JUDGMENT OF THE GENERAL COURT (Third Chamber)
12 December 2012 (*)
(Competition – Agreements, decisions and concerted practices – Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Rights of the defence – Commission’s powers in inspections – Single and continuous infringement – Fines – Cooperation during the administrative procedure – Proportionality – 2006 Guidelines on the method of setting fines)
In Case T‑410/09,
Almamet GmbH Handel mit Spänen und Pulvern aus Metall, established in Ainring (Germany), represented by S. Hautbourg and C. Renner, lawyers,
applicant,
v
European Commission, represented by N. Khan, V. Bottka and N. von Lingen, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka and D. Gratsias (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 13 June 2012,
gives the following
Judgment
Background to the dispute
1 By Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 − Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), the Commission of the European Communities found that the main suppliers of calcium carbide and magnesium for the steel and gas industries had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a single and continuous infringement from 7 April 2004 until 16 January 2007. The infringement consisted of market-sharing, quota-fixing, customer-allocation, price-fixing and the exchange of sensitive commercial information relating to prices, customers and sales volumes in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom.
2 The procedure was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’), submitted by Akzo Nobel NV (‘the Akzo Nobel statement’).
3 The applicant, Almamet GmbH Handel mit Spänen und Pulvern aus Metall, is a company established in Germany which is, inter alia, active in the marketing of calcium carbide powder and magnesium granulates in the EEA. It sources the magnesium granulates marketed mainly from China. Furthermore, under a framework agreement which it has concluded with Novácke chemické závody a.s. (‘NCHZ’), another participant in the cartel penalised by the contested decision, it is responsible for the sale in the EEA of the calcium carbide powder produced by NCHZ. For the services provided under that framework agreement, the applicant receives fees determined in proportion to the products sold.
4 Having found in Article 1(a) of the contested decision that the applicant had participated in the infringement from 22 April 2004 until 16 January 2007, the Commission imposed a fine of EUR 3.04 million on the applicant in subparagraph (a) of the first paragraph of Article 2 of the contested decision.
Procedure and forms of order sought
5 By application lodged at the Court Registry on 7 October 2009, the applicant brought the present action.
6 By separate document lodged at the Court Registry on 6 November 2009 and registered as Case T‑410/09 R, the applicant also submitted an application for interim measures, within the meaning of Article 243 EC and Article 104 et seq. of the Rules of Procedure of the General Court, seeking, in particular, suspension of operation of the contested decision. By order of the President of the Court of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, that application for interim measures was dismissed.
7 The composition of the Chambers of the Court having been modified, the Judge‑Rapporteur initially designated was attached to the Third Chamber, to which the present case was accordingly assigned. Owing to the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in that Chamber.
8 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure as provided for in Article 64 of the Rules of Procedure, requested the parties to answer certain questions and to produce certain documents. The parties complied with those requests within the prescribed period.
9 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 13 June 2012.
10 At the hearing the Commission stated, in reply to a question from the Court, that despite a statement to that effect in the schedule of annexes, it had inadvertently omitted to annex to its defence a letter dated 29 August 2007 that was sent to it by Ecka Granulate GmbH & Co. KG. As is apparent from recitals 18 to 21 to the contested decision, that company, together with its wholly-owned subsidiary Aluma GmbH, and non ferrum Metallpulver GmbH & Co. KG, a wholly-owned subsidiary of Aluma, constituted the Ecka undertaking (‘Ecka’), which participated in the cartel at issue. The Commission produced a copy of that letter at the hearing, which was placed on the case-file by decision of the Court. Furthermore, the Commission stated that, in response to another request from the Court for production of documents, it had produced the non-confidential version of certain documents seized during an inspection at Ecka’s premises and, specifically, at the premises of non ferrum Metallpulver. The Commission stated that it would be prepared to produce the confidential version of those documents if the Court were to adopt a measure of inquiry to that effect. Last, in response to an observation by the applicant, the Commission stated that a table produced in response to another request for production of documents was not that requested by the Court and undertook to produce the table requested, which it did by letter of 20 June 2012, placed on the case-file by decision of the Court. Following the lodging of that document, the written procedure was closed by decision of 25 June 2012.
11 The applicant claims that the Court should:
– annul the contested decision, in so far as it concerns the applicant;
– in the alternative, reduce the amount of the fine imposed on the applicant;
– order the Commission to pay the costs.
12 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
13 In support of its action, the applicant relied on seven pleas in law. The first three pleas were raised in support of the applicant’s main head of claim seeking annulment of the contested decision, and allege (1) breach of the applicant’s rights of defence owing to the Commission’s use against it of documents seized, outside the scope of the Commission’s inspection decision of 10 January 2007 (‘the inspection decision’), at Ecka’s premises; (2) lack of sufficient proof of the cartel at issue, with respect to magnesium; and (3) incorrect classification of the aspects of the cartel relating to calcium carbide powder and magnesium granulates, as a single and continuous infringement. The next four pleas were raised in support of the head of claim, submitted in the alternative, seeking a reduction of the amount of the fine imposed on the applicant, and allege (1) breach of the Leniency Notice; (2) infringement of Article 23(2) 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) and point 32 of the Commission’s Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’), since in the applicant’s submission the amount of the fine imposed on it exceeded the legal maximum amount of the fine of 10% of its turnover; (3) the allegedly disproportionate nature of the fine; and (4) a manifest error of assessment, in that the Commission rejected the applicant’s request that its inability to pay the fine, within the meaning of point 35 of the Guidelines, be taken into consideration. However, at the hearing the applicant withdrew its seventh and final plea, formal notice of which was taken in the minutes of the hearing.
First plea: breach of the applicant’s rights of defence owing to the Commission’s use against it of documents seized, outside the scope of the Commission’s inspection decision, at Ecka’s premises
Relevant facts and contested decision
14 By its first plea, the applicant claims that there has been a breach of its rights of defence owing to the fact that the Commission used against it evidence which had been seized at the premises of Ecka and which related to magnesium, outside the scope of the relevant inspection decision, which related only to calcium carbide.
15 As a preliminary point it must be stated that, having studied the case-file, the Court considers production of the confidential versions of the documents seized at Ecka’s premises during the inspection in question (‘the documents seized’) to be unnecessary. All the documents to which the parties referred in their arguments already appear in the non-confidential versions of the documents seized. In addition, the non-confidential versions contain sufficient information regarding the content of the redacted documents for the Court to be able to conclude that they are not relevant to the outcome of the dispute. Accordingly, it is not necessary to adopt a measure of inquiry in respect of the production of the confidential versions of the documents seized.
16 Next, it must be recalled that Article 20(4) of Regulation No 1/2003 provides as follows:
‘Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject-matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.’
17 It is evident from the case-file that, by decision of 10 January 2007 adopted on the basis of Article 20(4) of Regulation No 1/2003, the Commission ordered an inspection at the premises of certain undertakings, including Ecka. It is apparent from Article 1 of the inspection decision that that inspection related to the possible participation, contrary to the competition rules, of the undertakings in question in agreements or concerted practices concerning calcium carbide.
18 According to recital 48 to the contested decision, on 16 January 2007 the Commission conducted an inspection at the premises of Ecka, on the basis of the inspection decision. As has already been noted, the non-confidential versions of the documents seized during that inspection were produced by the Commission in response to a request to that effect from the Court. Those documents include, in particular, tables and handwritten notes which, according to the contested decision, related to magnesium.
19 It is evident from recital 155 to the contested decision that the applicant had already, in the administrative procedure, challenged the Commission’s right to rely on the documents seized, on the ground that they were not covered by the subject-matter of the inspection and were therefore inadmissible as evidence. According to the applicant, since the inspection decision related to calcium carbide, the Commission was not entitled either to seize or to use those documents. The applicant claimed, on the basis of those assertions, that there had been a breach of its rights of defence.
20 The Commission rejected that challenge on the basis of the following considerations, which are set out in recitals 156 to 160 to the contested decision:
‘(156) The Commission considers that – without it needing to go into the question of the basis on which the documents were copied during the inspection at Ecka – it was entitled to use the evidence and that Almamet’s rights of defence were not violated.
(157) On 11 July 2007, the Commission explicitly asked Ecka by request for information pursuant to Article 18 of Regulation No 1/2003, to submit pre‑existing documents concerning magnesium ... In that formal request, the Commission clarified that the subject-matter and purpose comprised magnesium for the steel industry.
(158) Ecka submitted the inspection documents anew by means of referral in its reply to the request for information … Furthermore, the Commission asked and obtained further information on the documents at stake via another request for information pursuant to Article 18 of Regulation No 1/2003 … Ecka never considered that the inspection documents were taken illicitly …
(159) The evidence was therefore lawfully included in the case-file and Almamet’s rights of defence were not violated.
(160) It is noted that an almost identical request for information was sent to Almamet and made it evident to Almamet that the scope of the investigation also covered magnesium. In its reply Almamet stated that it had no further information available apart from the evidence with respect to calcium carbide already submitted … It did not claim that its rights of defence were violated by these questions concerning magnesium. Almamet had access to all evidence in the Commission file with respect to magnesium and was able to defend itself against the objections made. It is noted that none of the other addressees of the Statement of Objections contested the facts in relation to magnesium.’
The applicant’s rights of defence
21 It is settled case-law that the rights of the defence in any proceedings in which penalties, especially fines or penalty payments, may be imposed, such as those provided for in Regulation No 1/2003, are fundamental rights forming an integral part of the general principles of law, whose observance the Courts of the European Union ensure (see Case T‑99/04 AC‑Treuhand v Commission [2008] ECR II‑1501, paragraph 46 and the case-law cited).
22 Furthermore, the need for protection against arbitrary or disproportionate intervention by public authorities in the private sphere of any person, whether natural or legal, constitutes a general principle of European Union law (see Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 19, and Case C‑94/00 Roquette Frères [2002] ECR I‑9011, paragraph 27).
23 As regards the determination of the scope of that principle in relation to the protection of business premises, the Court has held that regard must be had to the fact that the protection of private life provided for in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and in Article 7 of the Charter of Fundamental Rights of the European Union (OJ 2007 C 303, p. 1) must be respected and the protection of the home extended to cover business premises (Roquette Frères, cited in paragraph 22 above, paragraph 29, and order of 17 November 2005 in Case C‑121/04 P Minoan Lines v Commission, not published in the ECR, paragraph 31).
24 It should also be pointed out that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period until notification of the statement of objections, is intended to enable the Commission to gather all the relevant information confirming or not the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned (see AC‑Treuhand v Commission, cited in paragraph 21 above, paragraph 47 and the case-law cited).
25 First, as regards the preliminary investigation stage, the starting point of that stage is the date on which the Commission, in exercise of the powers conferred on it by Articles 18 and 20 of Regulation No 1/2003, takes measures which suggest that an infringement has been committed and which have a significant impact on the situation of the undertakings suspected (Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 182, and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraph 38). Second, it is apparent from the case-law that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after the notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence (see AC‑Treuhand v Commission, cited in paragraph 21 above, paragraph 48 and the case-law cited). If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it (Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 60).
26 The fact nevertheless remains that the measures of inquiry adopted by the Commission during the preliminary investigation stage – in particular, the requests for information and the inspections under Articles 18 and 20 of Regulation No 1/2003 – suggest, by their very nature, that an infringement has been committed and may have a significant impact on the situation of the undertakings suspected. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (AC‑Treuhand v Commission, cited in paragraph 21 above, paragraphs 50 and 51; see also, to that effect, Hoechst v Commission, cited in paragraph 22 above, paragraph 15).
27 It should likewise be noted that European Union law provides undertakings with a range of guarantees against arbitrary or disproportionate intervention by public authorities in the sphere of their private activities (Roquette Frères, cited in paragraph 22 above, paragraph 43, and Case T‑66/99 Minoan Lines v Commission [2003] ECR II‑5515, paragraph 53).
28 Thus Article 20(4) of Regulation No 1/2003 requires the Commission to state reasons for the decision ordering an inspection by specifying its subject-matter and purpose. This is a fundamental requirement, designed to show that the proposed entry onto the premises of the undertakings concerned is justified but also to enable the undertakings to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (Hoechst v Commission, cited in paragraph 22 above, paragraph 29; Roquette Frères, cited in paragraph 22 above, paragraph 47; and Minoan Lines v Commission, cited in paragraph 27 above, paragraph 54).
29 It follows that the scope of the obligation to state the reasons on which decisions are based cannot be restricted on the basis of considerations concerning the effectiveness of the investigation. It is apparent from the case-law that, although it is true that the Commission is not required to communicate to the addressee of such a decision all the information at its disposal concerning the putative infringements or to make a precise legal analysis of those infringements, it must nevertheless clearly indicate the presumed facts which it intends to investigate (Hoechst v Commission, cited in paragraph 22 above, paragraph 41; Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paragraphs 8 and 9; and AC‑Treuhand v Commission, cited in paragraph 21 above, paragraph 54). The Commission is thus obliged to state, as precisely as possible, what it is looking for and the matters to which the inspection must relate. That requirement is intended to protect the rights of defence of the undertakings concerned, which would be seriously compromised if the Commission could rely on evidence against undertakings which was obtained during an inspection but was not related to the subject-matter or purpose thereof (Minoan Lines v Commission, cited in paragraph 27 above, paragraph 55).
30 On the other hand, it cannot be concluded that the Commission is precluded from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous inspection if that information indicates the existence of conduct contrary to the competition rules (Dow Benelux v Commission, cited in paragraph 29 above, paragraph 19, and Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 25 above, paragraph 301). In a new inquiry, the Commission is entitled to request fresh copies of the documents obtained during the first inquiry and then to use them as evidence in the case to which the second inquiry relates, without the rights of defence of the undertakings concerned being affected as a result (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 25 above, paragraphs 303 to 305).
31 It must also be borne in mind that an undertaking against which the Commission has ordered an inspection may bring an action for annulment against that decision before the Courts of the European Union. If the decision in question is annulled by those Courts, the Commission will in that event be prevented from using, for the purposes of proceeding in respect of an infringement of the competition rules, any documents or evidence which it might have obtained in the course of that inspection, as otherwise the decision on the infringement might, in so far as it was based on such evidence, be annulled by the Courts of the European Union (see Minoan Lines v Commission, cited in paragraph 27 above, paragraph 56 and the case-law cited).
32 It is in the light of those considerations that the Court must determine whether, as the applicant claims, there has been a breach of its rights of defence in the present case, owing to the fact that the Commission took into account the documents seized.
33 It is common ground that those documents were obtained by the Commission during an inspection at the premises of Ecka. It should also be noted that the Commission confirmed, both in its written pleadings and at the hearing, that those documents were held by Mr S., a commercial manager of Ecka, and that the applicant had neither contradicted that assertion nor contended that those documents belonged to it or that it had any specific right in respect of those documents.
34 It follows from this that, while the considerations set out in paragraphs 21 to 31 above are such that the protection of Ecka’s rights of defence in relation to those documents should be safeguarded as from the preliminary investigation stage, the same cannot be said with respect to the applicant, since the inspection at issue was not carried out at its own premises and did not relate to documents that belonged to the applicant or in respect of which the applicant had any right to assert. The protection of the applicant’s rights of defence is sufficiently assured if, at the beginning of the administrative inter partes stage, the Commission gives the applicant access to the documents seized, enabling it to take them into account when formulating its reply to the statement of objections, in which it can, inter alia, comment on those documents.
35 As the Commission states in recital 159 to the contested decision, the documents seized were included in the administrative case-file. It is apparent from recital 51 to that decision that, shortly after the statement of objections was issued and before the applicant submitted its reply, the applicant requested and received a CD‑ROM containing a copy of the material included in the Commission’s administrative file. It also requested and was given access to certain documents and statements that were accessible only at the Commission’s premises, as is also evident from recital 51 and the accompanying footnote 95. It follows that the applicant had full access to the documents seized before drawing up its reply to the statement of objections which, as noted in the preceding paragraph, was sufficient to ensure that its rights of defence were protected.
