JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
11 July 2013(*)
(Competition – Agreements and abuse of a dominant position – Rough diamond market – ‘Supplier of Choice’ (SOC) system of distribution – Decision rejecting a complaint – No Community interest – Procedural rights of a complainant – Access to documents – Obligations in relation to the investigation of a complaint – Market foreclosure effects – Manifest error of assessment)
In Joined Cases T‑108/07 and T‑354/08,
Diamanthandel A. Spira BVBA, established in Antwerp (Belgium), represented by Y. van Gerven, F. Louis, A. Vallery and J. Bourgeois, lawyers,
applicant,
v
European Commission, represented initially by F. Castillo de la Torre, R. Sauer and J. Bourke, and subsequently by F. Castillo de la Torre and R. Sauer, acting as Agents, and, in Case T‑108/07, initially by S. Drakakakis, lawyer, and T. Soames, Solicitor, and subsequently by T. Soames and, in Case T‑354/08, by T. Soames,
defendant,
supported by
De Beers, established in Luxembourg (Luxembourg),
De Beers UK Ltd, formerly The Diamond Trading Co. Ltd, established in London (United Kingdom),
represented initially by W. Allan and S. Horwitz, Solicitors, and J. Ysewyn, lawyer, and subsequently by W. Allan, J. Ysewyn and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers, and P. Riedel, Solicitor,
interveners,
APPLICATIONS for the annulment of the Commission’s Decisions of 26 January 2007 (Case COMP/38.826/B-2 – Spira/De Beers/DTC Supplier of Choice) and of 5 June 2008 (Case COMP/38.826/E-2 – De Beers/DTC Supplier of Choice) rejecting the applicant’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements,
THE GENERAL COURT (Eighth Chamber),
composed of L. Truchot (Rapporteur), President, E. Martins Ribeiro and A. Popescu, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 25 October 2012,
gives the following
Judgment
Background to the dispute
1. Case COMP/E-3/38.139 and the comfort letter of 16 January 2003
1 On 3 May 2001, with a view to obtaining negative clearance or, alternatively, for exemption under Article 81(3) EC, The Diamond Trading Co. Ltd (‘DTC’), part of the De Beers group of companies, notified to the Commission of the European Communities a set of standard agreements between itself and its customers who are known as sightholders; the purpose of those agreements was to establish a system for the supply of rough diamonds by DTC to its customers, the ‘Supplier of Choice’ (‘SOC’) system.
2 The objective of the Supplier of Choice agreements (‘SOC agreements’) is to drive growth in consumer demand for diamond jewellery, by encouraging long‑term growth at the retail level by the creation of a multi-brand environment and shorter distribution channels. In order to do this, through the SOC agreements, DTC intends to limit the number of sightholders selected, encourage them to work with downstream partners in order to improve the efficiency of diamond distribution and invest in retail branding.
3 The documents supplied in the context of the notification of the SOC agreements were as follows:
– a questionnaire sent to existing sightholders and applicants alike, ‘the Sightholder profile’, to solicit information on the basis of which they will be selected and evaluated;
– a document entitled ‘Sightholder criteria and other considerations’ setting out set pre-defined criteria which the sightholder must meet in order to be selected;
– a ‘Policy Statement’ setting forth the general principles applicable to the commercial relationship between the contracting parties;
– a code of conduct (‘Best Practice Principles’) to which sightholders must adhere, intended to ensure that consumers buying diamond jewellery are able to rely on professional and ethical standards;
– ‘conditions of sale’ which are incorporated into every contract.
4 On 25 July 2001, the Commission opened proceedings against DTC (Case COMP/E-3/38.139) and issued a statement of objections to it as regards the SOC agreements notified.
5 The Commission’s objections alleged infringement of Article 81 EC and Article 82 EC. In its view, the implementation of the SOC agreements would give the De Beers group the possibility of restricting the commercial behaviour of its customers. Those restrictions would result from the way the selection criteria are applied, the amount of detailed confidential information requested from sightholder applicants and the contractual commitments required from them, once they are selected. Furthermore, since those restrictions would be imposed by a dominant company, the implementation of the SOC agreements would also constitute an abuse of a dominant position.
6 On 8 October 2001, DTC replied to the statement of objections from the Commission. It stated that it was willing to explore any modifications to the SOC agreements that might address the Commission’s concerns whilst preserving the general features of the arrangements.
7 Several proposals to amend the SOC agreements were submitted to the Commission. The last version of the amended SOC agreements was forwarded to the Commission on 24 September 2002. The principal changes were as follows:
– the appointment of an Ombudsman (‘the Ombudsman’): this appointment is subject to the approval of the Commission; the Ombudsman is able to determine whether improper procedures have been followed by DTC in making selection or de-selection decisions and supply decisions that it proposes to make to sightholders over a six-month period; complaints as to the selection or evaluation of sightholders can be addressed to the Ombudsman, who may issue recommendations, which are binding on the parties and final, except if the matter is referred to arbitration or to litigation; DTC and the applicant have a right to refer the matters in dispute to the London Court of International Arbitration or to litigate in the courts, should they be unhappy with the Ombudsman’s recommendations;
– revised sightholder profile: the number of questions was reduced and some of the remaining questions have been reformulated; special confidentiality notices have been inserted in the questionnaire so that those filling it in are aware that business secrets will be treated as such;
– amendment of the documents entitled ‘Sightholder criteria and other considerations’ and ‘Policy statement’ and the conditions of sale.
8 By notice of 9 November 2002 (OJ 2002 C 273, p. 2, ‘the 2002 notice’), the Commission announced that it intended to adopt a favourable position with regard to the SOC agreements and gave interested third parties the opportunity of being heard, pursuant to Article 19(3) of Council Regulation No 17 of 6 February 1962, First regulation implementing Articles [81 EC] and [82 EC] (OJ 1962, English Special Edition, Series I, 1959-1962, p. 87).
9 On 16 January 2003, the Commission closed the procedure by means of a comfort letter, while reserving the right to reopen it ‘if the factual or legal situation changes as regards any essential aspect of the [SOC] agreements, which affects the view which was taken of them’. The Commission also stated that it ‘w[ould] pay attention to the fact that the implementation of the Supplier of Choice agreements does not result in De Beers artificially limiting the availability of certain categories of diamonds on the market or in selection/allocation criteria under Supplier of Choice not allowing traders to be provided with adequate quantities of diamonds in order to ensure enough liquidity in the market’.
2. The applicant’s complaint
10 The applicant, Diamanthandel A. Spira BVBA (‘Spira’ or ‘the applicant’), had been a sightholder for approximately 70 years. It is a pure dealer in rough diamonds selling to manufacturers and other dealers. Following the implementation of SOC in June 2003, De Beers informed it that it would no longer qualify as a sightholder and that supplies of rough diamonds to it would cease by the end of 2003. On the application of Spira, the tribunal de commerce d’Anvers (Antwerp Commercial Court) and, subsequently, the cour d’appel d’Anvers (Court of Appeal, Antwerp) (Belgium) ordered De Beers to continue supplying Spira with rough diamonds, on the basis of a prima facie case of abuse of a dominant position.
11 On 25 September 2003, Spira filed a complaint against De Beers and DTC, claiming that the SOC system implemented by them infringed Articles 81 EC and 82 EC. In the complaint, which is the basis for the present dispute, Spira requested the Commission to reopen the procedure concerning SOC. On the same date, Spira also filed a complaint against the Trade Agreement between De Beers and Alrosa of 17 December 2001 (‘the De Beers-Alrosa Agreement’), which in its view also infringed the above provisions. That agreement provided for De Beers, the largest rough diamond producer in the world, to purchase half of the production of Alrosa, the second largest rough diamond producer in the world, established in Russia, for a period of five years.
12 Following the complaint against SOC, in 2004 the Commission sent requests for information to the operators who were sightholders at the time, former sightholders who had been deselected in 2003 (‘the excluded sightholders’), brokers, rough diamond producers and diamond bourses.
13 The Commission received confidential replies from 54 sightholders, 13 excluded sightholders, 11 diamond bourses, five brokers and four rough producers. Non‑confidential summaries of those replies were made available to the applicant.
14 In 2005, Spira applied again to be selected as a sightholder. De Beers informed Spira that it had been selected as a sightholder, under the SOC system. However, Spira refused this selection.
15 On 27 February, 10 March and 27 March 2006, the applicant submitted additional arguments supplementing its complaint, following the adoption of Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 – De Beers) (summary in OJ 2006 L 205, p. 24; ‘the De Beers commitments decision’). That decision made binding the commitments made by De Beers to cease purchasing rough diamonds from Alrosa from 2009 onwards, following a period of gradual reduction in the amounts purchased between 2006 and 2008.
16 On 29 March 2006, the Commission sent Spira a case-orientation letter informing it of its initial view, namely that there was insufficient Community interest to investigate the complaint further and inviting it to consider withdrawing its complaint.
17 On 11 April 2006, Spira submitted its comments on that letter and stated that it would not withdraw its complaint.
18 Under Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), the Commission informed Spira, by letter of 4 August 2006, that its preliminary view was that there was insufficient Community interest to investigate the complaint further (‘the Article 7 letter’).
19 On 29 September 2006, Spira replied to the Article 7 letter.
20 On 26 January 2007, the Commission adopted a decision rejecting the applicant’s complaint (Case COMP/38.826/B-2 – Spira/De Beers/DTC Supplier of Choice) (‘the rejection decision’), pursuant to Article 7(2) of Regulation No 773/2004. On the same date, it also rejected Spira’s complaint against the De Beers-Alrosa Agreement.
3. Rejection decision
21 After noting the objections raised by the applicant in its complaint, the Commission examined them under three headings entitled ‘Foreclosure effects’, ‘Abusive gathering and use of confidential information’ and ‘Other claims as to the illegality of the SOC’.
22 First, the analysis of the rough diamond market, and in particular of the operators on that market, led the Commission to take the view that ‘as to the probability that De Beers infringe[d] Article 81 [EC] and/or Article 82 EC by foreclosing rough as well as polished diamond supplies as an input to diamond operators who are not DTC sightholders, … there appear[ed] to be a small likelihood of finding any appreciable anti-competitive effects that would warrant a reopening of the SOC proceedings’. The Commission took the view that the volumes of rough diamonds from Alrosa made available as a result of the De Beers commitments decision (see paragraph 15 above), the quantities of rough diamonds resold by sightholders and the supplies by Diamdel, a subsidiary of De Beers specialising in the sale of rough diamonds to non-sightholders, ensure that there is sufficient competition on the secondary market. The Commission concluded from this that there was not sufficient Community interest to investigate further the claims as to input foreclosure.
23 Secondly, the Commission rejected all the arguments against its preliminary assessment that it would be disproportionate to investigate further the alleged abusive gathering and use of confidential information by De Beers, in view of the SOC dispute resolution mechanism, and in particular the establishment of the Ombudsman, whose terms of reference had moreover been revised.
24 Thirdly, the Commission did not analyse in detail Spira’s other objections, in particular those relating to the increase in the price of rough diamonds, relying on the small likelihood of establishing infringements.
25 The Commission thereby concluded that there was not sufficient Community interest to investigate further, and rejected the applicant’s complaint on that ground.
4. The General Court’s judgment in Alrosa and the supplementary procedure
26 By its judgment in Case T‑170/06 Alrosa v Commission [2006] ECR II‑2601 (‘the General Court’s judgment in Alrosa’), the General Court annulled the De Beers commitments decision on which the Commission had based its rejection decision (see paragraph 22 above). The Court held that, by adopting the De Beers commitments decision, the Commission had infringed Article 9 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), the principle of proportionality and Alrosa’s right to be heard.
27 On 8 October 2007, the Commission and De Beers met to discuss the consequences of the General Court’s judgment in Alrosa (paragraph 26 above). During that meeting, the Commission informed De Beers that it had decided to open the supplementary procedure and that it would carry out a limited market investigation.
28 On 9 October 2007, the Commission sent requests for information to the main diamond producers and on 29 October 2007 it sent follow-up questions to De Beers.
29 Pursuant to Article 7(1) of Regulation No 773/2004, the Commission informed Spira, by letter of 13 November 2007, of its preliminary view that the annulment of the De Beers commitments decision did not require it to revisit its conclusion in the rejection decision (‘the supplementary Article 7 letter’).
30 On 24 December 2007, Spira requested access from the Commission to all the documents on which its provisional assessment was based, referring to a number of them in particular.
31 On 14 January 2008, the Commission rejected that application for access.
32 On 18 January 2008, Spira complained to the Hearing Officer that it had not had sufficient access to the file and requested access to a number of documents. On 1 February 2008, the Hearing Officer sent Spira a revised non-confidential version of De Beers’ replies to the requests for information of 9 and 29 October 2007, but otherwise dismissed Spira’s request.
33 On 11 February 2008, Spira replied to the supplementary Article 7 letter.
34 On 14 March 2008, the Commission communicated to Spira the non‑confidential version of Alrosa’s belated response to the Commission’s request for information. Spira submitted its observations on that response on 28 March 2008.
35 On 5 June 2008, the Commission adopted a decision again rejecting the applicant’s complaint (Case COMP/38.826/E-2 – De Beers/DTC Supplier of Choice) (‘the supplementary rejection decision’), pursuant to Article 7(2) of Regulation No 773/2004.
5. Supplementary rejection decision
36 After giving reasons for the legality of the supplementary procedure, the Commission devoted most of the supplementary rejection decision to assessing the consequences of the General Court’s judgment in Alrosa (paragraph 26 above) for its provisional assessment that there was insufficient Community interest to investigate the complaint further.
37 The Commission thus began by examining to what extent calling in question De Beers’ commitments to decrease and then cease its purchases of diamonds from Alrosa was likely to alter the Commission’s assessment as to the foreclosure effects of SOC. In order to do this, it analysed each of the sources of supply available outside SOC, namely Alrosa’s sales other than to De Beers, the sales of sightholders, Diamdel and other producers. The Commission concluded from this that the aggregate value of rough diamond sources outside SOC exceeded USD 7 billion and possibly even USD 8 billion. Consequently, over half the rough diamonds sold worldwide remain outside De Beers’ control.
38 The Commission then found that that overall conclusion was not called in question by other recent or envisaged aspects of market developments, and in particular the ‘beneficiation process’ underway in the major African diamond‑producing countries (that is, South Africa, Namibia and Botswana), which account for the vast majority of De Beers’ rough diamond intake. The Commission noted, in that connection, that the beneficiation process sought to add value to the natural resources of those countries by enabling (by legislation or contractually) a portion of rough diamond mine output to be allocated to the local cutting and polishing industry.
39 According to the Commission, the supplementary investigation thus fully confirmed the findings of the rejection decision, namely that competition between downstream operators is not sufficiently distorted to justify further investigation, since there were a sufficient number of sources of supply for which those operators could compete. Consequently, the Commission confirmed the rejection of the applicant’s complaint in respect of the claim that SOC had foreclosure effects.
Procedure and forms of order sought by the parties
40 By applications lodged at the Court Registry on 8 April 2007 and 21 August 2008 respectively, the applicant brought the present actions.
41 By document lodged at the Court Registry on 3 July 2007, De Beers and DTC, now De Beers UK Ltd (individually or jointly ‘De Beers’ or ‘the interveners’) applied for leave to intervene in support of the form of order sought by the Commission in Case T‑108/07.
42 By order of the President of the Seventh Chamber of the Court of 15 April 2008, De Beers was granted leave to intervene in that case in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.
43 By document lodged at the Court Registry on 18 December 2008, De Beers also applied for leave to intervene in support of the form of order sought by the Commission in Case T‑354/08.
44 By order of the President of the Sixth Chamber of the Court of 11 May 2009, De Beers was granted leave to intervene in that case in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.
45 On 22 July 2010, the General Court requested the parties, by way of measures of organisation of procedure, to indicate the consequences to be drawn regarding the purpose of the present actions from the judgment of the Court of Justice in Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949 (‘the Court of Justice’s judgment in Alrosa’), which set aside the judgment at first instance (paragraph 26 above). The parties replied to that question within the prescribed time-limits.
46 In their replies to that question, the Commission and the interveners also requested that Cases T‑108/07 and T‑354/08 be joined. The applicant did not object to that request.
47 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Eighth Chamber, to which the present cases were accordingly allocated.
48 By orders of 8 and 10 May 2012 respectively, the President of the Eighth Chamber of the General Court upheld in part the applications for confidential treatment in Cases T‑108/07 and T‑354/08.
49 On hearing the report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, asked the parties to reply to certain questions and to produce certain documents. The parties complied with that request within the prescribed time-limits.
50 Cases T‑108/07 and T‑354/08 were joined for the purposes of the oral procedure and the judgment, by order of the President of the Eighth Chamber of 12 September 2012.
51 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 25 October 2012. At that hearing, the Commission requested the Court to place on the file certain additional documents. The Court reserved its decision on that request.
52 In Case T‑108/07, the applicant claims that the Court should:
– annul the rejection decision;
– order the Commission to pay the costs.
53 The applicant also claims, in the reply, that the Commission should be ordered to communicate to it the two statements of objections of 14 January 2003 sent to Alrosa and De Beers in Case COMP/E‑2/38.381, the two supplementary statements of objections of 1 July 2003 in that same case, and the statement of objections of 25 July 2001 sent to DTC (see paragraph 4 above).
54 In Case T‑354/08, the applicant claims that the Court should:
– annul the supplementary rejection decision;
– order the Commission to pay the costs.
55 In Cases T‑108/07 and T‑354/08, the Commission and the interveners contend that the Court should:
– dismiss the actions;
– order the applicant to pay the costs
56 In their supplementary statements in intervention, the interveners contend that the Court should order the applicant to bear its own costs relating to the applications for confidential treatment and pay those which they have incurred as a result of those applications, should the present actions be upheld.
Law
57 In support of the actions, the applicant relies, essentially, on four pleas in law. The first plea alleges infringement of the applicant’s procedural rights and the second – submitted in part in the alternative – relates to the Commission’s obligations in handling a complaint. The third and fourth pleas are also submitted in the alternative and relate to the assessment of the Community interest and the obligation to state reasons, respectively.
1. The plea in law alleging infringement of the applicant’s procedural rights (Case T‑108/07)
58 In Case T‑108/07, the applicant submits that the Commission infringed its right of access to the documents on which the Commission based its provisional assessment during the initial procedure. The applicant also complains the Commission imposed on it excessively short-time limits and infringed its right to be heard.
59 It is apparent from the case-law that proceedings initiated further to a complaint do not constitute adversarial proceedings between the companies concerned. They are proceedings initiated by the Commission, following an application, in fulfilment of its duty to ensure that the rules on competition are observed. It follows that the companies which are the subject of the investigation and the companies which have submitted a complaint are not in the same procedural situation and the latter cannot invoke the right to a fair hearing. The complainants must, on the other hand, be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the Commission and therefore be associated closely with them, although the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the subject of the Commission’s investigation (see, to that effect, Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1987] ECR 4487, paragraphs 19 and 20, and Case T‑5/97 Industrie des poudres sphériques v Commission [2000] ECR II‑3755, paragraph 229; see also recital 8 in the preamble to Regulation No 773/2004).
60 The applicant’s complaints alleging infringement of its procedural rights in its capacity as a complainant must be considered in the light of those principles.
Infringement of the right of access to the documents on which the Commission based its provisional assessment
61 The applicant submits that the Commission infringed its right under Article 8(1) of Regulation No 773/2004 to have access to the documents on which it based its provisional assessment.
62 Article 8(1) of Regulation (EC) No 773/2004 is worded as follows:
‘Where the Commission has informed the complainant of its intention to reject a complaint pursuant to Article 7(1) the complainant may request access to the documents on which the Commission bases its provisional assessment. For this purpose, the complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings’.
63 Point 69 of the Commission Notice on the handling of complaints by the Commission under Articles 81 [EC] and 82 [EC] (OJ 2004 C 101, p. 65, [corrigendum OJ 2004, C 148, p. 10,] ‘the notice on the handling of complaints’) states:
‘Pursuant to Article 8(1) of Regulation [No] 773/2004, the complainant has the right to access the information on which the Commission bases its preliminary view. Such access is normally provided by annexing to the letter a copy of the relevant documents.’
64 It is also apparent from the case-law that third parties cannot claim a right of access to the file compiled by the Commission on the same basis as the undertakings under investigation (Case T‑17/93 Matra Hachette v Commission [1994] ECR II‑595, paragraph 34; Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 34, and Industrie des poudres sphériques v Commission, paragraph 59 above, paragraph 229; see also point 59 of the notice on the handling of complaints).
65 The complainants’ right of access is therefore limited to the documents on which the Commission bases its provisional assessment. It does not have the same scope as the right of access to the Commission file afforded to persons, undertakings and associations of undertakings that have been sent a statement of objections by the Commission, which relates to all documents which have been obtained, produced or assembled by the Commission Directorate General for Competition during the investigation (points 7, 8, 30 and 31 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, OJ 2005 C 325, p. 7, ‘the notice on the rules for access to the file’).
66 In the present case, during the initial procedure, the Commission stated, in the Article 7 letter, in response to Spira’s applications for access to the statement of objections of 2001 concerning SOC and the statements of objections of 2003 concerning the De Beers-Alrosa Agreement, that its provisional assessment was based on the documents already in Spira’s possession (such as public Commission documents) as well as on an analysis of the replies to the Commission’s requests for information, which it presented in the non-confidential overview tables annexed to that letter. The Commission also stated, in that letter, that it had enclosed copies of all quoted public documents which were not readily available on the internet, and attached the Ombudsman’s revised terms of reference.
67 First, the applicant submits that the analysis of the replies to the Commission’s requests for information – presented in the non‑confidential overview tables – contained inconsistencies, and the analysis was laconic and barely understandable.
