JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

12 July 2018 (*)

(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Proof of the infringement — Duration of participation — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)

In Case T‑444/14,

Furukawa Electric Co. Ltd, established in Tokyo (Japan), represented by C. Pouncey, A. Luke and L. Geary, Solicitors,

applicant,

supported by

Viscas Corp., established in Tokyo, represented by J.-F. Bellis, lawyer,

intervener,

v

European Commission, represented by A. Biolan, C. Giolito and H. van Vliet, acting as Agents, and by M. Johansson, lawyer,

defendant,

ACTION pursuant to Article 263 TFEU for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) in so far as it concerns the applicant and, in the alternative, an application for reduction of the fine imposed on the applicant in that decision,

THE GENERAL COURT (Eighth Chamber),

composed of A.M. Collins, President, M. Kancheva (Rapporteur) and R. Barents, Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 3 May 2017,

gives the following

Judgment

 Background to the dispute

 The applicant and the sector concerned

1        The applicant, Furukawa Electric Co. Ltd, is a Japanese company active in the underground and submarine power cable production and sales sector. With effect from 1 October 2001, it transferred part of its activities in the power cable sector to a joint venture named Viscas Corp., which it owned in equal shares with another Japanese company in the same sector, Fujikura Ltd.

2        Submarine power cables are used under water and underground power cables are used under the ground for the transmission and distribution of electrical power. They are classified in three categories: low voltage, medium voltage, and high and extra high voltage. High voltage and extra high voltage power cables are, in the majority of cases, sold as part of projects. Such projects consist of a combination of power cables and the necessary additional equipment, installation and services. High and extra high voltage power cables are sold throughout the world to large national grid operators and other electricity companies, principally through competitive public tender procedures.

 The administrative procedure

3        By letter of 17 October 2008, the Swedish company ABB AB provided the Commission of the European Communities with a series of statements and documents concerning restrictive commercial practices in the underground and submarine power cable production and supply sector. Those statements and documents were provided in support of an application for immunity submitted in accordance with the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the Leniency Notice’).

4        From 28 January to 3 February 2009, further to the statements made by ABB, the Commission carried out inspections at the premises of the Italian companies Prysmian SpA and Prysmian Cavi e Sistemi Energia Srl and the French companies Nexans SA and Nexans France SAS.

5        On 2 February 2009, the Japanese companies, Sumitomo Electric Industries Ltd, Hitachi Cable Ltd and J-Power Systems Corp. submitted a joint application for immunity from fines, in accordance with point 14 of the Leniency Notice, or, in the alternative, for a reduction of their amount, in accordance with point 27 of the Leniency Notice. They then supplied the Commission with further oral statements and documentation.

6        During the course of the investigation, the Commission sent several requests for information to undertakings in the underground and submarine power cable production and supply sector, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) and point 12 of the Leniency Notice.

7        On 30 June 2011, the Commission opened a procedure and adopted a statement of objections against the following legal entities: Pirelli & C. SpA, Prysmian Cavi e Sistemi Energia, Prysmian, The Goldman Sachs Group, Inc., Nexans, Nexans France, Sumitomo Electric Industries, Hitachi Cable, J-Power Systems, Fujikura, Viscas, SWCC Showa Holdings Co. Ltd, Mitsubishi Cable Industries Ltd, Exsym Corp., ABB, ABB Ltd, Brugg Kabel AG, Kabelwerke Brugg AG Holding, nkt cables GmbH, NKT Holding A/S, Silec Cable SAS, Grupo General Cable Sistemas SA, Safran SA, General Cable Corp., LS Cable & System Ltd, Taihan Electric Wire Co. Ltd and the applicant.

8        Between 11 and 18 June 2012, all the addressees of the statement of objections, with the exception of the applicant, participated in an administrative hearing before the Commission.

9        By judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), and of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, not published, EU:T:2012:597), the Court partly annulled the inspection decisions addressed, first, to Nexans and Nexans France and, second, to Prysmian and Prysmian Cavi e Sistemi Energia, in so far as they concerned power cables other than high voltage submarine and underground power cables and the material associated with such other cables, and dismissed the action as to the remainder. On 24 January 2013, Nexans and Nexans France brought an appeal against the first of those two judgments. By judgment of 25 June 2014, Nexans and Nexans France v Commission (C‑37/13 P, EU:C:2014:2030), the Court of Justice dismissed that appeal.

10      On 2 April 2014, the Commission adopted Decision C(2014) 2139 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the contested decision’).

 The contested decision

 The infringement at issue

11      Article 1 of the contested decision states that several undertakings participated, over various periods of time, in a single and continuous infringement of Article 101 TFEU in the ‘(extra) high voltage underground and/or submarine power cable sector’. In essence, the Commission found that, from February 1999 to the end of January 2009, the main European, Japanese and South Korean producers of submarine and underground power cables had participated in a network of multilateral and bilateral meetings and established contacts aimed at restricting competition in connection with (extra) high voltage submarine and underground power cable projects in specific territories, by allocating markets and customers among themselves, thereby distorting the normal competitive process (recitals 10 to 13 and 66 of that decision).

12      In the contested decision, the Commission found that the cartel consisted of two main configurations, which formed a composite whole. More specifically, according to the Commission, the cartel comprised:

–        the ‘A/R cartel configuration’, which included the European undertakings, generally referred to as the ‘R’ members, the Japanese undertakings, referred to as the ‘A’ members, and lastly the South Korean undertakings, referred to as the ‘K’ members. That configuration made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers. That allocation followed an agreement relating to ‘home territory’, under which the Japanese and Korean producers would refrain from competing for projects in the European producers’ ‘home territory’, while the European producers stayed out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States. For a time that allocation was based on a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers; and

–        the ‘European cartel configuration’, which involved the allocation of territories and customers by the European producers for projects to be implemented within the European ‘home’ territory or allocated to the European producers (see Section 3.3 of the contested decision and, in particular, recitals 73 and 74 of that decision).

13      The Commission found that the participants in the cartel had established obligations to exchange information in order to enable the allocation agreements to be monitored (recitals 94 to 106 and 111 to 115 of the contested decision).

14      The Commission classified the cartel participants in three groups, according to the role each of them had played in implementing the cartel. First, it defined the core group of the cartel to include the European undertakings Nexans France and the entity created by Pirelli & C., formerly Pirelli Spa, which participated successively in the cartel (Pirelli) and Prysmian Cavi e Sistemi Energia, and, second, the applicant and the Japanese undertakings Fujikura and Viscas, and Sumitomo Electric Industries, Hitachi Cable and their joint venture J-Power Systems (recitals 545 to 561 of the contested decision). Next, it identified a group of undertakings which were not part of the core group but which nevertheless could not be regarded as merely fringe players in the cartel. In this group it placed ABB, Exsym, Brugg Kabel and the entity constituted by Sagem SA, Safran and Silec Cable (recitals 562 to 575 of that decision). Lastly, the Commission considered that Mitsubishi Cable Industries, SWCC Showa Holdings, LS Cable & System, Taihan Electric Wire and nkt cables were fringe players in the cartel (recitals 576 to 594 of that decision).

 The applicant’s liability

15      The Commission found that the applicant had participated in the cartel from 18 February 1999 to 28 January 2009. During an initial period, from 18 February 1999 to 30 September 2001, that participation was direct. From 1 October 2001 to 28 January 2009, according to the Commission, the applicant had participated indirectly, through Viscas, over which it exercised a decisive influence (recitals 811 to 853 and 955 of the contested decision).

 The fine imposed

16      Under Article 2(n) of the contested decision a fine of EUR 8 858 000 was imposed on the applicant for its direct participation in the cartel. Under Article 2(p) of the contested decision a fine of EUR 34 992 000 was imposed on the applicant jointly and severally with Viscas and Fujikura for its participation in the cartel between 1 October 2001 and 28 January 2009.

17      In calculating the amount of those fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on the method of setting fines’).

18      In the first place, as regards the basic amount of the fines, after establishing the appropriate value of sales, in accordance with point 18 of the 2006 Guidelines on the method of setting fines (recitals 963 to 994 of the contested decision), the Commission selected the proportion of the value of sales which would reflect the gravity of the infringement, in accordance with points 22 and 23 of those guidelines. In that regard, it considered that the infringement, by its nature, constituted one of the most harmful restrictions of competition, which justified a gravity percentage of 15%. The Commission also increased the gravity multiplier by 2% for all addressees on account of their combined market share and the almost worldwide reach of the cartel, which included, inter alia, all of the European Economic Area (EEA). The Commission also considered, in particular, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had shared power cable projects among themselves in the context of the ‘European cartel configuration’. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings (recitals 997 to 1010 of that decision).

19      As regards the multipliers relating to the duration of the infringement, for the applicant, the Commission applied a multiplier of 2.58 for the period from 18 February 1999 to 30 September 2001, and of 7.25 for the period from 1 October 2001 to 28 January 2009. For the applicant, it also included in the basic amount of the fine an additional amount, namely the ‘entry fee’, of 17% of the value of sales. That amount thus calculated came to EUR 8 858 000. In parallel, with regard to Viscas, the Commission adopted, as a multiplier for the duration of the cartel, a multiplier of 7.25 for the period between 1 October 2001 and 28 January 2009. The basic amount of the fine for Viscas, in which no additional amount was added, thus came to EUR 34 992 000 (recitals 1011 to 1016 of the contested decision).

20      In the second place, as regards adjustments to the basic amount of the fines, the Commission found there to be no aggravating circumstances that could affect the basic amount of the fine of each of the cartel participants, with the exception of ABB. By contrast as regards mitigating circumstances, it decided to reflect in the amount of the fine the role played by the various undertakings in the implementation of the cartel. Accordingly, it reduced the basic amount of the fine to be imposed on the fringe cartel participants by 10% and the basic amount of the fine to be imposed on the undertakings whose involvement in the cartel had been moderate by 5%. The Commission also granted Mitsubishi Cable Industries and SWCC Showa Holdings an additional reduction of 1% in respect of the period preceding the creation of Exsym, and LS Cable & System and Taihan Electric Wire on account of the fact that they had been unaware of certain aspects of the single and continuous infringement and were not liable for them. By contrast, no reduction in the basic amount of the fine was granted to the undertakings belonging to the core group of the cartel, which includes the applicant (recitals 1017 to 1020 of the contested decision). Moreover, pursuant to the 2006 Guidelines on the method of setting fines, the Commission granted Mitsubishi Cable Industries an additional reduction of 3% of its fine on account of its effective cooperation outside the scope of the Leniency Notice (recital 1041 of that decision).

 Procedure and forms of order sought

21      By application lodged at the Court Registry on 12 June 2014, the applicant brought the present action.

22      On 29 October 2014, Viscas applied for leave to intervene in support of the form of order sought by the applicant.

23      By letters of 8 December 2014, 9 January and 25 February 2015, the applicant requested confidential treatment of certain passages of the application, the defence and the reply.

24      By order of 25 June 2015, the President of the Eighth Chamber granted Viscas’s application for leave to intervene and ordered the non-confidential versions of the applicant’s and the Commission’s pleadings to be sent to Viscas.

25      Viscas lodged its statement in intervention on 18 September 2015. By letters of 27 October and 2 November 2015, the Commission and the applicant submitted observations on Viscas’s statement in intervention.