36 Accordingly, irrespective of whether the complaints put forward by the applicant in the context of the present plea may reveal a breach of another of its rights or, more generally, another instance of illegality vitiating the contested decision – an issue which is examined below – the applicant cannot in any event invoke a breach of its rights of defence on the basis of those complaints.
Admissibility, as evidence, of the documents seized
37 In its written pleadings the applicant submits, by analogy with Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraph 411, that it is open to it to contest not only the legality of the inspection decision itself but also, a fortiori, the legality of the seizure of documents on the basis of that decision, regardless of whether or not it was contested by Ecka. Moreover, it rejects the proposition that the fact that Ecka did not challenge the inspection decision shows that the present plea is unfounded. According to the applicant, the legal assessment of an issue by one of the parties to a cartel cannot bind the other parties to that cartel.
38 It must be noted in that regard that, according to settled case-law, the prevailing principle in European Union law is that of unfettered evaluation of evidence and the only relevant criterion for assessing evidence produced lies in the reliability thereof (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 273, and Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72).
39 However, it is also clear from settled case-law that respect for fundamental rights is a condition of the lawfulness of European Union acts and that measures incompatible with respect for fundamental rights are not acceptable in the European Union (see Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 284 and the case-law cited, and Case T‑390/08 Bank Melli Iran v Council [2009] ECR II‑3967, paragraph 70). European Union law cannot therefore accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons including, in particular, the right to a private life and protection of the home. The use of that procedure must, therefore, be regarded as an essential procedural requirement within the meaning of the second paragraph of Article 230 EC. According to the case-law, infringement of an essential procedural requirement has consequences, regardless of whether that infringement resulted in harm to the person relying on it (see, to that effect, C‑286/95 P Commission v ICI [2000] ECR I‑2341, paragraphs 42 and 52).
40 It follows from this that any cartel participant may rely on the inadmissibility of evidence of that cartel obtained by the Commission in disregard of the procedure laid down for gathering it, such as the inspection procedure provided for in Article 20 of Regulation No 1/2003, and it is not necessary to claim, much less prove, that non-compliance with that procedure has resulted in harm to that person. Evidence obtained outside the procedure laid down for that purpose cannot be regarded as evidence that has been lawfully constituted and that may be used by the Commission in its investigation.
41 By contrast, if the Commission has used the appropriate procedure laid down for gathering such evidence, any procedural irregularities may be invoked only by those directly concerned by them (see, to that effect, order in Minoan Lines v Commission, cited in paragraph 23 above, paragraph 46), that is in the case of an inspection, in principle, by the person who submitted to the inspection.
42 Therefore, where, as in this case, a party other than the party that submitted to an inspection conducted by the Commission under Article 20 of Regulation No 1/2003 invokes an infringement, during that inspection, of safeguards designed to ensure respect for fundamental rights, the Court must confine itself to checking that the Commission did in fact use the procedure laid down to that effect, without going into the details of the conduct of that procedure unless the party in question invokes a procedural irregularity likely to concern it directly.
43 In addition, account must necessarily be taken, when making the checks referred to above, of the fact that if the holder of evidence obtained by the Commission decides, in full knowledge of his rights, not to object to its use by the Commission even though he could have done so, he clearly cannot take issue with the Commission for having used that evidence in its investigation.
44 That being the case it is necessary to ascertain, in the light of the considerations set out above and the arguments put forward by the applicant in support of the present plea, whether the Commission was right to rely in the contested decision on the documents seized, as evidence of the cartel at issue.
45 It must be noted that there is no dispute between the parties as to the fact that the documents seized were obtained by the Commission during the inspection carried out on 16 January 2007 at Ecka’s premises (see paragraph 18 above) and that those documents related to magnesium, whereas the inspection decision ordered its addressees, including Ecka, to submit to an inspection in relation to their possible participation in agreements or concerted practices concerning only calcium carbide.
46 On the basis of the facts summarised in the preceding paragraph, the applicant maintains that the documents seized were manifestly outside the scope of the inspection decision. It was only some time after those documents were obtained that the Commission extended the scope of its investigation to include magnesium.
47 The Commission contends that even though the inspection decision only mentioned calcium carbide, it was entitled to obtain the documents seized concerning magnesium. It is not necessary to analyse that argument, however, as in any event the Commission also confirmed that it was not aware when it seized the documents that they related to magnesium and not to calcium carbide. It is the accuracy of that last assertion that must now be reviewed.
48 The Commission stated in that regard that the market sharing tables that were among the documents seized did not specify the product concerned and had external characteristics similar to other tables relating to calcium carbide that were already in its possession. Furthermore, the documents seized were found in the same place within Ecka’s premises as the documents concerning calcium carbide. They were held by Mr S., a commercial manager of that undertaking who, according to the information available to the Commission at the time, had participated in meetings of the cartel. In those circumstances, the Commission’s agents who were involved in the inspection took the view that the documents seized related to the subject-matter of the investigation, and requested and obtained copies.
49 The Commission’s explanations appear, in essence, in recital 117 to the contested decision. They are not contradicted by the applicant but, on the contrary, are confirmed by the copies of the documents seized, which were produced by the Commission in response to the Court’s request to that effect. It is clear from those documents that they do not mention any product and that the tables which they include show a great deal of similarity to other tables, relating to calcium carbide, which were drawn up by the cartel participants and which the Commission also produced.
50 It follows that the Commission obtained the documents seized while under the legitimate impression that they related to calcium carbide. Although that impression subsequently proved to be erroneous, it was justified at the time of the seizure of those documents, having regard to their characteristics and the Commission’s statements, not disputed by the applicant, as to where they were found. The Commission cannot, therefore, be criticised for any breach of the safeguards designed to protect Ecka’s fundamental rights merely because, being under the impression that those documents concerned calcium carbide, it copied them during the inspection, particularly as Ecka neither confirmed that those documents did not relate to the product that was the subject of the investigation nor protested against the Commission’s intention to copy them.
51 While it is not necessary to resolve the question whether the Commission was entitled to initiate an investigation procedure in relation to magnesium on the basis of information that only came to its attention by means of the documents seized, it must be noted that, as recital 49 to the contested decision shows, shortly after the inspection at Ecka’s premises on 16 January 2007 the Commission received information according to which the cartel at issue also related to magnesium. In particular, on 25 January 2007 Donau Chemie AG submitted an application for immunity from the fine or a reduction of the amount (‘the Donau Chemie statement’) which also mentioned magnesium among the products to which the cartel at issue related. Likewise, on 26 February 2007 Evonik Degussa GmbH (‘Degussa’) submitted a similar application (‘the Degussa statement’) which also mentioned magnesium as a product covered by the cartel. It follows from this that, even without the documents seized, the Commission had sufficient evidence to justify the initiation of a new investigation concerning magnesium, or the extension of the ongoing investigation to include that product.
52 The applicant challenged the veracity of the Donau Chemie and Degussa statements and, in addition, claimed that oral statements by leniency applicants could not expand the scope of an inspection after it had been carried out. With regard to the veracity of those statements, it must be observed that that issue is irrelevant to the present plea. What is important is not the precise nature of the statements concerned but the fact that, as a result of those statements, even if they were inaccurate, the Commission was led to expand the scope of its investigation to include magnesium.
53 With regard to the purportedly retroactive expansion of the subject-matter of the inspection carried out at Ecka’s premises, it is sufficient to note that no such assertion was made by the Commission in the contested decision. The Commission stated only that the use of the documents seized during that inspection was justified, in essence, by the fact that Ecka had referred to them in its reply to a request for information relating, inter alia, to magnesium, which had been sent to it by the Commission.
54 The applicant also claims that the case-law cited in paragraph 30 above cannot be applied in the present case because the Commission did not initiate a new investigation relating to magnesium but merely extended the scope of the investigation that was already underway.
55 That argument cannot be accepted. As regards the applicability of the case-law concerned, no distinction is made between the initiation of a new investigation and the extension of the scope of an investigation that is already underway. The choice between those two options depends on other factors, including the possible existence of a single and continuous infringement, which are of no significance in relation to the issue raised by the present plea. What is important for the application of the case-law in question is the fact that once a new investigation has been initiated or the scope of the existing investigation extended, as the case may be, the Commission does not rely on evidence that happens to have come to its knowledge but makes a fresh request for its production. That new request enables the persons concerned to avail themselves of the procedural safeguards provided, in full knowledge of the subject-matter of the investigation, and thus to assert their rights in relation to the documents concerned.
56 The Commission was therefore right in taking the view, as recital 157 to the contested decision shows, that after the scope of its investigation had been extended to include magnesium it was entitled once again to request the documents seized, by a new request for information.
57 That conclusion is not called into question by the applicant’s argument concerning the ‘protection of the rights of the defence of potential leniency applicants’. The applicant maintains in that regard that the precise definition of the subject-matter of an inspection determines such applicants’ duty of cooperation. It submits that, in the present case, the Commission proceeded to expand the scope of the investigation without giving it an opportunity to assess its duty of cooperation, notably with a view to submitting an application for leniency. It emphasises that it is clear from the terms of its leniency application, submitted on 6 February 2007, after the inspections conducted at its own premises pursuant to the inspection decision, that it understood the investigation to relate only to the calcium carbide sector.
58 It is clear from that line of reasoning that, in the applicant’s view, undertakings that are subject to a Commission investigation in relation to possible infringements of the competition rules have a right, which the applicant terms a ‘right of the defence’, to be informed at the outset of the subject-matter of that investigation, in order to be able to assess within a reasonable period of time whether it would be in their interest to submit an application in order to take advantage of the Leniency Notice.
59 However, first of all, this hypothetical right is not among the rights of the defence and the applicant is wrong to describe it as such. The extent of the rights of defence of undertakings – which, like the applicant in this case, are under investigation by the Commission for infringement of the competition rules – in relation to an inspection that has been carried out at the premises of another undertaking and which does not concern them directly, was summarised in paragraph 34 above. Those rights do not include the right to be informed at the outset of the precise subject-matter of such an inspection.
60 Second, no such right arises from any other provision or principle of European Union law. Furthermore, recognition of such a right would be contrary to the spirit and the letter of the Leniency Notice. As the Court held in Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 395, and Case C‑301/04 P Commission v SGL Carbon [2006] ECR I‑5915, paragraph 68, in relation to the Commission notice on the non-imposition or reduction of fines in cartel cases, published in the Official Journal of the European Communities on 18 July 1996 (OJ 1996 C 207, p. 4), the relevant terms of which are substantially the same as those of the Leniency Notice, a reduction in the amount of the fine can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part.
61 Accordingly, an undertaking that wishes to benefit from the commitments given by the Commission in the Leniency Notice must communicate to the Commission all the information and evidence available to it that relates to a cartel, irrespective of whether the Commission has already initiated an investigation into that cartel and, if it has, of the precise scope of that investigation. Such an undertaking cannot, however, determine the extent of its cooperation on the basis of the scope of the Commission’s investigation. Such conduct, which is ultimately designed to avoid the disclosure to the Commission of information or evidence that it does not even suspect exists, clearly does not constitute genuine cooperation within the meaning of the case-law referred to in the preceding paragraph.
62 Next, the Court must examine the applicant’s questioning of the conclusion in recital 158 to the contested decision that the Commission was entitled to use the documents seized, given that Ecka had referred to them in its reply to a Commission request for information by which the scope of the investigation had been widened to include magnesium.
63 As is apparent from recital 157 to the contested decision, the reply in question is, specifically, Ecka’s reply to a request for information of 11 July 2007 that was sent to it by the Commission. Admittedly the subject of the request was stated to be ‘Case COMP/F/39.396 – Calcium carbide (et.al.)’. As the applicant submits, the mere fact that ‘et.al.’ was added to the subject-matter of the request was not sufficient to indicate that the subject-matter of the investigation had been expanded to include magnesium.
64 Nevertheless, as the Commission correctly observed, it was stated clearly and precisely in the body of the request that the subject-matter of the investigation also covered magnesium. In particular, the first paragraph of the request at issue stated as follows:
‘The Commission is currently investigating anti-competitive conduct in respect of calcium carbide for the metal and gas industry in the European Union and other associated products, such as magnesium based reagents for the metal industry in the European Union.’
65 Ecka, to whom the request for information was addressed, could not have been unaware, on reading that paragraph, that the subject-matter of the investigation would thereafter also cover magnesium.
66 It is also stated, in recital 158 to the contested decision, that Ecka resubmitted the documents seized, in reply to the request for information. Footnote 373, to which recital 158 refers, makes clear, and the Commission moreover confirmed at the hearing, that that assertion is based on the fact that, in its reply to the request for information of 11 July 2007, submitted by the letter of 29 August 2007 referred to in paragraph 10 above, Ecka referred in general terms to the documents seized.
67 In particular, in footnote 373 to the contested decision, the Commission stated:
‘Ecka answered the Commission’s request [for information] of 11.7.2007 for the submission of specific existing date-related documents by means of a general referral to the inspection documents in possession of the Commission. … Moreover, Ecka’s reply to a subsequent question from the Commission in the same request for information on the submission of further documents was answered negatively. This negative answer demonstrates that the earlier referral to the inspection documents covered them in their entirety. Ecka confirmed such interpretation by answering all subsequent factual questions on the documents concerned, without limitation.’
68 It is apparent on a reading of the request for information of 11 July 2007 that the relevant questions were questions No 40 to No 43. Question No 40 mentioned a list of 20 meetings in total and asked Ecka whether a member of its staff or a representative of the undertaking had participated in one or other of them. That list included, in particular, a meeting on 2 May 2006 which, according to recitals 129 and 130 to the contested decision, related to magnesium, and certain other meetings which, according to the contested decision, related to calcium carbide. In reply to that question, Ecka stated that it was able to provide information only with regard to two meetings, those of 11 July and 10 October 2006, in respect of which it stated that it had been represented by Mr S. who had since left the undertaking. It is apparent from recitals 85 and 88 to the contested decision that those two meetings related to calcium carbide powder.
69 Question No 41 of the same request for information concerned the meetings in respect of which Ecka was able to confirm that a member of its staff had taken part. It was also requested, inter alia, to produce all the documents in its possession relating to the meetings concerned. Ecka’s reply to that part of the question was worded thus: ‘only the documents seized’.
70 Question No 42 concerned the meetings listed in question No 40, in respect of which Ecka was unable to confirm its participation. It was requested (a) to send extracts from the diary of the employee who had participated in the other meetings, for the day of the meeting in question as well as for the previous day and the following day. It was also requested, at (b) and (c), to produce all documents in its possession relating to the meeting in question or to any cancellation thereof. In its reply, Ecka stated, in answer to part (a) of the question, that copies of Mr S.’s diary were among the documents seized; in answer to part (b) that all relevant documents were among the documents seized; and, finally, in answer to part (c), that no documents were available.
71 Last, Ecka was requested, in question No 43, to make available to the Commission all documents in its possession relating to any other meetings during the period from 2000 to 2007 concerning calcium carbide or magnesium and not included in the list set out in question No 40. Ecka replied that it had no such documents.
72 The applicant maintains, in the light of the matters summarised in the preceding paragraphs, that it is impossible to draw the conclusion that Ecka was referring in its replies to the abovementioned questions to the documents seized. Ecka had clearly stated that it was not aware of any meeting other than the two calcium carbide meetings in which Mr S. had participated. It had neither provided nor explicitly referred to documents relating to other meetings or documents covering a different product – in this case, magnesium. That assessment was confirmed by Ecka’s reply to question No 43.