68 As regards the alleged inaccuracy of the summaries of the sightholders’ replies, incorrectly referring to Diamdel in the column relating to the replies to question No 14, whereas it was question No 16 that asked sightholders about Diamdel, it must be found that, while that inaccuracy did indeed exist, it was not capable of infringing the applicant’s right of access to the documents on which the Commission had based its provisional assessment. It is apparent from reading the table summarising the sightholders’ replies that the column headed ‘Diamdel’ in actual fact contained the replies to question No 16, not those to question No 14, since the preceding column related to the replies to questions No 12 to 15, thus including the replies to No 14, and the following column related to replies to question No 17. The inaccuracy in question was therefore purely typographical in nature and could easily be rectified simply on reading the table summarising the sightholders’ replies.
69 As regards the alleged inconsistencies in the summaries of the diamond bourses’ replies, the applicant simply attaches to its reply in the present proceedings copies of the full replies from some of the diamond bourses to the requests for information. Consequently, the applicant does not identify any inconsistency on the Commission’s part in its summary of those replies. The applicant cannot therefore be regarded as having proved such inconsistencies, all the more so since, as the names of the diamond bourses are not referred to in the summaries, being replaced by numbers, it is difficult to establish a link between a summary and the corresponding full reply of a diamond bourse which would enable any inconsistencies to be discerned.
70 As regards the laconic nature of the summaries of the replies to the requests for information, or even the lack of a summary of the replies to certain questions, the Court notes, first of all, that Article 8(1) of Regulation No 773/2004 expressly precludes disclosure to complainants of business secrets and other confidential information belonging to other parties involved in the proceedings (see paragraph 62 above; see also point 32 of the notice on the rules for access to the file). In the present case, the Commission forwarded to the applicant a non‑confidential summary of the replies to the questions addressed to the sightholders, brokers, diamond producers and diamond bourses, redacting certain information regarded as confidential, either in its entirety or by replacing the information by ranges of figures (see, for example, the replies to question No 3 relating to the amounts of rough diamond purchases by sightholders and to question No 20 relating to the amounts of polished diamond sales by sightholders presented as ranges of figures in the penultimate column of the table of sightholder replies).
71 It may also be observed in that regard that the Courts of the European Union have already acknowledged, as the Commission stated, that access to the file may be granted to the addresses of a statement of objections, in the form of a non‑confidential summary of the replies to the Commission’s requests for information, in order to preserve the anonymity of third parties (Case T‑221/95 Endemol v Commission [1999] ECR II‑1299, paragraph 69, and Case T‑5/02 Tetra Laval v Commission [2002] ECR II‑4381, paragraph 100). Recourse to that form of access is therefore all the more permissible as regards a complainant’s right of access.
72 The Court notes, next, as regards the alleged lack of a summary of the replies to question No 8 addressed to the sightholders, that the Commission was required in the present case to disclose to the applicant only the information on which it based its preliminary assessment (see paragraphs 62 to 65 above). As the Commission correctly stated in reply to a question from the Court, the inspection by the sightholders of the boxes of diamonds received from De Beers, the subject of question No 8, did not form part of the information on which the Commission’s provisional assessment was based, that assessment being concerned not with the form which the transactions between De Beers and its sightholders took, but with the resale by the sightholders of diamonds purchased from De Beers (see paragraphs 249 and 261 below).
73 As regards the alleged lack of a summary of the replies to question No 6 for the sightholders, it is apparent from reading the questionnaire sent to them, which the applicant provides in annex to its application, in conjunction with the summary of the replies to the questions, that the summary of the replies to question No 6 – relating to the possibility for sightholders of purchasing diamonds other than from De Beers and the consequences of such purchases for their selection as a sightholder by it – was included in the penultimate column of the summary. That column stated incorrectly that it contained the summary of the replies to questions Nos 25 and 26, instead of referring to questions Nos 25 and 6.
74 Lastly, it is not apparent from reading the summaries of the replies to the questions that those summaries are incomprehensible. Admittedly, although some of the summaries of the sightholders’ replies are brief, such brevity is attributable to the content of the questions asked, which called for brief replies, such as a yes or no answer, the provision of figures or a list. The summaries of that type of reply, even if brief, thereby necessarily reproduce almost all the non-confidential data provided in reply to the relevant questions and are not purged of information which might affect their comprehension. In addition, it is the essence of a summary to group together data. Consequently, the Commission cannot be criticised for bringing together, first, the replies to questions Nos 12 to 15 and, secondly, the replies to questions Nos 19 to 21 and Nos 23 and 24 of the questionnaire to the sightholders. That is true all the more so since the groups of questions in issue concerned the same subject-matter, in the first case rough diamonds and in the second polished diamonds, bringing together as many questions as replies could be accommodated in the same summary, which is clear from reading those summaries. Furthermore, in general, the summaries of the replies and the related questions may easily be read together – even when the summaries do not refer to the numbers of the corresponding questions, as is the case of the summary of the diamond producers’ responses – and this avoids any problems of comprehension.
75 Secondly, the applicant complains that the Commission failed to grant it access to the statement of objections of 2001 concerning SOC (Case COMP/E-3/38.139) and those of 2003 concerning the De Beers-Alrosa Agreement (Case COMP/E-2/38.381). In that connection, it emphasises that the Commission has artificially divided the diamond market investigation into two different case files, preventing its access to the entire file.
76 As regards, first of all, the 2001 statement of objections concerning SOC, it must be observed that, although the statement is referred to and even summarised in the Article 7 letter, it is only in order to set out the background to the applicant’s complaint concerning SOC. That statement of objections had been sent following the notification of SOC and led to several amendments being made to it, which themselves gave rise to a comfort letter (see paragraphs 1 to 9 above). That statement of objections cannot therefore be considered to have been the basis for the Commission’s provisional assessment concerning SOC as amended and implemented after that statement.
77 As regards, next, the 2003 statements of objections concerning the De Beers‑Alrosa Agreement which gave rise to the De Beers commitments decision, it is sufficient to note that, as the Commission indeed states, the fact that the De Beers commitments decision is referred to in an Article 7 letter does not imply that the Commission relied on some or all of the documents in the file in that case, in particular the statements of objections, since that involved a separate case and procedure. In addition, the applicant has provided no evidence to that effect. It must also be observed, in that connection, that the applicant itself filed a separate complaint against the De Beers‑Alrosa Agreement (see paragraph 11 in fine above), to which the Commission replied by a separate rejection decision (see paragraph 20 in fine above). If by its objection, the applicant is complaining specifically that the Commission split its examination of those different cases, this shall be addressed when the second part of the second plea in law, alleging, inter alia, that the Commission failed to examine the complaints at issue in an ‘overall manner’, is considered (see paragraphs 142 et seq. below).
78 It follows from all the foregoing that the applicant has not proved that the Commission had infringed its right of access to the documents on which it had based its provisional assessment set out in the rejection decision. In those circumstances, it is not necessary to grant the requests for measures of organisation of procedure seeking access to the above‑mentioned statements of objections (see paragraph 53 above).
79 Consequently, the first part of the present plea alleging infringement of the applicant’s right of access to the documents on which the Commission based its provisional assessment, must be rejected in its entirety.
The setting of excessively short time-limits
80 The applicant criticises the ‘incomprehensibly short deadlines’ imposed on it during the procedure – the Commission giving no reasons for their brevity – which moreover often expired during public holiday periods. The applicant also states that it always complied with those time-limits, despite their brevity, in order to prevent its complaint being deemed to have been withdrawn.
81 Article 17 of Regulation No 773/2004, relating to time-limits, states as follows:
‘1. In setting the time-limits provided for in Article 3(3), Article 4(3), Article 6(1), Article 7(1), Article 10(2) and Article 16(3), the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case.
2. The time-limits referred to in Article 6(1), Article 7(1) and Article 10(2) shall be at least four weeks. However, for proceedings initiated with a view to adopting interim measures pursuant to Article 8 of Regulation … No 1/2003, the time-limit may be shortened to one week.
3. The time-limits referred to in Article 3(3), Article 4(3) and Article 16(3) shall be at least two weeks.
4. Where appropriate and upon reasoned request made before the expiry of the original time-limit, time-limits may be extended.’
82 Points 70 and 71 of the notice on the handling of complaints provides the following clarification:
‘70. The time-limit for observations by the complainant on the letter pursuant to Article 7(1) of Regulation [No] 773/2004 will be set in accordance with the circumstances of the case. It will not be shorter than four weeks (Article 17(2) of Regulation [No] 773/2004). If the complainant does not respond within the time‑limit set, the complaint is deemed to have been withdrawn pursuant to Article 7(3) of Regulation [No] 773/2004. Complainants are also entitled to withdraw their complaint at any time if they so wish.
71. The complainant may request an extension of the time-limit for the provision of comments. Depending on the circumstances of the case, the Commission may grant such an extension.’
83 It must be noted, first of all, that the time-limits set in the present case comply with those requirements, which in the present case impose on the Commission a time-limit only in relation to the complainant’s submission of observations on the Article 7 letter, that is a time-limit which cannot be shorter than four weeks.
84 In the present case, the Commission thus set a time-limit of six weeks for the applicant to submit its observations, longer therefore than the minimum laid down by Article 17 of Regulation No 773/2004. The applicant has adduced no evidence capable of showing that, in selecting a six-week time-limit, the Commission failed to have regard both to the time required for preparation of the submission and to the urgency of the case. The above-mentioned provisions do not impose any other time‑limit applicable to the present case and the applicant does not, moreover, criticise any specific time-limit set for it as being too short.
85 Next, it must be noted that the time-limit for lodging observations in relation to the Article 7 letter did not expire during a public holiday period, since it expired at the end of September. In addition, as is apparent from the above-mentioned provisions, it was possible for the applicant to request an extension of the time‑limit from the Commission, but it did not exercise that option in order to lodge the observations in question. Moreover, the Commission is not required by the provisions in question to grant the extensions requested, as shown by the use of the expression ‘[w]here appropriate … may’ in Article 17(4) of Regulation No 773/2004 and the clarification that the Commission is to adjudicate ‘[d]epending on the circumstances of the case’, pursuant to point 71 of the notice on the handling of complaints.
86 If follows from all the foregoing that the objection alleging the setting of excessively short time-limits must be rejected.
The infringement of the applicant’s right to be heard
87 The applicant alleges, first, infringement of its rights of defence as a complainant, in that the Commission revealed for the first time in the rejection decision calculations based on the value of diamonds, whereas in the Article 7 letter it had relied only on the calculations based on the number of carats. The applicant was therefore not in a position to express its views during the procedure initiated after its complaint was lodged on the calculations referred to for the first time in the rejection decision.
88 It is sufficient to note, in that regard, that both the Article 7 letter and the rejection decision refer to a figure of 15 to 20% for the percentage of rough diamonds resold by the sightholders. As the Commission notes, that average percentage was determined on the basis of the sightholder replies to the requests for information, in particular the replies to questions Nos 12 to 15 which asked the sightholders about their diamond sales, it being stated in the introduction to the questionnaire that amounts referred to in their replies had to be expressed in USD. It follows that the percentages referred to in the Article 7 letter and in the rejection decision were determined on the basis of figures relating to the value of the diamonds (in USD), which was confirmed by the Commission in the rejection decision and at the hearing. The applicant has, moreover, adduced no evidence capable of showing that those percentages were obtained in the one case from a calculation based on the number of carats and in the other from a calculation based on the value of the diamonds.
89 Since the applicant has not proved that there was such a difference in the basis of calculation, the first objection must be rejected and there is no need to rule on the impact of that alleged difference on its right to be heard and more broadly to be associated closely with the procedure.
90 The applicant relies, secondly, on two incidents which, in its submission, show the Commission’s refusal to have regard to its comments. It refers, first of all, to a meeting between itself and a Member of the Commission during which the latter made no reference to the De Beers commitments decision, which was adopted the following day, on 22 February 2006, without awaiting its observations that were due by the end of February. The applicant alleges, next, that the Commission claimed that Spira had not reacted in time to the Article 7 letter in the procedure initiated following the complaint against the De Beers-Alrosa Agreement, even though Spira had sent its observations within the time‑limit set.
91 It is sufficient to note in that regard that the two alleged incidents occurred during the procedure relating to the De Beers-Alrosa Agreement, not that giving rise to the rejection decision. As is apparent from the file, the observations which had to be lodged by the end of February were those relating to the case-orientation letter sent by the Commission further to the applicant’s complaint against the De Beers‑Alrosa Agreement, and the observations regarded as being lodged out of time were those relating to the letter provided for under Article 7(1) of Regulation No 773/2004 sent in the context of that same procedure. It follows that the infringements of its right to be heard, alleged by the applicant, may lead only to the annulment, if at all, of the measures adopted at the conclusion of the procedure relating to the De Beers-Alrosa Agreement, which are not the subject of the present actions, even if the applicant had set out or intended to set out in the observations at issue arguments relating to SOC.
92 That second objection must therefore be rejected as ineffective and, consequently, this part of the first plea in law rejected in its entirety.
93 It follows from all the foregoing that the plea alleging infringement of the applicant’s procedural rights must be rejected in its entirety.
2. The plea in law alleging infringement of the Commission’s obligations in handling a complaint (Cases T‑108/07 and T‑354/08)
94 In Cases T‑108/07 and T‑354/08, the applicant submits, essentially, that, in rejecting its complaint on the ground of insufficient Community interest, the Commission, first, failed to examine its complaint carefully and impartially and, secondly, in the alternative, failed to take into account all the relevant factual and legal particulars.
95 As regards the investigation of a complaint, Regulations Nos 1/2003 and 773/2004 do not contain any provisions laying down obligations on the part of the Commission to carry out such an investigation and determining the action to be taken by it as regards the substance of the complaint.
96 According to settled case-law, the Commission is not required to take a final decision as to the existence or non-existence of the alleged infringement (Case C‑119/97 P Ufex and Others v Commission [1999] ECR I‑1341, paragraph 87; see also point 41 of the notice on the handling of complaints).
97 The Commission, entrusted by Article 85(1) EC with the task of ensuring the application of Articles 81 EC and 82 EC, is responsible for defining and implementing competition policy and for that purpose has a discretion as to how it deals with complaints (Case C‑425/07 P AEPI v Commission [2009] ECR I‑3205, paragraph 31, and Case T‑427/08 CEAHR v Commission [2010] ECR II‑5865, paragraph 26). When, in the exercise of that discretion, the Commission decides to assign different priorities to the examination of complaints submitted to it, the Commission may not only decide on the order in which they are to be examined but also reject a complaint on the ground that there is an insufficient Community interest in further investigation of the case (see CEAHR v Commission, paragraph 27, and the case-law cited; see also recital 18 of Regulation No 1/2003 and points 41 and 45 of the notice of the handling of complaints).
98 The Commission’s discretion is not unlimited, however. It must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. It must also consider attentively all the matters of fact and of law which the complainant brings to its attention (see Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 57, and Case T‑110/95 IECC v Commission [1998] ECR II‑3605, paragraph 51; see also point 42 of the notice on the handling of complaints).
The failure to examine the complaint carefully and impartially
99 The applicant submits that the contested decisions must be annulled on the ground that the Commission failed to examine the factual and legal particulars of its complaint carefully and impartially. In support of that claim, it puts forward three sets of arguments.
100 First, the applicant submits that the Commission failed to display the required independence from De Beers. Thus, during the initial investigation, it ‘intimidated’ the applicant in order to encourage it to withdraw its complaint and relied mainly on De Beers’ statements. In addition, during the supplementary investigation, the Commission contacted De Beers before the requests for information were sent and failed to check its replies, even distorting them.
101 In that connection, it is sufficient to observe, as regards the initial investigation, first of all, that although the Commission informed the applicant by letter of 6 September 2006 that it took the view that the applicant’s identity as a complainant was no longer confidential at that stage of the procedure, it also informed the applicant in that letter that it had the possibility of asking the Hearing Officer to take a final decision in that regard. The applicant did indeed avail itself of that option, thereby ensuring that its identity was not disclosed at that stage of the procedure (see the letter of the Hearing Officer of 14 September 2006). Accordingly, the Commission’s letter of 6 September 2006 cannot be regarded as intimidation of the applicant in order to encourage it to withdraw its complaint.
102 It must be observed, next, that the applicant does not specify which of De Beers’ statements it is referring to. Assuming that it means De Beers’ replies to the Commission’s requests for information, the only documents from De Beers which, in the Commission’s view, served as a basis for its assessment – which the applicant does not dispute – it must be found, first, that De Beers was questioned in the same way as all the other principal rough diamond producers, as is evidenced by the fact that the same questionnaire was sent to all the producers, and, secondly, that the applicant has adduced no evidence capable of showing that special treatment was reserved to De Beers’ replies. In that connection, the rejection of the applicant’s complaint, while favourable to De Beers, cannot in itself prove that there was such special treatment.
103 As regards the supplementary investigation, it must be found, first of all, that the exchanges between De Beers and the Commission relied on by the applicant cannot lead to the conclusion that the Commission lacked independence with regard to De Beers. The purpose of the meeting of 8 October 2007 between the representatives of De Beers and of the Commission (see paragraph 27 above) was merely to inform the subject of the applicant’s complaint – initially rejected – of the initiation of a supplementary investigation. That meeting cannot in any way be interpreted as having advantaged De Beers, in particular by enabling it to prepare itself for such a supplementary investigation, since the supplementary requests for information were sent to it as from the following day. As regards the letter from De Beers’ representatives of 17 June 2008 to the Commission stating that the latter had informed them during the abovementioned meeting that the investigation envisaged sought to enable it to ‘supplement its rejection Decision’, it cannot be inferred from this that De Beers had been informed in advance of the supplementary rejection decision. Had the terms of that decision been known in advance, there would have been no need to conduct a supplementary investigation, in which De Beers itself participated by providing detailed replies within the time-limits set. The absence of prior notice is moreover confirmed by that letter of 17 June 2008 from De Beers’ representatives, in which they also request the Commission to inform them of the status of the supplementary market investigation. De Beers was not therefore informed of the second rejection of the applicant’s complaint until the letter of 24 June 2008.
104 Next, the Commission cannot in the present case be criticised for failing to carry out a detailed check of De Beers’ replies to the supplementary requests for information. Admittedly, under Article 23(1)(a) of Regulation No 1/2003, the Commission is able to impose fines on companies which have supplied incorrect or misleading information to it. However, as the Commission itself states, it cannot be inferred from this that there is a general obligation to check the information provided, in the absence of evidence indicating that that information is inaccurate (see, to that effect, in the context of merger control proceedings, Case T‑151/05 NVV and Others v Commission [2009] ECR II‑1219, paragraph 184). In particular, the Commission cannot be criticised for failing to check De Beers’ replies provided in the circumstances of a supplementary investigation such as the present case, characterised by (i) the re-examination of a decision following the occurrence of a new factual situation, (ii) the speed with which the Commission must act in that type of situation in order to limit the uncertainty resulting from that re‑examination, (iii) the recourse to a supplementary investigation after an initial investigation in which De Beers had already replied to the requests for information, without its replies being challenged, (iv) the fact that the De Beers was extremely precise in its replies in referring frequently to their sources and (v) the fact that the applicant had not raised any precise objection in its observations on the supplementary Article 7 letter, to which the replies at issue were annexed.
105 Lastly, as regards the applicant’s contention that the Commission essentially distorted a reply from De Beers (reply to question No 8 of the request for information of 9 October 2007) so as to favour the Commission’s approach of rejecting the complaint, itself favourable to De Beers, it is apparent from reading that reply that De Beers did indeed refer to the difficulty of replying precisely to the question of the resales of its rough diamonds by the sightholders and the slight fall in those resales in 2007. However, in the reply, De Beers also refers to a significant increase in resales in 2005 and 2006 and considerable growth in 2007 despite a slight fall back, concluding that significant amounts of rough diamonds reached the secondary market via sightholders. It is apparent from an overall, rather than a partial, reading of that reply to question No 8 of the request for information of 9 October 2007 that the Commission did not distort its content by stating, in the supplementary rejection decision, that ‘De Beers state[d] that the [sightholders’] level of trading ha[d] increased even further.’
106 It follows that that first set of arguments must be rejected in its entirety.
107 Secondly, the applicant submits that the Commission ought to have given greater priority to the initial investigation of SOC, rather than focusing on the investigation of the De Beers-Alrosa Agreement.
108 It must be noted that, as the Commission correctly states, it has, in the context of its discretion in the handling of complaints, the power to decide to assign different priorities to the complaints submitted to it (see paragraph 97 above). However, in the present case, it is not apparent from the file that the Commission prioritised the complaint directed against the De Beers-Alrosa Agreement to the detriment of the complaint giving rise to the present proceedings. Following those complaints, both lodged on the same date (see paragraph 11 above), the letters under Article 7(1) of Regulation No 773/2004, dated 14 June 2006 for the first complaint and 4 August 2006 for the second (see paragraph 18 above) were sent, and the complaints were also both rejected on the same date as each other (see paragraph 20 above).
109 In addition, the applicant has itself established, in placing on the file several requests for information from the Commission sent in the course of its investigation into SOC, first, that the Commission had commenced that inquiry as from February and March 2004, that is less than six months after the complaint against SOC was lodged, sending requests for information to the Federation of Belgian Diamond Bourses and to brokers, and requesting a copy of the sightholder profiles sent to De Beers. Secondly, the applicant has also established that the Commission continued the investigation in September and October 2004, sending requests for information to operators with sightholder status, excluded sightholders, rough diamond producers and diamond bourses, which was confirmed by the Commission.