26      Under the measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, the General Court (Eighth Chamber) invited the parties to submit documents.

27      As a result of changes to the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was attached to the Eighth Chamber (new composition), to which the present case has, in consequence, been assigned.

28      On 5 October 2016, the Commission requested the adoption of a measure of inquiry with a view to producing certain documents requested by the Court, namely transcripts of the oral statements provided by J-Power Systems in the context of its joint application for immunity with Hitachi Cable and Sumitomo Electric Industries. On 24 October 2016, the Commission submitted a document requested by the Court for which it had not requested the adoption of a measure of inquiry.

29      By order of 10 February 2017, the President of the Eighth Chamber of the General Court adopted a measure of inquiry requiring that the Commission produce the documents initially requested by way of a measure of organisation of procedure with the exception of the document produced by the Commission on 24 October 2016. The Commission complied with that measure of inquiry on 16 February 2017.

30      Acting upon a proposal of the Judge-Rapporteur, the Court decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 3 May 2017.

31      At the hearing, Viscas requested the adoption of a measure of organisation of procedure. The Court obtained the observations of the main parties on that request. The Commission claimed that Viscas’s request for the adoption of a measure of organisation of procedure was inadmissible. Pursuant to Article 88(1) of the Rules of Procedure, the Court, having heard Viscas’s observations on the admissibility of its request for a measure of organisation of procedure, first, rejected that request as inadmissible and, second, held that it was not necessary to adopt the measure in question of its own motion.

32      The applicant, supported by Viscas, claims that the Court should:

–        annul Article 1(9)(a) of the contested decision in so far as it finds that the applicant participated directly in an infringement of Article 101 TFEU and Article 53 of the EEA Agreement from 18 February 1999 to 30 September 2001;

–        in the alternative, annul Article 1(9)(a) of the contested decision in so far as it finds that the applicant participated in an infringement from 18 February 1999 and continued to participate in it, directly, after 11 June 2001, and then through Viscas after 30 September 2001;

–        annul Article 2(n) of the contested decision;

–        in the alternative, reduce considerably the amount of the fine imposed on the applicant under Article 2(n) of the contested decision;

–        declare that the applicant is entitled to a reduction of the fine imposed on it ‘jointly and severally’ with Viscas and Fujikura under Article 2(p) of the contested decision, equivalent to that obtained, as the case may be, by Viscas in the course of the latter’s action against the contested decision before the Court;

–        order the Commission to pay the costs.

33      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

34      The applicant puts forward both a claim for annulment and claim for a reduction in the amount of the fines.

 The claim for annulment

35      The applicant puts forward five pleas in law in support of its claim for annulment. The first plea in law alleges infringement of Article 101(1) TFEU, and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the applicant’s conduct and the conduct of the other cartel members during the initial period of the applicant’s involvement in the cartel. The second plea in law alleges infringement of Article 101(1) TFEU, and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission failed to adduce evidence that the applicant had continued to participate in the cartel, first directly, after 11 June 2001, then through Viscas, after 30 September 2001. The third plea in law, invoked in support of the first, second and third heads of claim and, in the alternative, in support of the fourth head of claim, alleges infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the degree of the applicant’s involvement in the cartel. The fourth plea in law alleges an infringement of Article 25(1)(b) of Regulation No 1/2003, in so far as the fine imposed on the applicant by Article 2(n) of the contested decision on the basis of that provision is time barred. Finally, the fifth plea in law, put forward in support of the third and fourth heads of claim, alleges an infringement of the 2006 Guidelines on the method of setting fines, in so far as the Commission committed various errors in calculating the amount of the fine imposed on the applicant by Article 2(n) of the contested decision.

 The first plea in law, alleging infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the applicant’s conduct and that of the other cartel members during the initial period of its alleged involvement in the cartel

36      The first plea in law is composed of two parts.

37      In the first part, the applicant claims that the Commission has failed to establish the existence, during the early period of the applicant’s alleged involvement in the cartel, that is to say, from 18 February 1999 to 30 September 2001, of the Asian producers’ commitment not to compete for projects located in the EEA, the only component of the ‘A/R cartel configuration’, unlike the award of projects in the ‘export territories’, which fell within the territorial scope of Article 101 TFEU.

38      Accordingly, the applicant claims not only that the Commission has failed to adduce direct evidence of the existence of a commitment on the part of the Asian producers not to compete for projects located in the EEA during the early period of its involvement in the cartel, but, furthermore, that the Commission has failed to take into account the existence of another plausible explanation for the lack of competition on the part of the Asian producers in the EEA, namely the existence of barriers to entry to the EEA market resulting from the implementation of earlier export schemes.

39      As regards the evidence concerning a commitment on the part of the Asian producers not to compete for projects located in the EEA, the applicant submits that, in the contested decision, the Commission found that the application of the ‘home territory’ agreement involved both the application of a ‘home market rule’ and discussions concerning particular projects.

40      First, the applicant disputes that the cable projects referred to in the contested decision are capable of demonstrating the application of a home market rule.

41      First, the applicant submits that the cable projects referred to in recital 141 of the contested decision were located in Cyprus and Taiwan. Since neither of those countries was part of the EEA at the time, the Commission was not entitled to rely on them in order to confirm the existence of an agreement concerning the EEA territory. Next, as regards the projects referred to in recitals 145 and 147 of the contested decision, the applicant maintains that, first, it was not concerned by the Moyle Interconnector projects and the Euro-Kabel project, since it had not been invited to tender for them and, second, its refusal to tender for the NorNed project was legitimate. Finally, it claims, as regards recital 177 of the contested decision, that the email referred to in that recital was indeed addressed to one of its employees, but that it bears a date subsequent to that employee’s involvement in any activity associated with power cables in the applicant’s business.

42      Second, the applicant submits that, contrary to what is indicated in the contested decision, the discussions concerning individual projects located on the periphery of the EEA, projects for which the Japanese suppliers were invited by European customers to submit tenders or projects for which the European cartel members expressly requested the Asian undertakings not to submit a tender do not corroborate the Commission’s assertion that a ‘home territory’ agreement involving the applicant already existed during the early period of its alleged participation in the cartel. All those discussions took place after that period and related to projects which did not concern the applicant.

43      As regards the Commission’s failure to take into account the existence of another plausible explanation for the lack of competition on the part of the Asian producers in the EEA, the applicant complains that the Commission failed to examine the competitive potential of the Asian producers after the expiry in 1997 of the Super Tension Cables Export Agreement (‘STEA’) and the Sub-marine Cable Export Association (‘SMEA’), which had been drawn up by the main European cable suppliers in the 1970s, within the framework of the International Cable Development Corporation, and merely assumed that they were viable potential competitors. According to the applicant, the implementation of the various export schemes established by the European producers at the start of the 1960s, which aimed to protect the European market from Japanese producers gave rise to the creation of territorial monopolies. Those territorial monopolies would have resulted in technical, practical and commercial barriers to entry to the EEA market which continued to exist after the expiry of the STEA and the SMEA, at least throughout the period in which the applicant is alleged to have directly participated in the cartel.

44      Thus, the applicant submits that it could not have participated in projects requiring the laying of submarine cables over long distances at great depth or of three-core XLPE cables, which were the most widely used in the EEA market, since it only produced cables whose technology permitted installation over short distances and in shallow waters. The applicant also submits that it was subject to other barriers such as customs duties, increased risks and delivery time on account of distance, and the lack of a specialist workforce. Those barriers explain, inter alia, why the applicant decided not to bid for the NorNed project.

45      The applicant submits that, despite those barriers [confidential] (1).

46      In the second part, the applicant claims that the Commission has failed to adduce evidence that its involvement in the cartel in fact began on 18 February 1999.

47      First the applicant maintains that the evidence relied on by the Commission in the contested decision does not establish that, on 18 February 1999, the Japanese and European undertakings shared a definitive common intention to restrict competition on the EEA market. First, the note from the meeting of 18 February 1999 in Zurich (Switzerland) made by Mr Y., at that time an employee of Sumitomo Electric Industries, was very cursory. The use of the conditional mood, the future tense and expressions such as ‘a possible new arrangement’ indicates that no agreement was reached at that meeting. Next, in the statements accompanying that note, submitted in the context of the joint application for immunity, Mr Y. said that, at the time of the Zurich meeting, and even at the time of the meeting in Kuala Lumpur (Malaysia), held on 19 October 1999, there was no agreement between the Japanese and European suppliers. Furthermore, it appears from the note that, at the meeting in Zurich, the applicant discussed the fines imposed on a cartel in the case known as ‘Heat Pipes’. It is therefore apparent, from the language used in the note, that during that meeting the participants discussed whether some form of cooperation could be established in the future. Finally, the note drawn up by Mr Y.  concerned submarine cables only and cannot therefore be used as evidence of any agreement relating to underground cables.

48      Second, although the applicant does not dispute that its representative Mr O. was present at the meeting in Zurich on 18 February 1999, it claims that his mere presence does not establish that Mr O. concluded an arrangement with the other members at that time, having regard to the fact that he had not previously participated in meetings relating to the STEA and the SMEA and that at the meetings at the start of 1999 with other Japanese manufacturers, the applicant expressed clear reticence with regard to any future arrangement with the European suppliers.

49      Third, the applicant submits that the Commission seeks to reverse the burden of proof by claiming that the applicant has failed to provide evidence showing that, in reality, it had not complied with the ‘home territories’ agreement or that its involvement in meetings following the end of the STEA and the SMEA was devoid of any competitive intent.

50      Fourth and lastly, the applicant also claims that the Commission itself states, in recital 497 of the contested decision, that no agreement was reached at the meeting of 18 February 1999 on determining the ‘home territories’ or allocating quotas for projects outside those territories. Accordingly, the Commission cannot maintain that, on 18 February 1999, a cartel was in existence or that the participants had eliminated or substantially reduced uncertainty as to their conduct on the market.

51      The Commission disputes the applicant’s arguments and contends that the first plea in law should be rejected in its entirety.

52      In that regard, it must be noted that, by the two parts of the first plea in law, which must be examined together, the applicant essentially claims that the Commission has failed to establish that, on 18 February 1999, there was a joint intention or common understanding by virtue of which the Japanese suppliers of high and extra high voltage submarine and underground power cables agreed, with the European suppliers of the same cables, not to enter the European market. The applicant submits that the absence of Japanese suppliers on the European cable market in question is explained not by the existence of such an agreement but by the existence of barriers to entry to the EEA market.

53      It should be noted that Article 101(1) TFEU prohibits agreements and concerted practices which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which share markets or sources of supply.

54      In order for there to be an agreement within the meaning of Article 101(1) TFEU, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of that provision can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraphs 85 and 86 and the case-law cited). In that regard, the question whether the undertakings in question considered themselves bound — in law, in fact or morally — to adopt the agreed conduct is therefore irrelevant (see judgments of 14 May 1998, Mayr-Melnhof v Commission, T‑347/94, EU:T:1998:101, paragraph 65, and of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 219 and the case-law cited).

55      The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraph 87 and the case-law cited).

56      Article 101(1) TFEU therefore precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which the operator concerned has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition. The disclosure of information to one’s competitors in preparation for an anticompetitive agreement suffices to prove the existence of a concerted practice within the meaning of that provision (see judgment of 16 June 2011, Solvay v Commission, T‑186/06, EU:T:2011:276, paragraphs 88 and 89 and the case-law cited).