73 That argument cannot be accepted. It disregards the fact that one of the meetings relating to magnesium, the meeting on 2 May 2006, was in fact included among those listed in question No 40. That meeting was covered by question No 42, relating to meetings in respect of which Ecka was unable to confirm its participation. Yet in reply to the request for transmission of all documents relating to those meetings, Ecka expressly referred to the documents seized.
74 More generally, it must be observed that Ecka – which was certainly aware, on reading the text of the request for information of 11 July 2007, of the fact that the investigation was thereafter also to relate to magnesium – referred in its answers to questions No 41 and No 42 to the documents seized, without expressing any reservation or objection and without requesting the return of those documents or of some of them. That tends to show that, in full knowledge of the scope of the investigation, Ecka chose not to object to the Commission’s use of those documents and thus implicitly but necessarily indicated its agreement with such use. Accordingly, taking into account also the consideration mentioned in paragraph 43 above, the Commission cannot be criticised for having used those documents.
75 It is of little importance in this regard that when it referred in its replies to questions No 41 and No 42 to the documents seized, Ecka knew that those documents related wholly or partly to magnesium. What is important is the fact that, contrary to the position during the inspection on 16 January 2007, after receiving the request for information of 11 July 2007, Ecka was aware of the fact that the Commission’s investigation also covered magnesium. In the light of that information, it was in a position to challenge the obtaining of any document that it regarded as having been obtained improperly by the Commission during the inspection, and to request its return. However, it expressed no such objection; on the contrary, it expressly referred to the documents seized, in such a way as to indicate that it had no objection to their use by the Commission. In those circumstances it cannot be maintained that that use had infringed any of its rights.
76 It is clear from all of the foregoing considerations that the Commission obtained the documents seized during an inspection conducted in accordance with the procedure laid down to ensure that the rights of the undertaking that had submitted to that inspection, namely Ecka, were respected. However, at the time of that inspection, the Commission’s investigation related only to calcium carbide and that is what was stated in the inspection decision. The documents seized were obtained in the context of that inspection, as the Commission could legitimately be under the impression – which was justified in the circumstances, albeit subsequently revealed to be erroneous – that they related to calcium carbide.
77 It is also clear from all of the foregoing that, shortly after the inspection in question, the Commission was informed by other cartel participants that the cartel also related to magnesium. It subsequently sent a request for information to Ecka, clearly stating that the scope of its investigation had since been expanded to include magnesium. Ecka which, on receipt of that request, could not have been unaware of the fact that the subject-matter of the Commission’s investigation was thereafter to include magnesium, did not challenge the Commission’s acquisition of the documents seized and did not request their return but, on the contrary, referred to them several times in its replies in such a way as to indicate clearly that it had no objection to their use by the Commission. It must therefore be concluded, taking into account also the considerations mentioned in paragraphs 40 to 43 above, that the Commission was entitled to use those documents in the administrative procedure, as the Commission itself correctly stated in recital 159 to the contested decision.
78 With regard to the next recital (160) to the contested decision, also challenged by the applicant, it must be noted that it does not concern respect for Ecka’s rights but relates to the rights of defence of the applicant, which was not the holder of the documents seized. Contrary to what the applicant appears to assume, the Commission did not take the view that the applicant ought to have challenged the use of the documents seized, at an earlier stage than that of its reply to the statement of objections. The Commission merely found in that recital that the applicant’s rights of defence had not been infringed, since it was also informed of the extension of the scope of the investigation to include magnesium and it had access to the documents seized before preparing its reply to the statement of objections. That finding is, moreover, correct, as is evident from paragraphs 33 to 36 above.
79 It follows from this that none of the arguments put forward by the applicant in the context of the present plea is well-founded, and the plea must therefore be rejected.
Second plea: lack of sufficient proof of the cartel at issue, with respect to magnesium
80 By its second plea, the applicant claims that the Commission has not established the infringement at issue to the requisite legal standard so far as magnesium is concerned, even if the documents seized to which the first plea relates are taken into consideration.
Contested decision
81 The aspect of the infringement at issue which concerns magnesium is described in recitals 113 to 135 to the contested decision. According to recital 114, the three largest suppliers of magnesium granulates for the steel industry in the EEA were the applicant, Ecka and SKW Stahl‑Metallurgie GmbH (‘SKW’). The same recital states that those three undertakings had coordinated their supplies of magnesium granulates during at least five meetings which took place in 2005 and 2006. Recitals 124 and 125 state that at least six multilateral meetings relating to magnesium granulates took place during the period from the end of 2004 or beginning of 2005 to October 2006. Recitals 125 to 134 refer in more detail to five meetings that took place on 14 July 2005 (recitals 125 and 126), 23 November 2005 (recitals 127 and 128), 2 May 2006 (recitals 129 and 130), 12 July 2006 (recitals 131 and 132) and 13 October 2006 (recitals 133 and 134). According to recital 125, the meeting on 14 July 2005 was held after a first meeting that took place at the end of 2004 or beginning of 2005 but the exact date of which could not be established. Last, recital 135 notes that a further multilateral meeting was planned for 15 January 2007 but was cancelled in December 2006.
82 As is apparent from recital 153 to the contested decision, the applicant had already, during the administrative procedure, challenged the sufficiency of the evidence of its participation in the aspect of the infringement relating to magnesium. That challenge was rejected by the Commission for the reasons set out in recitals 161 to 167.
83 It is apparent from recital 161 to the contested decision that the evidence in relation to the magnesium aspect of the infringement consisted of evidence provided voluntarily by Degussa and Donau Chemie, as well as evidence obtained during the inspections and in response to the requests for information sent to members of the cartel.
84 In recital 162 to the contested decision, the Commission noted that the evidence provided by Degussa consisted of statements and documents. As it was submitted by a direct participant in the cartel and was precise, it had a high probative value and, on its own, established the existence of an infringement. The existence of anti-competitive practices was also confirmed by the statements of Donau Chemie.
85 According to recital 163 to the contested decision, the applicant was unable to prove that the Degussa and Donau Chemie statements were factually wrong or to provide a credible alternative explanation. The content of the contemporaneous documents in the Commission’s possession proved clearly that commercial information such as prices, quotas, customers and volumes was exchanged and discussed. Those documents did not contain any reference to the topics mentioned by the applicant in its reply to the statement of objections, namely magnesium or scrap recycling or technical working groups. Recital 164 adds in that regard that the market sharing tables and handwritten notes of cartel meetings from Ecka are explicit and precise.
86 Recital 165 to the contested decision states that the meetings were informal and all took place in the vicinity of Salzburg (Austria), close to the seats of the participating undertakings. The number of participants was limited and they knew each other well.
87 Last, according to recital 166 to the contested decision, the evidence was consistent and the content of the Degussa and Donau Chemie statements had been corroborated by contemporaneous evidence. With regard, in particular, to the statements from Donau Chemie, the Commission stated, in recital 167, that it had no reason to doubt their credibility. The applicant’s argument that they lacked plausibility should be rejected because, as a supplier of calcium carbide and purchaser of magnesium, Donau Chemie had no direct interest in presenting a false image of the cartel at issue as having a broader scope.
Reminder of the relevant case-law
88 It is clear from the Court’s settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence. However, even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (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 78 and 79, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 29).
89 Having recalled that, it must also be noted that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine (Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraph 60, and judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 69).
90 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and from Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. Thus, the Commission must show precise and consistent evidence in order to establish the existence of the infringement (see Dresdner Bank and Others v Commission, cited in paragraph 89 above, paragraphs 61 and 62 and the case-law cited).
91 However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (Dresdner Bank and Others v Commission, cited in paragraph 89 above, paragraph 63, and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraph 56).
92 Since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, cited in paragraph 88 above, paragraphs 55 to 57; see also, to that effect, Dresdner Bank and Others v Commission, cited in paragraph 89 above, paragraphs 64 and 65).
93 It must also be borne in mind that there is no provision or general principle of law which prohibits the Commission from relying, as against an undertaking, on the statements made by other accused undertakings. If that were not the case, the Commission’s burden of proving conduct contrary to Articles 81 EC and 82 EC would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty (see, to that effect, Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 37 above, paragraphs 509 and 512).
94 Similarly, statements made for the purposes of the Leniency Notice cannot be considered to be devoid of probative value for that reason alone. Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, given the possibility that those participants might have tended to play down the importance of their contribution to the infringement and to maximise that of others, the fact remains that the argument that the information and explanations provided by the undertakings seeking to benefit from the application of the Leniency Notice are not reliable, by reason of that leniency application alone, does not correspond to the inherent logic of the procedure provided for by that notice (see, to that effect, Lafarge v Commission, cited in paragraph 91 above, paragraph 58). The fact of seeking to benefit from that notice in order to obtain a reduction in the amount of the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel under investigation. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70).
95 In particular, it must be concluded that where a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that fact implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth (JFE Engineering and Others v Commission, cited in paragraph 38 above, paragraph 212).
96 Nevertheless, as the applicant recalls, the Court has also held that an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of the facts at issue unless it is supported by other evidence (Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285; and Lafarge v Commission, cited in paragraph 91 above, paragraph 293; see, to that effect, Case T‑337/94 Enso-Gutzeit v Commission [1998] ECR II‑1571, paragraph 91).
97 It is in the light of those considerations that the Court must examine the various arguments put forward by the applicant in the context of the present plea. The Court will examine, in turn, the applicant’s arguments relating to the documents seized; the Degussa statement; the Donau Chemie statement; and the object of the meetings of magnesium suppliers.
The documents seized
98 The applicant claims that there is reasonable doubt as to the probative value of the documents seized. It takes the view that, in accordance with the case-law cited in paragraphs 89 and 90 above, those doubts had to operate in its favour, and therefore that its alleged participation in the cartel could not be regarded as having been established.
99 The applicant notes that the documents in question are not sufficiently explicit, as a result of which the Commission was obliged to contact Ecka to obtain further clarification. However, in most cases, Ecka was unable to provide the clarification sought, and the few specific replies it gave were based on the presumptions of an ‘objective third party’, the persons to whom those documents potentially related having left the company in the meantime. Fundamental questions concerning the date and author of those documents, the product concerned and the source of the information appearing in them, remained open.
100 It must be observed that those arguments are based on confusion between the evidence-gathering stage and the subsequent stage, relating to the assessment of the evidence obtained. They cannot, therefore, be accepted.
101 The applicant correctly observes that it is impossible, simply by reading the documents seized, to infer the identity of the author, the date on which they were drawn up, or even their precise subject-matter. In the light of that observation – which is hardly surprising, as the case-law cited in paragraph 92 above shows in regard to documents allegedly relating to a cartel – the Commission was fully entitled to try to gather as much information as possible by means of a further request for information of 26 February 2008 addressed to Ecka, the undertaking within whose premises those documents had been found.
102 The applicant states, again correctly, that Ecka’s reply did not, in essence, provide any useful clarification. That was no doubt due to the fact that Mr S., who held the documents seized, had since left that undertaking (see paragraphs 48 and 68 above). In answer to two questions in that request for information, Nos 13 and 14, Ecka indicated to the Commission that ‘the superficial and incomplete information given by Mr [S.] and the clear suspicion of an abuse of confidence led ultimately to the decision to part company’.
103 However, the mere fact that, in gathering as much relevant evidence as possible, the Commission was unable to obtain further clarification of the documents in question, does not mean that it was not entitled to take those documents into consideration at the stage of assessing all the evidence available. Nor, contrary to the view apparently taken by the applicant, is that alone sufficient for it to be concluded that there were doubts as to the facts that those documents were supposed to establish. Ultimately, as has already been pointed out in paragraph 101 above, it is not at all unusual, in an investigation concerning a secret cartel, to have only fragmentary and sparse information which requires a certain number of deductions to be made.
104 Furthermore, it is apparent from an examination of those documents that the Commission correctly concluded that they corroborated the other evidence in its possession, including, in particular, the Degussa and Donau Chemie statements, and that they could thus contribute to a body of coherent and consistent evidence which, according to the case-law cited in paragraph 92 above, is, in principle, sufficient to prove an infringement of the competition rules.
105 As the Commission correctly observed in recital 166 to the contested decision, which contains a reference to footnote 383, the information on the relevant market shares included in the Degussa statement corresponds exactly to the percentages indicated in a table included in the documents seized. In addition, the documents seized include four pages of handwritten notes on the headed notepaper of a hotel in which, according to recitals 125 and 126 to the contested decision, the meeting of 14 July 2005 concerning magnesium took place. One of those pages actually includes what appears to be the date 14 July 2005. The names of the applicant and the other undertakings mentioned in paragraph 81 above appear several times in the notes, next to indications of percentages. This information corroborates the assertions made in the Degussa statement that a meeting relating to that aspect of the cartel took place in that hotel. The fact that Degussa could not specify the exact date of that meeting and stated that it had taken place ‘probably in mid‑March’ is not sufficient to cast doubt on that conclusion.
106 Likewise, there are other, similar, handwritten notes among the documents seized. They are on the headed notepaper of another hotel, in Salzburg, in which, according to recital 127 to the contested decision, a meeting was held concerning magnesium. The fact that such a meeting took place in that hotel is also mentioned in the Degussa statement. However Degussa indicates a probable date for that meeting – 27 April 2005 – which does not correspond with the date indicated in those notes, namely 23 November 2005. It is the latter date which is mentioned in recital 127 to the contested decision.
107 That difference in dates is not, however, sufficient to rule out any link between the meeting mentioned by Degussa and the notes in question. It is clear from Degussa’s explanations that it arrived at the ‘probable’ date of 27 April 2005 for that meeting on the basis of a travel expenses form of a member of its staff that showed that date. According to that member of staff, the travel expenses form stated a false reason for the trip in order to conceal the real reason for it, which was to participate in a meeting on magnesium. Degussa adds that ‘[a]ccording to current information, the meeting in question was the meeting in the hotel’ mentioned in the relevant notes. In other words, the member of Degussa’s staff who had submitted the travel expenses form in question had not specified where the meeting had taken place. Degussa itself established a connection between the meeting in that hotel and the statements of its staff member, and it is not inconceivable that it was mistaken in that respect.
108 It must also be noted that, as the Commission finds in recital 166 to the contested decision, the form of the tables included in the documents seized is similar to that of the calcium carbide market sharing tables, as is clear from a comparison with, for example, tables in the second category submitted by the applicant itself in an annex to its leniency application of 6 February 2007.
109 Furthermore, it must be observed that while Ecka’s replies to the Commission’s request for information of 26 February 2008 did not, for the main part, provide information about the documents seized that differed from that which the Commission already knew or that could not be inferred from reading those documents, those replies do not contain information that would cast doubt on the presumed link between those documents and the magnesium meetings alleged in the Degussa statement. Although the applicant emphasises in its arguments that Ecka was unable to provide certain information about those documents, it does not contend – with the sole exception of the argument considered in the following paragraph – that the little information that Ecka was able to provide contradicts the findings in the contested decision.
110 With regard to the applicant’s argument that recital 164 to the contested decision refers to handwritten notes taken at meetings relating to magnesium, whereas Ecka had in reality stated that it was not in a position to confirm whether those notes had actually been taken during a meeting in the hotel mentioned on the headed notepaper on which they were drawn up, it must be observed, first, that the contested decision does not state that those notes had been taken ‘at the meetings’ in question, but asserts that they were ‘notes of cartel meetings’. Second, although Ecka cannot, for the reasons indicated in paragraph 102 above, provide further details of where those notes were drawn up, it is none the less clear that the assertion in question, in recital 164 to the contested decision, is based on a deduction which, in the light of the Degussa statement and the content of those notes, is not unreasonable.
111 Accordingly, contrary to the applicant’s contention, Ecka’s replies to the Commission’s request for information of 26 February 2008 were not such as to cast doubt on the link that exists between the documents seized and the infringement or, more generally, on the fact that there was an infringement.
