act at issue and disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

194    In this instance, the applicant has, in essence, merely repeated the arguments put forward in its earlier pleas. In the application, the applicant cannot confine itself in that way to submitting that the Commission’s approach is generally inconsistent or incomprehensible and concluding that overall the reasoning is insufficient. Moreover, the foregoing arguments are a sufficient demonstration that the applicant has been able to mount a thorough challenge of the merits of the contested decision. Similarly, the Court has actually been able to exercise its power of review.

195    Accordingly, the fifth part of the fifth plea must be rejected. The fifth plea must therefore be rejected in its entirety.

196    It follows from all those considerations that the action must be dismissed, with the exception of the second plea, in so far as it concerns the year 1991, and the second part of the fifth plea.

197    Article 1(1)(h) of the contested decision should therefore be annulled in so far as it finds that the applicant infringed Article 81 EC from 31 December 1990 to 31 December 1991; Article 2, first paragraph, point (f), of the contested decision should also be annulled in so far as it sets the amount for which the applicant is jointly and severally liable at EUR 15.3 million.

198    Having regard to Article 31 of Regulation No 1/2003, it falls to the Court to set a new maximum amount in respect of which the applicant is jointly and severally liable for payment of the fine imposed on Trioplast Wittenheim.

199    In this case, the increase in the starting amount of EUR 8.5 million on account of duration must be adjusted. That increase must be limited to 70% instead of 80%, giving a basic amount of EUR 14.45 million.

 Costs

200    Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that costs be shared or that each party bear its own costs.

201    As the action has been partially successful, the Court considers it fair in the circumstances of the case to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby:

1.      Annuls Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) in so far as it holds FLS Plast A/S liable for the single and continuous infringement referred to in Article 1(1) thereof, for the period from 31 December 1990 to 31 December 1991;

2.      Sets the amount for payment of which FLS Plast is held jointly and severally liable under Article 2(f) of Decision C (2005) 4634 at EUR 14.45 million;

3.      Dismisses the action as to the remainder;

4.      Orders the European Commission and FLS Plast each to bear their own costs.

Pelikánová Jürimäe van der Woude

Delivered in open court in Luxembourg on 6 March 2012.

[Signatures]

Table of contents

Facts

Procedure and forms of order sought

Law

A – Second plea, concerning the applicant’s liability in its capacity as Trioplast Wittenheim’s parent company

1. Preliminary observations

2. 1991

3. The period 1992 to 1998

a) Second part of the second plea: the role of the applicant’s managers and the degree of autonomy of Trioplast Wittenheim

b) Third part of the second plea: the applicant’s knowledge of Trioplast Wittenheim’s anti-competitive conduct

c) Fourth part of the second plea: the applicant’s means of exercising control over Trioplast Wittenheim

d) The first part of the second plea, concerning the infringement of the principles of equal treatment and proportionality

4. Conclusion

B – First plea, concerning the determination of the amount of the fine

C – Third plea, concerning the amount of the fine imposed on Trioplast Wittenheim

1. Admissibility

2. First part of the third plea: the gravity of the infringement and the division of the undertakings into categories

3. Second part of the third plea: the duration of the infringement,

4. Third part of the third plea: the failure to take account of mitigating circumstances

D – Fourth plea, concerning the 10% of turnover ceiling

E – Fifth plea, concerning the amount of the fine imposed on the applicant

1. First part of the fifth plea: the lack of deterrent effect

2. Second part of the fifth plea: the duration and intensity of the infringement

3. Third part of the fifth plea: refusal to apply the Leniency Notice

4. Fourth part of the fifth plea: the infringement of the principle of ne bis in idem and the principle that penalties must be specific to the offender and to the offence

5. Fifth part of the fifth plea: the statement of reasons

Costs

* Language of the case: English.