57      The concepts of ‘agreement’ and ‘concerted practice’ within the meaning of Article 101(1) TFEU are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It is therefore sufficient that proof of the constituent elements of either of those forms of infringement referred to in that provision has been established in order in any event for it to apply (judgment of 5 December 2013, Solvay v Commission, C‑455/11 P, not published, EU:C:2013:796, paragraph 53).

58      Moreover, it follows from the case-law that it is for the Commission to prove not only the existence of the agreement but also its duration (judgment of 14 July 2005, ThyssenKrupp v Commission, C‑65/02 P and C‑73/02 P, EU:C:2005:454, paragraph 31).

59      While the Commission must produce sufficiently precise and consistent evidence to establish an infringement of Article 101(1) TFEU, it is not necessary for every item of evidence produced by it to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement. Thus, the indicia on which the Commission relies in the contested decision in order to prove the existence of an infringement of that provision by an undertaking must not be assessed separately, but as a whole (see judgment of 12 December 2014, Repsol Lubricantes y Especialidades and Others v Commission, T‑562/08, not published, EU:T:2014:1078, paragraphs 152 and 153 and the case-law cited).

60      In most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 26).

61      In the present case, the Commission found, inter alia in recitals 138 and 506 of the contested decision, that the cartel in question had begun on 18 February 1999, when the representatives of four Japanese power cable suppliers, namely the applicant, Fujikura, Sumitomo Electric Industries and Hitachi Cable, and the representatives of two European power cable suppliers, including Pirelli, met in a hotel in Zurich.

62      The Commission bases the finding set out in paragraph 61 above on several items of evidence which may be summarised as follows.

63      First, the Commission stated that the cartel originated in two export schemes deriving from the STEA and the SMEA, which were concluded by the main European suppliers of power cables in the 1970s, within the framework of the International Cable Development Corporation. According to recital 64 of the contested decision, the STEA and the SMEA provided the initial framework for submission and allocation of markets and projects concerning high voltage underground and submarine power cables outside the ‘home territories’ of the companies involved. The Commission states in that recital, without contradiction on the applicant’s part, that the investigation had revealed that, aside from the STEA and the SMEA, there existed an unwritten understanding between European, Japanese (including the applicant) and South Korean producers, by which each of the three groups of producers agreed not to compete in each others’ respective ‘home territories’. In other regions, the objective of the producers was to divide projects among themselves, with the European producers achieving a share of approximately 60% of the projects and the Japanese producers a share of approximately 40% of the projects. Each group was assigned a president and a secretary (or coordinator) in order to organise the allocation. When the members of the STEA, the SMEA and that unwritten understanding, which received enquiries from customers concerning potential underground and submarine power cable projects, they were required to report those enquiries to the Japanese or European secretary if the type and length of the power cables met certain criteria. The secretaries (or coordinators) would then discuss and agree which group of producers would be allocated the project.

64      The parties do not dispute that the cartel which is the subject of the contested decision reproduces the arrangements described in paragraph 63 above.

65      According to recital 117 of the contested decision, the STEA, the SMEA and the unwritten understanding were dissolved at the end of 1997. The Commission has provided evidence, not challenged by specific evidence submitted by the applicant, which shows, first, that the participating undertakings were aware of the unlawful nature of the arrangements and, second, that they planned to conclude a new agreement in the future. It also provided evidence, in recitals 119 and 121 to 136 of the contested decision and in points 3 to 15 of Annex I to that decision, confirming that the companies involved had continued to meet and discuss the consequences of the dissolution of the STEA and the SMEA and the possibility of concluding a new agreement. In that regard, the applicant does not deny that it participated in 11 meetings with the other Japanese suppliers held in 1998 and in one meeting held in October 1998 in Kuala Lumpur, in which, among others, Pirelli, [confidential], Sumitomo Electric Industries, Hitachi Cable and Fujikura took part.

66      It must be noted that, during those meetings, referred to in paragraph 65 above, a discussion took place, as reported by the Commission in recital 129 of the contested decision and not disputed by the applicant. During that discussion, relating to a cable project located in Singapore (Singapore) and initially allocated to the European undertakings before the end of the STEA and the SMEA, the applicant was criticised by Sumitomo Electric Industries for submitting a bid with a low price for that project, as follows:

‘We are really unhappy that [Furukawa Electric] made a discount on [the project] which was supposed to be taken by R, unilaterally without consulting with the Japanese companies involved ... This is an act that may blow up the future scheme under discussion between A and R.’

67      Furthermore, the Commission noted a series of six regular meetings held in 1999 between the representatives of Pirelli, Fujikura, the applicant, Hitachi Cable and Sumitomo Electric Industries, as well as a representative of [confidential], subsequently becoming Nexans France. Those meetings were followed by five other meetings between the Japanese and European suppliers and several bilateral meetings held in 2000. It is apparent from the notes of those meetings, referred to by the Commission, inter alia, in recitals 137, 141, 143, 144 and 154 of the contested decision, that they included clearly anticompetitive discussions, since they concerned the establishment and functioning of a market-sharing agreement, reproducing the structure of the STEA and the SMEA. The participants in those meetings discussed the rules for sharing markets, the definition of the respective ‘home territories’, quotas for sharing projects located in the ‘export territories’, the voltage of the cables covered by the agreement and the new undertakings to be involved in the discussions to ensure the most effective operation of the new agreement.

68      Finally, the Commission noted in recital 145 of the contested decision, that, in their joint application for immunity, J-Power Systems, Sumitomo Electric Industries and Hitachi Cable had confirmed that, during the early period of the applicant’s involvement in the cartel, at least Sumitomo Electric Industries and Hitachi Cable complied with the ‘home territory’ agreement by ensuring that certain projects located in the European ‘home territory’ were not offered to them but rather to European companies.

69      Likewise, the Commission stated, in recital 147 of the contested decision, that a note in the diary of an employee of Hitachi Cable, Mr M., which dates from the start of 2000, indicated that the NorNed project, located in Europe, and two other projects located in Europe would be allocated to the European suppliers and that the applicant would decline to bid for the NorNed project.

70      It is in that context that, according to the contested decision, the meeting of 18 February 1999 took place in Zurich, during which Mr Y., an employee of Sumitomo Electric Industries, took the notes reproduced by the Commission in recital 137 of that decision. It follows from those notes, which unambiguously set out the date and place of that meeting, and whose contemporaneous nature cannot therefore be called into question by the applicants, that that meeting concerned conditions governing the cartel relating to submarine power cable projects, namely the quotas to be allocated to the European and Japanese groups, the allocation of the ‘home territories’, in accordance with the location of the undertakings’ production facilities and the monitoring and surveillance of the quotas in the ‘export territories’ using position sheets. The participants also discussed the integration of ABB and the Japanese undertakings SWCC Showa Holdings and Mitsubishi Cable Industries in the agreement and addressed the matter of the fine which had been imposed on ABB for its involvement in the heating pipes cartel, thus confirming that they were clearly aware of certain risks in that regard.

71      As regards the meeting of 18 February 1999 in Zurich, the Commission indicated, in recital 497 of the contested decision, that some of the issues discussed at that meeting did not result in an agreement. It is apparent from the transcript of the oral statement made by J-Power System and from the written note concerning that meeting that the parties did not agree the quota to be applied (a 60/40 or a 70/30 split) for the ‘export territories’ and did not definitively decide whether the ‘home territories’ should cover Sweden (ABB’s factory base), South Korea and Taiwan. However, the Commission considered that that meeting marked the start of the infringement. In that regard, in recital 506 of that decision, the Commission noted the following:

‘In view of … the conduct before the meeting of 18 February 1999, when parties were undeniably planning a resurrection of their former arrangements and … the conduct thereafter when parties openly allocated projects in the export territories, respected their respective home territories and considered whether to invite others to “the scheme”, the meeting on 18 February 1999 evidences the existence of a common intention at that time to allocate markets and customers and to distort the normal competitive process for both [submarine] and [underground] power cable projects. From this date, at the very least, there was a concurrence of wills on the very principle of a restriction of competition amongst the participants. The parties therefore concluded an agreement or applied a concerted practice within the meaning of Article 101(1) [TFEU] even if some of the specific details of the cartel arrangement were still under discussion at that time.’

72      The Court considers that, having regard to the case-law referred to in paragraphs 54 to 60 above, it must be held that the Commission’s finding relating to the scope of the meeting of 18 February 1999 in Zurich, set out in recital 506 of the contested decision, is devoid of any error of law or assessment.

73      In the first place, the Commission has established, to the requisite legal standard and correctly taking into account the context of the end of the STEA and the SMEA, in which the applicant had participated, that, as from 1998, the members under those agreements, namely the principal European and Japanese suppliers of underground and submarine power cables, had resumed negotiations seeking to establish a new agreement and that, over time, they had succeeded in implementing that new agreement. The written note from the meeting of 18 February 1999 in Zurich, which is the first note giving a complete account of the basis of that new agreement, confirms that, at the time when that note was made, the undertakings present at that meeting agreed on the very principle of sharing markets, concerning both the ‘export territories’ and the ‘home territories’. The existence of that principle, and the fact that the companies which were parties to the STEA and SMEA upheld it, is corroborated by the discussion involving the applicant reproduced in paragraph 66 above.

74      In that regard, on the one hand, it must be noted that there is nothing to prevent the Commission from taking account of the steps preparatory to the setting-up stricto sensu of the cartel, in order to establish the economic situation which preceded it and explained the setting-up of the cartel, or in order to establish and evaluate the respective roles played by the members of the cartel in conceiving, setting up and implementing it (judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 60).

75      On the other hand, it must be pointed out, as the Commission rightly maintains in recital 498 of the contested decision that the decisive question in assessing the scope of the meeting of 18 February 1999 in Zurich is not whether, on that date, the six companies which took part in that meeting definitively agreed on all elements of the agreement but whether the discussions which took place at that meeting allowed those six companies, through their participation, to eliminate or, at least substantially reduce, uncertainty as to the conduct to be expected from them on the market (see, to that effect, judgment of 8 July 2008, BPB v Commission, T‑53/03, EU:T:2008:254, paragraph 182 and the case-law cited).

76      Accordingly, contrary to what the applicant claims, neither the use of the conditional mood and the future tense in the notes taken by Mr Y., nor the fact that he declared that no agreement had been concluded even after the meeting held in October 1999 in Kuala Lumpur, suffice to establish that, on 18 February 1999, the companies which participated in the Zurich meeting had not yet infringed Article 101(1) TFEU.

77      Moreover, the fact that the Zurich meeting of 18 February 1999 concerned only submarine cables does not mean that it cannot mark the start of the cartel concerning underground cables. The applicant does not dispute the fact that it follows from the contested decision that, shortly after the Zurich meeting, namely on 24 March 1999, its participants met in Kuala Lumpur in order to discuss underground cable projects (recital 139 of the contested decision). Moreover, it is a fact that the new cartel sought to renew all the schemes arising from the STEA and the SMEA which concerned both submarine and underground cables.