The Degussa statement
112 The applicant claims that, apart from the documents seized, the Commission relied exclusively on the Degussa statement. That statement is, however, disputed by other cartel participants, and no other company has confirmed the Commission’s allegations. Furthermore, the Degussa statement lacks precision and misrepresents certain facts.
113 In view of the aforementioned assertions by the applicant, it is appropriate to recall, at the outset, that the contested decision found that three undertakings had participated in the magnesium aspect of the cartel (see paragraph 81 above). They are SKW, a subsidiary of Degussa at that time, which confirmed the existence of that aspect of the cartel; the applicant, which disputes its participation; and Ecka which, as is apparent from recital 152 to the contested decision, did not dispute its participation in the cartel, including the aspect relating to magnesium.
114 It is clear from the application that the applicant’s assertion that other cartel participants disputed the existence of the cartel actually relates only to La Continentale SA. That company is indeed mentioned in the Degussa statement as being one of the participants in the magnesium aspect of the cartel. According to the Degussa statement, it was represented at the meetings of the cartel by Mr T. The name of that company or the initials clearly referring to it appear in some of the documents seized.
115 The applicant produced a letter dated 14 January 2008, sent by La Continentale to the Commission in reply to a request for information of 21 December 2007. It also produced a Commission decision of 10 December 2007 ordering an inspection at that company’s premises, and a report of the inspection in question, carried out on 14 December 2007 at its premises in Luxembourg. It is obvious from those documents that the Commission had included that company in its cartel investigation.
116 Nevertheless, La Continentale is mentioned only once in the contested decision, in footnote 76 which accompanies recital 39, among other ‘smaller dealers’ active on the magnesium granulates market. According to that footnote, the volume of sales of each of those traders did not exceed 1 000 tons per year. The Commission did not mention La Continentale among the participants in the magnesium aspect of the cartel, although the wording of recital 114 to the contested decision does not rule out other undertakings having participated in that aspect of the cartel in addition to the three undertakings mentioned there. Nor did the Commission send a statement of objections to La Continentale.
117 The applicant maintains that, after having made the statements in the documents referred to in paragraph 115 above, La Continentale was ‘cleared of all charges’. In its view, there was only one logical explanation for that development, namely that the alleged magnesium cartel never existed. The applicant takes the view that if La Continentale was spared for other reasons, ‘then they need to be explained’.
118 The Court requested the Commission, by way of a measure of organisation of procedure, to reply to that argument. The Commission indicated in reply that there was indeed some evidence implicating La Continentale in that aspect of the cartel, but that it had not considered it to be sufficient. It added that, once established, the participation of an undertaking in a cartel, like that of the applicant in the magnesium aspect of the cartel in this instance, was unlikely to be called into question by the fact that there was insufficient evidence implicating another undertaking in the same cartel.
119 Those explanations on the part of the Commission are plausible. It must, moreover, be observed that the decision not to send a statement of objections to La Continentale may also be explained by the minor role of that undertaking on the relevant market and the necessarily reduced penalty – in absolute terms – that might have been imposed on it, rather than by the relevance of the explanations it put forward.
120 In any case, it must be noted that it is not for the Court in this case to review the merits of the reasons, whatever they were, for the Commission’s decision not to pursue La Continentale for its alleged participation in the cartel, but only to determine whether the material put forward by La Continentale was capable of casting doubt on the existence of the magnesium aspect of the cartel. Yet that is not the case.
121 The letter from La Continentale to the Commission of 14 January 2008, referred to in paragraph 115 above, certainly includes a denial of any involvement by that undertaking in a cartel relating to magnesium. The applicant relies, in particular, on the following sentence in the last paragraph of that letter, according to which ‘[t]he accusations of agreements on price and supply quotas are groundless so far as [La Continentale] is concerned and, moreover, magnesium generally’. However, in the rest of the relevant paragraph, La Continentale tries to justify that denial on the basis of general considerations relating to the development of magnesium prices which followed that of energy costs, and also to the alleged power of ‘steel purchasers’ to dictate ‘unilaterally to suppliers chosen freely from among 10 or so, the quantities necessary to cover their supplies’. Furthermore, in the preceding paragraph, La Continentale admits that its manager, Mr T., participated in ‘technical discussions’ with ‘some European processors’, including SKW in particular, but claims that they ‘were intended to establish new magnesium blends or alloys’.
122 While La Continentale certainly cannot be criticised for failing to refute in its abovementioned letter the assertions concerning it that were contained in the Degussa statement, of which it was clearly not even aware when the letter was drafted, the fact remains that that letter contains no specific or sufficiently detailed statement that might cast doubt on the assertions made in the Degussa statement or on the finding in the contested decision regarding the existence of a magnesium aspect of the cartel, in which the applicant also participated.
123 The same applies to the report of the inspection at the premises of La Continentale, on which the applicant also relied. The report contains a series of questions put to Mr T. and his answers. In reply to a question about a meeting held on 20 October 2006 between Ecka, SKW and Almamet, Mr T. admitted having taken part in it. The meeting concerned was clearly that mentioned in recital 133 to the contested decision, since the location and the participants are the same, although the date mentioned is different, albeit close to the date mentioned in the contested decision. More generally, Mr T. admitted remembering other meetings with Ecka, SKW and the applicant, without being able to give exact dates. According to him, ‘a common strategy for defending ourselves against the Chinese’ was discussed at those meetings. He added that he ‘always [tried] to persuade the others to develop alternative products, but that [he had] not [succeeded] in persuading them. The meetings were more technical in nature’. In reply to another question, he denied that tables of market shares had ever been exchanged during those meetings.
124 Those replies do not undermine Degussa’s assertions or the findings in the contested decision; instead they confirm them. The mere fact that Mr T. did not admit that the meetings had an anti-competitive object or that they included the exchange of market sharing tables is not sufficient for a different conclusion to be drawn. Such tables, from another participant in the same meetings, were actually found among the documents seized. Furthermore, a participant in a meeting that had an anti-competitive object would have every interest in concealing that object when questioned by the Commission. Some caution with regard to those parts of Mr T.’s answers is therefore called for.
125 Next, it is appropriate to consider the applicant’s argument that the Degussa statement lacks precision and misrepresents certain facts.
126 The applicant claims that both Ecka and the applicant itself were able to prove in their replies to the statement of objections that Degussa’s assertion in its statement – that the first meeting of the magnesium aspect of the cartel took place at the end of 2004 and was organised by the applicant – was ‘pure invention’. Accordingly the Degussa statement was not credible and should, in accordance with the case‑law, be treated with caution, particularly as Degussa was seeking to exculpate itself and had in fact obtained a reduction of the fine on the basis of that statement.
127 Furthermore, Degussa did not provide any documents to corroborate its statement. It only provided a reconstruction of a table allegedly drawn up during the first meeting of the cartel, which contained very little information and therefore lacked any probative value. Other allegations made by Degussa, such as the allegations that the applicant received compensation for sales volumes lost to SKW, or that the applicant’s representative brought a laptop to the meeting on 11 October 2006, which he used to project a table, are not supported by any evidence.
128 It must be noted that the applicant’s statements regarding the first meeting of the cartel amount to an incomplete and ultimately inaccurate description of the facts, as evidenced by the documents in the case. Admittedly, it is evident from the case‑file that, in paragraphs 166 and 167 of the statement of objections, the Commission stated that the first meeting relating to magnesium had taken place on 20 January 2005 at the Gasthof Brandstätter hotel in Salzburg. In paragraphs 181 to 183 of its reply to that statement, the applicant confirmed that the two persons who, according to the Degussa statement, had represented it at that meeting were elsewhere that day. It supported those assertions with evidence which the Commission must have regarded as convincing, as it did not repeat that statement in the contested decision. Recital 125 to that decision states that the first meeting relating to magnesium took place at the end of 2004 or at the beginning of 2005, on a date which could not be determined.
129 However, the apparently inaccurate reference to the applicant’s participation in a meeting on 20 January 2005 does not originate from the Degussa statement. Paragraph 166 of the statement of objections refers, when mentioning that date, to footnote 425, which in turn refers to a copy of Mr S.’s diary which was among the documents seized and which, in the entry for 20 January 2005, includes a reference to a meeting on magnesium, without further explanation. The Degussa statement, on the other hand, states that that meeting took place at the ‘end of 2004’. That last piece of information is also mentioned in the abovementioned footnote to the statement of objections.
130 It follows from this that those statements by the applicant establish neither that the Degussa statement misrepresented the facts nor that it lacks credibility.
131 As regards the allegations in the Degussa statement that the applicant received compensation for sales lost to SKW and that its representative projected a table during a meeting, using his laptop, it must be noted that the applicant reiterates in its application the denials already set out in its reply to the statement of objections. Those denials were not, however, supported by any evidence and are not, by themselves, capable of demonstrating that the Degussa statement misrepresented the facts or that it lacks credibility.
132 As regards the ‘reconstruction’ of the table provided by Degussa and exchanged at the first meeting, the table in question is that which the Commission was requested to produce and which was finally produced after the hearing (see paragraph 10 above). It is true that the majority of the columns in that table are empty. However, its structure is very similar to that of a number of tables included in the documents seized and it mentions the undertakings allegedly involved in the magnesium aspect of the cartel, that is to say, the applicant (Alm), Ecka (Eck), SKW (SSM, namely SKW Stahl-Metallurgie), La Continentale (LAC) and MCPT, in this instance a smaller magnesium dealer also mentioned in footnote 76 to the contested decision. Therefore, it is not necessary to determine the precise probative value of that table; suffice it to note that it does not in any case cast doubt on the credibility of the Degussa statement.
133 It must also be observed that the sales volumes mentioned in the Degussa statement correspond perfectly with the volumes indicated in a table that was among the documents seized, which undoubtedly reinforces the credibility of that statement.
134 Last, with regard to the applicant’s argument that Degussa was seeking to be exonerated from any liability and to obtain a reduction in the amount of the fine, and that its statement should therefore be treated with caution, it follows from the case-law referred to in paragraphs 92 to 96 that, while a certain amount of caution is called for in relation to statements such as that of Degussa in this case, such statements can constitute evidence to be taken into consideration in concluding that an infringement of the competition rules has been committed, particularly where they are supported by other evidence, as they are in this case.
The Donau Chemie statement
135 The applicant claims that the contested decision is based on the Donau Chemie statement in disregard of the fact that Donau Chemie had withdrawn its allegations concerning magnesium at the hearing held on 10 and 11 November 2008 as part of the administrative procedure. It adds that, contrary to what is stated in recital 167 to the contested decision, it had not contested the credibility of the Donau Chemie statement on the ground that Donau Chemie was not a supplier of magnesium but on the ground that there was an ‘underlying conflict’ between the applicant and Donau Chemie, which regarded the applicant as an aggressive new entrant on the market, challenging its own position and that of SKW on that market.
136 In its statement Donau Chemie had, in particular, stated the following in regard to magnesium:
‘Donau Chemie does not have any share of the magnesium market and for that reason was excluded from those “magnesium talks”. But Donau Chemie was able to observe that parallel negotiations concerning the magnesium market [had been] conducted, evidently by the same individuals as in the steel talks.’
137 In support of its assertion that Donau Chemie had withdrawn its allegations, the applicant reproduces in its application a statement made during the administrative hearing which it attributes to Mr D., evidently an employee of Donau Chemie. He had stated:
‘We did not observe an agreement on magnesium being concluded; we just deduced it from the behaviour of the participants on the market.’
138 To put that statement in context the Court requested the production of the whole of Mr D.’s statement, and the Commission produced the full audio recording of his statement in response to a measure of organisation of procedure to that effect. It is clear from that recording that Mr D. did not call into question the existence of a magnesium aspect of the cartel. The extract of his statement on which the applicant relies is indeed accurate. However, it is part of a segment of that statement in which Mr D. was endeavouring to show that Donau Chemie was not involved in that aspect of the cartel but, on the contrary, was a victim of it, as it was a purchaser of magnesium and had to pay much higher prices owing to the existence of a magnesium aspect of the cartel.
139 It follows from this that the extract of Mr D.’s statement on which the applicant relied does not, contrary to the applicant’s contention, amount to a withdrawal of the allegations concerning magnesium in the Donau Chemie statement. At most it constitutes an explanation and clarification in respect of those allegations. Furthermore, it must be noted that those allegations were essentially confirmed not only by Degussa’s subsequent statement but also by the documents seized. Last, the mere reference by the applicant – one that is unsupported by any evidence – to an underlying conflict between the applicant and Donau Chemie is not sufficient to call into question the credibility of the Donau Chemie statement. In those circumstances and taking into account also the case-law cited in paragraphs 92 to 96 above, it must be concluded that the Commission was right in taking that statement into consideration for the purposes of establishing the infringement at issue.
The object of the meetings of magnesium suppliers
140 The applicant claims that, contrary to the assertion made in recital 163 to the contested decision, it had offered an alternative explanation regarding the object of the meetings between magnesium suppliers. It had always maintained that a large number of wholly legitimate issues had in reality been addressed by those suppliers. In particular, during the period of the alleged cartel, discussions were held on the issue of magnesium recycling and meetings between competitors were organised to discuss the implementation of specific business projects. In support of those assertions, the applicant relies on the evidence which it submitted in support of a similar assertion made in its reply to the statement of objections. It also relies on the statements of Mr T. of La Continentale, referred to in paragraph 123 above.
141 It must be observed that the applicant’s vague and general statements do not constitute an alternative explanation regarding the object of the meetings referred to in the contested decision. Nor, moreover, are they in any way supported by the little evidence that exists.
142 In particular, the documents annexed to the applicant’s reply to the statement of objections consist of minutes of a working group entitled ‘Magnesium recycling’. It is apparent that, in the period from November 2004 to April 2007, that group met six times, approximately every six months. Neither the locations nor the dates of those meetings coincide with the locations and dates of the meetings mentioned in the contested decision and in the Degussa statement. The same applies with regard to the participants. Ecka was always represented by Mr K. at the meetings of that working group. The name of Mr S. who, according to the Degussa statement, also participated on behalf of Ecka in the meetings of the magnesium aspect of the cartel, and to whom the documents seized belonged (see paragraph 48 above), does not appear on the lists of those present at the meetings of the aforementioned working group which are annexed to the minutes. Neither SKW nor Degussa had sent a representative to that group’s meetings. The same applies with respect to La Continentale and Mr T. The number of participants in those meetings was quite high – several dozen in this instance – and they also included representatives of undertakings active in other areas, such as car manufacturing. Consequently, while those documents demonstrate to the requisite legal standard the existence of that working group and the applicant’s participation in it, they do not offer an alternative explanation for the meetings mentioned in the contested decision, with which they clearly have no connection.
143 The applicant also annexed certain other documents to its reply to the statement of objections. These are irrelevant however, since they do not concern any multilateral meeting but relate to a project in which the applicant was involved together with another undertaking that was not involved in the cartel, and to the applicant’s proposal for the acquisition of an abandoned Ecka factory.
144 With regard to Mr T.’s statements, it has already been noted in paragraph 123 above that they did not call into question the Degussa statement or the other evidence supporting it, including the documents seized, particularly as Mr T. seems to admit that the alleged meetings – or at least some of them – took place, although he disputes that they had an anti-competitive object.
145 More generally, it must be observed that, while the applicant certainly disputes its participation in the magnesium aspect of the cartel, it did not put forward a full and consistent alternative explanation in its application that might lend the various elements referred to in the contested decision as evidence of its participation a different significance.