110 By contrast, the applicant has not established that the Commission had taken more measures in order to investigate the De Beers-Alrosa Agreement at that same time, nor provided other information demonstrating any priority given to the investigation into that agreement. The applicant has simply referred to the De Beers commitments decision, which did indeed relate to the De Beers-Alrosa Agreement and had been adopted in February 2006, almost a year before the rejection decision. However, that decision was not in response to the applicant’s complaint against the De Beers-Alrosa Agreement but rather to an application for negative clearance or, failing that, an individual exemption under Article 81(3) EC, of 5 March 2002, that is, over a year and a half before the complaint in question was lodged. The fact that the De Beers commitments decision was adopted at an earlier stage is therefore explained by the fact that the relevant procedure was initiated earlier and not by any priority given to the treatment of the issues raised by the De Beers-Alrosa Agreement.
111 That second set of arguments must therefore be rejected.
112 Thirdly, the applicant criticises the limited nature of the inquiries conducted during the initial and the supplementary investigations.
113 It states that, in the initial investigation, the Commission confined itself to sending requests for information one year after the complaint was lodged, without assessing with all due care – for example by means of an expert economic report – important information supplied in particular by the applicant, other undertakings operating in the diamond sector or the diamond bourses. The applicant emphasises the relevance of the information supplied by the diamond bourses, representing over 11 000 members, which stressed that SOC has foreclosure effects, which shows that there is a Community interest in investigating further. The applicant emphasises, on the other hand, that the sightholders’ replies to the requests for information are necessarily imprecise, and even incorrect, for fear of reprisals from De Beers.
114 With regard to the supplementary investigation, the applicant complains that the Commission did not restart the investigation of the De Beers‑Alrosa Agreement following the General Court’s judgment in Alrosa (paragraph 26 above). The applicant also complains that the investigation was hurried, since respondents had only one week to reply to the questions asked and not all those replies were even available when the supplementary Article 7 letter was sent. Furthermore, the supplementary investigation was incorrectly restricted to the sole issue of foreclosure effects, and was carried out in a superficial manner, since the diamond producers alone were consulted, only seven genuine questions were asked – which did not include the most important ones – and the Commission satisfied itself with very brief replies, more often than not incomplete, and at times contradictory.
115 According to settled case-law, when the Commission decides to proceed with an investigation of a complaint referred to it, it must, unless duly detailed reasons are given, conduct it with the requisite care, seriousness and diligence so as to be able to assess with full knowledge of the case the factual and legal particulars submitted for its appraisal by the complainants (Case T‑7/92 Asia Motor France and Others v Commission [1993] ECR II‑669, paragraph 36, and Case T‑204/03 Haladjian Frères v Commission [2006] ECR II‑3779, paragraph 29). However, even when such an investigation has been carried out, no provision of law gives the complainant the right to insist that the Commission take a final decision as to the existence or non‑existence of the alleged infringement and thus to seek evidence of the existence or non-existence of that infringement (see Haladjian Frères v Commission, paragraph 28, and the case-law cited; see also paragraph 96 above).
116 It follows that, when the Commission does not rule on the existence of the infringements alleged in a complaint, but restricts its assessment to whether there is sufficient Community interest regarding the allegations in that complaint, as in the present case, the scope of the Commission’s investigation is necessarily narrower than a full investigation into whether or not the alleged infringement exists (see, to that effect, Case T‑5/93 Tremblay and Others v Commission [1995] ECR II‑185, paragraph 91, and the case‑law cited).
117 In the present case, in the context of its investigation of SOC, it must be noted that the Commission sent, between February and October 2004, requests for information to operators with sightholder status, excluded sightholders, brokers, rough diamond producers and diamond bourses (see paragraph 12 above). Following the General Court’s judgment in Alrosa (paragraph 26 above), the Commission sent supplementary requests for information to the main diamond producers on 9 October 2007 and follow-up questions to De Beers on 29 October 2007 (see paragraph 28 above).
118 As regards, first of all, the Commission’s chosen instruments of investigation, the Court notes that the Commission has freedom of action in the conduct of its investigations in competition cases (Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 212). Indeed, no provision requires it to use one method rather than another. In addition, the Court has held that, far from providing evidence of any prejudice on its part, the sending by the Commission of the requests for information attested to its willingness to examine carefully and impartially all the relevant aspects of the individual case in order, in particular, to be able to adopt a decision in full knowledge of the facts (see, to that effect, Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 412). The applicant cannot therefore successfully complain in the present case that the Commission failed to conduct its investigation carefully and seriously by sending requests for information rather than obtaining an expert economic report, requesting the production of sightholder profiles sent to De Beers for the 2005 selection procedure or carrying out any other investigative measure.
119 In that connection, it must also be added that the Commission stated, without being contradicted by the applicant, that the Chief Economist of its Directorate‑General for Competition was involved in the examination of the complaint against SOC, even though he did not draw up the economic report that the applicant demanded despite having itself supplied such a report. Similarly, as regards the measure seeking the production of the sightholder profiles for the 2005 selection procedure, it must be noted, first, that such a measure was taken by the Commission in respect of the profiles sent in 2004 (see paragraph 109 above) and, secondly, as the Commission states, that the information in those profiles was less reliable than that in the replies to the request for information sent to the sightholders. Sightholders are liable to a fine if they provide incorrect or misleading information in reply to a request for information (see paragraph 125 below). In addition, the replies given in the sightholder profiles, which are formulated by SOC applicants, may by the same token contain information not reflecting reality, notified solely for the purpose of obtaining selection as a sightholder.
120 As regards, next, the use of requests for information, it must be noted that Article 18 of Regulation No 1/2003 provides in paragraph 1 thereof that, ‘[i]n order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information’. Under Article 18(2) of Regulation No 1/2003, the Commission must state in its request for information the legal basis and the purpose of that request, specify what information is required and fix the time‑limit within which the information is to be provided, and the penalties provided for supplying incorrect or misleading information. The Court has inferred from this that the powers of investigation provided for in Article 18 of Regulation No 1/2003 are subject only to the requirement that the information requested be necessary (see Joined Cases T‑458/09 and T‑171/10 Slovak Telekom v Commission [2012] ECR I‑0000, paragraph 45, and the case‑law cited; see also, to that effect, Atlantic Container Liner and Others v Commission, paragraph 118 above, paragraph 48).
121 Regulation No 1/2003 therefore imposes no obligation on the Commission as regards the choice of the type of request for information (simple request or decision), the addressees of those requests, the actual time-limit for replying, the information requested – other than that such information must be necessary – or the analysis of the information provided. In addition, the applicant has adduced no evidence capable of establishing that those five aspects of the requests for information sent in the present case demonstrate a lack of care, seriousness and diligence on the part of the Commission in the investigations carried out.
122 First, as regards simple requests for information rather than decisions requiring information, it must be noted that Article 18 of Regulation No 1/2003 enables the Commission to ask for information ‘by simple request or by decision’ and that only the failure to reply, or the provision of incomplete information, to a decision requiring information, not to a simple request, may be penalised under Article 23(1)(b) of Regulation No 1/2003. Consequently, if the applicant, in claiming that the Commission satisfied itself with brief and incomplete replies, is essentially complaining that it opted, in the supplementary investigation, to send simple requests for information to the diamond producers not enabling full replies to be given (see paragraph 114 above), it cannot be concluded in the circumstances of the case that the Commission was lacking in care, seriousness and diligence in that regard.
123 Indeed, as a unilateral act of an EU institution, a decision requiring information cannot create rights and obligations outside the territory of the European Union (see, to that effect, the order in Case T‑212/02 Commune de Champagne and Others v Council and Commission [2007] ECR II‑2017, paragraph 90) and may not therefore be adopted in respect of the many diamond producers established outside the European Union. In addition, the Commission had already sent simple requests for information during the initial investigation and had obtained replies from the producers which had enabled it to carry out an initial analysis of the alleged foreclosure effects of SOC, without this being challenged by the applicant. As regards, during the supplementary investigation, questions merely seeking to update information provided during the initial investigation, there was no indication that incomplete replies would thus be sent. In addition, the adoption of a decision requiring information, in particular because it may be reviewed (see Article 18(3) of Regulation No 1/2003), necessarily takes more time than sending a simple request and is therefore likely to delay the procedure and thus the adoption of the final decision, in the event of review. The supplementary procedure sought to take into account a new factual situation affecting the initial decision and had therefore to be completed swiftly in order not to prolong the uncertainty arising from that new situation. It must be added that brief replies are not necessarily incomplete replies and that the brevity of a reply cannot be penalised as such, including when made in response to a decision requiring information. Lastly, it may be stated that almost all the questions asked in the requests for information sent to the producers on 9 October 2007 called for brief replies, which could mean answering yes or no (see questions Nos 6 to 8) or merely providing figures (questions Nos 1 to 4 and 6) (see paragraph 129 below).
124 Secondly, as regards the addressees of the requests for information, it is sufficient to note that the Commission sent the requests to all the SOC protagonists, that is, to De Beers, which established the system, the companies participating in it, the sightholders, or which had participated in the system, the excluded sightholders, and more broadly to the companies and organisations operating on the diamond markets, including, in particular, the diamond bourses. The Commission cannot therefore be criticised on the ground that it did not question ‘small and middle sized diamond companies’, active in particular downstream in the polished diamonds sector. Both sightholders and excluded sightholders which received requests for information are not necessarily large undertakings. As the interveners stated in answer to a question from the Court, approximately 60% of sightholders selected in 2003 were small and medium-sized enterprises. The applicant itself, which lost its sightholder status in 2003, has only ten employees. In addition, some of those sightholders and excluded sightholders operate on the polished diamond market, as shown by their replies to the requests for information (see questions Nos 19 to 25 of the questionnaire to sightholders and questions Nos 10 to 12 of the questionnaire to excluded sightholders questioning them on the sales of polished diamonds).
125 Inasmuch as the applicant criticises the Commission precisely for having questioned the sightholders and taken account of their replies, it must be emphasised, first, that sightholders are the main operators in SOC, the subject of the investigation in question. Next, the Commission sought to ensure that the sightholders did not provide imprecise, incomplete, or even inaccurate, information, for fear of reprisals from De Beers. It communicated to De Beers only a non-confidential version of the sightholders’ replies, omitting their names in particular. The Commission reminded the sightholders of the risk of being fined if they supplied incorrect or misleading information (see paragraph 120 above) and requested them, in the introduction to the questionnaire sent to them, to be very specific in their answers and to give sufficient details for non-specialists to understand their replies. In addition, if the present argument must be construed as meaning that, in the rejection decision, the Commission attached too much weight to the replies given by the sightholders, that argument cannot be addressed in this part of the present plea, since such a contention falls within the substantive assessment of the Community interest, considered in the examination of the third plea in law. Lastly, it may be added that the Commission did not simply question the De Beers sightholders in 2004, but it also sent requests for information to the sightholders which had been excluded from SOC (see paragraph 12 above) – which by definition cannot be subject to retaliatory measures by De Beers and thus to the fear of such measures – in order to compare their replies with those given by the sightholders.
126 It should also be added that the diamond bourses were questioned and their replies were taken into account expressly in the rejection decision by the Commission, which compared them with the other replies given to the requests for information. The applicant cannot therefore claim that the Commission failed to evaluate with all due care the information supplied by the diamond bourses. If the applicant is criticising the result of the comparison of the replies and the requests for information, contrary to the diamond bourses’ claims and its own claims against SOC, it is in fact disputing the substantive assessment of the Community interest by the Commission, which will be considered when the third plea in law is examined.
127 Lastly, the rough diamond producers were questioned both during the initial and supplementary investigations (see paragraphs 12 and 28 above). The applicant cannot criticise the Commission on the ground that it sent requests for information only to the producers during the supplementary investigation. That procedure was initiated further to the annulment by the General Court of the De Beers commitments decision. Since that decision restricted the rough diamonds capable of being purchased by De Beers from another rough diamond producer, Alrosa, it was for the Commission to evaluate the amounts of sales and purchases of those two producers in the absence of that restriction and thus to question them on that point in respect of the years concerned by the above‑mentioned commitments. It was also for the Commission to compare those replies with those of the other rough diamond producers which had not yet been questioned in relation to the years in question. The Commission therefore requested each of the producers to specify their actual or projected annual sales of rough diamonds between 2006 and 2009 (question No 2) and their actual or projected annual rough sales to and purchases from other producers for the same years (question No 6).
128 By contrast, since the De Beers commitments decision had an impact only on the relations between rough diamond producers, the Commission was not required to send new questionnaires to all the parties questioned during the initial investigation in order for them to update their replies. It follows that the Commission did not fail to comply with its obligation to conduct its investigation carefully and seriously in questioning only producers for the purposes of re‑examining its initial assessment. It should be added that the Commission carried out an in-depth supplementary investigation, even sending several sets of questions to the main producer concerned, De Beers (see paragraph 28 above).
129 Thirdly, as regards the time-limit set in the requests for information sent in the course of the supplementary investigation, the Commission did indeed ask the diamond producers to reply within the very short time‑limit of one week. It should, however, be noted that the requests for information sent to Aber, BHP Billiton, Endiama, LLD Diamonds and Rio Tinto contained only eight questions asking them either to provide information which was readily accessible to them, since it related to their own undertakings or to the market on which they operated, and which did not require data to be compiled (questions Nos 1 to 6), or to take a position on the present and future availability of rough diamonds in the context of very open-ended questions enabling them to respond in more or less detail (questions Nos 7 and 8). Several producers therefore simply answered those last two questions in the negative. As regards the requests for information sent to De Beers and Alrosa, chiefly concerned by the annulment of the De Beers commitments decision, although certain requests contain more questions (12 questions to De Beers in the request of 9 October 2007 and three in the request of 29 October 2007; 13 questions to Alrosa), they relate to the same type of question as those sent to the other producers. The Commission also stated in response to a question from the Court that the diamond producers had all replied to the requests for information, with the exception of Endiama, by providing at times very detailed replies, and that all their replies had been taken into consideration, including those lodged belatedly, or even very belatedly, such as Alrosa’s reply received in December 2007, the non‑confidential version of which was sent to the applicant on 13 March 2008.
130 In so far as the applicant complains that the Commission sent it the supplementary Article 7 letter before Alrosa’s reply was received, it must be noted that, as regards a request for information rather than a decision requiring information, Alrosa was not under an obligation to reply (see, as regards Article 11(2) of Regulation No 17, which contains in essence the same distinction between a request for information and a decision requiring information, 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 279). The Commission stated, in response to several questions from the Court, that Alrosa had not replied to the request for information within the time-limit, but that it had sent it its annual report for 2006 within that time-limit and informed it that it would subsequently supply the information requested, without referring to an exact date. As soon as it received that information, the Commission sent the applicant the non-confidential version of it and the applicant had the opportunity to submit its observations on that reply (see paragraph 34 above). In addition, the Court has held that the Commission was entitled, in order in particular to take account of any evidence put forward by the undertakings concerned, to continue with its factual investigation after the adoption of the statement of objections setting out the Commission’s provisional findings, which it may revisit in the final decision, by sending further requests for information (Atlantic Container Line and Others v Commission, paragraph 118 above, paragraph 411). It follows that in the present case, since it already had available the replies of the other producers, and in particular those of De Beers concerning its purchases from Alrosa, and Alrosa’s annual report for 2006, the Commission was able, without breaching its obligation to conduct its investigation with care, seriousness and diligence, to send a document setting out its provisional assessment without awaiting Alrosa’s reply and to take account of it at a later stage in the light of the observations submitted by the applicant in relation to that reply.
131 Fourthly, as regards the information requested during the supplementary procedure, it must be noted, as a preliminary point, that the applicant’s objections that the Commission failed to ask certain questions (see paragraph 114 above) do not call in question the need for the questions which the Commission asked; the only obligation imposed on the Commission by Regulation No 1/2003 is that they be necessary (see paragraph 120 above).
132 The applicant complains, first of all, that the Commission restricted its questions to the issue of foreclosure effects and, in that context, failed to question the producers on the De Beers-Alrosa Agreement.
133 The restriction of the Commission’s questions to foreclosure effects may be accounted for by the fact that the supplementary procedure was initiated because of a factor which arose after the rejection decision was adopted, namely the annulment of the De Beers commitments decisions by the General Court’s judgment in Alrosa (paragraph 26 above), which had an impact only on the Commission’s analysis of the foreclosure effects of SOC, not on the other aspects of SOC analysed in the rejection decision. Since the De Beers commitments decision governed De Beers’ purchases of rough diamonds from Alrosa, its annulment was capable of altering the Commission’s assessment of the source of rough diamond supplies constituted by Alrosa, which had led the Commission to conclude that there was a small likelihood of foreclosure effects.
134 The Commission cannot be criticised, in particular, for not extending its requests for information so as to cover the alleged amendments to SOC concerning the criteria for selecting sightholders and their control criticised in a letter of 23 January 2007. Those amendments, which, it is alleged, were to come into force after the rejection decision was adopted, were complained of before it was adopted. As a result, the Commission took account of them in the rejection decision, taking the view that there was insufficient Community interest to investigate the mere announcement of planned amendments for which a consultation process was still on‑going. Since the applicant did not provide any further information in that regard during the supplementary procedure, as it simply referred to the amendments in question in its observations on the supplementary Article 7 letter, the Commission did not fail to act with the requisite care and seriousness in not asking questions in relation to those amendments.
135 In addition, it must be pointed out that, even if the supplementary procedure did not relate specifically to the implementation of the De Beers-Alrosa Agreement, several questions asked of De Beers and Alrosa during the supplementary procedure sought to inform the Commission of the implementation of that agreement, which was again topical in the light of the annulment of the De Beers commitments decision. Consequently, by question No 6 of the request for information of 9 October 2007 sent to Alrosa and to De Beers, the Commission asked Alrosa, essentially, to state the annual amounts of rough diamond sales to De Beers between 2005 and 2009 and De Beers to state the annual amounts of rough diamond purchases from Alrosa during the same period.
136 The applicant complains, next, that four questions were not asked of the producers, namely questions about (i) their production of diamonds by size and by quality, (ii) the vertical integration of the producers, (iii) their levels of stock of rough diamonds and (iv) their diamond sales to sightholders. It must be noted, first of all, that, by question No 5 of the request for information of 9 October 2007 addressed to all the producers, the Commission asked them to describe their channels for distribution, indicating the percentage of their production allocated to each of those channels, so that it was informed as a result of the reply to that question of possible rough diamond sales to sightholders and the value of those sales. It was also thereby informed, without expressly asking so, of the consequences attributed by the applicant to the vertical integration of a producer, namely the unavailability of its production to rough diamond dealers and independent non-sightholder manufacturers. As regards the other questions invoked by the applicant, concerning stocks or the quality and size of the diamonds sold, it is sufficient to note that the applicant has adduced no evidence to show that the Commission failed to comply with its obligation to examine the complaint with the requisite care and seriousness by not asking them (see also paragraph 302 below).
137 Fifthly, as regards the replies to the supplementary requests for information, it must be noted that the applicant refers to two contradictions in those replies. It claims that the failure to take them into account demonstrates a lack of care and seriousness on the part of the Commission.
138 Thus, as regards the replies to question No 1, on the trend in the worldwide rough diamond supply between 2005 and 2007, some producers referred to a positive trend, whereas others highlighted the existence of a fall in supply. However, it must be noted, first, that the producers were asked to give an estimate for 2005 and 2006 and a projection for 2007, which were by definition approximate and might vary according to their sources, and, secondly, that question merely sought to evaluate the need to carry out a supplementary investigation to determine precisely the value of the worldwide rough diamond supply. Since the variations noted were small, with the alleged increases or decreases not exceeding 5%, it cannot be alleged that the Commission lacked the requisite care and seriousness in not continuing its inquiries on that point.
139 As regards the fact that De Beers stated in response to question No 6 of the request for information of 9 October 2007 that it did not sell its rough diamonds to other producers, whereas LLD Diamonds stated in response to the same question that it purchased rough diamonds from De Beers, the Commission was able to find, by acquainting itself with the non-confidential version of the reply from LLD Diamonds, that the amounts purchased from De Beers were not very significant. Nor was it therefore necessary for the Commission to continue with its inquiries and, in not doing so, it did not breach its obligation to carry out its investigation with the requisite care and seriousness.
140 The first part of the second plea must therefore be rejected in its entirety.
Infringement of the obligation to take into consideration all relevant matters of law or of fact
141 In the alternative, the applicant alleges a number of gaps in the Commission’s examination of its complaint.
Lack of an overall assessment of the complaint (Case T‑108/07)
142 The applicant submits that the Commission did not examine its complaint in an overall manner, since it failed to take into account either other similar complaints lodged against SOC or its own complaint against the De Beers-Alrosa Agreement (see paragraphs 11 and 77 above), and the Commission analysed the alleged anti‑competitive practices separately whereas it should have analysed them as a whole.
143 According to the case-law, when assessing the Community interest in investigating a complaint the Commission must not investigate it in isolation but rather in the context of the situation on the relevant market in general. The existence of a number of complaints alleging similar conduct by the same operators is one of the factors the Commission must take into account in its assessment of the Community interest (Case T‑62/99 Sodima v Commission [2001] ECR II‑655, paragraph 55).
144 Similarly, where the Commission assesses the likelihood of being able to establish the existence of an infringement and the extent of the investigative measures needed for that purpose it must take into account all the evidence in its possession and must not merely assess separately the individual items of evidence submitted by each complainant and conclude that each of the complaints taken in isolation is not supported by sufficient evidence (Sodima v Commission, paragraph 143 above, paragraph 56).
145 However, the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, since the conduct of an investigation falls within the scope of its discretion. In particular, the fact that there are a number of complaints from operators belonging to different categories cannot preclude the dismissal of such of those complaints as appear, according to the evidence available to the Commission, to be unfounded or of insufficient Community interest. Consequently, the fact of having treated the different complaints separately cannot be regarded as such as being improper (see Sodima v Commission, paragraph 143 above, paragraph 57, and the case-law cited).