78      In the second place, contrary to what the applicant maintains, the various contextual items of evidence of the meeting of 18 February 1999 in Zurich, including the discussions which took place subsequently between the undertakings concerned, confirm that, during the period in which the applicant was directly involved in the cartel, the main European and Japanese suppliers of submarine and underground power cables, including the applicant, were linked by a common intention to share markets in accordance with the STEA and the SMEA schemes and that, moreover, they implemented that market sharing.

79      First, it concerns the projects referred to in recitals 145 and 147 of the contested decision, which were allocated to the European undertakings, in accordance with the ‘home territories’ agreement. The fact that the applicant was not invited to bid for those projects or had legitimate reasons for refusing to participate in the NorNed project is irrelevant for the purpose of establishing an infringement of Article 101(1) TFEU. By contrast, what matters is the fact that the employee of Hitachi Cable knew about those allocations and was aware of the applicant’s intentions concerning its conduct on the market. According to the case-law referred to in paragraph 56 above, Article 101(1) TFEU precludes any contact between economic operators of such a kind as either to influence a competitor’s conduct or to reveal to it the conduct which an undertaking has decided to follow itself.

80      Next, the applicant refers to communication between the European and the Japanese members of the cartel, in particular, on the one hand, to the practice of regularly reporting invitations to tender and information received by the Japanese members from their potential European customers to the coordinator on the European side, with a view to receiving instructions, and, on the other hand, to requests made by the coordinator on the European side of the cartel to J-Power Systems and Viscas asking them to ensure that the other Asian undertakings respect the European ‘home territory’. The applicant submits that those communications cannot confirm its involvement in the cartel from 18 February 1999 to 1 October 2001, since they postdate that period. In any event, they do not concern it, but rather the other Japanese suppliers.

81      First, it must be noted that the requests made by the R members of the cartel to J-Power Systems and to Viscas seeking to ensure compliance by the A members of the cartel with the ‘home territory’ agreement concern only the period following 1 October 2001, the date on which those companies were created. It is apparent from recital 818 of the contested decision that, from its creation, Viscas was responsible for the contacts relating to the cartel, including with regard to the protection of the sales made by the applicant and Fujikura.

82      Furthermore, it follows from the contested decision that the ‘home territory’ agreement was indeed referred to in the communications between the cartel members during the period in which the applicant was directly involved in the cartel. Accordingly, in an email of 26 July 2001, referred to in recital 179 of the contested decision, addressed to Mr J., of Nexans France, an employee of Hitachi Cable, Mr M., stated that the ‘A4’, namely the Japanese undertakings Sumitomo Electric Industries, Hitachi Cable, Furukawa Electric and Fujikura, had contacted SWCC Showa Holdings and Mitsubishi Cable Industries to propose ‘the basis scheme of regular [meetings]’ and that both companies would let them have their comments by the middle or end of August. In the same email, with regard to a project in Taiwan, Mr M. wrote the following:

‘Absolutely A (A’s home territory). We are very concerned about ABB’s behaviour.’

83      It is apparent from that email that, at least on the date thereof, the cartel participants, in particular the Japanese producers, considered that the ‘home territory’ agreement applied.

84      Contrary to what the applicant claimed at the hearing in reply to a question put by the Court in that regard, the fact that the project in Taiwan referred to in the email of 26 July 2001 was won by ABB does not mean that the ‘home territory’ agreement did not apply at the time. It follows from recital 141(d) of the contested decision that, at the A/R meeting of 26 July 1999 in London (United Kingdom), in which the applicant participated, the A members of the cartel insisted that the R members of the cartel should attempt to convince ABB and Sagem, who were not members of the cartel at the time, not to attack ‘A’s Taiwan 345/R’ project, but that the R members simply noted that request. Accordingly, the fact that ABB went on to win the project in question is not capable of demonstrating that the ‘home territory’ agreement was not applied.

85      As regards, second, the practice of regularly reporting calls for tender and information received by the Japanese members from their potential European customers to the coordinator on the European side, with a view to receiving instructions, it should be noted that the evidence relied on by the Commission in that regard, which dates from the start of 2002, unequivocally confirms that, at that time, the cartel was fully operational. It therefore confirms that the agreement, which was conceived in 1999, was actually implemented.

86      As regards the question whether those practices confirm the applicant’s direct involvement in the cartel as from 18 February 1999, on the one hand, it must be noted that some of those practices involve Viscas (see, in particular, recital 231(d) of the contested decision). On the other hand, as from 1 October 2001, the applicant transferred the sales of high and extra high voltage submarine and underground power cables, produced outside Japan, to Viscas. The question whether Viscas’s conduct may be attributed to the applicant and whether the applicant participated in the cartel after 11 June 2001 are the subject of the second plea in law. The question whether, as the case may be, Viscas’s involvement in the cartel after 1 October 2001 can constitute confirmation that the applicant continued its involvement in the cartel after that date must be examined in the context of the second plea in law.

87      In the third place, as regards the argument that, at its meetings with the other Japanese suppliers, the applicant expressed clear reticence with regard to any future arrangement with the suppliers, it must be recalled that it is the understanding which the other participants in a cartel have of that undertaking’s intention which is of critical importance when assessing whether it sought to distance itself from the unlawful agreement (see, to that effect, judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 62). Aside from the fact that the applicant’s argument is not supported by evidence and must therefore be considered to be a mere assertion, it is not apparent from the contested decision that the cartel members acknowledged that the applicant wished to distance itself from the cartel during the early period of its involvement.

88      In that regard, it should also be borne in mind that, according to the case-law, an undertaking’s participation in an anticompetitive meeting creates a presumption that that participation is unlawful, a presumption which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other participants in the cartel (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 21). Accordingly, since, aside from the 11 meetings of the Japanese suppliers and one A/R meeting, held directly after the end of the STEA and the SMEA in 1998, the Commission has established the applicant’s involvement in the meeting of 18 February 1999 in Zurich, which marks the start of the cartel, and in three other subsequent A/R meetings in 1999 (the meetings of 24 March 1999 in Kuala Lumpur, 26 July 1999 in London, and 19 October 1999 in Kuala Lumpur), in three meetings with the Japanese undertakings and two A/R meetings in 2000 (the meetings of 11 May 2000 in Paris (France) and of 29 November 2000 in Kuala Lumpur) and in at least two A/R meetings in 2001 (the meetings of 22 February 2001 in London and of 11 June 2001 in a town not specified in the contested decision), it was for the applicant to adduce evidence that it had publicly distanced itself from the cartel. The applicant cannot claim that, by asking it to demonstrate that it publicly distanced itself, the Commission reversed the burden of proof.

89      In the fourth place, as regards the applicant’s argument alleging that the Commission failed to take into account, in the absence of proof of a commitment on the part of the Asian producers not to compete for projects located in the EEA, another plausible explanation for that absence, namely the existence of barriers to entry to the EEA market that it sought to circumvent, it should be noted that, where the Commission relies solely on the conduct of the undertakings in question on the market in finding an infringement of Article 101 TFEU or where the evidence on which the Commission relies is insufficient in that regard, it suffices for the undertakings in question to demonstrate circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission in order to conclude that an infringement of the EU competition rules took place. By contrast, that rule does not apply to cases in which the infringement is established by deduction from other facts, by indirect or non-documentary evidence. As regards the evidence which may be relied on to establish an infringement of Article 101 TFEU, the prevailing principle of EU law is the unfettered taking of evidence (judgment of 12 July 2011, Toshiba v Commission, T‑113/07, EU:T:2011:343, paragraphs 85 to 87).

90      It follows that, where the Commission has succeeded in gathering evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anticompetitive nature, there is no need to examine the question whether there is a plausible alternative explanation for the conduct complained of (see judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 220 and the case-law cited).

91      As is apparent from the findings set out above, the Commission was entitled to consider in the present case, in the light of the evidence it had collected, that, as from 18 February 1999, the principal Japanese and European suppliers of high and extra high voltage submarine and underground power cables, including the applicant, shared a common intention to restrict competition by sharing markets, which involved a commitment on the part of the Japanese producers not to compete for projects in the EEA in breach of Article 101(1) TFEU.

92      Accordingly, there is no need to reply to the applicant’s argument that its absence from the EEA market during the early period of its involvement in the cartel may be explained by the existence of barriers to entry to the EEA market.

93      In any event, it should be borne in mind that, in accordance with the case-law, an agreement which is designed to protect the European producers in their territory from actual or potential competition from other foreign producers, is capable of restricting competition, unless insurmountable barriers to entry to the European market which rule out any potential competition from those foreign producers exist (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 230).

94      In the present case, the arguments put forward by the applicant, relating to the existence of barriers to entry to the EEA market during the early period of its involvement in the infringement, are not capable of demonstrating that those barriers were insurmountable.

95      Accordingly, first, as regards the applicant’s argument that it did not have the technical capacity to produce cables suitable for the European market, namely mass-impregnated, long-length, high voltage direct current cables (MI cables), it should be noted that, as the Commission states in the contested decision, the Japanese producers, including the applicant, had chosen to restrict their investments in becoming true competitors in the EEA market under the STEA and the SMEA (recital 664 of the contested decision).

96      Furthermore, it is apparent from recital 664 of the contested decision that, for projects requiring long-length submarine cables, MI cables could be replaced by oil-filled cables or cross-linked polythene cables. The applicant does not dispute having the capacity to produce such cables, but merely claims that on account of the limited capabilities of its factory machinery it was unable to produce cables that were sufficiently long for the European projects, without using joints for long distances which would have rendered any potential bids uncompetitive.

97      Second, as regards the applicant’s argument that the applicant lacked the experience and the equipment required in order to lay submarine cables in deep water, it should be noted that, as is apparent from the contested decision, first, only Nexans France and Pirelli owned their own cable laying vessels, so that, in that regard, the applicant was in the same position as the other European producers and, second, such vessels were available for hire (recital 666 of the contested decision).

98      Third, as regards the applicant’s argument that, during the period from 1991 to 2001, it essentially took part in projects for low voltage cables, with a length of under 10 km and produced for the most part in Japan, it must be noted, first, that the relevant period in the present case was from 18 February 1999 to 30 September 2001 and, second, that the fact that the applicant’s activity was concentrated in its domestic market could have been explained by the application of the STEA and the SMEA.

99      Fourth, as regards the applicant’s argument that, it had to face additional costs on account of customs duties, the cost of transport and delivery times, it suffices to note that, as is also apparent from the contested decision, those circumstances did not dissuade Nexans France and Viscas from creating a joint venture in Japan for the production of MI cables intended for the European market (recital 666 of the contested decision) and that such barriers existed for any project located in a territory other than the one in which the applicant’s production facilities were located, not only for projects located in Europe.

100    That finding must also entail the rejection of the applicant’s argument that, in order to supply underground cables to customers in Europe, it would have had to use local engineers with whom it had no particular links, which would have also increased its costs and rendered its bids less competitive.

101    Fifth, as regards the applicant’s argument that, for historical reasons, the European producers benefited, from a preference for domestic products, it should be noted that, as is apparent from the contested decision, in several European countries, there was no credible domestic supplier, with the result that, in those countries, all the European and Asian suppliers were in the same position (recital 666 of the contested decision).