146 Thus, the applicant challenges the credibility of the Degussa and Donau Chemie statements but does not offer any explanation of the fact that the allegations contained therein are largely confirmed by the documents seized, which were obtained at the premises of another undertaking, namely Ecka, or of the fact that the authors of the two statements in question could not have known of those documents when they made them. Nor did the applicant offer an alternative explanation as regards the nature of those documents. In particular, it did not explain the presence in those documents of what appears, at first sight, to be confidential commercial information concerning the applicant and of which only the applicant could logically be the source. Furthermore, while it described as ‘pure invention’ Degussa’s allegations concerning the first meeting of the magnesium aspect of the cartel, moreover on an inadequate factual basis (see paragraphs 128 to 130 above), it did not comment on the other alleged meetings. In fact, it is not clear on reading the applicant’s pleadings whether it is contending that those meetings did not take place at all or, at least, that it did not participate in them, or whether instead it is admitting that they did take place, but asserting that their object was legitimate and not at all anti-competitive. It must be observed in that regard that even Mr T., on whose statements the applicant has otherwise relied, admitted having participated in a meeting that included a representative of the applicant, in October 2006 (see paragraph 123 above). Yet the applicant did not explain what the object of that meeting was. Nor did it produce any evidence to demonstrate that that object was legitimate. An undertaking like the applicant might logically be expected, however, to have a written record of business meetings having a legitimate object.
147 It follows from all of the foregoing considerations that, contrary to the applicant’s submission, the Commission relied in this case on abundant factual evidence which, in the light of the case-law cited in paragraph 88 above, requires the applicant to provide an explanation or justification. It has already been found in the preceding paragraphs that no explanation or justification of that kind was provided by the applicant and therefore, in accordance with the case-law referred to, it must be concluded that the Commission has properly discharged its burden of proof with regard to the applicant’s participation in the magnesium aspect of the cartel. Accordingly, the second plea in law must be rejected as unfounded.
Third plea: incorrect classification, as a single and continuous infringement, of the aspects of the cartel relating to calcium carbide powder and magnesium granulates, respectively
148 By its third plea, the applicant maintains that the Commission made a ‘manifest error of assessment’ in that it considered that the cartel relating to calcium carbide and the cartel relating to magnesium constituted a single and continuous infringement.
149 It must be observed that even if that plea were well founded and the contested decision had to be annulled on that ground, the Commission would be entitled to find two separate infringements with respect to the applicant, since it is not apparent from the documents in the case, and the applicant has not claimed, that one or other of those infringements would be time-barred in such circumstances. The Commission would therefore be entitled to penalise those two infringements by two separate fines, the sum of which could exceed the fine imposed on the applicant by the contested decision. That being the case, the Court invited the applicant at the hearing to explain its interest in raising the present plea.
150 In response, the applicant emphasised that it had a genuine legitimate interest in challenging that part of the contested decision and that therefore the present plea was not ineffective.
151 The Court considers that the question of the effectiveness of the present plea does not need to be determined, since the plea must in any event be rejected as unfounded.
Reminder of the case-law relating to the concept of a single infringement
152 The concept of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object) (Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 257, and Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 89). That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves, an infringement of Article 81 EC (Aalborg Portland and Others v Commission, cited in paragraph 88 above, paragraph 258, and BPB v Commission, paragraph 252). Furthermore, according to settled case-law, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings (Amann & Söhne and Cousin Filterie v Commission, paragraph 91 and the case-law cited).
153 When the different actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (Aalborg Portland and Others v Commission, cited in paragraph 88 above, paragraph 258). The Court has also held that an undertaking which took part in a single infringement through conduct, particular to it, which was covered by the notion of an agreement or concerted practice having an anti-competitive object, for the purposes of Article 81(1) EC, and which was intended to help bring about the infringement as a whole, was also liable – throughout the entire period of its participation in that infringement – for conduct put into effect by other undertakings in the context of the same infringement. That is the case where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk, and neither the principle of personal responsibility for such infringements nor the principle of individual analysis of the evidence adduced is thereby called into question (Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 83). It follows that in order to establish that an undertaking participated in an anti-competitive agreement, the Commission must show that that undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission v Anic Partecipazioni, paragraph 87).
154 It must also be made clear that the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element inherent in any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the ‘normal pattern’ of competition and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content – including the methods used – and, correlatively, the objective of the various agreements and concerted practices in question (Amann & Söhne and Cousin Filterie v Commission, cited in paragraph 152 above, paragraph 92; see, to that effect, Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraphs 179 to 181).
155 Last, it must also be borne in mind that the fact that an undertaking has not taken part in all aspects of a cartel is not material to the establishment of the existence of an infringement on its part. That factor must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine (Aalborg Portland and Others v Commission, cited in paragraph 88 above, paragraph 86).
Contested decision
156 In recitals 168 to 172 to the contested decision, the Commission essentially reproduced the considerations of the case-law cited in paragraphs 152 to 155 above. Next, in recital 173, it noted that, in the statement of objections, it had drawn the provisional conclusion that the complex of agreements and concerted practices at issue in the present case constituted a single and continuous infringement, even though the events at issue, taken in isolation, would each constitute an infringement of the competition rules. According to recital 175, the majority of the cartel participants had not expressed any doubt in regard to that conclusion. The arguments of those who had contested all or part of it are summarised in recital 176. The applicant is not among those cartel participants who challenged the conclusion that there was a single and continuous infringement.
157 In recital 177, the Commission stated that it acknowledged that the events which were the subject of the contested decision had taken place on two markets – that is the markets for reagents for the steel and gas industries, respectively – and covered three products. However it emphasised that, for the reasons set out in recitals 181 to 194, they constituted a complex of agreements and concerted practices that were linked in such a way as to constitute a single and continuous infringement.
158 The reasons set out in recitals 181 to 194 to the contested decision deal with five different issues. First, recitals 181 to 184 relate to the products covered by the cartel. It is observed there in particular that, for steel industry customers, magnesium granulates constitute an alternative to calcium carbide powder, as both products are desulphurisation reagents. It was logical for suppliers of products based on calcium carbide to widen the cartel to include magnesium (recital 181). Moreover, the agreements and concerted practices in relation to calcium carbide powder for the steel industry influenced the commercial behaviour of the undertakings involved in magnesium granulates, and vice versa (recital 184). The Commission refers in that regard to certain evidence demonstrating, in its view, that the competitive pressure exerted on calcium carbide powder by magnesium had been taken into account when deciding on a realistic price increase for calcium carbide powder.
159 Second, recitals 185 to 188 to the contested decision refer to the cartel participants. It is observed there that all the addressees of the contested decision had participated in the cartel relating to calcium carbide powder for the steel industry. Four of them were also involved in the cartel’s activities relating to calcium carbide granulates for the gas industry (recital 185). The other three, including the applicant, also took part in the activities relating to magnesium granulates and therefore had direct knowledge of at least two components of the single infringement. The legal persons directly involved were usually the same, and the individuals who represented the undertakings at the multilateral meetings on calcium carbide powder also participated in the meetings on magnesium (recital 186). The Commission finds, in recital 187, that none of the undertakings involved had a substantial turnover in respect of the three components of the infringement, but considers that that alone does not preclude the existence of a single infringement. Last, in recital 188, it finds that the existence of a third component of the cartel was not kept secret. It refers in particular to the fact that Donau Chemie, which had participated in the aspects of the cartel relating to calcium carbide powder and granulates but was not a supplier of magnesium, had informed the Commission of the existence of the third component of the single infringement, relating to the latter product.
160 Third, recitals 189 to 191 to the contested decision concern the period during which the cartel meetings took place. It is noted there in particular that the meetings concerning magnesium were often held immediately after the multilateral meetings relating to calcium carbide powder (recital 190). According to the Commission, the overlap between the duration of the agreements and concerted practices relating to each product (calcium carbide powder and granulates, and magnesium granulates) and also between the corresponding meetings shows that the market-sharing and price-fixing agreements covered all three products and were interrelated (recital 191).
161 Fourth, it is observed in recitals 192 and 193 to the contested decision that although the meetings relating to each of the three products mentioned above were often organised separately, the suppliers used the same mechanism for achieving the desired objective. That mechanism consisted in a freezing of market shares at an initial meeting, followed by an agreement on price increases. In addition, the presentation of the market share tables used was very similar (recital 192). Furthermore, the system of control and implementation of agreements, in the form of follow-up talks and/or bilateral telephone contacts, was identical for each of the three products (recital 193).
162 Fifth and last, the agreements pursued a single anti-competitive objective. Owing to consolidation of demand, the suppliers of the three products had the impression that they were operating in a declining market and decided to defend their position by combining forces, instead of competing against each other. Their aim was to stabilise the market by dividing customers among themselves and increasing prices to a level above that which would have been achieved by the normal pattern of competition (recital 194).
Analysis of the plea
163 By its arguments in relation to the present plea, the applicant challenges, in particular, the assertion in recital 181 to the contested decision (see paragraph 158 above) that steel industry customers may use magnesium granulates as an alternative to calcium carbide. It claims that there is no true substitutability between those two products, and therefore that the aforementioned assertion, which is made in the contested decision, attests to a ‘manifest error of assessment’ by the Commission regarding the single and continuous nature of the infringement.
164 The applicant explains that if there was any substitutability between the two products at issue in the past, this was due to the use of the ‘mono-injection’ procedure at that time. However, the procedure that is currently used, the ‘co‑injection’ procedure, involves the parallel independent use of calcium carbide and magnesium. Almost all steel plants currently use magnesium and calcium carbide in a ratio of 1:5. Once the ratio of those two products has been established, the steel plant concerned does not change it. Furthermore, for technical reasons, and on account of the characteristics of the two products concerned, neither of them would be used on its own in desulphurisation systems in Western Europe. The applicant admits that the two products are similar, but emphasises that they are not substitutable.
165 According to the applicant, the development of magnesium prices and quantities supplied confirms its contentions. It submitted in the annex to its application a summary of the quantities of magnesium and calcium carbide that it had sold in the period from 2004 to 2008, and information on the development of the price of magnesium in the same period. According to the applicant, it follows from that information that the development of its sales of calcium carbide remained ‘parallel’ to that of its sales of magnesium, even during periods of significant increases in the price of magnesium.
166 The applicant adds that the meetings in which it took part only concerned calcium carbide for the steel industry. Separate meetings were held between suppliers of calcium carbide for the gas industry and, according to the Commission, between magnesium producers, some of which did not produce calcium carbide. Conversely, a number of calcium carbide suppliers did not supply magnesium. According to the applicant, it follows from this that there could not have been any overall plan pursuing a common objective for calcium carbide and magnesium.
167 It must be stated at the outset that, contrary to the applicant’s contention, the arguments summarised above do not tend to establish that the Commission made a manifest error of assessment. Instead, they call into question the material accuracy of the facts established in the contested decision and, in particular, the substitutability of calcium carbide powder and magnesium, and, moreover, they essentially raise an error of law, in that the Commission is accused of having wrongly taken the view that the infringements of the competition rules identified in the contested decision formed part of a single and continuous infringement.
168 Having clarified that point, it is necessary to begin by analysing the applicant’s argument summarised in paragraph 166 above. It must be borne in mind in that regard that the contested decision finds that three undertakings – the applicant, Ecka and SKW (see paragraph 81 above) – participated in the magnesium aspect of the cartel. Those three undertakings also supplied calcium carbide powder and, according to the contested decision, also participated in the aspect of the cartel relating to that product (see recitals 13, 20, 25 and 57 to the contested decision). Thus although, as the applicant submits, some magnesium suppliers did not supply calcium carbide, the only three magnesium suppliers accused of participating in the magnesium aspect of the cartel also participated in the aspect of the cartel that related to calcium carbide powder. Contrary to the applicant’s contention, that twofold participation is a factor that demonstrates that it was at least plausible that there was an overall plan pursuing an objective common to the two products in question.
169 Furthermore, the mere fact that separate meetings were held for each of the three products covered by the cartel is not sufficient for the existence of a single and continuous infringement to be ruled out, particularly since, as stated in the contested decision (see paragraph 160 above), the meetings relating to magnesium generally took place immediately after those relating to calcium carbide powder. Since none of the cartel participants was involved in the supply of all three products covered, the fact that there were no joint meetings for all of those products is attributable to purely practical considerations and is not necessarily an indication of the lack of an overall plan pursuing a common objective.
170 With regard, next, to the applicant’s argument concerning the lack of substitutability between calcium carbide powder and magnesium, it must be noted that this is contested by the Commission. However, there is no need to resolve that issue. Suffice it to note that, even if it is accepted, as the applicant maintains, that essentially the two products – calcium carbide powder and magnesium – are complementary rather than substitutable, that would not be sufficient to cast doubt on the existence of a single infringement in the present case.
171 The applicant’s reasoning is implicitly but clearly based on the premiss that a single infringement can only relate to one product or, at most, to substitutable products. That premiss is incorrect, however.
172 Admittedly, the finding of infringements of the competition rules in relation to separate products has been put forward in the case-law as justification for the conclusion that such infringements did not form part of a single and continuous infringement (see, to that effect, 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, paragraphs 170 and 171, and Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 310). However, it cannot be inferred from that case-law that, conversely, every single infringement must necessarily relate to one product or to substitutable products.
173 It must be noted that the case-law contains examples of single infringements of the competition rules relating to several products which are not substitutable. Thus, in Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraphs 4, 170, 171, 173, 180 and 185, the Court upheld the finding that the acts at issue, relating to the wholesale electrotechnical fittings market, were part of a single infringement. It must be pointed out that the notion of ‘electrotechnical fittings’ encompasses a number of products which are clearly not all substitutable. Likewise, in its judgment in Case T‑334/94 Sarrió v Commission [1998] ECR II‑1439, paragraphs 2 to 5, 158 and 164 to 175 – those aspects of which were not set aside in Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991 – the General Court upheld the Commission’s finding that the acts it had identified, relating to three distinct types of product which were not substitutable, formed part of a single and continuous infringement of the competition rules.
174 More generally, it is apparent from the case-law cited in paragraphs 152 to 155 above that a number of criteria are relevant for assessing whether there is a single infringement. Apart from the identical nature or the substitutability of the products concerned, those criteria include the identical nature or diversity of the objectives of the practices at issue (see, to that effect, Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraph 67; Technische Unie v Commission, cited in paragraph 173 above, paragraphs 170 and 171; and Jungbunzlauer v Commission, cited in paragraph 172 above, paragraph 312), the identity of the undertakings which participated in the infringement (see, to that effect, Jungbunzlauer v Commission, cited in paragraph 172 above, paragraph 312) and the identical nature of the detailed rules for the implementation of those practices (see, to that effect, Dansk Rørindustri v Commission, paragraph 68). Other relevant criteria are whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is the same.
175 In the present case, while it is true that the Commission referred in the contested decision to the substitutability of calcium carbide powder and magnesium for the steel industry (see paragraph 158 above), it did not base its finding that the infringement at issue was a single infringement on that aspect alone. As noted in paragraphs 159 to 162 above, in reaching that conclusion, it also took into account, first, the fact that all the participants in the aspect of the cartel relating to calcium carbide powder who supplied magnesium also participated in the magnesium aspect of the cartel; second, the substantial overlap between the duration of the agreements and concerted practices relating to those two products and the corresponding meetings; third, the fact that the mechanism used to achieve the desired objective was the same for each of those two products; and, fourth, the common anti-competitive objective of those agreements and concerted practices. According to the case-law cited in paragraphs 152 to 155 and 174 above, in each case these were relevant criteria capable of justifying the finding that the infringement at issue was a single infringement.
176 Apart from challenging the substitutability of the two products at issue, the applicant merely challenged the assertion in the contested decision that the fact that some undertakings took part in meetings relating to calcium carbide powder as well as in those relating to magnesium indicated that there was an overall plan pursuing a common objective. However it follows from paragraphs 168 and 169 above that that second challenge must be rejected.
177 Besides, the applicant did not challenge the other matters raised in the contested decision, as summarised in paragraph 175 above, which – taken in conjunction with the assessment in the contested decision and endorsed in the preceding paragraph – are capable of justifying to the requisite legal standard the finding that the infringement at issue was a single infringement.