146 Therefore, first, the Commission cannot be criticised for having organised matters by theme with regard to competition law, distinguishing, in particular, the issue of foreclosure effects and that of the abusive gathering and use of information. That analytical approach does not mean that the Commission investigated the complaint in isolation or that it failed to take into account the context of the situation on the relevant market in general. The applicant misinterprets the above‑mentioned case-law, when it perceives it as prohibiting the Commission from investigating separately the information adduced by the applicant. The Commission must take into account the interaction between the various pieces of information and a possible cumulative effect of the alleged restrictions of competition, but it is not prohibited from carrying out a structured investigation of the complaint, differentiating the various alleged restrictions according to their nature. That is true all the more so when, as in the present case, the Commission makes explicit links between those restrictions by cross‑referring to the subdivisions of the rejection decision concerned with them.
147 Secondly, the separate treatment of the complaints received by the Commission concerning SOC – at least three in number, namely the applicant’s complaint, the complaint of BVGD, the applicant in related Case T‑104/07, and the complaint of Kluger Zalc Diamonds NV – and of the De Beers-Alrosa Agreement cannot be regarded as such as being improper, since the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, as is apparent from the judgment in Sodima v Commission (paragraph 143 above).
148 On the other hand, the Commission’s failure to take into account the existence of other complaints during its assessment of the Community interest would constitute an irregularity. This would also be the case where there has been a failure to take into account evidence in the Commission’s possession, submitted in another complaint, which in conjunction with the evidence adduced by the applicant in its complaint, would be sufficient to establish that there is a Community interest in investigating the complaints further.
149 In the present case, the Commission simply referred, in the rejection decision, to the existence of other complaints lodged against SOC after the 2003 comfort letter and made no reference to the complaint lodged against the De Beers-Alrosa Agreement. However, while the reference to the other complainants may amount to evidence showing that the existence of those other complaints was taken into account, it is not determinative (see, to that effect, Case T‑26/99 Trabisco v Commission [2001] ECR II‑633, paragraph 38). Indeed, it is only during its assessment of the Community interest that the Commission must not carry out a separate evaluation of the evidence submitted by each complainant and must take into account the existence of other complaints. In the present case, several factors tend to show that the Commission did not compartmentalise the evidence. First, in order to reject the applicant’s various contentions, the Commission relies each time in its decision on considerations of a general nature, in relation for example to the foreclosure effects on the market in general and the implementation of the Ombudsman’s terms of reference with regard to sightholders or sightholder applicants in general, not on considerations restricted to the applicant’s individual situation. Secondly, it must be noted that the principal letters sent by the Commission further to the various complaints were sent on the same date and, in particular, that the rejection decision contested in Case T‑108/07 was adopted on the same date as the rejection decision in Case T‑104/07 and the decision rejecting the applicant’s complaint against the De Beers-Alrosa Agreement (see paragraph 20 above), which gives grounds for assuming that the corresponding complaints were examined in parallel and overall.
150 The first objection must therefore be rejected.
Failure to analyse constituent elements of an infringement of Article 81 EC or Article 82 EC (Cases T‑108/07 and T‑354/08)
151 The applicant complains, in substance, that the Commission rejected its complaint on the ground of insufficient Community interest by ascertaining, essentially, whether there were foreclosure effects, without defining beforehand the relevant market or analysing De Beers’ market power, and without examining whether SOC had an anti-competitive object or even ascertaining whether the selective distribution system introduced by SOC was lawful.
152 The Commission contends that some of the applicant’s arguments in Case T‑108/07 seek to re-litigate the administrative procedure which gave rise to the 2003 comfort letter and must for that reason be rejected.
153 According to the case-law on the Commission’s obligation to examine carefully the factual and legal matters brought to its notice, the sending of a comfort letter reserving the right to re-open the procedure does not mean that the Commission is no longer entitled to take account of a new element or one which existed before the letter was sent but was brought to its notice only later, particularly in connection with a complaint lodged at a later stage (see, to that effect, Case C‑279/95 P Langnese-Iglo v Commission [1998] ECR I‑5609, paragraph 30, and Case T‑7/93 Langnese-Iglo v Commission [1995] ECR II‑1533, paragraphs 37 to 41).
154 It follows that, in the present case, the Commission could not rely on the comfort letter as a basis for refusing to consider the applicant’s contentions set out in its complaint concerning elements that were new or recently brought to the Commission’s notice within the meaning of the above‑mentioned case-law. It also follows that the arguments adduced in support of the present objection, seeking specifically to challenge the failure to analyse those elements put forward in the applicant’s complaint, cannot be rejected as inadmissible.
155 The Court also notes that, according to settled case-law, the Commission is not required to take a final decision as to the existence or non-existence of the infringement alleged in the complaint (see paragraph 96 above). Consequently, a decision to reject a complaint does not definitively rule on the question of whether or not there is an infringement of Article 81 EC or Article 82 EC, even where the Commission has assessed the facts on the basis of those articles (judgment of 23 November 2011 in Case T‑320/07 Jones and Others v Commission, not published in the ECR, paragraphs 112 to 114; see also point 79 of the notice on the handling of complaints). It follows that the obligation of the Commission to take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint (see paragraph 98 above) relates, as regards a complaint rejected on the ground of a lack of Community interest, not to the constituent elements of an infringement of Article 81 EC or Article 82 EC, but to the matters relevant to the test used in order to conclude that there was an insufficient Community interest.
156 In the present case, the Commission rejected the applicant’s complaint on the ground of insufficient Community interest, applying the criteria normally used to assess Community interest, namely the significance of the alleged infringement for the functioning of the common market, the probability of being able to establish its existence and the extent of the investigative measures necessary (see CEAHR v Commission, paragraph 97 above, paragraph 158, and the case-law cited; see also point 44, third indent, of the notice on the handling of complaints). It is also apparent from the case-law that the Commission may consider that there is no longer sufficient Community interest where the undertakings concerned agree to change their conduct in a manner conducive to the general interest (Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraphs 48 and 49; see also point 44, sixth indent, of the notice on the handling of complaints). In the contested decisions, the Commission therefore relied, in essence, (i) as regards the contention that SOC had foreclosure effects, on the small likelihood of finding appreciable anti-competitive effects, (ii) as regards the criticisms of the sightholder selection and the role of the Ombudsman, on the amendments in relation to the Ombudsman introduced into SOC by De Beers and (iii) as regards the other claims that SOC was unlawful, on the small likelihood of establishing the existence of infringements (see paragraphs 22 to 24 above and 37 to 39 above).
157 The applicant’s arguments criticising a failure to analyse and take into account several matters of fact or law allegedly relevant to establishing the existence of an infringement of Article 81 EC or Article 82 EC must therefore be examined in the light of those considerations.
– The relevant market and the dominant position of De Beers on that market
158 The applicant complains that, first, the Commission did not define the relevant market for the purposes of its investigation.
159 The Commission states that it has consistently taken the view that there is one worldwide market for rough diamonds and that it is within that market that it evaluated the applicant’s complaint. In that connection, it is apparent from all the acts adopted by the Commission during the course of the initial and supplementary procedures, from the case‑orientation letter of 29 March 2006 onwards (see paragraph 16 above), that it referred to the worldwide market in rough diamonds. Admittedly, the Commission did not allocate a specific part of each of those acts to the definition of the relevant market. However, it is clear from the analysis carried out in each of them that the relevant market was the worldwide market in rough diamonds intended for use in jewellery, which had indeed already been defined in the 2002 notice (points 6 to 8) which led to the 2003 comfort letter. Consequently, in the abovementioned case-orientation letter the Commission referred to the foreclosure effects on the market for the supply of rough diamonds. Similarly, in both the Article 7 letters and the contested decisions, the Commission analysed the world rough diamond market, examining the availability of rough diamonds on that market. The supplementary Article 7 letter and the supplementary rejection decision refer, moreover, expressly to the ‘world-wide market for the supply of rough diamonds’.
160 It must be added that, in stating in the reply in the present proceedings that it never denied that there is one market for rough diamonds, the applicant confirms that there is no need for a more precise definition and analysis.
161 The applicant complains, secondly, that the Commission rejected its complaint without ascertaining beforehand whether De Beers held a dominant position on that market. The Commission refused to carry out such an analysis, relying in error on its preliminary conclusions concerning the alleged abuse, which reveals that it confuses the concepts of dominance and abuse of a dominant position within the meaning of Article 82 EC. The applicant states, however, that during the administrative procedure it provided a whole range of evidence showing that De Beers held a dominant position on both the world rough diamond and quality diamond markets.
162 It must be noted that the Commission took the view in Commission Decision 2003/79/EC of 25 July 2001 declaring a concentration to be compatible with the common market and the EEA Agreement (Case No COMP/M.2333 — De Beers/LVMH) (OJ 2003 L 29, p. 40, ‘the De Beers/LVMH decision’), in the 2002 notice (points 9 to 14 and 30) and in the De Beers commitments decision that De Beers held a dominant position, at least on the market for rough diamonds. However, it did not refer to contentions or considerations regarding the dominant position of De Beers in any of the documents in the initial or supplementary procedure, except when repeating the applicant’s arguments and in one of the passages of the rejection decision in relation to the other claims as to the illegality of SOC, which is worded as follows:
‘[T]he Commission considers that its preliminary conclusions on your allegations of abuses of a dominant position did not require it to undertake further investigation into the question of De Beers’ dominance in the time period relevant for the practice. In relation to your claim that – on the basis of the Commission’s statements in, inter alia, the commitment decision – it can be concluded that De Beers holds a dominant position, the Commission would remind you that its assessment as to De Beers’ dominant position in the world-wide market for supply of rough diamonds, as summarised in the commitment decision, is of a preliminary nature, and not a final finding.’
163 The applicant correctly inferred from this that the Commission did not examine De Beers’ dominant position in the course of the procedures in question in the present cases. However, the Commission cannot be criticised for the failure to carry out such an examination in this instance.
164 None of the reasons relied on for rejecting the applicant’s complaint on the ground of insufficient Community interest gave grounds for examining the issue of De Beers’ dominance.
165 As regards the claims of foreclosure effects of SOC, the Commission took the view that they did not give grounds for further investigation since the likelihood of foreclosure effects was small on the market. In so doing, the Commission took into account the ‘actual’ seriousness of the alleged infringement in the sense of its impact on the market (see, to that effect, Case T‑60/05 Ufex and Others v Commission [2007] ECR II‑3397, paragraph 142), and thus applied the criterion of serious impediment to the proper functioning of the market, which entails ascertaining the seriousness of the alleged interferences with competition and how persistent their effects are, and in particular the duration, extent and impact of the infringements on the competition situation on the market (see AEPI v Commission, paragraph 97 above, paragraphs 52 and 53, and the case‑law cited). It follows that the Commission was entitled to find, regardless of any dominant position of De Beers and without needing to ascertain the existence, or determine the scope, of that dominance, that the effects of the anti‑competitive conduct alleged were not of such a scale as to justify further investigation.
166 As regards the criticisms of sightholder selection, the Commission took the view that the amendments to the Ombudsman’s terms of reference addressed those criticisms. It therefore relied on the fact that De Beers had agreed to alter its conduct, by revising the Ombudsman’s terms of reference, so that there was no longer a sufficient Community interest. Such a consideration is also independent from De Beers’ dominance and does not require that it be examined first.
167 As regards the other claims of the illegality of SOC, the Commission concluded that most of them did not contain sufficient Community interest, on the ground that the likelihood of establishing an infringement was small. In particular, the Commission based its argument on the premiss that the likelihood of establishing the existence of the alleged abuse was small (see the extract from the rejection decision, set out in paragraph 162 above). Consequently, in the light of the fact that Article 82 EC prohibits only abuses by an undertaking in a dominant position, the Commission was not required to extend its investigation to cover De Beers’ dominance (see, to that effect, judgment of 13 September 2012 in Case T‑119/09 Protégé International v Commission, not published in the ECR, paragraph 95). It also follows that the Commission did not conflate the concepts of dominance and abuse, but merely took into account the fact that those two factors are cumulative for the purposes of ascertaining an infringement of Article 82 EC.
168 Those findings are not called in question by the case-law cited by the applicant, according to which it follows from the nature of the obligations imposed by Article 82 EC that, in specific circumstances, undertakings in a dominant position may be deprived of the right to adopt a course of conduct or take measures which are not in themselves abuses and which would even be unobjectionable if adopted or taken by non-dominant undertakings (see Case T‑111/96 ITT Promedia v Commission [1998] ECR II‑2937, paragraph 139, and the case-law cited). The abuses alleged in the present case by the applicant are by nature abusive, since they concern those referred to in Article 82(b) to (d) EC, as the applicant itself makes clear in the complaint, criticising (i) a refusal to supply diamonds contrary to Article 82(b) and (c) EC, (ii) a limitation of markets prohibited by Article 82(b) EC, (iii) discriminatory pricing prohibited by Article 82(c) EC and (iv) an imposition of supplementary obligations contrary to Article 82(d) EC.
169 Consequently, the Commission cannot be criticised on the ground that in the present case it failed to specify further the relevant market or failed to analyse De Beers’ dominant position on that market.
– The anti-competitive object of SOC (Case T‑108/07)
170 The applicant submits that the Commission obscured the clear anti‑competitive object of SOC in considering only SOC’s anti‑competitive effects, whereas it was the Commission’s task to ascertain the existence of such effects only if there was no anti‑competitive object.
171 The Commission cannot be criticised in the present case for not examining the claims in the applicant’s complaint that SOC had an anti-competitive object. In the passages of its complaint which the applicant cites as containing those claims, it simply makes general assertions concerning De Beers’ intention to strengthen its control and increase the price of diamonds, factors already included, as the applicant states, in the 2001 De Beers/LVMH decision. It follows that the arguments regarding the anti-competitive object of SOC set out by the applicant in its complaint cannot be considered to be new elements or elements recently brought to the Commission’s notice within the meaning of the case-law cited in paragraph 153 above, that is matters postdating the 2003 comfort letter or brought to the Commission’s notice after that letter. Consequently, the Commission was fully entitled not to examine the claims in question on the ground that they did not contain any new elements with regard to the information available to it in Case COMP/E-3/38.139 giving rise to the 2003 comfort letter.
172 The present objection must therefore also be rejected.
– The lawfulness of the selective distribution system introduced by SOC (Cases T‑108/07 and T‑354/08)
173 The applicant states that, in the light of the five conditions laid down by the case‑law (Case T‑19/92 Leclerc v Commission [1996] ECR II‑1851) and the Commission Guidelines on Vertical Restraints (OJ 2000 C 291, p. 1), it is clear that SOC, which is a selective distribution system for raw materials, established by a dominant company on the basis of discriminatory, subjective and numerous criteria, raises considerable competition concerns and manifestly infringes Articles 81 EC and 82 EC. The applicant thus alleges that the Commission failed to examine the lawfulness of such a distribution system in the light of the applicable rules. In particular, it failed to analyse and take into account the nature of the product at issue in the present case, the subjective and discriminatory nature of the SOC selection criteria – and the questions in the sightholder profiles enabling them to be applied – and also the effects of SOC on intra- and inter‑brand competition, in particular in ascertaining whether De Beers was dominant.
174 Article 1(d) of Commission Regulation (EC) No 2790/1999 of 22 December 1999 on the application of Article 81(3) [EC] to categories of vertical agreements and concerted practices (OJ 1999 L 336, p. 21), states:
‘For the purposes of this Regulation:
…
“Selective distribution system” means a distribution system where the supplier undertakes to sell the contract goods or services, either directly or indirectly, only to distributors selected on the basis of specified criteria and where these distributors undertake not to sell such goods or services to unauthorised distributors …’
175 Since the Commission took the view, without committing any manifest error of assessment, that SOC did not preclude the resale by the sightholders to non‑sightholders of rough diamonds received from De Beers (see paragraph 261 below), one of the prerequisites for a selective distribution system was not met. The Commission cannot therefore be criticised for not examining whether SOC satisfied the requirements for the lawfulness of selective distribution systems laid down by Regulation No 2790/1990 and the case-law pleaded.
176 Consequently, that present objection must also be rejected.
The failure to take into account the continued effects of the alleged anti‑competitive practices (Case T‑108/07)
177 The applicant complains, essentially, that the Commission failed to take into account the continued effects of the anti-competitive practices in question on the market. It refers, in particular, to (i) the fact that the De Beers commitments decision enables the sale of a large part of Alrosa’s production to De Beers until 2009 and to (ii) the impact of the joint venture recently set up in the context of an agreement between Alrosa and De Beers signed on 6 September 2006, which had, however, been brought to the Commission’s attention.
178 According to settled case-law, in deciding to discontinue consideration of a complaint against certain allegedly infringing practices on the ground of lack of Community interest, the Commission cannot rely solely on the fact that those practices have ceased, but must first ascertain that anti-competitive effects have ceased and, as the case may be, that the seriousness of the alleged interferences with competition or the persistence of their effects were not such as to give the complaint a Community interest (Case C‑119/97 P Ufex and Others v Commission, paragraph 96 above, paragraph 95; see also point 44, fifth indent, of the notice of the handling of complaints). However, that case-law only applies where the Commission bases its decision on the fact that the alleged anti‑competitive practices have ceased (Case T‑60/05 Ufex and Others v Commission, paragraph 165 above, paragraph 74).
179 Since in the present case the Commission did not reject the contention that SOC has foreclosure effects on the basis that the practices allegedly criticised in the complaint had ceased, but because there was a small likelihood of finding any appreciable anti-competitive effects (see paragraph 22 above), the Commission cannot be criticised on the ground that it did not take into consideration the alleged continued effects of those practices.
180 Even if, by the present objection, the applicant is complaining that the Commission failed to take into account certain factors which, in the applicant’s submission, show that anti-competitive effects were produced after the rejection decision was adopted, that objection cannot be upheld either.
181 As regards, first, the amount of diamonds sold by Alrosa to De Beers from the adoption of the De Beers commitments decision until 2009, it must be noted that that information was taken into account by the Commission. The Commission stated in the rejection decision that, during the transitional period, that is until the end of 2008, Alrosa must not sell rough diamonds to De Beers in excess of the amounts provided in the De Beers commitments decision, stating that the commitments initially proposed had been amended in order to reduce both the length of that transitional period and the yearly amounts provided for. If the applicant is disputing the small likelihood of foreclosure effects inferred from those amounts purchased, it is calling in question the substantive assessment of the foreclosure effects of SOC, which will be addressed below in the examination of the third plea in law.
182 As regards, secondly, the agreement between Alrosa and De Beers of 6 September 2006, this relates to the future joint prospecting of diamonds, not to the purchases of diamonds resulting therefrom. Even if, as the applicant claims, that prospecting would lead to an increase in the amount of rough diamonds controlled by De Beers, the Commission was not entitled, in the absence of certain and precise information in that regard when adopting the rejection decision, to take into account in its analysis diamonds from mines not yet discovered. The Commission therefore correctly stated in the rejection decision that it could initiate an investigation should it receive information that a joint venture between De Beers and Alrosa was used in order to circumvent the De Beers commitments decision.
183 In the light of all the foregoing, the present part of the second plea in law must be rejected and, consequently, that plea must be rejected in its entirety.
3. The plea in law alleging the incorrect assessment of the Community interest (Cases T‑108/07 and T‑354/08)
184 According to settled case-law, the assessment of the Community interest raised by a complaint in competition matters depends on the factual and legal circumstances of each case, which may differ considerably from case to case, and not on predetermined criteria which must be applied (see Case T‑193/02 Piau v Commission [2005] ECR II‑209, paragraph 80 and the case-law cited; see also point 43 of the notice on the handling of complaints). The Commission must weigh, in particular, the significance of the alleged infringement as regards the functioning of the common market against the probability of its being able to establish the existence of the infringement and the extent of the investigative measures necessary in order to fulfil, under the best possible conditions, its task of ensuring the observance of Articles 81 EC and 82 EC (see the case-law referred to in paragraph 156 above).
185 Review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it in dealing with complaints must not lead them to substitute their assessment of the Community interest for that of the Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers (see CEAHR v Commission, paragraph 97 above, paragraph 65, and the case‑law cited). Similarly, it is settled case-law, in the case of the rejection of complaints, that the Commission’s assessments concerning allegations of infringement of Article 81 EC or Article 82 EC involve a complex economic appraisal, all the more so when, as in the present case, the Commission carries out prospective analyses, the review of which by the Courts of the European Union is limited to verifying, in particular, whether the facts have been accurately stated and whether there has been any manifest error of appraisal (see Haladjian Frères v Commission, paragraph 115 above, paragraph 30, and the case‑law cited).
186 However, that restriction of the review by the Courts of the European Union does not mean that they must decline to establish whether the evidence put forward is factually accurate, reliable and consistent and to determine whether that evidence contains all the relevant data that must be taken into consideration and whether it is capable of substantiating the conclusions drawn from it (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 89, and the case-law cited).
187 By this third plea in law put forward in the alternative, the applicant disputes all the Commission’s assessments which led it to reject the complaint on the ground of insufficient Community interest. It criticises, first of all, the Commission’s assessment of the criteria used in the evaluation of the Community interest presented by a case (Cases T‑108/07 and T‑354/08). Next, the applicant challenges, in essence, as based on incorrect facts or vitiated by manifest errors, the Commission’s assessments of each of the principal contentions in the complaint concerning, respectively, the foreclosure effects of SOC (Cases T‑108/07 and T‑354/08), the role of the Ombudsman and the increase in the prices of rough diamonds (Case T‑108/07).
Assessment of the criteria for evaluating the Community interest (Cases T‑108/07 and T‑354/08)
188 The applicant submits, essentially, that the Commission misinterpreted and misapplied each of the criteria to which it referred in the contested decisions in concluding that there was insufficient Community interest, namely (i) the significance of the alleged infringements for the functioning of the common market, (ii) the probability of establishing their existence and (iii) the scope of the investigation required.