102    Sixth, as regards the applicant’s argument that the pre-qualification procedures imposed on the suppliers for projects in the EEA entailed the exclusion of bidders, such as the applicant, which lacked experience in such projects, it must be noted that, as is apparent from the contested decision, the fact that several Japanese and South Korean suppliers were able to make occasional sales in the EEA demonstrates that such requirements had no dissuasive effect. Furthermore, it must be noted that such requirements were not the preserve of the EEA but also existed in other territories where the Japanese and South Korean producers sold their products (recital 666 of the contested decision).

103    Moreover, it must be stressed that the applicant submits that it [confidential].

104    It must therefore be concluded that, contrary to what the applicant claims, the Japanese producers did not face insurmountable barriers to entry to the EEA market in the early period of the applicant’s involvement in the infringement from 18 February 1999 to 30 September 2001.

105    Accordingly, it must be held that the Commission made no error of assessment in finding that the Japanese producers, including the applicant, were, at least, potential competitors for the European producers in the EEA during the early period of the applicant’s involvement in the infringement. Therefore, the Commission was right to find that the commitment on the part of the Japanese producers, including the applicant, not to compete for projects in the European territory at that time constituted an infringement of Article 101(1) TFEU.

106    In the light of the foregoing considerations, the first plea in law must be rejected as unfounded.

 The second plea in law, alleging infringement of Article 101(1) TFEU, and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission failed to adduce evidence that the applicant had continued to participate in the cartel, first directly, after 11 June 2001, then through Viscas after 30 September 2001

107    The second plea in law consists of two parts.

108    By the first part, the applicant claims that, even if its involvement in the cartel as from 18 February 1999 were to be recognised by the Court, it should be regarded as having come to an end on 11 June 2001. That date marks the date of the last cartel meeting attended by the applicant’s representative Mr O. None of the six examples of distinct actions cited by the Commission relating to the period from 11 June to 30 September 2001 concerned the applicant. In particular, the Commission has failed to prove the applicant’s involvement in two A/R meetings held on 5 September 2001 in Kuala Lumpur and 7 September 2001 in Tokyo (Japan).

109    By the second part, the applicant maintains that the Commission has failed to prove that the applicant had continued to participate in the cartel, through Viscas, from 1 October 2001 onwards.

110    The applicant submits that, since the Commission has adduced no evidence to establish that it had participated in the cartel between 11 June and 30 September 2001, it cannot consider that the applicant had continued its participation beyond 1 October 2001. In particular, the Commission has not adduced any evidence or carried out any analysis of the applicant’s specific circumstances, in order to find that it had continued to participate in the cartel through Viscas.

111    The applicant states, ‘for the avoidance of doubt’, that it does not dispute that it is jointly liable as a parent company for Viscas’s conduct as a result of Viscas’s corporate structure, but it ‘strongly’ disputes any direct liability for that period and denies that it used Viscas as a means of continuing its participation in the cartel.

112    First, the applicant submits, in that regard, that the Commission itself stated in recital 818 of the contested decision that there was no evidence on the file demonstrating its direct involvement in the cartel. Next, it maintains that none of the persons representing it at the meetings prior to 1 October 2001 had represented Viscas at the meetings held after that date. Finally, there is no evidence to demonstrate that the applicant and Fujikura had discussed Viscas’s participation in any collusive conduct, or any evidence showing that the applicant’s management was aware of or approved of Viscas’s conduct at any time.

113    The Commission disputes the arguments put forward by the applicant and contends that the second plea in law should be rejected in its entirety.

114    In that regard, it should be noted that, by the two parts of the present plea in law, which must be examined together in reverse order, the applicant claims that the Commission has failed to establish to the requisite legal standard that the applicant participated in the cartel during the period from 11 June 2001 to 28 January 2009. Before examining the arguments put forward by the applicant, it is important to note that it does not dispute that the infringement which it is alleged to have committed was a single and continuous infringement or that Viscas participated in that infringement during the period from 1 October 2001 to 28 January 2009.

–       The evidence of the applicant’s participation in the cartel from 1 October 2001 to 28 January 2009

115    An infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the various actions form part of an ‘overall plan’, because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41 and the case-law cited, and of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 242 and the case-law cited).

116    In the context of an overall agreement extending over several years, a gap of several months between the manifestations of the cartel is immaterial. The fact that the various actions form part of an overall plan owing to their identical object, on the other hand, is decisive (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 260).

117    According to settled case-law, the term ‘undertaking’ must be understood in competition law as designating an economic unit for the purpose of the object of the agreement in question, even if in law that economic unit consists of several persons, natural or legal. For the purposes of applying competition law, formal separation of two companies, resulting from their having distinct legal identities, is not decisive. The test is whether or not there is unity in their conduct on the market. It may therefore be necessary to ascertain whether two companies with distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market. Article 101(1) TFEU is therefore aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements which pursue a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (see judgment of 2 February 2012, EI du Pont de Nemours and Others v Commission, T‑76/08, not published, EU:T:2012:46, paragraph 58 and the case-law cited).

118    When such an economic entity infringes the competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement. Nevertheless, the infringement of EU competition law must be imputed unequivocally to a legal person on whom fines may be imposed. It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company having regard in particular to the economic, organisational and legal links between those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 101(1) TFEU, which enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see judgment of 2 February 2012, EI du Pont de Nemours and Others v Commission, T‑76/08, not published, EU:T:2012:46, paragraph 59 and the case-law cited; see also, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 42 to 44).

119    In order to be able to impute the conduct of a subsidiary to the parent company, the Commission cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (judgment of 26 September 2013, EI du Pont de Nemours v Commission, C‑172/12 P, not published, EU:C:2013:601, paragraph 44).

120    In that regard, it is for the Commission to demonstrate such a decisive influence, taking into account all the relevant factors relating to the economic, organisational and legal links which tie that subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (judgments of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 45, and of 26 September 2013, EI du Pont de Nemours v Commission, C‑172/12 P, not published, EU:C:2013:601, paragraph 43).

121    In the first place, as regards the question whether the Commission was correct to hold the applicant liable for participation in the cartel during the period from 1 October 2001 to 28 January 2009, it is necessary to recall briefly the reasons set out in recitals 824 to 852 of the contested decision, based on which the Commission found that, during that period, the applicant and Fujikura had jointly exercised a decisive influence over Viscas, with the result that they constituted an undertaking with Viscas within the meaning of Article 101(1) TFEU.

122    First, the Commission found that Viscas had been created on the basis of a joint venture agreement concluded in 2001 (‘the 2001 JVA’), amended in 2004 by a new agreement (‘the 2004 JVA’), which took effect on 1 January 2005. According to the 2001 JVA, Viscas acted as a foreign sales agent for its parent companies and not as a company with an independent market presence. The 2004 JVA, which took effect on 1 January 2005, expanded the scope of Viscas’s activities to include the manufacture and sale of cables to all customers of the parent companies with the exception of Japanese domestic companies other than the national electricity companies, which were retained by the parent companies (recital 828 of the contested decision). The Commission also stated that although the 2004 JVA had weakened the relationship between Viscas and its parent companies, the latter companies did not cease to exercise a decisive influence over Viscas (recital 850 of the contested decision).

123    The Commission examined the legal, organisational and economic links between Viscas and its parent companies and found, as regards the legal relationships, that both the 2001 JVA and the 2004 JVA ensured that each parent company had the power to appoint half of Viscas’s directors. In that regard, it is apparent from the contested decision that there were overlaps between members of Viscas’s board of directors and the organs of its parent companies, since certain members of the board of directors were employed by Viscas on a part-time basis and carried out senior roles at the parent companies at the same time (recitals 830 and 840). In particular, Mr T. was a part-time director at Viscas and, from 2005, its president and, at the same time, a high-level executive working for the applicant (see Annex II to the contested decision).

124    The Commission also referred to various mechanisms contained in the 2001 JVA and the 2004 JVA allowing Viscas’s parent companies to monitor strategic decisions taken by Viscas. According to the 2001 JVA, important matters concerning Viscas’s strategic and commercial conduct required prior consultation between the applicant and Fujikura before they could be presented to the board of directors. With the 2004 JVA, the requirement for prior consultation was abandoned but the parent companies retained the de facto option of blocking decisions relating to strategic and fundamental matters concerning Viscas’s operation. Furthermore, Viscas was bound by an obligation to report on settlement of accounts and business review, annual budget, annual capital investment plans, annual research and development plans and annual personnel plans. The parent companies also had the right to inspect Viscas’s activities and the status of its assets whenever they considered such inspections necessary (recitals 833, 834 and 835 of the contested decision).

125    Next, as regards the organisational links, aside from the overlaps in the management of Viscas and that of its parent companies (see paragraph 123 above), the Commission found that several directors and other employees occupying senior posts at Viscas were not permanent employees of Viscas but were seconded by the applicant and Fujikura, throughout the period of the infringement. Some of the seconded directors simultaneously occupied management posts in the parent companies. The salaries of the seconded employees were paid by Fujikura and by the applicant and consultation with the parent companies was required for any disciplinary measure concerning those employees. The Commission found that, of the employees seconded by the applicant, at least Mr T. had participated in cartel activities on Viscas’s behalf. The 2004 JVA also gave Fujikura and the applicant the right to determine the working conditions of Viscas’s staff (recitals 839 to 842 of the contested decision).

126    Finally, as regards the economic links, on the one hand, the Commission indicated that Viscas depended economically on its parent companies, in so far as they guaranteed its liabilities, both concerning the performance of its projects and its financial debt. In that regard he Commission stated that the entirety of Viscas’s financial debt between the 2004 and 2008 financial years was guaranteed by its parent companies. On the other hand, the Commission found that Viscas depended on its parent companies for the provision of raw materials and that, following the transfer of their manufacturing facilities, the applicant and Fujikura had become customers of Viscas, which produced the power cables subsequently sold by its parent companies to their reserved customers in Japan (see paragraph 122 above) (recitals 845 and 846 of the contested decision).

127    Moreover, the Commission found that the negotiations preceding the creation of the production joint venture between Viscas and Nexans France supports its finding that the applicant and Fujikura exercised decisive influence over Viscas. When Nexans France proposed the creation of a joint venture with Viscas, it first contacted the applicant and Fujikura which, initially, did not accept its proposal. Subsequent negotiations took place between Nexans France, on the one hand, and the applicant, Fujikura and Viscas, on the other (recital 849 of the contested decision).

128    The applicant does not dispute the observations made by the Commission summarised in paragraphs 122 to 127 above. It merely recalls that the Commission has not adduced any evidence of its direct participation in the cartel after 1 October 2001 and claims that the Commission has failed to show that it used Viscas to continue to participate in the cartel.

129    It must be held that the evidence relied on by the Commission, as summarised above, shows that, both during the period of validity of the 2001 JVA and after the 2004 JVA came into effect, Viscas was not capable of determining its own conduct on the high and extra high voltage submarine and underground power cable market independently of its parent companies.

130    First, Viscas’s parent companies dominated its board of directors and, thanks to supervision mechanisms established in the 2004 JVA, they had a continuing right of co-determination over most of its decisions and policies. They influenced both strategic decisions, such as the decision to start a new production unit under a joint venture agreement between Viscas and Nexans France, and decisions relating to everyday management, such as the purchase of raw materials or human resources management.

131    Second, several overlaps between members of Viscas’s staff, including its board of directors, and the applicant’s staff ensured that information passed between the applicant and Viscas throughout the period of the latter’s participation in the cartel.