178 Furthermore, even if calcium carbide and magnesium are, as the applicant essentially claims, complementary products as far as the steel industry is concerned, the fact remains that they are intended for the same customers, in this case steel plants, which also militates in favour of the infringement at issue being a single infringement. In the light of that consideration, although the two products at issue are not substitutable, the Commission’s considerations, summarised in paragraph 158 above, retain much of their relevance.
179 In the light of all of the foregoing considerations, it must be held that no error of law can be attributed to the Commission in this instance on account of its finding that the infringement at issue was a single infringement, and therefore the present plea must in any event be rejected as unfounded, and it is not necessary to rule on whether it is effective.
Fourth plea: breach of the Leniency Notice
180 By its fourth plea, put forward in support of its alternative claim for a reduction in the amount of the fine, the applicant submits that the Commission was in breach of the Leniency Notice by refusing to grant a reduction of the fine in response to the applicant’s request to that effect.
181 It is clear from recital 347 to the contested decision that the applicant submitted an application on 6 February 2007 with a view to benefiting from the Leniency Notice. That application consisted of an oral statement supported by 11 pages of documents. The applicant’s application related only to calcium carbide powder. It was refused by the Commission, for the reasons set out in recitals 347 to 349 to the contested decision.
182 Recital 347 to the contested decision states, inter alia:
‘Since the Commission already had sufficient evidence in its possession, in particular with respect to [calcium carbide powder], the application did not provide significant added value. The information provided by Almamet could no longer strengthen the Commission’s ability to prove the facts. On the contrary, Almamet explicitly limited any information about the collusion to calcium carbide powder and tried to play down its own role in and its liability for the cartel, putting all the blame and liability on NCHZ … Almamet’s information – even if it may have been useful occasionally for corroborating/illustrating some facts … – was marginal in view of the scope of the infringement ...’
183 Recitals 348 and 349 to the contested decision are worded as follows:
‘(348) Almamet claims that it deserves a reduction of 20-30% because its submission preceded Degussa’s submission. The Commission points out that this argument overlooks the fact that the decisive criterion is the significant added value of the submission and not the point in time of the submission. Almamet’s submission failed to meet the threshold of significant added value, because, contrary to Almamet’s allegations, the existence of the meeting of 22 April 2004 and its contents were already known to the Commission … and the Commission was already in possession of sufficient evidence to prove the infringement with respect to calcium carbide powder for its full duration and in relation to all participants ...
(349) In light of the above, Almamet shall not benefit from a reduction.’
184 It must be noted in that regard that it is clear from a reading of point 20 in conjunction with point 21 of the Leniency Notice that undertakings that do not meet the conditions of eligibility for immunity from fines may be eligible to benefit from a reduction of any fine that would otherwise have been imposed. In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession, and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
185 According to point 22 of the Leniency Notice, the concept of ‘added value’ refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. Point 22 goes on to state:
‘In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.’
186 The arguments put forward by the applicant in the present plea can be divided into two parts. In the first part, the applicant claims that the Commission made an error of assessment in finding that the material submitted in the leniency application did not represent significant added value. In the second part, it claims that the Commission was not entitled to refuse a reduction in the amount of the fine on the sole ground that its application contained no information on magnesium.
187 It should be borne in mind as a preliminary point that, according to settled case‑law, in adopting rules of conduct such as, in this case, the Leniency Notice, and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (Dansk Rørindustri and Others v Commission, cited in paragraph 60 above, paragraph 211; Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 44; and Amann & Söhne and Cousin Filterie v Commission, cited in paragraph 152 above, paragraph 146).
188 Bearing that in mind, the Court must reject the second part at the outset, as it is based on a false premiss. The applicant’s arguments are based on the premiss that the Commission refused its application under the Leniency Notice because the applicant had not provided information or evidence in relation to magnesium.
189 It is not necessary to determine whether it would have been possible to refuse the applicant a reduction in the amount of the fine on that ground, as it must be observed that recitals 347 to 349 to the contested decision show that the applicant was not in any event refused a reduction of the fine for that reason, but because the information and evidence that it had submitted in relation to calcium carbide powder did not represent significant added value.
190 In that regard, the reference in recital 347 to the contested decision to the lack of any mention of magnesium in the applicant’s application must be read in conjunction with the rejection in recital 348 of the applicant’s argument that it had submitted evidence prior to Degussa. In other words, the Commission sought to underline by that reference the fact that, unlike Degussa’s application which, although later, represented significant added value because of the information it contained in relation to the magnesium aspect of the cartel, the applicant’s application did not mention that aspect of the cartel, so that any added value could only be assessed with respect to the information and evidence it had put forward in relation to calcium carbide powder. Having taken the view that that information and evidence did not represent significant added value, the Commission did not grant the reduction in the amount of the fine sought.
191 It must be added that, in its arguments relating to the second part of the plea, as expounded in paragraph 127 of the application initiating the present proceedings, the applicant also refers, somewhat elliptically, to an impingement of its rights of defence, as to which it merely adds ‘(see above)’. This can only be a reference to the arguments summarised in paragraph 56 above which, as has been stated in paragraphs 58 to 61 above, must be rejected.
192 Next the Court must assess the first part of the plea, which relates to the Commission’s finding that the information and evidence which the applicant provided in order to benefit from the Leniency Notice did not represent significant added value. The applicant submits that the Commission itself acknowledges that the information it provided had been useful for corroborating certain facts. It follows from this, according to the applicant, that since it was the second company to have provided evidence representing significant added value, it should have benefited from a reduction of 20 to 30% in the amount of the fine.
193 In the first place, the applicant states that it submitted written evidence of the calcium carbide meeting of 22 April 2004 referred to in recitals 64 to 66 to the contested decision. The applicant acknowledges that at the time when its application was submitted, the Commission already had in its possession certain documents relating to that meeting, seized at the premises of TDR‑Metalurgija d.d. (‘TDR’), another cartel participant, but in the applicant’s view the evidence it produced enabled the Commission to corroborate its findings with regard to that meeting.
194 The applicant adds that neither Akzo Nobel nor Donau Chemie had referred to that meeting in the statements they made in order to benefit from the Leniency Notice. In the applicant’s view, therefore, it was on the basis of its own statement that the Commission was more readily able to prove that that meeting had taken place, which extended the duration of the calcium carbide powder aspect of the infringement by an additional six months.
195 In that regard, it must first be noted that the applicant’s claims with regard to the fact that Donau Chemie had not referred to the meeting of 22 April 2004 in its statement, had described the meeting of 7 September 2004 as the first meeting relating to calcium carbide powder and had, subsequently, after the applicant had submitted its application, rectified that part of its statement, have proved to be correct in the light of the evidence in the case-file. The same cannot be said, however, for the applicant’s assertion that Akzo Nobel had not referred to that same meeting either.
196 It is certainly true that Akzo Nobel refers in paragraph 45 of its statement to a meeting in relation to which it states that ‘[it] is probably to be considered the first multilateral meeting [relating to calcium carbide powder] in the summer of 2004’. However, in paragraph 46 of the same statement, it refers to the possible existence of an earlier meeting, in April 2004, inferred from the words ‘Forecast April’ in one of the documents annexed to its statement. It follows from this that, from the start of its investigation, which was launched following the Akzo Nobel statement (see paragraph 2 above), the Commission was aware of the possibility that the aspect of the cartel relating to calcium carbide powder might have already commenced in April 2004.
197 It must also be noted that, to support its assertion in recital 348 to the contested decision that it was already aware of the meeting of 22 April 2004 before the applicant submitted its leniency application, the Commission referred, in footnote 676 to the contested decision, which in turn refers to recital 64 and to footnote 143, to certain documents seized at the premises of TDR. Since those documents had not been placed on the case-file, the Court requested the Commission, by way of a measure of organisation of procedure, to produce them. The Commission complied with that request.
198 Examination of those documents confirms the accuracy of the Commission’s assertion that, even without the applicant’s leniency application, it had sufficient evidence of the meeting of 22 April 2004 relating to calcium carbide. The documents in question include a report drawn up by one of the representatives of TDR at that meeting. It mentions the date of the meeting (22 April 2004), the place where it was held (the applicant’s headquarters), the participants and the undertakings they represented (the undertakings mentioned in recital 64 to the contested decision) and, last, a brief summary of the outcome of the meeting, that is the conclusion of an agreement on an increase in the price of calcium carbide. That report was accompanied by four pages of handwritten notes also bearing the date of 22 April 2004 and containing, inter alia, a table mentioning the sales quotas allocated to TDR.
199 It must also be observed that the written evidence of the meeting of 22 April 2004 which the applicant annexed to its application for leniency is not at all comparable as regards its probative value. It is in fact simply a copy of a restaurant bill dated 22 April 2004. The applicant claimed that it related to a dinner for those taking part in the meeting. However, the only aspect enabling a link to be established between that bill and a meeting of the cartel is the fact that on the back of that bill are the names or initials of four people who took part in the meeting and a brief reference to calcium carbide, apparently an allusion to the object of the meeting.
200 It is not necessary to determine whether that bill might, by itself, have constituted sufficient evidence of that meeting. Suffice it to note that, in the light of the content of the documents seized at the premises of TDR, the Commission was entitled to consider that it did not represent significant added value with respect to those documents.
201 In the second place, the applicant maintains that it was the only company to provide the Commission with a full list of participants at the meetings of 24 January, 7 April and 22 November 2005 and 25 April 2006, or a comprehensive list of the topics discussed at those meetings. It states that, inter alia, it informed the Commission that, during the meeting on 7 April 2005, the calcium carbide suppliers had agreed to increase prices as a result of rising energy costs.
202 The applicant adds that it is the only company to have provided the Commission with a full explanation of the object, origin and purpose of the tables drawn up during the meetings relating to calcium carbide. It also confirmed that such a table, sent to Akzo Nobel by Donau Chemie, had been drawn up during the meeting of 22 November 2005, of which neither Akzo Nobel nor Donau Chemie was sure.
203 The applicant also confirmed the date, place and participants of the meetings of 12 July 2005, 21 February, 11 July and 10 October 2006, and sent the Commission tables attributed precisely to each meeting date as well as explanations of their content, thereby corroborating the other statements concerning those meetings and adding significant details. The applicant is also the only one besides Akzo Nobel to have provided the Commission with the table drawn up at the meeting of 11 July 2006 and to have explained its content.
204 Those arguments, which are contested by the Commission, cannot be accepted. The meetings to which the applicant refers are analysed in recitals 72 to 89 to the contested decision. The Commission’s findings regarding the place, date and participants of those meetings, as set out in those recitals, are in each case supported by numerous references, in footnotes, to the documents obtained during the Commission’s inspections and to the statements of a number of undertakings, including, in most cases, those of Akzo Nobel and Donau Chemie, which predate the applicant’s application pursuant to the Leniency Notice. The applicant’s contention that, in essence, many of those findings are based only on information and evidence which the applicant itself provided is neither explained by nor supported by the evidence. The applicant does not, as a rule, refer in detail to the other documents mentioned in the contested decision in order to demonstrate exactly how the information and evidence which it provided offer significant added value, within the meaning of point 22 of the Leniency Notice, with respect to the information and evidence arising from those other documents. It follows from this that the applicant’s vague and general assertions do not carry conviction.
205 That is particularly the case as the few specific examples of such added value that are provided by the applicant are not confirmed by the contested decision. Thus, contrary to the applicant’s assertions (see paragraph 201 above), the contested decision merely states, in recital 75, that at the meeting on 7 April 2005 the participants had discussed rising energy prices and their influence on the calcium carbide price, and refers in that regard not to anything in writing from the applicant but to certain documents seized at the premises of TDR and to a submission by NCHZ dated 6 February 2008. Similarly, recital 79 to the contested decision does not confirm the applicant’s claim (see paragraph 202 above) that it had informed the Commission that the table which Donau Chemie provided to Akzo Nobel had been drawn up at the meeting of 22 November 2005. Where the Commission refers in that recital to the communication of that table, it refers, in footnote 193, only to two statements by Akzo Nobel and does not even mention the applicant’s leniency application.
206 In any event, even if it is accepted that the applicant provided the Commission with the various pieces of information and explanations mentioned in that part of its arguments, the conclusion in recital 347 to the contested decision that that information and evidence, although to some extent useful, did not provide significant added value, is not vitiated by any error and must be upheld.
207 Indeed, since the submission of the Akzo Nobel statement, the Commission had already been aware of the existence of a cartel relating to calcium carbide powder and of the identity of the participating undertakings. The list of participants, as contained in that statement, includes – apart from Akzo Nobel, the author of the statement – all the undertakings listed in recital 57 to the contested decision. In addition, the scope and objective of that cartel, and the arrangements between its participants, as described in the rest of that statement, are in essence the same as those described in the contested decision. Moreover, since obtaining the documents seized at the premises of TDR, the Commission was also in possession of sufficient evidence of the first meeting relating to calcium carbide powder, which constitutes the beginning of the cartel. Accordingly, as is correctly stated in the contested decision, the information and evidence produced by the applicant was capable, at most, of providing some clarification of issues of secondary importance, and cannot, therefore, be regarded as having represented significant added value.
208 It should be borne in mind that the other two undertakings to have been granted a reduction of the fine, that is Donau Chemie and Degussa, obtained that reduction for their contribution regarding the aspects of the cartel relating to calcium carbide granulates and magnesium, respectively, as recitals 342 to 346 and 350 to 356 to the contested decision show. The Commission, however, emphasised in recitals 342 and 350 that it already had sufficient evidence regarding the aspect of the cartel relating to calcium carbide powder at the time when those two undertakings submitted their statements.
209 It follows from all of the above considerations that the fourth plea in law is unfounded and must be rejected.
Fifth plea: infringement of Article 23(2) of Regulation No 1/2003 and point 32 of the Guidelines, since in the applicant’s submission the amount of the fine imposed on it exceeded the legal maximum amount of the fine of 10% of its turnover
210 The second subparagraph of Article 23(2) of Regulation No 1/2003 provides that, for each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. Point 32 of the Guidelines refers to that provision.
211 As the Court held in Dansk Rørindustri and Others v Commission, cited in paragraph 60 above (paragraph 280), the limit relating to turnover laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 119 to 121; Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 24; and Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraph 93).
212 That limit is therefore one which is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement to which the Commission must have regard in fixing the amount of the fine, in accordance with Article 23(3) of Regulation No 1/2003. The only possible consequence of the upper limit is that the amount of the fine calculated on the basis of those criteria will be reduced to the maximum permitted level. Its application implies that the undertaking concerned will not pay the fine which in principle would be payable if it were assessed on the basis of those criteria (Dansk Rørindustri and Others v Commission, cited in paragraph 60 above, paragraphs 281 to 283).
213 It should also be noted that ‘preceding business year’ within the meaning of the second subparagraph of Article 23(2) of Regulation No 1/2003 refers, in principle, to the last complete business year for each of the undertakings concerned at the date on which the decision was adopted (Gütermann and Zwicky v Commission, cited in paragraph 211 above, paragraph 80; see, to that effect, Britannia Alloys & Chemicals v Commission, cited in paragraph 211 above, paragraph 32).
214 It is clear, however, both from the objectives of the system of which the second subparagraph of Article 23(2) of Regulation No 1/2003 forms part and from the case-law cited in the preceding paragraph, that the application of the 10% upper limit presupposes, first, that the Commission has at its disposal the turnover figure for the last business year preceding the date of adoption of the decision and, second, that those data represent a full year of normal economic activity over a period of 12 months (Case T‑33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II‑4973, paragraph 38, and Gütermann and Zwicky v Commission, cited in paragraph 211 above, paragraph 95).