189 First, the applicant complains that the Commission failed to take into account the scope of the alleged infringements for the functioning of the common market. In that connection, it states, in particular, that it is not the only company affected and that SOC’s scope is EU-wide, even worldwide, which ought to have led the Commission to recognise that there was a Community interest in investigating the complaint.
190 In order to reject that argument, it is sufficient to point to the case‑law according to which, even if the infringements alleged in the complaint related to the territory of several Member States, or even the European Union as a whole, that would not in itself suffice to conclude that the complaint had sufficient Community interest. If that were not the case, the Commission would be required to act on any complaint concerning an alleged infringement covering some or all of the Member States, irrespective of the assessment of the other criteria for evaluating the Community interest and, in particular, the probability of establishing the existence of the infringement (see, to that effect, Case T‑60/05 Ufex and Others v Commission, paragraph 165 above, paragraph 158, and Protégé International v Commission, paragraph 167 above, paragraph 77). It follows that the European, even worldwide, scope of SOC is not sufficient in itself to confer a Community interest on the complaint directed against it.
191 Secondly, the applicant submits that the Commission did not evaluate correctly the probability of being able to establish an infringement. In that connection, the applicant complains that the Commission relied on the presence of contradictions between the information collected during its investigation to justify closing the investigation of the complaint. The applicant also notes the contradiction between, on the one hand, the Commission’s stance as to the probability of establishing an infringement and, on the other, (i) the concerns with respect to the SOC system expressed in the De Beers/LVMH decision, (ii) the continued investigation of the De Beers-Alrosa Agreement, (iii) the grounds for reopening the procedure referred to in the comfort letter and (iv) the changes required to the Ombudsman’s terms of reference.
192 First of all, the Court finds that there is no contradiction between, on the one hand, the Commission’s assessment of the probability of establishing an infringement in the present cases and, on the other, its assessments in the De Beers/LVMH decision, the De Beers commitments decision which followed from the De Beers‑Alrosa Agreement, the comfort letter and in its assessment of the amendments to the Ombudsman’s terms of reference.
193 As regards the De Beers/LVMH decision, it is sufficient to note that the considerations relating to SOC therein relate to SOC before it was amended further to the statement of objections of 25 July 2001 (see paragraph 4 above).
194 As regards the competition issue posed by the De Beers-Alrosa Agreement, it must be observed that the De Beers commitments decision aimed precisely at resolving that issue and was taken into account in the rejection decision, so that there is no contradiction between stating that competition issues were raised by the De Beers‑Alrosa Agreement and making no such statement with regard to SOC. As regards the claim that there is a contradiction between stating that competition issues raised by the De Beers-Alrosa Agreement are unresolved because of the annulment of the De Beers commitments decision and there being no such statement with regard to SOC in the supplementary rejection decision, it is sufficient to note that that claim has become ineffective since the judgment of the Court of Justice in Alrosa (paragraph 45 above). Since that judgment, the De Beers commitments decision must be regarded as being final, so that the considerations in the supplementary rejection decision concerned solely with taking into account the annulment of the De Beers commitments decision may no longer validly serve as its basis. Consequently, even if the analysis carried out in the supplementary rejection decision contradicted the analysis of the competition issues raised by the De Beers-Alrosa Agreement, such a contradiction could not lead to the annulment of the abovementioned considerations of the supplementary rejection decision (see, to that effect, the judgment of 11 July 2013 in Joined Cases T‑104/07 and T‑339/08 BVGD v Commission, not published in the ECR, paragraph 232).
195 As regards the comfort letter, the Commission stated in it that it was important that SOC should not result in market foreclosure effects (see paragraph 9 above). It cannot, however, be inferred from this that, when the procedure in relation to SOC was reopened because of the alleged foreclosure effects of SOC, the Commission had necessarily to conclude in the decision closing that procedure that such effects existed.
196 As regards the amendments to the Ombudsman’s terms of reference after the comfort letter was sent, the Commission did indeed state that it sought to obtain and did obtain concessions from De Beers that improved the Ombudsman’s function. However, those amendments predate the adoption of the rejection decision and were taken into account in it, marking a development that strengthens the Commission’s position rather than contradicting it. In addition, it is apparent from the case-law that the Commission may decide that it is not appropriate to act upon a complaint where the undertakings concerned agree to change their conduct so that there is no longer sufficient Community interest in acting (see the case-law referred to in paragraph 156 above). It is precisely that criterion of the assessment of the Community interest which the Commission used in order to find that the applicant’s contentions concerned by the establishment of the Ombudsman did not disclose a sufficient Community interest (see paragraph 156 above).
197 Next, contrary to the applicant’s claims, the Commission did not infer that there was a small likelihood of establishing the existence of an infringement from the existence of contradictions between the information gathered during its investigation, but from the fact that that information did not establish the causal relationships necessary to demonstrate an infringement.
198 In that connection, the applicant complains that in order to reject its complaint, the Commission, thirdly, relied, in particular, on the scope of the investigation required, although it had provided the Commission with numerous documents and pieces of information – which were not disputed – and the Commission already had a vast amount of evidence from its other investigations which resulted in the De Beers/LVMH decision and the De Beers commitments decision.
199 The Court notes, first of all, that the criterion of the scope of the investigation required is not a principal ground in the contested decisions, only a secondary one. The Commission thus stated on several occasions in those decisions that the alleged infringements were not significant enough or that the likelihood of establishing an infringement was not sufficient to justify a complex inquiry, which the applicant disputes in the present case.
200 Next, the Court notes the case-law according to which the Commission may take a decision to shelve a complaint for lack of a sufficient Community interest not only before commencing an investigation of the case but also after taking investigative measures, if that course seems appropriate to it at that stage of the procedure (Case C‑449/98 P IECC v Commission, paragraph 156 above, paragraph 37, and Case T‑114/92 BEMIM v Commission [1995] ECR II‑147, paragraph 81; see also point 45 on the notice on the handling of complaints).
201 It follows that the large amount of evidence adduced by the applicant and the measures of inquiry already taken by the Commission cannot preclude the latter from concluding that there is insufficient Community interest on account of the small likelihood of establishing the infringements alleged by the applicant or their lack of significance (see paragraph 156 above). It also follows that, in the light of the measures of inquiry already taken, the Commission was entitled, without committing a manifest error of assessment, to find that more complex and intrusive measures of inquiry, such as inspections of premises pursuant to Article 20 of Regulation No 1/2003 would be necessary.
202 In the light of all the foregoing, the arguments directed against the assessment of the criteria for evaluating the Community interest must be rejected in their entirety.
Assessment of foreclosure effects (Cases T‑108/07 and T‑354/08)
203 In the rejection decision, the Commission relied, principally, on three factors in order to conclude that there was a small likelihood of finding any appreciable anti‑competitive effects of SOC resulting from the alleged foreclosure of access to rough diamonds for the secondary market operators. It relied on (i) the rough diamonds available from Alrosa, (ii) the rough diamonds resold by the sightholders and (iii) Diamdel’s supply. In Case T‑108/07, the applicant disputes the assessments relating to those three factors and the assessment concerning the supply from producers other than De Beers and Alrosa (‘the other producers’) and the conclusion drawn therefrom by the Commission.
204 In its supplementary rejection decision, the Commission reached the same conclusion relying, first, on those same three factors, while taking into account the impact of the General Court’s judgment in Alrosa (paragraph 26 above), and, secondly, on the rough diamonds from other producers and on market developments since the adoption of the rejection decision. In Case T‑354/08, the applicant disputes all those considerations and the conclusion drawn therefrom by the Commission.
Alrosa’s supply (Cases T‑108/07 and T‑354/08)
205 In the rejection decision, the Commission confirmed its provisional view that the diamonds produced and sold by Alrosa limited any possible foreclosure impact on the secondary market, on the grounds, first, that the De Beers’ commitments would phase out purchases by De Beers from Alrosa by the end of 2008 and, secondly, that Alrosa’s rough diamonds had been progressively sold outside De Beers’ channels since 2003. In doing so, the Commission rejected all the applicant’s criticisms of that assessment. The Commission contends that, at the end of the transitional period (2006-2008), Alrosa’s exports outside De Beers’ channels might exceed 10% of the current total worldwide production of rough diamonds.
206 In the supplementary rejection decision, the Commission took the view that, despite the annulment of the De Beers commitments decision by the General Court, its fresh assessment of the source of diamond supplies constituted by Alrosa did not enable it to reverse its conclusion in the rejection decision.
– The objections against the rejection decision
207 The applicant submits that the considerations in the rejection decision concerning the volumes of rough diamonds produced by Alrosa are based on materially incorrect facts and manifest errors of assessment of them. The applicant disputes (i) the Commission’s analysis of Alrosa’s exports outside the De Beers’ channels between 2003 and 2006 (first set of arguments), (ii) its analysis of the transitional period introduced by the De Beers commitments decision (2006-2008) (second set of arguments) and (iii) its analysis of Alrosa’s exports at the end of that period (as from 2009) (third set of arguments).
208 Thus, first, the Commission was incorrect to state that Alrosa’s export patterns indicated a strong trend towards sales by it outside De Beers’ distribution channels as from 2003. De Beers’ purchases from Alrosa had in fact been steadily increasing in the period 2003-2005. Taking into account Alrosa’s total exports, its sales outside De Beers’ channels did indeed increase in 2004, but decreased in 2005. That decrease results from the implementation by De Beers and Alrosa of their agreement that was in principle suspended.
209 It is sufficient to note in that regard that the figures submitted by the applicant, some of which were included in the economic report which it had submitted during the administrative procedure, provide no basis – even without using the updated figures referred to by the Commission – for the conclusion that the Commission made a manifest error of assessment in finding, in the rejection decision, that there had been a strong trend towards sales by Alrosa outside De Beers’ distribution channels as from 2003. First, the increase in De Beers’ purchases from Alrosa between 2003 and 2005 (from USD 635 million to USD 696 million) must be viewed in parallel with the increase in Alrosa’s total exports (from USD 878 million to USD 1.1 billion), to which the applicant itself refers. Thus, the value of rough diamonds exported by Alrosa other than to De Beers increased during that period from USD 243 million to USD 414 million according to the figures supplied by the applicant, that is an increase of 170%. Secondly, the fall in Alrosa’s sales outside SOC in 2005 is inferred by the applicant from the sales percentages (27.6% in 2003, 44.9% in 2004 and 37.38% in 2005). If those percentages are related to the total value of Alrosa’s exports – which increased during the period 2003-2005 – they also result in an increase in Alrosa’s exports outside De Beers’ channels by 170%, from USD 243 million to USD 414 million.
210 Secondly, the applicant submits that since the Commission recognised the anti‑competitive effects of the De Beers-Alrosa Agreement in the De Beers commitments decision, it was not entitled – as is apparent from the rejection decision – to accept the continuation of that anti-competitive conduct during the transitional period (2006-2008). In particular, the applicant states that since the Commission did not impose any requirements as to the quality of the diamonds which De Beers was allowed to buy from Alrosa during that period, De Beers could concentrate its purchases on the most sought after, higher quality diamonds, where it already holds a 80-85% market share, and thereby reserve to itself an even higher proportion of that market. The applicant states that it has ascertained by evidence submitted in its observations on the Article 7 letter that Alrosa’s best quality diamonds were purchased by De Beers.
211 It must be found, as the Commission and the interveners contend, that by its arguments the applicant seems in actual fact to be challenging the transitional period and its detailed rules as laid down by the De Beers commitments decision, which is not the subject-matter of the present action. The applicant complains, essentially, that the Commission accepted the establishment of such a transitional period enabling De Beers to continue with its purchases from Alrosa for over two years.
212 If, by its arguments, the applicant also disputes the Commission’s reply in the rejection decision to its claims concerning the quality of the diamonds sold by Alrosa to De Beers, the factors set out below must be noted.
213 During the administrative procedure, the applicant had argued that Alrosa’s sales other than to De Beers concerned only lower quality diamonds, the better quality diamonds being either processed in Russia or sold to De Beers and its sightholders, and that the average value of exports is not a reliable indicator of diamond quality. In the rejection decision, the Commission found, first, that those claims were contradictory in that the applicant had conceded that De Beers was the only company entitled to purchase ‘run of mine’, that is a proportion of all sizes and qualities across the entire production ranges of a given producer and, secondly, that the De Beers commitments decision enhanced the possibility for Alrosa to offer competitive supplies of its rough diamond production, in response to the overall demand for all categories of rough diamonds. In the Article 7 letter, the Commission relied on the figures from a press article, which showed that the per carat value of the diamonds sold to De Beers was equivalent to that of the diamonds exported other than to De Beers, concluding that the quality of both types of diamonds was equivalent.
214 The evidence adduced by the applicant does not show that the Commission made a manifest error of assessment in that regard.
215 First, the applicant simply states that it is ‘well known’ in the industry that Alrosa’s exports other than to De Beers predominantly consist of the smaller (less than 0.75 carat), lower qualities, relying on a letter from a diamond dealer to the Commission, which states that ‘any diamond dealer knows [this]’.
216 Secondly, the applicant relies on the press article referred to in the Article 7 letter. The Commission deduced from the figures in that article, and in particular by comparing the average carat value of the diamonds sold to De Beers (USD 75.90), the average carat values of the diamonds sold in Belgium (USD 61.30) or Israel (USD 97.08), and the average price per carat for rough diamonds exported from Russia (USD 72.08), that the diamonds sold to De Beers were not of a higher quality than those sold to other companies. The applicant challenges that conclusion, maintaining that De Beers received a 20% discount, so that the average cost of its purchases was really USD 94.88 per carat (USD 75.90 USD + 20% (USD 18.98)). It is sufficient to note in that regard that whilst that average price is indeed higher than the average price of exports in general (USD 72.08) and the average price of exports to Belgium, it is lower than that of the exports to Israel or China and Hong Kong (USD 96.92). It must be pointed out that the latter exports are also referred to in the press article in question, and none of the other references in that article calls in question the reasoning that the average value reflects the quality of the diamonds exported. That article states in addition that only the exports to De Beers were run-of-mine. It cannot therefore be inferred from the article cited by the Commission and referred to by the applicant that the diamonds sold to De Beers were of a higher quality than those sold to other companies.
217 Thirdly, the applicant states that it had provided sound evidence showing that it is unlikely that Alrosa’s exports would rise to 10% of world production in 2009 and criticises the figures put forward by the Commission that were not available when the rejection decision was adopted. It complains, in particular, that the Commission relied in the rejection decision solely on a press clipping in order to determine that percentage. The applicant also states that, in any event, such a percentage is not sufficient to eliminate any foreclosure effects, because, first, De Beers has a market share of 60-65% – and an even higher share of the market for high quality diamonds – and, secondly, there is no guarantee that the Alrosa sales will be sold to the secondary market rather than to the De Beers’ sightholders.
218 It must be noted that the Commission took the view, in the rejection decision and in the Article 7 letter, that Alrosa’s exports other than to De Beers would exceed 10% of world production as from 2009, the date of the end of the transitional period under the De Beers commitments decision. It established that estimate prospectively on the basis of information from specialist press articles. It thus referred, in the Article 7 letter, to the amount of Alrosa’s exports other than to De Beers as between USD 850 million and USD 1 billion in 2005, an amount obtained from articles dated May and June 2006, and concluded that, if those exports represented 7% of world production in 2005, they would reach 10% at the end of the transitional period. In the rejection decision, the Commission also relied on later reports on Alrosa available for 2006, referred to in another press article, and maintained that Alrosa had sold USD 2 billion of diamonds during the first three quarters of 2006, which contradicts the applicant’s estimate of the same amount of sales for the whole of 2006.
219 Admittedly, the Commission’s calculation for obtaining the 10% figure is not expressly set out in the rejection decision or the Article 7 letter. However, the essential information in order to arrive at such a result was contained in those documents. In order to obtain that figure it was sufficient, first of all, to add together the amounts of Alrosa’s exports other than to De Beers referred to in the Article 7 letter (USD 850 million and USD 1 billion) for 2005, the only full year for which data was available when the rejection decision was adopted, and the amount of Alrosa’s sales to De Beers for the same year, referred to in particular in the De Beers commitments decision (USD 700 million), given that those diamonds would no longer be sold to De Beers as from 2009. The amount obtained (USD 1.55 billion and USD 1.7 billion) had then to be related to the amount of worldwide sales (approximately USD 13 billion), giving a figure of between 12% and 13%. That percentage could also be obtained, as the Commission stated in response to a question from the Court, by applying the percentage of diamonds produced by Alrosa exported outside Russia (50%), referred to in particular in footnote No 16 of the Article 7 letter, to Alrosa’s share of the world market (between 20% and 25%), given that as from 2009 none of Alrosa’s exports could any longer be destined for De Beers.
220 It may therefore be deduced that, first, the Commission has adduced evidence in support of the percentage chosen and, secondly, that it exercised some caution in selecting a lower percentage than those resulting from estimates made on the basis of data available when the rejection decision was adopted.
221 In addition, the applicant has not adduced any evidence in its pleadings to call in question specifically the percentage chosen and the above‑mentioned information enabling that percentage to be obtained; it has merely referred to the evidence submitted by it during the administrative procedure and disputed the reliance on a press article.
222 As regards the figures relied on during the administrative procedure, it must be found that none of them calls in question the percentage chosen by the Commission.
223 Thus, the applicant submitted in its observations on the Article 7 letter, on the basis of a press article, that production of rough diamonds in Russia was expected to fall in 2006 to USD 2.087 billion, a fall which the Commission is alleged not to have taken into account in its estimate of the proportion of Alrosa’s exports other than to De Beers. However, it must be noted that that estimate related to the production of rough diamonds, not to sales, which might have been higher than the production figures because, for example, of sales of stocks, as the applicant itself conceded in acknowledging that, in 2005, Alrosa had sold USD 2.86 billion of rough diamonds whereas its production amounted to USD 2.26 billion.
224 Similarly, the applicant, again in its observations on the Article 7 letter, put forward an amount for Alrosa’s exports outside De Beers’ channels of approximately USD 400 million in 2006, which would give a figure for Alrosa’s exports outside De Beers of 3% instead of 10%. In so doing, the applicant incorrectly subtracted the amount of sales to De Beers (USD 600 million) from Alrosa’s total sales, whereas there would no longer be any sales to De Beers as from 2009 and estimates were required for that year.
225 Lastly, the data from the economic report submitted to the Commission by the applicant during the administrative procedure could not call in question the percentage decided on by the Commission. That data related only to the transactions between De Beers and Alrosa, in terms of gross values and as a percentage of the global market, not to Alrosa’s exports other than to De Beers, which had to be added to those figures in order to determine at the end of the transitional period the total amount of exports which could be allocated other than to De Beers.
226 As regards the press articles relied on by the Commission, which had referred to several of those articles in the Article 7 letter and the rejection decision, it must be found, first of all, that these are articles taken from the specialist diamond industry press regularly consulted by operators in the diamond sector, and written by experts in that sector. It must be noted, moreover, that the applicant itself relied on one of the articles cited by the Commission during the administrative procedure (see paragraph 223 above). Next, most of the articles to which the Commission made reference, in particular the article disputed by the applicant, refer to official data from Alrosa’s reports or the reports of the Russian customs authorities.
227 Consequently, the arguments challenging the percentage of Alrosa’s exports other than to De Beers must be rejected in their entirety. The same is true of the arguments to the effect that a figure of 10% is insufficient to eliminate possible foreclosure effects.
228 In that regard, it must be noted, first of all, that Alrosa’s diamonds are only one of the sources of supply on that market, so that the Court cannot at this stage rule on whether the percentage in question is sufficient.
229 Next, as regards the argument that that percentage is not sufficient, because it includes Alrosa’s sales to sightholders, the Commission did not make a manifest error of assessment in not deducting those sales from Alrosa’s sales. The Commission sought to determine the quantity of diamonds outside De Beers’ control that were available for the ‘free’ market. First, since they were sold directly to sightholders, the diamonds from Alrosa reached them without passing through De Beers, and thus without entering beforehand De Beers’ SOC distribution system to the sightholders. Secondly, the applicant has adduced no evidence to show that sightholders do not take their own commercial decisions concerning the diamonds purchased from producers other than De Beers, in particular the decision to resell them to non-sightholders. The applicant simply states in the reply in the present proceedings that De Beers’ sightholders moved to Russia, which at most supports the conclusion that the sightholders took measures to facilitate their purchases from Alrosa. The applicant added at the hearing that sightholders are in point of fact prevented from reselling the diamonds purchased from Alrosa to non-sightholders because of the sightholder profile, which questions them as to the destination of those diamonds and penalises them with a low score if they are resold to non-sightholders.
230 However, it is apparent, first, from the sightholder profile and from the notes to that profile that a sightholder applicant was not required to disclose the names of its customers, unless that information was publicly available, and, secondly, from the Ombudsman’s terms of reference, as amended in 2007, that the confidential information not provided for by SOC, such as that relating to the sightholders’ customers, may no longer be disclosed to De Beers and used by it, in particular as a result of the Ombudsman’s intervention (see paragraph 332 below). It follows that, even if sightholders disclosed the names of their customers to De Beers in order to obtain a higher score, as some of them stated in their replies to the 2004 requests for information (question No 25), such a disclosure could not lead, under the provisions governing SOC dating from 2007 analysed in the rejection decision, to the award of a low score and thus the de facto prohibition on resales to non‑sightholders (see also, regarding the possibility for sightholders to resell diamonds obtained from De Beers to non-sightholders, paragraphs 249 et seq. below). Consequently, the diamonds sold by Alrosa to sightholders could be taken into account for the purposes of determining the rough diamonds available for the free market.