132    Third, in the contested decision, the Commission indicated the circumstances which demonstrate Viscas’s high level of economic dependency on its parent companies and the fact that those three companies were perceived by their competitors as a unit from an economic point of view.

133    It follows from the foregoing that, from the point of view of the cartel in question, the applicant, Fujikura and Viscas formed part of a single economic unit and, accordingly, constituted a single undertaking for the purposes of Article 101 TFEU, which adopted a single course of conduct on the high and extra high voltage submarine and underground power cable market and participated in a single and continuous infringement of Article 101(1) TFEU. It also follows that the infringement committed by Viscas was attributed to the applicant on account of the decisive influence it exercised over Viscas’s conduct on the market concerned. Accordingly, even though the Commission recognised that there was no evidence on the file to show that the applicant was directly involved in the cartel, the applicant must be considered to be personally liable for an infringement which it is deemed to have committed itself on account of the close economic and legal links which tied it to Viscas and which allowed it to determine Viscas’s conduct on the market in question.

134    In the second place, it must be noted that, contrary to what the applicant claims, the circumstances of the present case and the evidence gathered by the Commission confirm that the applicant and Fujikura used Viscas to continue their participation in the cartel.

135    First, the Commission stated in recital 811 of the contested decision that it considered that the applicant and Fujikara’s direct participation in the cartel ended on 30 October 2001 and added in recital 818 of that decision that there was no evidence of direct participation by those companies in the infringement after that date. However, the Commission also indicated in that recital that, as from 1 October 2001, all contacts relating to the cartel were made by Viscas and that these also concerned the protection of territories and consequently included the protection of the sales made by the applicant and Fujikura in Japan. It is in the light of those circumstances that the Commission found, in that recital, that it was highly unlikely that the applicant and Fujikura were not aware of the continuation of the cartel and of the role played by Viscas therein beyond the period of their own direct participation.

136    Second, it follows from the minutes of the A/R meeting of 11 June 2001, at which the applicant was present, as annexed by the Commission to its defence, that, during that meeting, the applicant and Fujikura let the other cartel members know that they would merge their cable design and export activities as from 1 October 2001 in a joint venture whose name had not yet been determined. At the meeting of 5 September 2001, at which the presence of the applicant has not been established, Fujikura’s representative confirmed the creation of that new joint venture by the two parent companies and revealed its name.

137    Third, the creation of Viscas and the fact that, at the start, it was responsible only for sales of cables manufactured by its parent companies outside Japan, while the parent companies retained the domestic sales, are explained by the cartel structure. The A/R cartel configuration was based, on the one hand, on the principle, confirmed by the ‘home territory’ agreement, that no participant would encroach on the ‘home territory’ of the others, and, on the other hand, on the division of almost all of the rest of the world in accordance with a pre-established quota, under the ‘export territories’ agreement. By isolating sales outside Japan from their activities and merging them in a joint venture, Fujikura and the applicant were able to concentrate on their ‘home territory’, which was protected from foreign competitors by the ‘home territories’ agreement, end their participation in meetings with the European cartel members and reduce the number of communications with them, thereby reducing the risk that the cartel would be discovered. It is telling, in that regard, that the two other Japanese cartel members, Sumitomo Electric Industries and Hitachi Cable, launched their own joint venture, J-Power Systems, at the same time as the applicant and Fujikura launched Viscas.

138    Fourth, it is apparent from the evidence in the administrative file submitted by the Commission with its defence that Viscas communicated with the other cartel members on behalf of the applicant and that those members saw Viscas as a representative of the applicant. In an exchange of emails which began on 15 April 2003, an employee of Pirelli notified Mr T. O., of J-Power Systems, acting as coordinator on the Japanese side, of his concerns concerning the fact that Viscas had cooperated in some way with a European undertaking not involved in the cartel in Greece. In reference to Viscas, the employee of Pirelli used the following wording: ‘Viscas (Fur)’. In reply to those concerns, Mr E. T., of Viscas, informed the R cartel members, via J-Power Systems, that its parent company, the applicant, would not provide any technical assistance to the European undertaking in question.

139    It follows that the Commission was right to find that, during the period from 1 October 2001 to 28 January 2009, the applicant had continued to participate in the cartel through Viscas.

–       The evidence of the applicant’s participation in the cartel from 11 June to 30 September 2001

140    First, on the one hand, it follows from the findings set out in paragraphs 122 to 139 above that, the Commission was right to hold the applicant liable for participation in the cartel during the period from 1 October 2001 to 28 January 2009. On the other hand, the applicant explicitly acknowledges that any participation in the cartel on its part ended on 11 June 2001, namely the day on which its representative participated in an A/R meeting. The period between those two dates is a mere four months.

141    Second, although the meeting of 11 June 2001 was clearly anticompetitive in nature, the applicant did nothing to let the other cartel members know that it was leaving and, accordingly, did not publicly distance itself from it.

142    Third, it is apparent from the minutes of that meeting that the applicant and Fujikura informed the other members of their intention to create Viscas. In the light of Viscas’s subsequent adherence to the agreements, that information points to the continuity of the applicant’s intention to participate in the cartel.

143    Fourth, contrary to what the applicant claims, the facts cited by the Commission in the contested decision, which postdate the meeting of 11 June 2001, concern it and confirm its continuing participation in the cartel.

144    In that regard, the exchange of emails referred to in recitals 177 and 179 of the contested decision is noteworthy. As has been stated in paragraph 82 above, that exchange of emails, and more particularly Mr M.’s reply, as addressed to Mr J. on 26 July 2001, confirms the applicant’s involvement in collusive activities at that time. Furthermore, even if, as the applicant claims, Mr O. was transferred to a department with no link to power cables, the fact remains that he was still part of its staff and the applicant was responsible for him. It is apparent from the case-file that Mr O. continued to have access to his email and could therefore have followed the discussions between the other cartel members, even if he did not reply to their messages.

145    Having regard to that evidence, and the fact that the applicant does not dispute that the infringement which it is alleged to have committed was a single and continuous infringement, it must be held, in accordance with the case-law referred to in paragraph 116 above, that the applicant continued to participate in the cartel during the period from 11 June to 30 September 2001.

146    It follows from the foregoing that the Commission has demonstrated to the requisite legal standard that the applicant participated continuously in the infringement during the period from 18 February 1999 to 28 January 2009.

147    The second plea in law of the action must therefore be rejected.

 The third plea in law, alleging infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the degree of the applicant’s involvement in the cartel

148    The third plea in law is principally raised, in support of the first and third heads of claim and, in the alternative, in support of the fourth head of claim of the action. That plea in law consists of three parts. By the first part, the applicant complains that the Commission committed an error of assessment in finding that it belonged to the core group of the cartel. By the second part, it complains that the Commission failed to take into account, when evaluating the gravity of the infringement, the different nature of the conduct which took place in the early period of its participation in the cartel. By the third part, the applicant complains that the Commission failed to take into account, when assessing the gravity of the infringement and the existence of mitigating or aggravating circumstances, the greater role played by the European producers in the design, instigation and implementation of the overall infringement. Since the second and third parts of that plea in law essentially seek to demonstrate errors made by the Commission in determining the amount of the fine, they will be examined together with the fifth plea in law, alleging an infringement of the 2006 Guidelines on the method of setting fines.

149    In support of the first part of the third plea in law, in the first place, the applicant claims that the Commission cannot claim that it ‘continued’ to participate in the cartel through Viscas and use evidence of Viscas’s conduct to support its findings concerning the nature of the applicant’s participation in the cartel.

150    In the second place, the applicant disputes the criteria, set out in recital 545 of the contested decision, on which its classification as a member of the core group of the cartel is based.

151    Accordingly, first, although it acknowledges that it attended several meetings with other cartel members, it submits that the nature of its participation in those meetings was different to that of the other participants. On the one hand, its representative in the A/R meetings, Mr O., lacked experience and had limited knowledge of the agreements. On the other hand, the applicant’s representative in the meetings from the Japanese undertakings, Mr Y. O. expressed his reticence regarding participation in a cartel with the European undertakings. The applicant claims, moreover, that it adopted competitive conduct on the market in 1998.

152    Next, it maintains that during the early period of the cartel, it participated only in eight meetings, a significantly lower number of meetings than that attended by the other members of the cartel. It submits that it is not implicated in the communications and the meetings which took place after 30 September 2001.

153    Furthermore, the applicant claims that it did not have the ability to establish the parameters of the cartel and that it did not have a key involvement in establishing the ‘home territories’ agreement. The Commission gave only one example of a project in the European ‘home territory’ for which the applicant had refused to bid, namely the NorNed project, and it appears from the facts of the matter that that refusal was based on legitimate grounds.

154    Moreover, the applicant maintains that it ended its participation in the cartel on 30 September 2001 and submits that it is unacceptable for the Commission to conclude that its participation had continued until the end of the cartel, on 28 January 2009.

155    In addition, the applicant claims that it played no role in the ‘European cartel configuration’.

156    Finally, the applicant maintains that it did not participate in any of the collusive practices summarised in recital 493 of the contested decision. It also submits that the various practices comprising the cartel are not equally harmful for the EEA market and, accordingly, are not of the same gravity. Since its participation in the cartel is limited to the ‘export territories’ agreement, the Commission was not entitled to consider it a member of the core group.

157    In the third place, according to the applicant, it follows both from the statement of objections and the contested decision that the R cartel members Nexans France and Prysmian Cavi e Sistemi Energia played a dominant role in implementing the cartel. Moreover, the factors aggravating the participation of those two undertakings in the cartel have not been found with regard to the applicant. In particular, the Commission has not confirmed that the applicant attended a large number of bilateral and multilateral meetings, that it was deeply involved in the activities, or that it acted as a coordinator or actively applied the ‘home territory’ agreement. The classification of the applicant as a member of the core group does not follow in any way from the statement of objections, since the Commission noted that it did not consider that any mitigating circumstances were applicable to any participant in the cartel and that Nexans France alone had played a particular role as leader of the cartel.

158    The Commission disputes the applicant’s arguments and contends that the first part of the third plea in law should be rejected.

159    In that regard, in the first place, it should be recalled that the Commission was right to find that, during the period from 1 October 2001 to 28 January 2009, the applicant had continued to participate in the cartel through Viscas (see paragraph 139 above). It follows that, contrary to what the applicant claims, the Commission was fully entitled to use evidence of Viscas’s conduct to support its findings relating to the nature of the applicant’s participation in the cartel.

160    In the second place, the criteria on which the Commission based the identification of the members of the core group, are set out in recital 545 of the contested decision, worded as follows:

‘Nexans, Pirelli/Prysmian, Sumitomo, Hitachi, and JPS, Furukawa, Fujikura and Viscas, were involved in almost all of the cartel activities described in [recital 493]. They (or their predecessors) took part in the negotiations leading up to the cartel and they were involved from the beginning of the cartel. In addition, representatives of these participants were involved in most of the communications and meetings of the cartel despite the existence of coordinators on each side. Through their presence in the A/R meetings, all core group participants in the cartel were able to set out the parameters of the cartel. With the exception of JPS, all participants also remained active in the cartel right to the end. Because of their key involvement in the establishment and implementation of the “home territory [agreement]” and (for Nexans and Pirelli/Prysmian) their role in the “European cartel configuration”, these parties are considered as the core group.’