215 Thus, if the business year had ended before the adoption of the decision but the annual accounts of the undertaking in question had not yet been drawn up or had not been disclosed to the Commission, the latter would have the right, indeed the obligation, to use the turnover achieved in an earlier business year in order to apply the second subparagraph of Article 23(2) of Regulation No 1/2003. Similarly, if, as a result of a reorganisation or a change in accounting practices, an undertaking has, for the preceding business year, produced accounts which relate to a period shorter than 12 months, the Commission is entitled to rely on the turnover achieved in an earlier complete year in order to apply those provisions. The same is true if an undertaking has not carried on any economic activity during the preceding business year and, accordingly, the Commission does not have at its disposal a figure for the undertaking’s turnover, representing economic activity carried on by it during that year. Contrary to the requirements of the case-law, the turnover for that period gives no indication of the size of the undertaking and, in consequence, cannot serve as a basis for determining the maximum amount permissible under Article 23(2) of Regulation No 1/2003 (Britannia Alloys & Chemicals v Commission, cited in paragraph 214 above, paragraphs 39 and 42, and Gütermann and Zwicky v Commission, cited in paragraph 211 above, paragraph 96).
216 Even in a year of normal business activity, the turnover of an undertaking may fall significantly, or indeed substantially, as compared with previous years, for various reasons, such as a difficult economic context, a crisis in the sector concerned, an accident or a strike. However, as long as an undertaking has in fact achieved a turnover during a complete year in which economic activities, albeit on a reduced scale, have been carried on, the Commission must take account of that turnover for the purposes of determining the maximum amount permissible under Article 23(2) of Regulation No 1/2003. Accordingly, at least in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it is appropriate to regard the Commission as obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity (Britannia Alloys & Chemicals v Commission, cited in paragraph 214 above, paragraph 49, and Gütermann and Zwicky v Commission, cited in paragraph 211 above, paragraph 97).
217 In the present case, it is apparent from recital 15 to the contested decision that, in the business year preceding the adoption of the contested decision, the applicant’s total worldwide turnover was between EUR 45 and 50 million. The precise figure is included in the applicant’s reply of 30 March 2009 to a Commission request for information of 9 March 2009. It is apparent from the document annexed to the applicant’s reply that its total turnover for the business year ending 31 December 2008 was EUR 48 436 170.53. The same document shows that turnover in the preceding year was EUR 35 936 129.44.
218 It is important to bear in mind also that the amount of the fine imposed on the applicant in the contested decision was calculated in accordance with the methodology described in the Guidelines. This consists of two stages. First, the Commission determines a basic amount for each undertaking or association of undertakings on the basis of the value of the relevant undertaking’s sales of goods or of services to which the infringement directly or indirectly relates in the relevant geographic area. The basic amount is related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. However, in accordance with point 25 of the Guidelines, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15 and 25% of the value of sales in order to deter undertakings from entering into horizontal price-fixing, market-sharing and output-limitation agreements. Second, the Commission may adjust the basic amount of the fine set during the first stage either upwards or downwards to take account of aggravating or mitigating circumstances.
219 As the table included in recital 308 to the contested decision shows, the basic amount of the fine was set in the applicant’s case at EUR 3.8 million. It is evident from recitals 309 to 331 to the contested decision that the Commission did not recognise any aggravating or mitigating circumstance with respect to the applicant that would justify an increase in or a reduction of that basic amount. In addition, as has already been stated (see paragraph 181 above), the applicant’s request for a reduction in the amount of the fine pursuant to the Leniency Notice was refused. Thus, the definitive basic amount of the fine to be imposed on the applicant, indicated in recital 361 to the contested decision, is the same as that indicated in recital 308, that is EUR 3.8 million.
220 The Commission went on in the contested decision to examine the requests from a number of cartel participants, including the applicant, to be able to benefit from point 35 of the Guidelines, under which, in exceptional cases and if the conditions set out in that provision are satisfied, the Commission may take account of an undertaking’s inability to pay in a specific social and economic context, and grant a reduction in the amount of the fine. The applicant’s request to that effect was refused on the grounds stated in recitals 369 to 371 to the contested decision. However, for the reasons set out in recital 372, which refers to point 37 of the Guidelines, the Commission decided to grant the applicant a 20% reduction in the amount of the fine. In view of that reduction, the final amount of the fine indicated in Article 2(a) of the contested decision is EUR 3.04 million.
221 In the context of the present plea, put forward in support of the alternative claim for a reduction in the amount of the fine, the applicant puts forward a line of argument based on three complaints. It claims, first, that the cap of 10% of total turnover applies not only to the final amount of the fine but also to the basic amount, before any reductions are applied. Second, it claims that the calculation of that cap can proceed only on the basis of an audited turnover, and takes issue with the Commission for having taken the applicant’s total turnover for 2008 into account in this case, even though it had not yet been audited. The applicant maintains that, in those circumstances, the Commission ought to have relied on the applicant’s last audited total turnover available at the time when the contested decision was adopted, that is its turnover for 2007. Third, it disputes the inclusion in its total turnover, whether for 2008 or 2007, of the value of sales of calcium carbide powder from NCHZ, on the ground that, with respect to that part of its activity, it acted as an independent agent working on a fixed commission basis and the calculation of its turnover should reflect that economic reality.
222 It is appropriate to begin by analysing the third and final complaint, which calls into question the calculation of total turnover both for 2008 and 2007. The applicant claims in particular that only the fixed commission received from NCHZ for the sale of calcium carbide powder from NCHZ should be included in its total turnover for the purposes of the application of Article 23(2) of Regulation No 1/2003. According to the applicant, the turnover achieved through those sales is transferred entirely to NCHZ after deduction of the fixed commission. It is just a simple ‘in and out’ operation so far as the applicant is concerned.
223 The applicant acknowledges that, ‘actually and legally’, it did make the sales of calcium carbide powder in question. It nevertheless maintains that, ‘from an economic point of view’, those sales must be imputed to its principal, that is NCHZ, and that the calculation of its total turnover for the purposes of the application of Article 23(2) of Regulation No 1/2003 cannot be dissociated from that economic reality.
224 The applicant bases its argument on the second indent of recital 288 to the contested decision. It is evident from that recital that, when calculating the value of the applicant’s sales of goods to which the infringement directly or indirectly related in order to determine the basic amount of the fine, the Commission took into consideration the applicant’s sales of magnesium as well as the applicant’s calcium carbide sales involving calcium carbide that did not come from NCHZ. By contrast, the Commission did not take into account the applicant’s calcium carbide sales involving calcium carbide that did come from NCHZ. The applicant therefore maintains that a similar calculation must be carried out to evaluate its total turnover, for the purposes of the application of Article 23(2) of Regulation No 1/2003.
225 That argument cannot be accepted. The wording of the second subparagraph of Article 23(2) of Regulation No 1/2003 refers to the total turnover of the undertaking concerned, without any deduction. It has thus been held that there is no territorial limit in regard to the turnover (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). Moreover, account must be taken in that calculation of the turnover of the undertaking concerned corresponding to the supply of a product or of a service to its customers, even where it corresponds exactly to the price which that undertaking is required to pay to an independent third party that obtained the product or service in question for the undertaking concerned (see, to that effect, Cimenteries CBR and Others v Commission, paragraph 5030).
226 The foregoing considerations are, moreover, consistent with the nature of the upper limit of the fine laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003. As is clear from the case-law, that limit is a capping ceiling the only possible consequence of which is that the amount of the fine calculated on the basis of the criteria of the gravity and duration of the infringement will be reduced to the maximum permitted level. Its application implies that the undertaking concerned will not pay the fine which in principle would be payable if it were assessed on the basis of those criteria (Dansk Rørindustri and Others v Commission, cited in paragraph 60 above, paragraph 283; see, to that effect, judgment of 12 September 2007 in Case T‑30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 154).
227 Although, as is acknowledged in the case-law of the Court of Justice cited in paragraph 211 above, the total turnover of an undertaking allows its size to be determined only approximately and imperfectly, it is none the less a simple criterion that allows a ceiling that may not be exceeded in any circumstances to be calculated quickly and easily. There is therefore no reason for a different interpretation of the second subparagraph of Article 23(2) of Regulation No 1/2003 and one that is contrary to the clear meaning of the wording of that provision.
228 That does not preclude an undertaking from being able to argue, for reasons similar to those invoked by the applicant in this case, that the fine imposed on it for infringement of the competition rules is excessive, even though it does not exceed the limit set in the provision referred to above. It should be borne in mind in that regard that notwithstanding the margin of discretion which the Commission is acknowledged by the case-law to have in setting such fines (see 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 216 and the case-law cited), whenever the Commission decides to impose fines in accordance with competition law, it is bound to comply with general principles of law, including, in particular, the principle of proportionality, as interpreted by the Courts of the European Union (Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 315).
229 In the present case the Commission took certain steps to ensure that it complied with its obligations arising, in particular, from the principle of proportionality. Thus it decided, as the applicant submits (paragraph 224 above), not to take into account when calculating the basic amount of the fine the value of the applicant’s sales of calcium carbide powder from NCHZ. Moreover, it granted the applicant a 20% reduction in the amount of the fine by taking into account, inter alia, the fact that the applicant traded in high value materials with a rather low margin, as is evident from recital 372 to the contested decision.
230 The applicant is perfectly entitled to claim, as it essentially does moreover by its sixth plea, considered below, that despite the measures referred to in the preceding paragraph, the fine that was imposed on it is still disproportionate. It cannot, however, require the upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 to be calculated in a manner substantially at odds with the clear wording of that provision and resulting in an automatic reduction – irrespective of any consideration as to proportionality – in the amount of that fine.
231 The Court must also reject the applicant’s argument based on recital 288 to the contested decision and the failure to take into account in the calculation of the basic amount of the fine the applicant’s sales of calcium carbide powder from NCHZ. Although the second subparagraph of Article 23(2) of Regulation No 1/2003 clearly refers to total turnover being taken into account for the purposes of the calculation of the upper limit of the fine, Article 23(3) provides only that the amount of the fine must be determined by reference to the gravity and duration of the infringement. It is therefore open to the Commission to choose which turnover to take in terms of territory and products in order to determine the fine, provided it remains within the limit laid down (Cimenteries CBR and Others v Commission, cited in paragraph 225 above, paragraph 5023).
232 It is true that the Commission has adopted rules of conduct, in the form of the Guidelines, indicating the practice to be followed when determining, in accordance with the criteria set out in Article 23(3) of Regulation No 1/2003, the amount of the fine to be imposed on an undertaking that has infringed the competition rules. It is clear from the case-law cited in paragraph 187 above that it cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law.
233 However, the need for compliance with, in particular, the principle of proportionality, which is one of the general principles of law, may mean that the Commission is justified in departing from such rules. Indeed, according to point 37 of the Guidelines, ‘[a]lthough these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology’. That is precisely the point on which the Commission relied in granting the applicant a 20% reduction in the amount of the fine, as is apparent from recital 372 to the contested decision (see paragraph 220 above).
234 It must be noted that the non-inclusion of the applicant’s sales of calcium carbide from NCHZ in the sales to be taken into account in the determination of the basic amount of the fine resulted in a lower basic amount being set. That method of calculation of the basic amount of the fine, which is favourable to the applicant, is quite rightly not challenged by the applicant. It is not necessary, therefore, to determine whether that method of calculation was consistent with point 13 of the Guidelines and, if it was not, whether such a departure from those guidelines was justified by point 37 and by the need to comply with general principles of law. Suffice it to note that, even if that was not the case, that in itself would certainly not mean that the Commission was also obliged not to take into account the sales in question for the purposes of determining the upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003, thereby disregarding the clear wording of that provision.
235 It follows from all of the foregoing considerations that the complaint concerning the allegedly erroneous inclusion of the value of those sales in the applicant’s total turnover is unfounded and must be rejected.
236 The rejection of the third complaint means that if the Court is to conclude that the contested decision is unlawful, the other two complaints must both prove to be well founded.
237 Indeed, if, contrary to what is maintained in the applicant’s second complaint, the total turnover to be used for the purposes of the application of the second subparagraph of Article 23(2) of Regulation No 1/2003 was the 2008 turnover mentioned in paragraph 217 above, it is clear that not only the fine imposed on the applicant (EUR 3.04 million), but also the final amount of that fine (EUR 3.8 million) before the reduction granted under point 37 of the Guidelines, are below the upper limit laid down in that article. Furthermore, the amount of the fine imposed is also below that upper limit even if it is calculated on the basis of the applicant’s total turnover in 2007, also stated in paragraph 217 above. It is only if the applicant’s first complaint – that that upper limit also applies to the basic amount of the fine before any deductions are calculated – were to be upheld that there would be any merit in the applicant’s claim that the Commission had infringed the provision concerned.
238 However, neither of the other two complaints raised by the applicant in connection with the present plea can be upheld.
239 In support of the first complaint, the applicant claims that it follows from a literal and systematic interpretation of the Guidelines that any further reduction under point 34 of those guidelines, which refers to the Leniency Notice, and point 35, which concerns the inability to pay, must be applied after the 10% cap has been applied, since that is referred to in point 32 of the Guidelines, namely before the references to leniency and to the inability to pay. The same applies, according to the applicant, to any reduction pursuant to point 37. The Commission’s previous practice in taking decisions confirms those considerations.
240 It must be noted in that regard that, as the Court of Justice held in Dansk Rørindustri and Others v Commission, cited in paragraph 60 above (paragraphs 278 and 279), the maximum limit of the fine laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 does not prohibit the Commission from referring, for the purpose of its calculation of the fine, to an intermediate amount in excess of that limit. Nor does it preclude intermediate calculations that take account of the gravity and duration of the infringement from being applied to an amount which is above that limit. Where it turns out, following the calculation, that the final amount of the fine must be reduced by the amount by which it exceeds the upper limit, the fact that certain factors such as the gravity and duration of the infringement are not actually reflected in the amount of the fine imposed is merely a consequence of the application of that upper limit to the final amount.
241 In the light of that case-law, the applicant’s arguments, summarised in paragraph 239 above, cannot be accepted. The question whether a reduction under the Leniency Notice must be calculated before or after the application of that limit is of no relevance in the present case, as the Commission did not grant the applicant a reduction of the fine on that basis and cannot be criticised for any error in that regard, as has been noted above in the assessment of the fourth plea.
242 With regard to reductions under points 35 or 37 of the Guidelines, the Commission accepts that a reduction that may be granted on the basis of point 37 is calculated after any application of the upper limit of 10% of total turnover. However, it emphasises that any application of that upper limit has an impact on the reduction to be granted, in the sense that if the amount of the fine has already been reduced to comply with that upper limit, any reduction to be granted pursuant to point 37 of the Guidelines may be less significant.
243 The applicant challenges that proposition, claiming that the two reductions are entirely different and follow a completely different logic. According to the applicant, the Commission is making its legal obligation to observe the cap in question dependent on the outcome of its discretionary assessment under point 37 of the Guidelines.
244 The applicant’s arguments cannot be accepted. It is clear from the case-law cited in paragraph 240 above that in order to comply with the upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003, the Commission only has to satisfy itself that the amount of the fine imposed on the undertaking concerned – which that undertaking is required under the terms of the contested decision to pay – does not exceed that upper limit. It is ultimately of little importance at precisely what stage of the determination of the amount of that fine the Commission takes that upper limit into account, as long as the fine that is ultimately imposed does not exceed it.
245 That finding is without prejudice to the possibility that the undertaking concerned may challenge the Commission’s decision not to grant it a reduction of the fine under point 37 of the Guidelines, or may claim that any reduction that it may have been granted is insufficient, in the light of the wording of that provision of the Guidelines and general principles of law including, in particular, the principle of proportionality. That is moreover precisely what the applicant does claim in this case by its sixth plea, which is examined below. Nevertheless, such arguments are unrelated to the question of compliance with the upper limit in the second subparagraph of Article 23(2) of Regulation No 1/2003.