– The objections against the supplementary rejection decision
231 The applicant submits that the Commission’s fresh assessment in the supplementary rejection decision of the source of supplies constituted by Alrosa is based on materially incorrect facts and manifest errors of assessment of them.
232 First, the applicant complains that the Commission’s reasoning is contradictory, since, in the supplementary rejection decision, it stated that the amounts for Alrosa’s sales referred to in that decision both included and did not include the sales to De Beers.
233 The passage of the supplementary rejection decision at issue reads as follows:
‘Based on the information submitted by ALROSA in its reply to the request for information of [9] October 2007, these sales from ALROSA outside De Beers’ channels amounted to USD 2.1 billion in 2005 and to USD 2.3 billion in 2006. These supplies are available for customers locally present in Russia as well as for manufacturers outside Russia. It should be noted that the amount of sales for 2005 and 2006 includes the sales to De Beers and other customers. The value of the sales to De Beers only in 2006 amounts approximately to USD 600m.’
234 It is indeed true that in that passage the Commission refers twice to Alrosa’s sales, in the first sentence by referring to the amount of those sales less the sales to De Beers and, in the third sentence, by stating that Alrosa’s sales include the sales to De Beers. Despite the somewhat ambiguous wording of that passage, the Commission did not base its analysis on contradictory reasoning. It follows from both an overall reading of the passage in question, and from reading the passage in the light of Alrosa’s replies to the request for information which it analyses, that the reference to the amount of Alrosa’s sales in the third sentence of that passage sought to explain the calculation performed by the Commission on the basis of those replies, which produced the amounts of USD 2.1 billion and USD 2.3 billion referred to in the first sentence of the passage, by noting the sales to De Beers (reply to question No 6) which were deducted from Alrosa’s total sales (reply to question No 2).
235 Secondly, the applicant complains that the Commission did not deduct the sales to SOC sightholders from Alrosa’s sales outside the De Beers’ channels, although that point is fundamental to appraise the foreclosure effects produced by the SoC system.
236 In so far as that argument is similar to those examined in paragraphs 229 and 230 above, it must be rejected on the same grounds as those set out in those paragraphs.
237 Thirdly, the applicant submits that the Commission completely neglected to assess the quality of the rough diamonds sold by Alrosa other than to De Beers.
238 The Commission stated in the supplementary rejection decision, in response to the claim, in the applicant’s observations on the supplementary Article 7 letter, that lower quality diamonds were sold by Alrosa outside De Beers’ channels, that the claim had been analysed in the rejection decision and that the applicant did not provide any fresh evidence in support of it, apart from the statement that Beers controls over 80% of the market for better quality diamonds.
239 It must be found that De Beers’ above-mentioned market share cannot of itself lead to the conclusion that it purchases only better-quality diamonds and hence permit any conclusion therefrom as to the quality of the diamonds sold by Alrosa to De Beers and to others. It follows that, in the absence of a new and substantiated argument from the applicant in relation to the lower quality of the diamonds sold to purchasers other than De Beers, the Commission was entitled to find, without making a manifest error of assessment, that it did not have to re‑examine its assessment in that regard in the rejection decision.
240 Fourthly, the applicant states that the amounts for Alrosa’s total sales reported in that company’s reply to the request for information must be approached with caution, in particular because they differ from those referred to in its annual reports, and that the supplementary rejection decision is therefore based on incorrect or doubtful information. The applicant adds that, in any event, the percentage of demand outside Russia supplied by Alrosa obtained from Alrosa’s replies to the requests for information – namely 8% – is insufficient to conclude that the likelihood of foreclosure effects is small. It states that the Commission failed to examine whether the volumes of rough diamonds in question would be able to make up for De Beers’ supplies.
241 In the supplementary rejection decision, the Commission responded to that claim, already included in the applicant’s observations on Alrosa’s reply to the request for information (see paragraph 34 above), by stating that it was based on an incorrect reading of the relevant data. The Commission thus stated, first, that the amounts of Alrosa’s total sales in the replies to the requests for information were higher than those referred to in Alrosa’s annual reports, since the latter did not reflect the sales of a subsidiary of Alrosa, OAO Almazy Anabara, and, secondly, that the difference between the amount of Alrosa’s sales and the value of its production could be attributed to re-sales of diamonds purchased by it or sales of stock.
242 The applicant disputes the first explanation, stating that the inclusion of the sales of Alrosa’s subsidiary does not give the 23% market share for Alrosa referred to in the supplementary rejection decision. It also relies on Alrosa’s website and another producer’s reply to the request for information in order to dispute that market share.
243 It must be noted, in that regard, that the difference between Alrosa’s turnover referred to in its reply to the request for information (USD 2.945 billion) and that referred to in its annual report (USD 2.864 billion) corresponds exactly to the amount of sales of OAO Almazy Anabara (USD 80.5 million), as Alrosa expressly states in its reply to the request for information, and that figure is not being called in question by the applicant. The applicant submits, by contrast, that that amount of OAO Almazy Anabara’s sales cannot explain Alrosa’s market share determined in the supplementary rejection decision. The calculation put forward by the applicant as the basis for its reasoning is, however, incorrect, because it is based on production not sales figures, which were the only ones examined in the supplementary rejection decision, as the Commission states. Therefore, by comparing Alrosa’s sales figures for 2006 referred to above (USD 2.945 billion) to the total sales on the market according to Alrosa (approximately USD 13 billion), the percentage obtained is 23%, whereas comparing the value of Alrosa’s annual production (USD 2.332 billion) to the total value of the sales referred to gives the percentage invoked by the applicant, namely 17.8%. The applicant is also mistaken when it refers to Alrosa’s market share mentioned on its website, which also relates to Alrosa’s production rather than to its sales. Lastly, it must be found that Alrosa’s 23% share is referred to by all the other producers questioned (De Beers, Aber, LLD Diamonds and Rio Tinto) in their replies to the requests for information, with the exception of BHP Billiton, which none the less selected figures deducting the sales to De Beers (see the footnote relating to BHP Billiton’s reply to question No 3 of the request for information of 9 October 2007).
244 The applicant also disputes the second explanation given by the Commission (see paragraph 241 above), stating that it is clear from the replies of the other producers to the requests for information that none of them sells diamonds to Alrosa, and that it is apparent from Alrosa’s annual reports that it could have constituted stock only in 2000 and 2002, which is insufficient to explain the difference between the production and sales figures. In the applicant’s submission, Alrosa thereby ‘inflated’ its sales figures for 2005 and 2006, including in its annual reports.
245 It must be found that the first part of the Commission’s second explanation at issue in the present case, namely the resale by Alrosa of diamonds purchased from other producers, is not in any way based on the replies of the producers to the requests for information, since Alrosa did not refer to any purchases from other producers and those producers do not mention any sales to Alrosa.
246 As regards the second part of the second explanation, based on the sale of diamond stocks by Alrosa, it must be noted that the Commission simply referred to that reason in the supplementary rejection decision without giving further details or references. However, since it was a classic economic explanation – the Commission described it as a ‘logical commercial explanation’ – which had been referred to on a number of occasions during the initial and supplementary administrative procedures, indeed by the applicant itself relying on a press article in its observations on the Article 7 letter and which, furthermore, was ‘known’ in the diamond sector, as shown by the fact that it was referred to on several occasions in Alrosa’s annual reports of 2005 and 2006, the Commission was not required to substantiate further its reference to Alrosa’s resale of stocks. In addition, in the light of the foregoing, the applicant’s argument that, over the period 2000-2006, the stocks constituted in 2000 and 2002 cannot explain the differences between sales and production in 2005 and 2006 is not sufficient to call in question the reasoning based on the sale of stocks, all the more so since the goods in question, rough diamonds, may readily be stocked over a long period and the accumulation (and reduction) of stocks is even a instrument for regulating prices which was in fact used during the period at issue, as shown by the above‑mentioned references in Alrosa’s annual reports (see also recitals 55 and 56 of the De Beers/LVMH decision). It also follows that the applicant’s argument that Alrosa ‘inflated’ its sales figures in 2005 and 2006 must be rejected.
247 Lastly, as to the claim that Alrosa’s sales, and in particular its 8% share, were insufficient to eliminate any foreclosure effects, it suffices to note, as in paragraph 228 above, that the diamonds from Alrosa represent only one of the sources of supplies on the market, so that the Court cannot at this stage rule on whether that percentage was sufficient.
248 It follows from the foregoing that the Commission did not make a manifest error of assessment or an error of fact in its assessment of Alrosa’s supply of rough diamonds in the supplementary rejection decision. Consequently, the objections against the assessment of that supply in the rejection decision and in the supplementary rejection decision must be rejected in their entirety.
Supplies by sightholders (Cases T‑108/07 and T‑354/08)
249 In the rejection decision, the Commission noted that it had examined, in the Article 7 letter, the applicant’s contentions concerning (i) the prohibition on dealers becoming sightholders, (ii) the prohibition on sightholders reselling rough diamonds from De Beers to non‑sightholders and (iii) the proportion of rough diamonds resold. It had therefore taken the view, in the Article 7 letter, that it was apparent from the sightholders’ replies to the requests for information that the rough dealers had not been eliminated from SOC and that, on average, a sightholder resold 15-20% of rough diamonds received from De Beers. In answer to the criticisms levelled against those considerations, the Commission drew attention, in the rejection decision, to the figures in relation to sightholders who resold supplies, stressed that a considerable portion of rough diamonds reached the secondary market through sightholders and inferred from the replies to the requests for information that the diamonds resold by the sightholders were not inferior in quality.
250 In the supplementary rejection decision, the Commission reiterated those considerations from the rejection decision, in addition to a factor from the supplementary market investigation, namely De Beers’ statement that ‘the level of [sightholder] trading ha[d] increased even further’, and concluded from this that, since the applicant had not provided any additional argument to prove its allegations, the Commission had no need to change its initial assessment.
251 The applicant contests all those considerations.
252 First, the applicant puts forward a number of pieces of evidence against the sightholders’ replies to the requests for information on which it claims the Commission relied (inter alia, De Beers’ website, the statements from the diamond bourses, articles from specialist journals, a letter from De Beers in 2008, and a letter from a broker sent in 2003). They show, it claims, that rough dealers were all excluded from SOC and that SOC indirectly prevented sightholders from reselling rough diamonds to non-sightholders. The applicant also states that the Commission’s calculations are superficial and do not consider sufficiently the reality of the market, in particular the importance of the pure rough dealers for secondary market manufacturers, since those dealers are the only ones which sell the whole quality range of rough diamonds and do not compete with those manufacturers.
253 Without there being any need even to compare the evidence adduced by the applicant with that put forward by the Commission and the interveners, it must be found that the applicant’s evidence does not prove that the rough dealers are all excluded from SOC.
254 Thus, as regards the specialist journal articles, it is sufficient to note that the applicant makes a general reference to them, without providing extracts, or even citing one particular article.
255 As regards the diamond bourses’ statements, whether in the context of letters and complaints to the Commission or in the diamond bourses’ replies to its requests for information, it must be noted that those documents and, in particular, the extracts cited by the applicant merely refer to an SOC policy designed to reduce the role of rough diamond dealers, or even eliminate them, and are therefore simply positions unsubstantiated by specific evidence. As regards the diamond bourses’ replies to the requests for information, that type of reply is attributable to the nature of the questions asked, which differ from those asked of the sightholders inasmuch as they call for statements of opinion rather than the provision of precise information. Thus, question No 1 of the request for information addressed to the diamond bourses was worded as follows: ‘Do you consider that there exists a “secondary market” for rough diamonds?’ and, by question No 9, the Commission asked the diamond bourses whether they had any other comments on the implementation of SOC or any other matter regarding competition in the diamond industry. Those questions may in turn be explained by the position of the diamond bourses in relation to SOC. While the main function of the diamond bourses is to enable diamond trading between their members – producers, dealers, brokers and jewellery manufacturers – they do not intervene in the transactions between De Beers and its sightholders in the context of SOC. The diamond bourses are therefore entities external to SOC, which are not in a position to provide specific figures on it, but may only represent their members’ objections. Those considerations also apply to all the documents from the diamond bourses relied on by the applicant. It follows that those documents are not alone capable of establishing that the rough diamond traders are excluded from SOC.
256 It is true that, in the 2003 letter to the applicant from a broker, the broker stated that it was ‘far more difficult’ for a pure rough dealer, such as the applicant, to be selected under SOC. However, he explained that this was due to the SOC selection criteria and weighting, so that he did not rule out that in a future selection procedure, in the light of the results obtained by the other applicants, a pure rough dealer might be selected. It must be noted, moreover, that Spira, which is a pure rough diamond dealer, was selected as a sightholder under SOC in 2005 (see paragraph 14 above).
257 De Beers’ letter to the applicant on 10 January 2008, subsequent to the rejection decision, does indeed state that Spira’s application for sightholder status had been rejected. The applicant does not, however, refer to any evidence from that letter from which it may be inferred that all pure rough diamond dealers are refused that status or that it is only because of its status as a pure rough dealer that such a refusal has been made.
258 It follows from all the foregoing that the evidence supplied by the applicant does not establish that the Commission made a manifest error of assessment in taking the view that SOC did not prohibit dealers from becoming sightholders. Contrary to the applicant’s claims in the application, in the absence of dealers being excluded from SOC, the Commission was not required to examine whether that exclusion of rough dealers amounted to abuse of a dominant position.
259 In addition, contrary to the applicant’s contentions, the sightholders’ resale capacity must not be determined solely on the basis of sightholders that are pure rough diamond dealers, but requires all the resale activity of sightholders to be taken into account and thus even the resale activities of sightholders also engaged in manufacturing. The status of pure dealer does not reveal the volume of resales made, since that volume depends on the volume of the dealer’s activity and not the percentage of its activity given over to the resale of rough diamonds. Consequently, a pure rough diamond dealer may supply fewer rough diamonds to the secondary market than a dealer also engaged in manufacturing.
260 Consequently, the applicant’s claim that the list of sightholders referred to on De Beers’ website reveals the existence of one or two sightholders described as dealers, but which are also ‘preparers’ – that is, they prepare the stones to be cut or polished by others – and have diamond polishing operations, is irrelevant.
261 Lastly, the argument that, once selected, sightholders are prevented from reselling rough diamonds to non-sightholders must also be rejected. The applicant simply refers in that regard to De Beers’ ‘strategies’ and to an ‘organisation of the system’ intended indirectly to prevent sales from sightholders to non-sightholders, mentioning, first, the marketing and jewellery branding obligations imposed by SOC which force dealers to relinquish their dealer activities and, secondly, to the controls and evaluations to which the sightholders are subject for the purposes of monitoring that those obligations are complied with. However, such obligations to participate in downstream marketing programmes imposed on sightholders, if proven, do not in themselves justify the conclusion that resale to non-sightholders is de facto precluded. It is apparent from the sightholders’ replies to question No 11 of the request for information addressed to them – their replies to No 11 not being specifically challenged by the applicant – that, in order to participate in certain downstream marketing programmes, the use of De Beers’ diamonds was not required, so that a sightholder could participate in those programmes while reselling all the rough diamonds supplied by De Beers. The Court thus notes that the sightholders themselves stated in response to questions Nos 12 to 15 of the request for information that they resold diamonds received from De Beers, as indeed acknowledged by the applicant in disputing the resale percentage decided on by the Commission.
262 Secondly, the applicant submits that few rough diamonds are sold by sightholders on the secondary market, and it therefore disputes the Commission’s finding that sightholders would on average resell 15 to 20% of rough diamonds to the secondary market, a finding which the applicant claims that the Commission has failed to substantiate. In order to do so, the applicant also relies on the replies of the diamond bourses and the other producers, other evidence on the file and the replies given by the sightholders themselves.
263 The Court notes, first of all, that the Commission stated, in particular in the Article 7 letter, that the disputed average percentage was apparent from the sightholders’ replies to the Commission’s request for information (see paragraph 249 above). The Commission had asked the sightholders to communicate to it how much rough they had purchased and specify the percentage of their purchase requirements satisfied by De Beers (question No 3), and to specify the percentage of diamonds purchased from De Beers sold on to the secondary market (question No 13), indicating the status of those to whom those diamonds were resold, in particular whether they were sightholders or non‑sightholders (question No 15). As the Commission stated in the defence, it took into account all the replies to those questions in establishing the 15 to 20% figure. Admittedly, that average percentage cannot be obtained simply by reading the table summarising the sightholders’ replies, since the amounts of rough diamond purchases are replaced by ranges of figures. However, it must be borne in mind that the information relates to business secrets and is therefore confidential (see paragraph 70 above; see also, to that effect, the order of the President of the Fourth Chamber (Extended Composition) of the Court of 2 May 2007 in Case T‑388/02 Kronoply and Kronotex v Commission, not published in the ECR, paragraph 34). In addition, the percentages of De Beers’ diamonds resold have not been redacted or replaced by ranges of figures and had thus been communicated to the applicant, but it has not used them to argue that the average percentage decided on was manifestly incorrect. In those circumstances, it cannot be held that the Commission has failed to establish the figure for the percentage resale at 15 to 20%.
264 Nor can it be held that the Commission has not adduced any evidence for the finding, referred to in the Article 7 letter, that the largest sightholders are also the largest resellers of rough diamonds. In the requests for information relied on by the Commission were two questions, one on the rough diamonds purchased by the sightholders (question No 3) and the other on the polished diamonds sold (question No 20). From the comparison of the replies to those questions it then became apparent, as the Commission makes clear, that the sightholders purchasing the most rough diamonds, that is the largest sightholders, were those reselling the least polished diamonds, and they therefore resold a significant proportion of the rough diamonds purchased (see the penultimate column of the summary of sightholder replies to the requests for information).
265 In addition, the Court also rejects the applicant’s contentions based on the diamond bourses’ replies, on the same ground as that referred to in paragraph 255 above, and its contentions based on the replies of the other producers and other evidence from the file, which are unsubstantiated. The applicant has not referred to any specific passage from the other producers’ replies to the Commission’s request for information capable of calling in question the percentage decided on and it is apparent from reading the summary of those replies that they do not give grounds for calling that percentage in question either. As regards the other evidence from the file, the applicant refers only to the submissions received by the Commission in the context of the market testing of the De Beers commitments. However, the applicant again fails to refer to any specific passage of those submissions, which moreover contain only the contentions of four non‑sightholders concerning their difficulties in obtaining supplies from De Beers’ sightholders prior to the De Beers commitments decision. Those submissions cannot therefore constitute the ‘strong evidence’ invoked by the applicant in order to prove that the average resale percentage decided on by the Commission was manifestly incorrect.
266 As to the argument that the Commission omits to quote the reply of sightholder No 29 which claims that ‘SOC until recently has dramatically reduced levels of secondary trading’, it must be found that simply referring to a reduction in the levels of secondary trading by a single sightholder is not capable of calling in question the figure of 15 to 20% decided on by Commission.
267 As to the arguments that the Commission distorted sightholder No 5’s reply and incorrectly stated that ‘many [other sightholders]’ resold at least a de minimis (5% or more) of diamonds, while listing only three such others, it is sufficient to note that those references appeared in the defence and not the rejection decision, so that those arguments cannot lead to the annulment of the rejection decision and must be rejected as ineffective.
268 Thirdly, the applicant submits that the Commission’s reading of the sightholders’ replies to the requests for information is questionable as regards the quality of the diamonds resold by them. The applicant thus refers to the 31 sightholders which stressed the low quality of the diamonds resold. It also refers to the reply of a sightholder which stated that it resold its diamonds in India, a country known for the low quality of the diamonds manufactured there. In addition, the applicant objects to the Commission’s use of the value of diamonds rather than the number of carats as a unit for measuring the quality of the diamonds resold by the sightholders.
269 It must be noted that the Commission stated in the rejection decision that the sightholders which referred to an inferior quality of diamonds resold were predominantly manufacturers, therefore reselling solely diamonds inappropriate for their own production, but that none of the replies of the sightholders for which trading is also a core activity indicated that the quality was inferior. The Commission further stated that the value of diamonds better reflected the quality of the diamonds resold than the number of carats.
270 It must be found that, in order to determine the quality of the diamonds resold, greater importance should be attached to the replies of the sightholders accounting for the majority of the diamonds resold, those sightholders also being significantly engaged in resale (see paragraph 264 above). Admittedly, as the applicant states, those sightholders have not indicated, in their replies, the quality of the diamonds resold, whereas the small resellers, which are predominantly manufacturers, have mentioned the inferior quality of the diamonds resold. The failure to refer to quality is, however, due to the questions asked. Indeed, none of the questions was concerned in general terms with the quality of the diamonds resold, the sightholders only being questioned as to whether they resold the diamonds purchased because they were not interesting for their manufacturing activity (question No 14). As a result, only references to the resale of rough diamonds on the ground that they were inferior in quality could be included in the replies. It cannot therefore be inferred from the silence as to the quality of the diamonds resold of the sightholders that were the largest resellers, and from the reference to the inferior quality of the diamonds resold by the manufacturers, in particular in India, that the Commission made a manifest error of assessment of the quality of the diamonds resold by the sightholders.
271 As regards the unit for measuring the quality of the diamonds resold, the Commission did not make a manifest error of assessment in selecting the value of the diamonds rather than the number of carats. Since the carat is a unit for measuring the weight of a diamond, as such it only enables the volumes resold to be determined and can be an indicator of quality only if it is related to the number of diamonds resold in order to determine the size of those diamonds (number of carats per diamond) or if it is related to the value of the diamonds in order to evaluate their intrinsic value (value per carat) (see paragraph 216 above).
272 Fourthly, with regard to the supplementary rejection decision, the applicant criticises the Commission’s reference to a statement of De Beers and ‘the Commission’s willingness to blindly trust De Beers’.