161    The applicant’s arguments cannot call into question the classification by the Commission in recital 545 of the contested decision. Contrary to what the applicant claims, the criteria used by the Commission in that recital are satisfied with regard to the applicant.

162    Accordingly, first, as regards the intensity of participation in meetings and communications with the other cartel members, it should be noted that it is common ground that the applicant attended anticompetitive meetings with Japanese suppliers held in 1998, directly after the end of the STEA and the SMEA and before the start of the cartel on 18 February 1999.

163    However, contrary to what the applicant suggests, it did not in any way distance itself from the agreements which formed the subject matter of the discussions at those meetings. The applicant’s arguments concerning its allegedly reticent approach to a future agreement with the European suppliers and its attempt to adopt competitive conduct on the market are contradicted by the factual evidence adduced by the Commission. It is apparent from the notes from the meetings of 28 January and of 18 March 1998, provided by the Commission in annex to its defence, that Mr Y.O.’s statements referred to by the applicant in its application were taken out of context.

164    The following is stated in the notes of Mr Y. O.:

‘The purpose of the scheme is securing business (pie), protection of the home territory, maintenance of the price. Right now (from the proposal of R) there is no securing of business. Home territory is only agreed by five companies. Price is not maintained (we don’t know about all transactions but at least in Kuwait, it is not).The reason to this is because R decided to withdraw from the STEA unilaterally. They did not give us any immediate notice, and their handling of Kuwait was very rough against Japan. It is doubtful that it will work out smoothly even though a coordinator has been assigned. There is no other way for our company but to proceed by our own for future transactions. I will not oppose to any request from R to A to assign a coordinator, but we will not be able to go along if we cannot agree with the conditions such as business securement and etc. …’

165    Read in their entirety, those notes accordingly confirm that, in the period of negotiations prior to the start of the cartel, the applicant considered that the interests of the Japanese undertakings, in particular, having regard to their home territory, were insufficiently protected and that that situation led to his concern. However, the applicant did not rule out its commitment to the agreement were the conditions to change. In addition, as regards the competitive bid that the applicant submitted in 1998 for a project in Singapore reserved for European suppliers (see paragraph 66 above), it suffices to note that it relates to an isolated incident which, moreover, was strongly criticised by the other Japanese suppliers at a subsequent meeting.

166    Next, it should be noted that, contrary to what the applicant claims, its participation in the meetings during the period from 18 February 1999 to 1 October 2001, was not significantly less intense than that of the other members. The applicant participated in 8 A/R meetings held in that period, which is comparable to the number of meetings in which the other members of the core group participated. Pirelli and Fujikura also participated in at least 8 meetings, [confidential], later becoming Nexans France, in 9 meetings, Hitachi Cable in 11 meetings and Sumitomo Electric Industries in 12 A/R meetings. The fact that the applicant participated in fewer bilateral meetings is of limited significance, since it was during the A/R meetings that it was possible to set the parameters of the cartel.

167    Finally, it should be noted that it follows from the contested decision, without being disputed by the applicant, that the representatives of Viscas regularly participated in meetings and communications during the cartel until its end in January 2009.

168    Second, as regards the applicant’s ability to influence the parameters of the cartel, it must be noted that its ongoing participation in meetings from the start of the cartel made it possible for it to affect those parameters. In that regard, the alleged inexperience of the applicant’s employee who participated in those meetings has not been demonstrated in any way.

169    Third, the fact that the Commission relied only on the NorNed project to show the implementation of the ‘home territories’ agreement by the applicant is insufficient to find that the applicant did not play a key role in the implementation of that agreement.

170    Indeed, examination of the first plea in law shows that that agreement was discussed and negotiated at the A/R meetings held from 18 February 1999 to 1 October 2001, in which the applicant participated alongside the other members of the core group. Moreover, there is evidence of the implementation of that agreement during the early period of the cartel. Finally, after the creation of Viscas, that company actively participated in the ‘home territories’ agreement, by notifying the R members, with a view to receiving instructions, calls for tender and information from its potential European customers and by following those instructions.

171    Fourth, as regards the applicant’s argument that it ended its participation in the cartel on 30 September 2001, it is sufficient to note that examination of the second plea in law of the action shows that the Commission was right to find that the applicant had participated in the cartel up to 28 January 2009, the date which marks the end of the cartel.

172    Fifth, it follows from recital 545 of the contested decision that the Commission applied the criterion concerning the role played in the ‘R cartel configuration’ only with regard to Nexans France and Prysmian Cavi e Sistemi Energia. The applicant’s argument is therefore based on a misreading of that recital.

173    Sixth, as regards the applicant’s participation in the practices listed in recital 493 of the contested decision, it must be noted that, as regards the applicant itself, examination of the first plea in law shows that it participated in the ‘home territory’ agreement. In the absence of any challenge, it must be held, furthermore, that the applicant participated in the ‘export territories’ agreement. As regards Viscas, it must be noted that, in the context of the present action, the applicant has put forward no argument undermining the Commission’s observations concerning the participation of its joint venture in the cartel. Accordingly, it must be held that the Commission has established to the requisite legal standard that the applicant participated, directly or through Viscas, in most of the practices listed in recital 493 of the contested decision, namely in addition to the implementation of the ‘home territory’ agreement and the ‘export territories’ agreement, price agreements, the submission of cover bids, exchange of sensitive commercial and strategic information such as available capacity or interest in participating in certain specific calls for tender, collective refusal to supply accessories or technical assistance to certain competitors, exchange of position sheets and market information, and the establishment of reporting obligations. In those circumstances, there is no need to consider whether certain practices alleged to have been carried out by the applicant were more or less harmful to the EEA market.

174    In the third place, on the one hand, it should be noted that in the contested decision, the Commission did not find with regard to the applicant, or indeed any other undertaking belonging to the core group of the cartel, that there were any aggravating circumstances. Classification as a member of the core group did not therefore entail any increase in the fine. The Commission only applied a reduction to the basic amount of the fine to be imposed on the undertakings belonging to the intermediate group and the undertakings classified as fringe players of 5% and 10% respectively. Accordingly, as regards the applicant, the Commission did not depart in the contested decision from its position in the statement of objections. On the other hand, by the arguments relating to the assessment of the conduct of Nexans France and Pirelli, the applicant seeks, in essence, to claim that a mitigating circumstance exists based on the conduct of the other participants in the infringement. According to settled case-law, such arguments cannot be upheld. As a matter of principle, a participant in an infringement cannot allege a mitigating circumstance deriving from the conduct of the other participants in the infringement (see judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 284 and the case-law cited). Consequently, it must be held that the Commission was not required to acknowledge a mitigating circumstance relating to the applicant’s alleged secondary role and, in any event, that such conduct, even if it were proved, does not justify a reduction in the amount of the fines imposed on it (see, to that effect, judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 286).

175    Consequently, the first part of the third plea in law must be rejected.

 The fourth plea in law, alleging infringement of Article 25(1)(b) of Regulation No 1/2003

176    By that plea in law, relied on in support of the third head of claim of the action, seeking annulment of Article 2(n) of the contested decision, the applicant claims that the Commission was time-barred from imposing a fine on it. According to the applicant, since the Commission has failed to adduce sufficient evidence to confirm that the applicant participated directly in the cartel beyond 11 June 2001 or to show that it continued to participate in the cartel through Viscas beyond 1 October 2001, the time limit of five years within which the Commission was entitled to impose a fine had already expired when the Commission adopted the contested decision.

177    In that regard, it must be borne in mind that, pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the provisions of Article 101 TFEU or Article 102 TFEU. By virtue of Article 25(1)(b) of that regulation, those infringements are time-barred after a period of five years has elapsed. According to Article 25(2) of that regulation, as regards continuing or repeated infringements, time is to begin to run only on the day on which the infringement ceased. Lastly, under the first sentence of Article 25(3) of that regulation, any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement interrupts the limitation period.

178    It follows from the examination of the second plea in the law that the Commission was right to find that the applicant had continued to participate in the cartel both during the period from 11 June to 30 September 2001 and during the period from 1 October 2001 to 28 January 2009. In addition, the applicant does not dispute the finding of a single and continuous infringement referred to by the contested decision. It follows that, contrary to what the applicant submits, the infringement it committed did not end on 11 June 2001 or, at most, on 30 September 2001, but on 28 January 2009. Taking into consideration, in particular, the statement of objections of 30 June 2011 (see paragraph 7 above), the Commission was therefore entitled to impose a fine on it on 2 April 2014 for the entire period of the infringement from 18 February 1999 to 28 January 2009.

179    The fourth plea in law must accordingly be rejected as unfounded.

 The fifth plea in law, alleging infringement of the 2006 Guidelines on the method of setting fines, and the second and third parts of the third plea in law

180    In the context of the fifth plea in law, and of the second and third parts of the third plea in law, which must be examined together, the applicant complains that the Commission committed various errors in calculating the amount of the fine imposed on it for its direct participation in the cartel.

181    Thus, by the first part of the fifth plea in law, the applicant complains that the Commission included, in addition to Viscas’s sales, the applicant’s own sales as well as those made by Fujikura in the value of sales realised in 2004, which was used to determine the basic amount of the fine imposed on it for its direct participation in the cartel. By the second part of the fifth plea in law, the applicant maintains that the Commission incorrectly set the duration multiplier in calculating the amount of the fine due to the errors it committed in determining the duration of its direct participation in the infringement,.

182    By the second part of the third plea in law, the applicant complains that, in assessing the gravity of the infringement, the Commission failed to take into account the different nature of the conduct which took place in the early period of the applicant’s participation in the cartel. In the third part of the third plea in law, the applicant submits that the Commission did not take into account the more significant role played by the European producers in the design, instigation and implementation of the whole of the infringement, either when assessing the gravity of the infringement or when examining the existence of mitigating or aggravating circumstances. In the context of the third part of the fifth plea in law, the applicant maintains that since the application of point 18 of the 2006 Guidelines on the method of setting fines favoured the European producers, the Commission should have applied mitigating circumstances to it in order to take account of the fact that it did not belong to the core group of the cartel, the different nature of its conduct during the early period of its participation in the cartel and that the infringement committed by the A members of the cartel was less serious than that committed by its R members. Failing that, the Commission should have applied the exception clause laid down in point 37 of the 2006 Guidelines on the method of setting fines, as it has done in the past in decisions relating to cartels in the window mountings and trade in North Sea shrimp sectors. Finally, the applicant maintains that, on account of the significant barriers to entry to the EEA market, any participation on its part in the cartel would have had only negligible effects on that market.

183    Before examining the applicant’s arguments in that regard, the principles governing the calculation of the amount of the fine and the way in which they were applied in the present case by the Commission should be recalled.

–       The principles governing the calculation of the amount of the fine and their application in the present case

184    According to the case-law, it follows from Article 49(3) of the Charter of Fundamental Rights of the European Union that the severity of penalties must not be disproportionate to the offence in question and that, pursuant to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. The principle of proportionality and the principle that the penalty must be appropriate to the offence also require that the amount of the fine imposed must be proportionate to the gravity and the duration of the infringement (judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 308 and the case-law cited).