246 It follows that the first complaint is unfounded and must be rejected.
247 In support of the second complaint, the applicant relies on the judgment in Britannia Alloys & Chemicals v Commission, cited in paragraph 214 above (paragraph 39) in maintaining that it follows from ‘common sense and basic accounting principles’ that the turnover extracted from the ‘pro forma’ balance sheet – that is to say, the unaudited and uncertified turnover – of the undertaking concerned cannot serve as a basis for the calculation of an administrative penalty that is quasi-criminal in nature and imposed by a public authority, without there being a breach of the principle of legal certainty. According to the applicant, such figures cannot be regarded as available figures.
248 The applicant states that the Commission was aware of the fact that the total turnover for 2008 which had been provided to the Commission had not been finally audited, particularly as the document provided was clearly marked ‘Draft’. In the applicant’s submission the Commission should have been particularly prudent in this case as the audited total turnover for 2007 was significantly different from the unaudited turnover for 2008. According to the applicant, that difference could by no means be explained by an increase in its financial strength, but instead reflected an exceptionally sharp increase in magnesium prices.
249 In its reply, the applicant adds that the considerations set out in Britannia Alloys & Chemicals v Commission, cited in paragraph 214 above, and in Britannia Alloys & Chemicals v Commission, cited in paragraph 211 above, which the Commission applied in the case of another cartel participant, as recitals 333 and 334 to the contested decision show, should also have been applied in the applicant’s case. The Commission should have taken into account the fact that the applicant’s total turnover for 2008 was artificially high compared with the average total turnover throughout the period of the infringement, and could not therefore be representative of its real economic situation during that period.
250 That argument is unconvincing. Contrary to what is apparently contended by the applicant, it is by no means apparent from Britannia Alloys & Chemicals v Commission, cited in paragraph 214 above (paragraph 39), that the total turnover of the undertaking concerned in the business year preceding that in which the fine was imposed cannot be taken into account for the purposes of the application of the second subparagraph of Article 23(2) of Regulation No 1/2003 if it has not yet been audited. According to the terms of the case-law cited in paragraphs 214 to 216 above, that case-law concerns the situation in which the turnover for the last business year is unavailable, as well as that in which it is available but gives no indication of the size of the undertaking concerned because it relates to a period during which that undertaking did not pursue an economic activity or the economic activity pursued cannot be described as ‘normal’. Unaudited turnover does not fall into either of those two categories.
251 The position could be otherwise only where there is sound and consistent evidence that seriously calls into question the reliability of that turnover, since an unreliable turnover figure is ultimately tantamount to an unavailable turnover figure. However, the applicant has not invoked any concrete evidence of that kind in the present case. The mere fact that the 2008 turnover communicated to the Commission had not yet been audited does not necessarily mean that, once that audit had been carried out, the figure was likely to be substantially modified. As the Commission points out, the applicant had neither asserted nor proved that audits of total turnover had led to any significant corrections in previous years. Nor did the applicant mention the audited total turnover for 2008 in its written pleadings, thereby enabling a comparison to be made with the unaudited total turnover communicated to the Commission. It must be noted in that regard that the Commission relied on the 2008 balance sheet published by the applicant. According to the Commission, that balance sheet does not include total turnover, as the publication of that information is not required under the relevant German legislation. However, the applicant’s gross profits, which are included, are higher than the unaudited figures, which would suggest that the audited total turnover is also higher than the unaudited total turnover.
252 The applicant’s references to the principle of legal certainty and to the allegedly quasi-criminal nature of a fine imposed for infringement of the competition rules are irrelevant in that respect, since no obligation to audit available turnover before it can be used in the calculation of the upper limit of the fine laid down under the second subparagraph of Article 23(2) of Regulation No 1/2003 can be inferred from those principles and considerations.
253 With regard to the applicant’s argument that its total turnover in 2008 was ‘artificially high’ owing to an allegedly significant increase in magnesium prices (see paragraphs 248 and 249 above), suffice it to note that even if that were established, it would not prevent such turnover from being taken into account for the purposes of the calculation of the upper limit of the fine. It may be inferred from the case-law cited in paragraph 216 above that the turnover of an undertaking can be taken into account for that purpose, even if it differs significantly from turnover achieved in previous years, if it corresponds to a full business year during which economic activities were actually pursued. It should be clarified that the reference in the case-law cited in paragraph 214 above to a ‘full year of normal economic activity’ is intended to ensure that a year in which the undertaking concerned was in the process of winding down its business, although economic activity had not yet entirely come to an end, is precluded from being taken into account, as, more generally, is a year in which the market conduct of the undertaking concerned did not correspond to that of an undertaking carrying on an economic activity on the usual terms. On the other hand, the mere fact that turnover or the profits generated in a particular year are significantly lower, or higher, than in previous years does not mean that the year in question does not constitute a full year of normal economic activity.
254 Furthermore, no parallels can be drawn between the applicant’s situation and that of the undertaking at issue in recitals 333 and 334 to the contested decision. In the case of the latter undertaking, the Commission concluded, for reasons the accuracy of which cannot be examined in the context of the present case, that its total turnover for 2008 did not represent normal economic activity in that year. That is not the case with regard to the applicant.
255 It follows from all of the foregoing considerations that the second complaint must also be rejected, as must the fifth plea in its entirety.
Sixth plea: the allegedly disproportionate nature of the fine
256 By its sixth plea, which is also put forward in support of the alternative claim for a reduction in the amount of the fine, the applicant submits that that fine is manifestly disproportionate in view of the applicant’s particular financial situation and the nature of its business.
257 As has already been observed (see paragraph 228 above), when imposing fines under competition law the Commission must respect, inter alia, the principle of proportionality. According to settled case-law, that principle requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued (see Jungbunzlauer v Commission, cited in paragraph 172 above, paragraph 226 and the case-law cited).
258 The applicant claims that, in its case, the objective pursued by the imposition of a fine for infringement of the competition rules could have been achieved with a smaller amount. The Commission imposed a fine that cannot be borne by the applicant and which would deprive it, as a commercial company, of any book value, which would go beyond the objective pursued by the contested decision and would, in reality, achieve the opposite result in that it would lead to the applicant’s disappearance and, as a result, in a substantial reduction of competition on the relevant markets.
259 The applicant refers in that regard to recital 369 to the contested decision, in which its argument that its book value would become negative following the imposition of the fine at issue is rejected. That recital is worded as follows:
‘The analysis of the financial data provided by [the applicant] leads to the conclusion that [it] is a viable undertaking with a low risk of bankruptcy. Taking into account the possible fine imposed on [the applicant] as well as the financial data provided by it, in particular the balance sheet and data on provisions, equity and net assets, the Commission deduces that there is a risk that the impact of the fine would bring the company into a situation of negative book value. However, this does not necessarily mean that the economic viability of the undertaking would be irretrievably jeopardised, nor does it demonstrate that it would cause the assets to lose all their value. Indeed, the Commission notes that [the applicant] has not put forward any tangible evidence demonstrating that its economic viability would be irretrievably jeopardised and that its assets would lose all their value, other than the mere fact that its book value may become negative as a result of the fine.’
260 The applicant maintains that, contrary to what the Commission appears to conclude, the possibility that its balance sheet will show a negative book value is not a purely theoretical risk but may lead to the loss of its ability to obtain bank loans and to the cancellation of credit already granted to it, which would render it unable to finance its business activities. The Commission’s refusal to accept staggered payment of the fine exacerbates those consequences.
261 The applicant acknowledges that the Commission granted it an exceptional reduction in the amount of the fine, taking its special characteristics into account (see paragraph 220 above), but takes issue with the Commission for having made a manifest error of assessment by setting the amount of that reduction at 20%. According to the applicant, even after that reduction the amount of the fine imposed on it is still sufficiently high to reduce its own equity value to zero. It thus maintains, in the light of the foregoing considerations, that the fine is manifestly disproportionate and fails to have regard to the applicant’s particular situation.
262 The applicant reiterates its assertion, already advanced in connection with the fifth plea, that its total turnover in 2008 was exceptionally high and would not be achieved again. It also states that it would typically generate a net profit, before taxes, equivalent to 2 to 3% of turnover or, after taxes, to 1 to 2% of turnover, which amounts to profits of EUR 600 000 to EUR 1 million before taxes, or EUR 300 000 to EUR 600 000 after taxes.
263 It must be observed as a preliminary point that recital 369 to the contested decision forms part of the reasons put forward by the Commission to justify its refusal of the applicant’s request for account to be taken of its claimed inability to pay, within the meaning of point 35 of the Guidelines. That refusal was contested by the seventh plea put forward in the application. However, the applicant withdrew that plea at the hearing (see paragraph 13 above).
264 Despite refusing the applicant’s request for a reduction of the fine pursuant to point 35 of the Guidelines, the Commission, as has already been noted, granted the applicant an exceptional reduction in the amount of the fine. Furthermore, as has been noted (see paragraph 234 above), the value of the applicant’s sales of calcium carbide powder from NCHZ was not taken into account in the calculation of the basic amount of the fine imposed, as a result of which the amount of that fine was lower. However, as is apparent from the applicant’s arguments summarised in paragraph 260 above, it essentially regards that fine as being none the less disproportionate, the reduction granted having allegedly been insufficient.
265 It must be observed that those arguments are ultimately based only on the risk of the applicant’s book value becoming negative following the imposition of the fine. That would mean that the value of all of the applicant’s assets would be insufficient to cover all its debts. It is not necessary to consider whether such a situation would, under the national law applicable, result in an immediate declaration of the applicant’s insolvency, but it must be acknowledged that such a declaration seems at least probable in those circumstances, particularly if the applicant’s argument concerning the risk of the withdrawal of its banking facilities is also taken into account.
266 However, contrary to the view apparently taken by the applicant, the possibility of its insolvency is not, in itself, sufficient for it to be concluded that the fine imposed is disproportionate. As the Commission correctly observes, it has consistently been held that the Commission is not, in principle, required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking concerned, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (Dansk Rørindustri and Others v Commission, cited in paragraph 60 above, paragraph 327; Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 351; and Tokai Carbon and Others v Commission, cited in paragraph 228 above, paragraph 370).
267 It has also consistently been held that the fact that a measure adopted by a European Union authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by European Union law. Although the liquidation of an undertaking in its existing legal form may adversely affect the financial interests of the owners, investors or shareholders, it does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (Tokai Carbon and Others v Commission, cited in paragraph 228 above, paragraph 372; Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraph 163; and Case T‑452/05 BST v Commission [2010] ECR II‑1373, paragraph 96).
268 The applicant claims that the case-law cited in paragraph 266 above relates to undertakings that find themselves in a poor financial situation even before the fine is imposed. Its own case is different, as it is a healthy and competitive undertaking, and the risk of insolvency to which it would be exposed would arise only as a result of the imposition of the fine at issue. Such a risk cannot be examined in an abstract manner, but by taking the applicant’s particular characteristics as an undertaking into account.
269 Those arguments cannot be accepted as they disregard the case-law cited in paragraph 267 above. It follows from that case-law that, in order to conclude that a fine imposed for infringement of the competition rules is disproportionate because it leads to the insolvency of the undertaking concerned, the condition according to which the personal, tangible and intangible elements represented by the undertaking would, in that situation, lose their value must also be satisfied. Accordingly, reliance on the risk that the applicant might be declared insolvent in consequence of the imposition of the fine at issue is not sufficient to establish that that fine is disproportionate.
270 Yet that assertion is, as has already been observed (see paragraph 265 above), the only one to have been advanced by the applicant in support of the present plea. It will be recalled in that regard that proceedings before the Courts of the European Union are inter partes and that this Court’s unlimited jurisdiction in relation to fines under Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion. With the exception of pleas involving matters of public policy, which do not include the present plea, it is for the applicant to raise pleas in law against the contested decision in its action, and to adduce evidence in support of those pleas (see, to that effect, Case C‑389/10 P KME Germany and Others v Commission [2011] ECR I‑0000, paragraph 131).
271 With regard to the applicant’s references to its profits (see paragraph 262 above), it should be borne in mind in any event that the fine imposed for infringement of the competition rules pursues not only a preventive, but also a punitive, objective (see, to that effect, Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 362). The Court has already held, taking into account that punitive aspect, that a fine to be imposed for participation in a cartel in breach of the competition rules cannot be set at a level which merely negates the profits of the cartel (Archer Daniels Midland v Commission, cited in paragraph 228 above, paragraph 130). Thus, the fact that the fine imposed on an undertaking is considerably higher than its entire net profit in a financial year is not, in itself, sufficient for it to be concluded that the fine is disproportionate.
272 It follows from the foregoing considerations that the complaints and assertions which the applicant put forward in the present plea cannot be accepted.
273 Moreover, it must be noted that having regard, in particular, to the unlimited jurisdiction of the Court in relation to fines for infringement of the competition rules, there is nothing in the complaints, arguments or matters of law and of fact put forward by the applicant in connection with the other pleas examined above from which it might be concluded that the fine that was imposed on it by the contested decision is disproportionate. On the contrary, it must be held that the fine is appropriate to the circumstances of the case, owing to the gravity and duration of the infringement established by the Commission and the applicant’s economic resources.
274 It is necessary to take into account in that assessment the fact that the Commission chose, on the one hand, not to take part of the applicant’s sales of calcium carbide into consideration in determining the basic amount of that fine, and, on the other, granted the applicant a 20% reduction of the fine under point 37 of the Guidelines. Those decisions resulted in a fine being imposed on the applicant that was lower than that which could have been imposed if the Commission had adhered, to the letter, to the method of setting fines set out in the Guidelines, without any derogation.
275 Since the Court’s unlimited jurisdiction in this respect permits it not only to reduce the fine imposed but also to increase it (see, to that effect, KME Germany and Others v Commission, cited in paragraph 270 above, paragraph 130 and the case-law cited), the Court is not bound to maintain the reductions in the amount of the fine granted by the Commission in the present case. It is, however, appropriate to do so in this instance, to ensure that the fine is appropriate and proportionate.
276 It follows from the foregoing considerations that the sixth plea in law must be rejected.
277 Having regard to the findings arising from the assessment of the first three pleas, the Court must reject all the claims for annulment made in the application. Last, with regard to the claim made in the alternative for the amount of the fine imposed on the applicant to be modified, there is no need for the Court, in the exercise of its unlimited jurisdiction, to uphold that claim, since the last three pleas have also been rejected. It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
278 Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders Almamet GmbH Handel mit Spänen und Pulvern aus Metall to bear its own costs and to pay those incurred by the European Commission.
Delivered in open court in Luxembourg on 12 December 2012.
[Signatures]
Table of contents
Background to the dispute
Procedure and forms of order sought
Law
First plea: breach of the applicant’s rights of defence owing to the Commission’s use against it of documents seized, outside the scope of the Commission’s inspection decision, at Ecka’s premises
Relevant facts and contested decision
The applicant’s rights of defence
Admissibility, as evidence, of the documents seized
Second plea: lack of sufficient proof of the cartel at issue, with respect to magnesium
Contested decision
Reminder of the relevant case-law
The documents seized
The Degussa statement
The Donau Chemie statement
The object of the meetings of magnesium suppliers
Third plea: incorrect classification, as a single and continuous infringement, of the aspects of the cartel relating to calcium carbide powder and magnesium granulates, respectively
Reminder of the case-law relating to the concept of a single infringement
Contested decision
Analysis of the plea
Fourth plea: breach of the Leniency Notice
Fifth plea: infringement of Article 23(2) of Regulation No 1/2003 and point 32 of the Guidelines, since in the applicant’s submission the amount of the fine imposed on it exceeded the legal maximum amount of the fine of 10% of its turnover
Sixth plea: the allegedly disproportionate nature of the fine
Costs