273 It is sufficient to note in that regard that the Commission referred to De Beers’ statement concerning the increase in the level of trading by sightholders, first in order to confirm its assessments in the rejection decision and secondly on a provisional basis, as shown by the statement’s position after the summary of the rejection decision and before the account of the applicant’s contentions criticising those assessments in its observations on the supplementary Article 7 letter. The applicant had therefore the opportunity to dispute that statement. However, neither in the administrative procedure nor indeed in the context of the present proceedings has the applicant adduced evidence capable of calling it into question (see paragraph 105 above), so that the fourth argument must also be rejected.
274 It follows from all the foregoing that the Commission did not make a manifest error of assessment in finding that there was a supply of rough diamonds from the sightholders themselves.
Supplies by Diamdel (Cases T‑108/07 and T‑354/08)
275 In the rejection and supplementary rejection decisions, the Commission took the view that secondary market operators had significant access to De Beers’ diamonds (namely 10% of De Beers’ rough diamonds) thanks to Diamdel, which belonged to the De Beers group and was specialised in sales to non-sightholders.
276 The applicant submits that that conclusion is manifestly wrong for several reasons.
277 First, the applicant submits, essentially, that Diamdel cannot be considered as a genuine, independent source of supply for rough diamonds outside SOC. As a subsidiary of De Beers, Diamdel pursues the De Beers group policy and is simply an instrument in the hands of that group.
278 In particular, the applicant submits, relying, inter alia, on a letter of Diamdel of 20 January 2003 and on letters to the Commission from the diamond bourses, that Diamdel adopts a policy of selling in accordance with the SOC rules, thereby excluding sales to secondary market manufacturers that refuse to adapt their business model according to De Beers’ wishes.
279 It must be pointed out in that regard that none of the documents submitted by the applicant proves the implementation of such a sales policy. As regards the letters from the diamond bourses, it is sufficient to note that they contain mere unsubstantiated allegations. As regards Diamdel’s letter of 20 January 2003 referred to above, it states in a final passage that ‘As a De Beers Group Company, Diamdel will primarily aim to support those companies that drive consumer demand for diamonds – broadly in line with DTC’s [SOC] strategy’. Regardless of the meaning of the word ‘broadly’ used in that passage, that is to say, ‘to a large extent’ or ‘roughly’, it must be observed that Diamdel refers not to the ‘SOC rules’ or the ‘SOC criteria’, but to one of the general objectives of the ‘SOC strategy’, namely the increase in the demand for diamonds. As the interveners stated, in essence, at the hearing, the letter from Diamdel to its customers, and in particular the abovementioned passage, sought to clarify Diamdel’s role in relation to SOC following the comfort letter and before the implementation of SOC, specifying that, as a result of belonging to the De Beers group, Diamdel pursued the same principal objective as SOC, without, however, at any point stating that it applied the SOC rules and criteria. The interveners also stated, again at the hearing, that Diamdel asked its customers to observe a code of conduct including a number of ethical rules, not to comply with the SOC rules. In addition, in an interview with the managing director of Diamdel published in a specialist review on 2 January 2004 and communicated in annex to the application, he stated that he does not apply SOC rules and criteria to his customers.
280 In those circumstances, the Commission cannot be criticised on the ground that it rejected as unsubstantiated the contention that Diamdel applied the SOC rules. It also follows from this that it is immaterial that Diamdel is a subsidiary of De Beers and that it therefore has links to it, since, as is apparent from the foregoing, Diamdel constitutes a source of supply for non-sightholders which is outside SOC. Therefore, even if Diamdel received instructions from De Beers, which is not proved, the diamonds resold by Diamdel may be regarded as a separate source of supply of rough diamonds for non‑sightholders.
281 Secondly, the applicant submits that the Commission was wrong to find that Diamdel enabled non-sightholders to be supplied with rough diamonds. Diamdel sells at most only 10% of De Beers’ diamonds to non-sightholders, which represents a limitation of the rough diamonds available for the secondary market compared with the situation before the introduction of SOC, when half of De Beers’ sales went to pure dealers for further trading on the secondary market. In addition, the applicant claims to have proved that Diamdel itself purchased rough diamonds on the secondary market, in that way reducing the availability to secondary market manufacturers.
282 It must be observed, first of all, that the applicant does not dispute the 10% rate decided on in the contested decisions. It has simply argued that such a percentage of diamond sales from De Beers to non‑sightholders was inadequate to ensure that they were supplied with rough diamonds. In addition to the fact that such inadequacy of supply cannot be established on the basis of that source of supply alone, it may be found that the mere fact – which is unsubstantiated moreover – that the rate of supply is below that which existed before the introduction of SOC is not sufficient as such to prove that there was an inadequate supply to non‑sightholders by Diamdel.
283 Next, it must be observed that the Commission acknowledged in the rejection decision that Diamdel has purchased rough diamonds on the secondary market. However, the evidence submitted by the applicant, namely the diamond bourses’ statements and the replies of other operators on the market during an investigation in relation to the De Beers commitments, provide no indication of the size of those purchases and simply refer to their existence. In addition, only one company operating in the diamond sector has contended that such purchases limit the availability of rough diamonds, stating, without supporting evidence, that Diamdel purchased rough diamonds on the secondary market so that there were no diamonds left for customers like itself. It must also be noted that Diamdel’s principal activity is the sale of rough diamonds to non-sightholders. Diamdel’s managing director thus stated, in the abovementioned interview published on 2 January 2004, that Diamdel only sold to non-sightholders and the interveners confirmed at the hearing that Diamdel’s customers were not sightholders, except in 2004, the year in which some of its customers in South Africa were sightholders. Therefore, even if Diamdel made purchases on the secondary market, they would ultimately revert to non‑sightholders and simply be added to the 10% of De Beers’ diamonds sold to them. It follows that the Commission did not make a manifest error of assessment in finding that it was not proved that Diamdel’s purchases on the secondary market had an appreciable effect on the availability of rough diamonds.
284 Thirdly, the applicant complains that the Commission rejected its claim that Diamdel practised discriminatory pricing and could not therefore be considered a genuine source of supplies for non-sightholders. Diamdel unjustifiably charges higher prices to non-sightholders than those charged to De Beers’ sightholders.
285 Without the need even to rule on whether there is a difference between the prices charged to sightholders and those charged by Diamdel to non‑sightholders, which is denied by the Commission yet acknowledged by De Beers, it is sufficient to note that, even if such a difference existed, the Commission set out, in both the rejection decision and the Article 7 letter, several typical characteristics of a downstream supplier in order to explain it. They are based essentially on the fact that sightholders are regular, long-term customers purchasing large volumes, whereas non-sightholders are more irregular buyers purchasing smaller quantities of diamonds, and have not been called into question either during the administrative procedures or in the present proceedings.
286 In those circumstances, the arguments challenging the Commission’s assessment of the supply of rough diamonds by Diamdel must be rejected in their entirety.
Supplies by other producers (Cases T‑108/07 and T‑354/08)
287 While the rejection decision makes no reference to the supplies from producers other than De Beers and Alrosa, as the applicant submits, it is based on the Article 7 letter, in which it is stated that diamonds produced by Alrosa complement the supplies from other competing producers such as Rio Tinto and BHP Billiton.
288 In the supplementary rejection decision, the Commission deduced from a press article and from the replies of the producers to the supplementary requests for information that their supplies amounted to between USD 3 billion and USD 4 billion in 2005.
289 The applicant submits that the Commission made several manifest errors of assessment of the capacity of the other producers to constitute genuine sources of supply for non-sightholders.
290 First, the applicant states that the supplies from the competitors to De Beers and Alrosa are fragmented and rather limited compared to those from De Beers, so that they could not be considered alternatives to De Beers’ supplies. It thus states that only two producers were mentioned during the initial procedure, and notes that their market shares, as set out by the Commission in its defence, were only 8% for Rio Tinto and 5% for BHP Billiton, respectively. The applicant also refers to the case of a producer, Miba, which has ceased production and is on the verge of bankruptcy. It further complains that the Commission took account of those other diamond producers as genuine alternative sources of supply, when it had previously considered them – in the De Beers/LVMH decision and in the De Beers commitments decision – too fragmented and unreliable in contrast to the consistent and regular source of supply ensured by De Beers. The applicant adds that one of the producers referred to by the Commission – Rio Tinto – produced low quality diamonds.
291 The applicant’s line of argument is not capable of showing that the Commission made a manifest error of assessment.
292 First of all, the evidence submitted by the applicant does not prove that Miba ceased production and that the diamonds produced by Rio Tinto are low quality. The annex to its own reply which the applicant cites refers only to the arrears in the Miba employee’s salaries, not to production ceasing. Moreover, the other annex to its reply cited by the applicant refers to the quality of diamonds of only one of the mines operated by Rio Tinto, in Australia, whereas it operates other mines, and the applicant further states that the fancy pink diamond, which is regarded as a diamond of exceptional quality fetching USD 500 000 per carat, is also produced at that mine.
293 Next, the De Beers/LVMH decision and the De Beers commitments decision are irrelevant to assessing in the present case the supplies from the other producers. The De Beers/LVMH decision relates to information from a 2001 market investigation before the implementation of SOC, which cannot be regarded as relevant to investigations concerning the implementation of SOC carried out in 2004 and above all in 2007. Similarly, the extract cited from the De Beers commitments decision concerning De Beers’ capacity to supply the broadest range of diamonds does not mean that the productions of the other producers must not be taken into account.
294 Lastly, the applicant refers only to two producers’ sales, whereas the Commission cites six in the supplementary rejection decision. In addition, the applicant does not dispute the total amount of the other producers’ sales referred to in the supplementary rejection decision, that is a minimum of USD 3 billion, which, it must be stated, represented approximately 20% of the world supply in 2005 (USD 3 billion in relation to USD 13 billion).
295 Secondly, the applicant submits that several factors contribute to limiting the availability of rough diamond supplies from the other producers to non‑sightholders.
296 First of all, some producers – the applicant names Aber and LLD Diamonds – are vertically integrated and their production might therefore not be available to pure rough diamond dealers and to secondary market manufacturers.
297 Next, the applicant submits that sales regularly occur between certain producers. It refers to LLD Diamonds’ purchases from De Beers and Alrosa and, generally, to the existence of economic links between De Beers and its competitors.
298 Lastly, the sightholders and Diamdel can also purchase rough diamonds from the other producers, again reducing the supplies available to the secondary market manufacturers.
299 The arguments put forward by the applicant also fail to show that the Commission made a manifest error of assessment.
300 It must be noted, first of all, that the applicant’s arguments concerning the vertical integration of certain producers and the regular sales between producers are based on two producers whose production is minimal, representing 2 to 3% of world production in the case of Aber, or negligible, being equivalent to 1% of world production in the case of LLD Diamonds. This is in contrast to the other producers referred to by the Commission, such as Rio Tinto and BHP Billiton whose shares of the world market total 6 to 8% and 4 to 5% respectively, according to the replies to the supplementary requests for information. Furthermore, as is apparent from paragraph 139 above, the amount of LLD Diamonds’ purchases from De Beers was low. Those arguments are therefore incapable in themselves of calling in question the Commission’s conclusion as to the availability of supplies from the other producers for non-sightholders.
301 Next, as to the argument based on the purchases of diamonds from the other producers by the sightholders and by Diamdel, it is sufficient to refer to the earlier considerations concerning the supplies by the sightholders and Diamdel, namely, first, that the Commission has not made a manifest error of assessment in finding that the sightholders and Diamdel constituted sources of supplies of rough diamonds for non‑sightholders (see paragraphs 249 et seq. and 275 et seq. above) and, secondly, that the rough diamonds sold to sightholders other than by De Beers do not fall within SOC (see paragraph 227 above) nor do the rough diamonds sold by Diamdel (see paragraph 279 above).
302 Consequently, the objections to the assessment of the supply of rough diamonds from the other producers must be rejected in their entirety. It also follows that the Commission was not required to question those producers about their stocks and the quality and size of the diamonds sold (see paragraph 136 in fine above).
Overall availability of rough diamonds (Cases T‑108/07 and T‑354/08)
303 In the rejection decision, the Commission found, first, that 30% of the rough diamonds produced by De Beers were available to the secondary market and, secondly, that it had not been established that the reduction in the number of sightholders (from 120 to 90) following the introduction of SOC had a considerable impact on competition and resulted in a reduction in the available quantities of rough diamonds. In the supplementary rejection decision, the Commission took the view that the supplementary investigation had established that the value of rough diamond sources outside SOC exceeded USD 7 billion or possibly even USD 8 billion and that it was not therefore required to reverse its conclusion that the likelihood of anti-competitive foreclosure effects was small.
304 The applicant disputes the conclusion that sufficient rough diamonds are available to the secondary market.
305 In order to do so, first, it relies on several documents which it claims reveal the existence of difficulties in obtaining supplies on the secondary market.
306 It must be found that the evidence adduced by the applicant do not call in question the Commission’s conclusion that rough diamonds were available. The letters declining to supply diamonds produced in annex to the application relate only to the applicant and two diamond producers. Similarly, the open letter from the Diamonds Manufacturers and Importers Association of America (DMIA) to De Beers, in addition to being after the rejection decision and, in the Commission’s view, a politically motivated statement of opinion, constitutes a request from American manufacturers to obtain diamonds from De Beers and thus sightholder status. Consequently, the letter does not relate directly to the supply of non‑sightholders on the secondary market.
307 Secondly, the applicant denies that the 50% proportion of rough diamonds remaining outside SOC, referred to by the Commission, is sufficient to conclude that rough diamonds are available to the secondary market. Such a conclusion shows that the Commission misunderstood the criterion of foreclosure effects, mistakenly equating it to establishing the existence of a monopoly. It also indicates a misapplication of that criterion of foreclosure effects, since in order to apply it correctly it is necessary, first, to determine the actual and effective competition to De Beers by independent suppliers which are able to make up for the supplies controlled by it and, secondly, to take into account all the potential monopolisation activities of De Beers. In that connection, the applicant states that De Beers controls 75% of world diamonds.
308 It must be observed, first of all, that the applicant does not dispute the 50% figure for world supplies that remain available, which results from the sum of the supplies of rough diamonds ensured by the sightholders outside SOC, by the other producers, including Alrosa, and by Diamdel. Contrary to the applicant’s contentions, deducing from that figure that there is a small likelihood of foreclosure effects is not tantamount to requiring there to be a monopoly in order to be able to find that such effects exist. A monopoly would be needed only if the Commission had required a percentage of supplies subject to SOC approaching 100%, which is not the case here. The applicant’s complaint that the Commission misinterpreted the criterion of foreclosure effects cannot therefore be upheld.
309 In addition, it follows from the earlier arguments, first, that the Commission has not made a manifest error of assessment in finding that, despite their links to De Beers, Diamdel and the sightholders constituted genuine sources of supplies for non-sightholders (see paragraphs 249 et seq. and 275 et seq. above) and, secondly, that although the Commission had examined separately the foreclosure effects and the other unlawful conduct of which De Beers is accused, some of which, it is alleged, sought to establish a monopoly, that does not mean that the Commission failed to take into account the interplay between those various factors (see paragraph 146 above). Lastly, it is mistaken to assert that De Beers controls 75% of rough diamonds worldwide, since it is clear from De Beers’ website from which that statistic is taken that the sightholders, not De Beers, handle rather than control 75% of diamonds in the world. The applicant’s arguments seeking to establish that the Commission misapplied the criterion of foreclosure effects cannot therefore be upheld either.
310 Thirdly, the applicant disputes that it has not been proved that the reduction in the number of sightholders following the implementation of SOC had a considerable impact on competition and led to a decrease in the rough diamonds available, relying in particular on the De Beers/LVMH decision.
311 In that connection, the Commission was entitled, without making a manifest error of assessment, to find that the applicant had not established that the reduction in the number of sightholders on account of SOC had a considerable impact on competition and thereby amplified the foreclosure effects of SOC. With the exception of the De Beers/LVMH decision, the applicant does not adduce any evidence in support of that contention. As regards that decision specifically, apart from the fact that it was adopted approximately six years before the rejection decision, as noted by the Commission and the interveners, it must be observed that the relevant passage from it states that, ‘[b]y tightening the DTC supply channel by only supplying the best sightholders, De Beers would reduce inter-client competition’. Consequently, that decision adjudicates on the competition between sightholders, whereas the present case involved the more general question of the supply of diamonds to the secondary market, and thus to non-sightholders, sightholders being only one source of supply. In addition, a reduction in the number of sightholders and in competition between them does not necessarily mean a reduction in the supply to non-sightholders. In any event, given the limited extent of the reduction in the number of sightholders, namely 25% of the number of sightholders before the implementation of SOC, the Commission was entitled, without making a manifest error of assessment, to reject the claim that there was a considerable effect on competition.
312 If follows from all the foregoing that the objections to the assessments of the overall availability of rough diamonds in the rejection and supplementary rejection decisions must be rejected in their entirety.
Market developments (Case T‑354/08)
313 In the supplementary rejection decision, the Commission examined several aspects of market developments. It found, in particular, that the beneficiation process (see paragraph 38 above) underway in the major African diamond‑producing countries (that is, South Africa, Namibia and Botswana), which account for the vast majority of De Beers’ diamond intake, was likely to reduce the sales of rough diamonds by sightholders and would thus lead to the reduction of the value of diamonds distributed through SOC. In the context of that process, the rough diamonds destined for local industry are sold to joint ventures formed between De Beers and national governments or to local state‑owned companies, which resell the rough diamonds to companies selected on the basis of various selection criteria. The Commission also found that the ‘Forevermark’, which is a mark belonging to the De Beers group consisting in an inscription added to certain diamonds in order to identify those diamonds from De Beers as observing, in particular, best environmental practices and social behaviour, was unrelated to the issue of foreclosure effects and therefore outside the scope of the supplementary procedure.
314 The applicant submits that the Commission’s analysis of those developments is based on materially incorrect facts and manifest errors of assessment.
315 First, the beneficiation process merely strengthens further De Beers’ control of the diamond market because of the importance of the SOC criteria in the selection systems in Namibia and Botswana and the ‘total failure’ of State Diamond Trader (SDT), which is the public undertaking set up in South Africa to receive the diamonds concerned.
316 As regards the selection criteria used in Namibia and Botswana, the applicant does not deny that the SOC criteria are not the only criteria to be applied. It submits, however, that because of the inclusion of the SOC criteria in the selection process in force in those two countries, only sightholders or companies linked to them could be selected, which gives rise to the misuse of the beneficiation process and the reappearance of SOC in those countries.
317 First of all, it must be noted that the Commission stated in the supplementary rejection decision, which the applicant does not dispute, that, of the 11 companies selected in Namibia for the 2007-2011 contract period, three of them were not affiliated to De Beers or a De Beers sightholder, which shows that the application of the SOC criteria in the context of the beneficiation process does not necessarily entail the selection of sightholders. The applicant does indeed state, in the application, that all the undertakings selected in Botswana have links to sightholders, which the Commission does not deny. However, the undertakings selected further to that procedure will not necessarily be selected in subsequent procedures. The undertakings are selected by comparing their individual marks calculated by adding together the points obtained for each of the selection criteria. Subsequent selection procedures could thus result in undertakings not linked to sightholders being selected, all the more so since the specific selection criteria for the beneficiation process (requiring a significant local presence in terms of employment, use of local raw materials or promotion of local industry), separate from the SOC criteria, account for 60% of the mark in the selection procedure in Botswana, as against 50% in Namibia. The applicant’s argument based on the selection procedure in Botswana cannot therefore call in question the Commission’s assessment in the supplementary rejection decision that the beneficiation process was likely to reduce sales by sightholders (see paragraph 313 above).
318 Next, even if some or all of the undertakings selected are affiliated to sightholders, that affiliation cannot call in question the Commission’s assessment that the beneficiation process leads to the reduction in the proportion of De Beers’ rough diamonds distributed through SOC. The use of the criteria applied in the context of the beneficiation process, albeit some of them are SOC criteria, results in local joint enterprises, and not De Beers, selling diamonds to the undertakings selected, without the various SOC rules being imposed on them, so that the diamonds in question may be regarded as not entering the SOC distribution system.
319 As regards the SDT in South Africa, it is sufficient to note that the applicant itself acknowledges that the sightholders are not allowed to purchase diamonds from the SDT. It follows that, even if the volumes and quality of the diamonds sold by it were not as high as expected, the SDT is a source of supplies for non-sightholders.
320 Secondly, the applicant submits that the Commission is wrong to consider that the expansion of the ‘Forevermark’ is not related to the issue of foreclosure effects. The applicant thus relies on the De Beers/LVMH decision, in arguing that the ‘Forevermark’ results in independent producers favouring sales to De Beers which proposes more attractive prices to them to the detriment of sales on the open market.
321 Without there being any need to rule on the links between the Forevermark and the issue of foreclosure effects, it is sufficient to note that the Commission was justified in rejecting the applicant’s contentions based on the Forevermark. Those contentions, which were based on a purely prospective analysis from 2001, already taken into consideration in the rejection decision, could not be considered to relate to market developments since the adoption of that decision and to have to be taken into account by the Commission. That second argument is therefore ineffective.
322 If follows that the arguments concerning the Commission’s assessment of the market developments since the adoption of the rejection decision must be rejected in their entirety, as must the second part of the third plea in law.
Assessment of the Ombudsman’s role (Case T‑108/07)
323 The applicant submits, in essence, that the Commission made several manifest errors of assessment concerning the effectiveness of the Ombudsman’s revised terms of reference, and states that the revised version of the Ombudsman’s terms of reference of 2007 did not contain any substantial amendments.
324 The Commission contends first of all, with the support of the interveners, that some of the applicant’s objections to the assessment of the Ombudsman’s effectiveness carried out in the rejection decision are out of time, re-litigating aspects of SOC already approved in its 2003 comfort letter, and must therefore be rejected as inadmissible.
325 In that regard, it is appropriate to refer to the case-law which states that the sending of a comfort letter reserving the right to re-open the procedure does not mean that the Commission is no longer entitled to take account of a new element or one which existed before the letter was sent but was brought to its notice only later, particularly in connection with a complaint lodged at a later stage (see paragraph 153 above). In the present case, all the applicant’s objections to the Commission’s assessment of the Ombudsman’s role relate either to the implementation of SOC, by definition subsequent to the 2003 comfort letter (see paragraph 9 above) which ruled on SOC before it was implemented, or the amendment of the Ombudsman’s terms of reference in 2007, even if the applicant refers incidentally, for the purposes of explaining the context of its arguments, to certain aspects of SOC assessed in the context of the procedure closed by the comfort letter, such as the information requested by the sightholder profiles or the SOC selection criteria (see paragraphs 328 and 334 below).
326 It follows, first, that those aspects could be examined by the Commission in the course of handling the applicant’s complaint, as it indeed did so in the rejection decision without taking refuge behind the comfort letter and, secondly, that the applicant is entitled to challenge that examination.
327 Therefore, the two sets of arguments criticising the Commission’s assessment of the Ombudsman’s effectiveness in the context of SOC must be examined.
328 The applicant submits, first, that the new filtering mechanism introduced by the Ombudsman’s revised terms of reference (Part 4 of the terms of reference) is not capable of ensuring that De Beers does not receive information which it is not authorised to obtain pursuant to SOC. The sightholders, which are completely dependent on De Beers and fear that the Ombudsman will erase information from their profile, will ensure that that information is conveyed to De Beers by other means outside his control. In that connection, the applicant refers, in particular, to the oral presentations by sightholders to De Beers and to the numerous meetings between each other during which much information is exchanged without the Ombudsman being present. The applicant also refers to the putting in place, only a few days after the adoption of the rejection decision, of a ‘mechanism to circumvent the Ombudsman’.
329 In the rejection decision, the Commission referred to all the mechanisms laid down by the Ombudsman’s terms of reference intended to prevent the disclosure to De Beers of information relating to sightholders not required by SOC.
330 Without there being any need even to rely on the evidence after the rejection decision put forward by the Commission and disputed by the applicant, the Court finds that the arguments adduced by the applicant do not prove that those mechanisms are ineffective.
331 The applicant disputes the Ombudsman’s filtering mechanism, arguing that De Beers had the possibility to obtain – and indeed is given – a whole series of information relating to the sightholders when the Ombudsman is not present and without the filtering mechanism being applied. However, it is apparent from points 14 and 15 of the Ombudsman’s terms of reference governing the filtering mechanism that the mechanism takes into account precisely that type of information and ensures that it is not disclosed indirectly to De Beers. Under point 14(i) to (iii) of the Ombudsman’s terms of reference, the Ombudsman’s filter applies to (i) all confidential information provided to De Beers, without specification, that is, in any context, (ii) confidential information obtained through third parties acting on behalf of or rendering services to De Beers and (iii) all the templates completed by De Beers personnel during their visits to the sightholders’ establishments in order to assess the criterion ‘technical manufacturing ability’. In addition, point 15 of the Ombudsman’s terms of reference provides, in respect of those templates, that members of De Beers’ staff who have completed the template may not disclose its contents to any other member of the De Beers’ staff until such time as the Ombudsman has filtered it. Point 15 also provides, in respect of all the information in point 14 of the Ombudsman’s terms of reference, that, should that information be provided to members of De Beers’ staff before going via the Ombudsman, De Beers must ensure that none of those members of staff is a member of any body that is empowered to take a decision in relation to any such confidential information. That final ‘safeguard’, called a ‘Chinese wall mechanism’, referred to moreover by the Commission in the rejection decision, is completely passed over by the applicant. In addition, the Ombudsman’s terms of reference also provide that the taking into account of unauthorised confidential information may be penalised after the event, since point 19 thereof, in prohibiting De Beers from taking a decision based on unauthorised information, enables the Ombudsman to monitor compliance with that prohibition and, if necessary, impose sanctions for non-compliance.
332 It follows from the foregoing that Part 4 of the Ombudsman’s terms of reference put in place a complete system intended to prevent confidential information not required under SOC being communicated to De Beers and used by it, applying very broadly to the sources of information concerned and laying down a whole series of provisions to ensure the system’s effectiveness.
333 In addition, as regards the applicant’s reference to a ‘mechanism to circumvent the Ombudsman’ (see paragraph 328 above), such a contention is not substantiated, since the applicant does not provide any explanation of the nature of the circumvention in question and simply refers to an annex to the reply emphasising the role of Key account managers and, furthermore, relating to a period after the rejection decision (2008-2010). In any event, even if the applicant relies on that annex to demonstrate the importance of the information reaching De Beers because of those Key account managers, it is sufficient to note that they are members of the De Beers’ staff and are therefore subject to the mechanisms laid down by Part 4 of the Ombudsman’s terms of reference.
334 Secondly, the applicant submits that the provisions of the revised terms of reference with respect to the Ombudsman’s handling of complaints (Part 5 of the terms of reference) are also ineffective. The selection criteria are so inherently subjective that De Beers has sufficient room to justify its (de)-selection decision without disclosing the true reasons for it, as shown, moreover, by the fact that it only gave the applicant obscure explanations on the rejection of its application for a sight in 2008-2011. Furthermore, it is known in the industry that a former sightholder filed three complaints, but did not obtain redress, despite the fact that the Ombudsman ruled in his favour. The applicant states, lastly, that it did not bring a case before the Ombudsman, when it was deselected in 2003, because of his ineffectiveness – universally accepted at the time – which was before his terms of reference were revised.
335 In both the rejection decision and the Article 7 letter, the Commission explained, first, several rules stemming, in particular, from the Ombudsman’s revised terms of reference in 2007, in order to reject the applicant’s contentions concerning the ineffectiveness of the mechanism for handling complaints by the Ombudsman. The Commission therefore relied on the obligation to state reasons for decisions determining the grant of sightholder status and on the award of the weightings to selection criteria which is communicated to the sightholders, in order to find that the Ombudsman was genuinely able to scrutinise De Beers’ decisions, in particular by comparing the replies given to the various applicants. It also referred to the possibility for the Ombudsman to issue binding recommendations which may even comprise compensation for a sightholder. Next, the Commission stated that, contrary to the applicant’s contention that no complaint had been lodged with the Ombudsman, thereby demonstrating his ineffectiveness, several complaints had been lodged which were still being examined by the Ombudsman, noting that the applicant itself had not lodged a complaint in order to challenge the rejection of its application in 2003.
336 The applicant does not dispute certain of the above-mentioned factors which in fact contribute to the Ombudsman’s effectiveness, such as, in particular, the binding nature of his recommendations. As regards the factors disputed by the applicant, none of its criticisms call in question the Commission’s assessment of the Ombudsman’s effectiveness.
337 As regards, first of all, the contention that De Beers is not under an obligation to disclose the real reasons for its decisions, demonstrated by De Beers’ letter which had rejected its application in 2008, the Court notes that point 12 of the Ombudsman’s terms of reference requires De Beers, when taking admission decisions, to set out ‘details of [its] reasons in sufficient detail (including the weightings given to the Sightholder Criteria respectively) to enable the Applicant to determine the principal grounds upon which the Decision has been taken’ and authorises De Beers to ‘[exclude] information that is confidential or that it would otherwise be inappropriate to disclose, including but not limited to the detailed indicia accorded to the Sightholder Criteria and other Applicants’ scores)’.
338 It follows that under that provision De Beers may not refuse to communicate to the applicant its own results. Moreover, in the letter rejecting its application which the applicant annexed to the reply, De Beers informed it in detail of the number of points which it had obtained for each criterion, while relating that number of points to the average obtained by the successful applicants. That letter also invited the applicant to contact a De Beers Key account manager in order to discuss the detail of the application’s rejection. In addition, the exclusion of certain confidential information from the communication, provided for by the abovementioned provision of the Ombudsman’s terms of reference, does not apply to the Ombudsman and does not therefore hinder the performance of his duties.
339 Next, the contention that the Ombudsman’s mission is rendered ineffective because of the subjective nature of the criteria whose application he must monitor cannot be upheld either. Even if some criteria may be described as ‘subjective’, on the basis of De Beers’ margin of discretion in evaluating them, as suggested by the applicant when it explains what it understands by the ‘subjectivity’ of those criteria, the Commission was entitled to find, without making a manifest error of assessment, that the Ombudsman was able to monitor the selection procedure effectively.
340 The selection procedure is based on a comparison of the replies given by all the sightholder applicants. It has been held, in civil service cases, that the consideration of comparative merits is the expression of the principle of equal treatment (see Joined Cases T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR-SC I-A-49 and II‑185, paragraph 176 and the case-law cited), since it enables each candidate’s merits to be assessed on the basis of the same marking grid in relation to each other. In the present case, the selection criteria and even the weighting awarded to them, communicated to the sightholder applicants and known to the Ombudsman, constitute precisely a single ‘marking grid’ conferring an objective basis on the selection procedure. The Ombudsman himself therefore has a basis on which to scrutinise De Beers’ assessments. The Ombudsman’s terms of reference have also provided him with various means enabling him to determine the reasons for awarding a given score to a sightholder and thus ascertaining that there was no arbitrariness in that award. Consequently, in addition to the required statement of reasons for De Beers’ decisions (see paragraph 337 above), which also enables unsuccessful applicants to set out in detail the grounds of their complaint, Part 7 of the Ombudsman’s terms of reference makes it possible for the Ombudsman to conduct investigations on his own initiative, in the context of which he has, inter alia, the power to require De Beers to provide documentation (point 30 of the Ombudsman’s terms of reference).
341 Lastly, the practice of making complaints to the Ombudsman, insofar as the arguments advanced in that regard relate to events postdating the rejection decision, cannot call that decision in question (see IECC v Commission, paragraph 156 above, paragraph 87, and the case-law cited) and must therefore be rejected as ineffective.
342 In any event, first, the Court notes that the applicant now concedes, contrary to what it maintained during the administrative procedure, that complaints were lodged with the Ombudsman. Secondly, the applicant merely claims that De Beers never complied with the Ombudsman’s recommendations, referring to the case of a former sightholder which, it is alleged, lodged three complaints and failed to obtain redress from De Beers despite a recommendation in its favour from the Ombudsman. However, it is apparent from the file that that recommendation was the subject of judicial review provided for in the Ombudsman’s terms of reference and that the competent courts held, contrary to the Ombudsman, that De Beers had acted within the terms of the SOC rules. It cannot be inferred from this that De Beers failed to observe the binding nature of the recommendation in question.
343 It follows from all the foregoing that all the objections against the Commission’s assessments in relation to the Ombudsman must be rejected and that therefore this third part of the third plea in law must be rejected in its entirety.
Assessment of the increase in the price of diamonds (Case T‑108/07)
344 In the rejection decision, the Commission examined several other claims of infringement of Articles 81 EC and 82 EC by De Beers, in particular those concerning the existence of a price-fixing agreement between Alrosa and De Beers and abusive price increases by De Beers.
345 The applicant disputes the Commission’s assessments of those two claims concerning the increase in the price of diamonds.
346 First, the applicant complains that the Commission rejected its claim that De Beers and Alrosa were engaged in price fixing with regard to rough diamonds, whereas it is stated in the De Beers commitments decision that De Beers and Alrosa had established a long-lasting trade relationship in order to regulate jointly, inter alia, the prices for rough diamonds sold on the world market.
347 It must be found in that regard that the Commission was entitled, without making a manifest error of assessment, to conclude that the applicant had not established the existence of a price-fixing agreement concerning rough diamonds between De Beers and Alrosa. It is settled case-law that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. Although Article 81 EC prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors (see Joined Cases C‑89/85, C-104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission (‘Woodpulp II’) [1993] ECR I‑1307, paragraph 71, and the case-law cited). It was therefore for the applicant to adduce evidence establishing that the agreement between De Beers and Alrosa was the only plausible explanation of the alleged parallelism in prices. The applicant has not provided such evidence in the present case. Its reference to recital 28 of the De Beers commitments decision is not relevant in that regard, since it relates to a passage concerned precisely with the identification of the competition issues which the commitments approved by the operative part of that decision seek to avoid.
348 In addition, notwithstanding the question as to the evidence of the alleged collusion, the Commission was entitled to reject the claim that there was an agreement on prices between De Beers and Alrosa on the ground, upheld for the sake of completeness in the rejection decision, that such a claim fell outside the scope of SOC, the subject of the applicant’s complaint examined in the rejection decision, and that in actual fact it was within the scope of the applicant’s other complaint against the De Beers-Alrosa Agreement (see paragraph 11 above). The Court notes in that regard that the applicant supported its claim that there was an agreement by referring on several occasions, during the administrative procedure (for example, in its observations on the Article 7 letter), to its contentions and evidence submitted in the context of that other complaint.
349 Secondly, the applicant complains that the Commission rejected its claim concerning the price increases imposed by De Beers, according to which the introduction of SOC increased prices at all levels of the chain. The Commission, it claims, thus incorrectly found that ‘the alleged … shortages of rough diamonds and price rises could … depend … on economic or luxury goods cycles’. That position is not shared by the industry players, as shown by a statement from Alrosa, which considers the diamond prices stable because of De Beers’ intervention.
350 In the Article 7 letter, the Commission stated, as the applicant notes, that ‘the alleged … shortages of rough diamonds and price rises could … depend … on economic or luxury goods cycles’, relying on a specialist diamond industry article of 2006 that states:
‘In real terms, the diamond business is stagnating – and in terms of the number of jewelry pieces, actually declining. Fewer pieces mean fewer consumers … For the second year in a row … more polished diamonds are manufactured than are required by the retail sector. This means a continued build-up of polished inventory downstream … [T]he oversupply of polished has recently triggered voluntary reduction of manufacturing in India … In the early months of 2006, manufacturers have been willing to sell polished at cost or even below cost.’
351 In the rejection decision, the Commission stated that its overall assessment of the replies to the requests for information did not enable it to establish a causal link between the alleged increase in diamond prices and SOC. It took the view that a whole range of factors may have influenced those prices, and that ascertaining the causes of the increase in prices could not just depend on the opinion of the operators in the market. The Commission further stated that the applicant had not responded to other possible explanations for price increases not connected to abusive behaviour and that it had not attempted to explain why the price levels complained of should be principally attributable to the SOC system.
352 It is sufficient to note in that regard that the arguments put forward by the applicant are not capable of calling in question those considerations.
353 Admittedly, the applicant did refer to several replies from excluded sightholders (replies from the excluded sightholders Nos 1 and 5 to question No 14) and from the diamond bourses (replies from the diamond bourses Nos 1 to 4) stating that the developments in the prices of polished diamonds were dictated by De Beers. It must be noted, however, first, that in so doing it did not mention other replies from those same entities stating clearly that the developments in the prices of polished diamonds were due to factors not connected with De Beers (replies of excluded sightholder No 13 and diamond bourse No 5) or taking a more cautious approach in asserting a link between polished diamond prices and SOC (replies from diamond bourses Nos 6 and 7) and, secondly, the questions relating to diamond prices in the requests for information cited by the applicant and the replies given to them concerned only polished diamond prices.
354 By contrast, the questions addressed to sightholders concerning diamond prices related both to rough diamonds (questions Nos 17 and 18) and polished diamonds (question No 22), and the replies to those questions explained chiefly the developments in rough diamond prices by factors unconnected with SOC and described the relationships between rough diamond and polished diamond prices, concluding that either polished diamond prices depended on rough diamond prices or that polished diamond prices depended on other factors, such as the quality of the polished diamonds or the demand for them.
355 In addition, in the course of its investigation of the applicant’s contentions, the Commission had demonstrated, by the specialist diamond industry article referred to above, the existence of overcapacity in the polishing sector and voluntary reduction of manufacturing and prices by some Indian manufacturers, after becoming aware of the fall in the demand for jewellery (see paragraph 350 above), and thus the impact on prices of demand and the possible link between economic cycles and the prices of diamonds.
356 In those circumstances, the Commission did not make a manifest error of assessment in finding that the information available to it did not enable it to establish a causal link between SOC and the increase in the price of diamonds.
357 That conclusion cannot be called in question by Alrosa’s statement relied on by the applicant (see paragraph 349 above), which simply gives an opinion as is shown by the expression ‘We believe’, without substantiating it, and which, furthermore, does not disprove that the developments in the prices of diamonds may be attributable to variations in the demand cycle.
358 The fourth part of the third plea in law must therefore be rejected, as must the third plea in law in its entirety.
4. The plea in law alleging infringement of the obligation to state reasons (Cases T‑108/07 and T‑354/08)
359 In Cases T‑108/07 and T‑354/08, the applicant submits, in essence, in the alternative, that the Commission failed to fulfil its obligation to state reasons, in not examining its complaint carefully and impartially, not taking into account all relevant matters of law or of fact and not assessing ‘correctly’ some of those matters in the rejection and supplementary rejection decisions. That requirement to state reasons is all the more important, since the rejection decision amounts to a change in position from the De Beers/LVMH decision.
360 In Case T‑108/07, the applicant submits, again in the alternative, that, because of the General Court’s annulment of the De Beers commitments decision on which the rejection decision was based, that decision lacks the required statement of reasons. The applicant also states that the Commission cannot remedy the lack of reasoning in the rejection decision by introducing evidence from the supplementary investigation initiated after the adoption of the rejection decision and following the annulment of the De Beers commitments decision. That evidence relates to the other producers, the purchases by Diamdel and the sightholders from those other producers, Alrosa’s sales in 2006 to non‑sightholders, and the percentage of the worldwide supply of rough diamonds not subject to SOC. All that evidence, moreover, is contradicted by the factual data put forward by the applicant.
361 The second claim of infringement of the obligation to state reasons may be rejected at the outset, in the light of the judgment of the Court of Justice in Alrosa (paragraph 45 above), following which the De Beers commitments decision became final (see paragraph 194 above).
362 The first claim of infringement of the obligation to state reasons reveals a confusion between the obligation to state reasons and the question of whether the reasons given are correct. It must be borne in mind that, according to settled case‑law, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (see Case C‑17/99 France v Commission [2001] ECR I‑2481, paragraph 35, and the case-law cited; see also, to that effect, Case T‑192/07 Comité de défense de la viticulture charentaise v Commission [2012] ECR II‑0000, paragraph 108), which also covers the Commission’s obligations concerning the handling of a complaint (see, to that effect, Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 72). It follows that, since the objections concerning the substantive legality of the contested decisions were rejected when the second and third pleas in law were examined and since the applicant has not adduced any specific argument concerning an alleged failure to state adequate reasons in respect of the contested decisions, the fourth plea in law must also be rejected.
363 It follows from all the foregoing that the present actions must be dismissed in their entirety, without the need to add to the file the documents disclosed to the Court by the Commission at the hearing.
Costs
364 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must, in accordance with the forms of order sought by the Commission, be ordered to bear its own costs and also to pay those incurred by the latter.
365 In accordance with the third subparagraph of Article 87(4) of the Rules of Procedure, De Beers shall bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the actions;
2. Orders Diamanthandel A. Spira BVBA to bear its own costs and to pay those incurred by the European Commission;
3. Orders De Beers and De Beers UK Ltd to bear their own costs.
Truchot | Martins Ribeiro | Popescu |
Delivered in open court in Luxembourg on 11 July 2013.
[Signatures]
Table of contents
Background to the dispute
1. Case COMP/E-3/38.139 and the comfort letter of 16 January 2003
2. The applicant’s complaint
3. Rejection decision
4. The General Court’s judgment in Alrosa and the supplementary procedure
5. Supplementary rejection decision
Procedure and forms of order sought by the parties
Law
1. The plea in law alleging infringement of the applicant’s procedural rights (Case T-108/07)
Infringement of the right of access to the documents on which the Commission based its provisional assessment
The setting of excessively short time-limits
The infringement of the applicant’s right to be heard
2. The plea in law alleging infringement of the Commission’s obligations in handling a complaint (Cases T‑108/07 and T-354/08)
The failure to examine the complaint carefully and impartially
Infringement of the obligation to take into consideration all relevant matters of law or of fact
Lack of an overall assessment of the complaint (Case T-108/07)
Failure to analyse constituent elements of an infringement of Article 81 EC or Article 82 EC (Cases T-108/07 and T-354/08)
– The relevant market and the dominant position of De Beers on that market
– The anti-competitive object of SOC (Case T-108/07)
– The lawfulness of the selective distribution system introduced by SOC (Cases T‑108/07 and T-354/08)
The failure to take into account the continued effects of the alleged anti‑competitive practices (Case T-108/07)
3. The plea in law alleging the incorrect assessment of the Community interest (Cases T-108/07 and T-354/08)
Assessment of the criteria for evaluating the Community interest (Cases T-108/07 and T-354/08)
Assessment of foreclosure effects (Cases T-108/07 and T-354/08)
Alrosa’s supply (Cases T-108/07 and T-354/08)
– The objections against the rejection decision
– The objections against the supplementary rejection decision
Supplies by sightholders (Cases T-108/07 and T-354/08)
Supplies by Diamdel (Cases T-108/07 and T-354/08)
Supplies by other producers (Cases T-108/07 and T-354/08)
Overall availability of rough diamonds (Cases T-108/07 and T-354/08)
Market developments (Case T-354/08)
Assessment of the Ombudsman’s role (Case T-108/07)
Assessment of the increase in the price of diamonds (Case T-108/07)
4. The plea in law alleging infringement of the obligation to state reasons (Cases T-108/07 and T-354/08)
Costs