185    In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 309 and the case-law cited).

186    In addition, according to the case-law, when determining the amount of the fine objective factors such as the content and duration of the anticompetitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements. In the interests of transparency, the Commission adopted the 2006 Guidelines on the method of setting fines in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine ((judgment of 12 December 2014, H&R ChemPharm v Commission, T‑551/08, EU:T:2014:1081, paragraph 310 and the case-law cited).

187    It is apparent from points 19 to 26 of the 2006 Guidelines on the method of setting fines that the basic amount of the fine consists of a variable amount of up to 30% of the sales in question of a given undertaking in the EEA, depending on the degree of gravity of the infringement and multiplied by the number of years of infringement, and, if necessary, an additional amount, namely the ‘entry fee’, of between 15% and 25% of the value of the undertaking’s relevant sales, irrespective of the duration.

188    Pursuant to point 13 of the 2006 Guidelines on the method of setting fines, in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates. To that end, the Commission will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.

189    Point 18 of the 2006 Guidelines on the method of setting fines, however, provides as follows:

‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.

In such circumstances, in order to reflect both the aggregate size of the relevant sales within the EEA and the relative weight of each undertaking in the infringement, the Commission may assess the total value of the sales of goods or services to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply this share to the aggregate sales within the EEA of the undertakings concerned. The result will be taken as the value of sales for the purpose of setting the basic amount of the fine.’

190    The basic amount of the fine thus calculated may be adjusted. It may therefore be increased if there are aggravating circumstances, such as those laid down in point 28 of the 2006 Guidelines on the method of setting fines, or reduced where the Commission finds the existence of mitigating circumstances, such as those referred to in point 29 of those guidelines.

191    The Commission may also, by virtue of point 30 of the 2006 Guidelines on the method of setting fines, increase the amount of the fine to be imposed on undertakings which have a particularly high turnover beyond the sales of goods or services to which the infringement relates in order to ensure that the fine acts as deterrent.

192    In any event, for each undertaking, the total amount of the fine may not exceed 10% of its total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003.

193    In the present case, it is apparent from the contested decision that, in order to determine the value of sales constituting the starting point for calculating the basic amount of the fine, the Commission decided to depart from the method derived from point 13 of the 2006 Guidelines on the method of setting fines and to apply the method laid down in point 18 of those guidelines on the ground that the sales made by certain undertakings belonging to the cartel within the EEA did not properly reflect their weight in the infringement, the territory covered by the cartel was wider than the EEA and all parties to the cartel were major producers active on a worldwide basis (recital 968 of the contested decision).

194    Moreover, the Commission also decided to use the value of the sales of the undertakings concerned in 2004 and not the value of those made in each of the undertaking’s last full year of participation. In order to justify that approach, first, the Commission stated that the sales of power cables at both EEA and worldwide level increased significantly as from 2006. The sales of the last full business year were therefore insufficiently representative of the infringement period, particularly for those undertakings whose participation in the cartel ended after 2006. According to the Commission, using the sales made by all undertakings in 2004 provides a more accurate approximation of the economic importance of the infringement throughout its duration as well as of the relative weight of the relevant undertakings in the infringement. Second, the Commission stated that the use of the 2004 sales made it possible to avoid discriminatory treatment between the undertakings that ended their direct participation in the cartel earlier and those that continued. According to the Commission, it is apparent from point 13 of the 2006 Guidelines on the method of setting fines that, in that situation, it may decide not to use the preceding year’s sales. The Commission added that the choice of a single reference year was preferable for the purposes of applying point 18 of the 2006 Guidelines on the method of setting fines. According to the Commission, accepting different reference years for all the participants would seriously undermine, in the present case, the purpose and the application of point 18 (recitals 965 and 966 of the contested decision).

195    Consequently, in accordance with the method described in point 18 of the 2006 Guidelines on the method of setting fines, first, the Commission determined the value of the sales of submarine power cables and the value of sales of underground power cables concerned as a whole made by all the members of the cartel in 2004 worldwide, except for the United States. Next, it identified the shares of those sales made by each of the undertakings participating in the cartel (recital 991 and Table 4 of the contested decision). Finally, it applied the share percentages thus established to the value of the sales of submarine power cables and to the value of the sales of underground power cables made by the cartel members in 2004 in the EEA. At that last stage, in order to take into account the territorial expansion of the EEA, the Commission decided to establish three sales values: for the EEA comprising 18 members, the EEA comprising 28 members and the EEA comprising 30 members (recitals 967 and 990 and Tables 5 to 7 of the contested decision).

196    The Commission then applied a coefficient corresponding to the gravity of the infringement to each of those three sales values. That was 15% for all undertakings which took part in the cartel, plus 2% for the cumulative market share held by those undertakings and the geographical scope of the cartel. An additional coefficient of 2% was imposed on the European undertakings which took part in the ‘A/R configuration’ and the ‘European cartel configuration’. Next, the Commission applied the multiplier corresponding to the duration of the infringement committed in the EEA of 18 members (from 18 February 1999 to 30 April 2004), 28 members (from 1 May 2004 to 31 December 2006), and 30 members (from 1 January 2007 to 28 January 2009) to the figure obtained for each of those periods.

197    In order to determine the basic amount of the fine for each participant in the cartel, under point 25 of the 2006 Guidelines on the method of setting fines, the Commission added an ‘entry fee’ corresponding to a proportion of the value of sales of between 17% and 19%, to the figure obtained after applying the multiplier. That additional amount, however, was not applied to the joint ventures.

198    Finally, after finding that there were no aggravating circumstances, the Commission took into account, as mitigating circumstances, the limited participation of several undertakings in the cartel and, for some, their lack of awareness of specific aspects of the cartel, reducing the total amount of their fine by 5% to 10%. The Commission did not find any mitigating circumstance with regard to the applicant. Moreover, the Commission did not consider it necessary to increase the amount of the fines imposed in order to confer a deterrent effect within the meaning of point 30 of the 2006 Guidelines on the method of setting fines.

199    More particularly as regards determining the value of sales of the Japanese undertakings for the purposes of applying point 18 of the 2006 Guidelines on the method of setting fines, first, the Commission found that the participation of those undertakings in the cartel was divided into two periods, namely a first period of direct participation in the cartel by Sumitomo Electric Industries, Hitachi Cable, the applicant, Fujikura, SWCC Showa Holdings and Mitsubishi Cable Industries and a second period during which those undertakings participated in the cartel through their respective joint ventures, J-Power Systems, Viscas and Exsym. The Commission found that, since the parent companies continued to participate in the cartel through their respective joint ventures, it would be artificial to use a different reference year to establish the value of sales taken into account for the purposes of calculating the amount of the fine for the first period and for the second period. Accepting a different reference year would discriminate between the Japanese undertakings and the other addressees of the contested decision, simply because the Japanese undertakings had decided to form joint ventures (recitals 977 and 978 of the contested decision).

200    Second, the Commission stated, with reference in that regard to its observations in the statement of objections, that the sales to be taken into account as regards the joint ventures and their parent companies included not only the 2004 sales made by each joint venture to third parties but also the sales of their parent companies to third parties that were retained as reserved customers during the joint venture period. The Commission noted, in that regard, that, during the administrative procedure, the applicant, Fujikura and Viscas had claimed that that approach was contrary to point 13 of the 2006 Guidelines on the method of setting fines, in so far as the sales of the applicant and Fujikura made after Viscas was formed were not directly or indirectly related to the infringement. The Commission rejected their arguments, noting, in recital 980 of the contested decision, that the sales that prior to the formation of the joint ventures had been cartelised were afterwards shared between the parent companies and the joint ventures according to clear criteria based on types of customers and geographic scope. The Commission added that, through the application of the ‘home territory’ agreement, all the sales made by the parent companies after the formation of the joint ventures were equally protected by the collusive agreements through the participation of those joint ventures in the cartel.

201    Third, in order to reflect each parent company’s economic strength and weight in the infringement during the period prior to the formation of the joint ventures, the Commission decided to share the sales determined for the joint venture among the parent companies proportionally to the individual sales achieved by each parent company in the full business year prior to the formation of their joint venture (recitals 981 and 982 of the contested decision).

–       The inclusion, in the value of sales used to determine the basic amount of the fine imposed on Viscas, of sales independent of the applicant and Fujikura

202    By the first part of the fifth plea in law, the applicant essentially claims that the Commission erred in including in the value of sales used to determine the basic amount of the fine, in addition to the sales made by Viscas, its own sales and those of Fujikura.

203    First, the applicant argues that that approach does not take into account the fact that the Commission has failed to demonstrate that the applicant continued to participate in the cartel during the period after 1 October 2001 and, accordingly, that the applicant’s sales did not relate directly to the infringement.

204    Next, the applicant claims that that approach is contrary to the case-law and the Commission’s previous practice, in particular Commission Decision C(2012) 4381 final of 27 June 2012, amending Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/39.966 — Gas Insulated Switchgear — Fines) (‘the GIS II decision’). In the latter decision, the Commission found, as in the present case, that the parent companies participated in the cartel via their joint venture after its formation. Nevertheless, when calculating the fine in that case, the Commission used only the turnover of the joint venture to calculate the fine to be imposed on (i) the parent companies for their direct participation in the infringement prior to the formation of the joint venture, and (ii) the fine imposed jointly and severally on the parent companies and joint venture for the participation of the joint venture in the infringement.

205    Finally, the applicant claims that, since, first, the Commission has only set out very cursory reasons for its decision to take into account its reserved sales in calculating the value of sales and, second, since it has failed to state reasons why, in the contested decision, it adopted a novel and different approach from its previous practice, the Commission infringed its obligation to state reasons, the principle of the protection of legitimate expectations and the principle of equal treatment.

206    The Commission disputes the applicant’s arguments and contends that the first part of the fifth plea in law should be rejected.

207    First of all, it should be noted, in the light of the findings set out in paragraphs 193 to 201 above, that, contrary to the applicant’s claims, the Commission’s reasoning in determining the value of sales for the purposes of calculating the amount of the fines of the Japanese undertakings, including the applicant, is set out in the contested decision in a clear and comprehensible manner. Moreover, it corresponds to the Commission’s findings in the statement of objections, in which it stated that ‘in the case of the Japanese companies the value of sales will be established on the basis of the sales of the products concerned made by each joint venture and, in case they exist, by its corresponding parent undertakings, to third parties’.

208    Furthermore, it must be borne in mind that, in accordance with the case-law, where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies in fact exercised decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU (judgments of 26 September 2013, The Dow Chemical Company v Commission, C‑179/12 P, not published, EU:C:2013:605, paragraph 58; of 27 September 2006, Avebe v Commission, T‑314/01, EU:T:2006:266, paragraphs 137 and 138; and of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 45).

209    It follows from the analysis of the second plea in law that, during the period from 1 October 2001 to 28 January 2009, the applicant, Fujikura and Viscas formed part, from the point of view of the subject matter of that cartel, of a single economic unit and, accordingly, constituted a single undertaking for the purposes of Article 101(1) TFEU, which adopted the same course of conduct on the high and extra high voltage submarine and underground power cable market. That undertaking therefore certainly participated in the single and continuous infringement, during the relevant period, in breach of Article 101(1) TFEU and Article 53 of the EEA Agreement.

210    In such a situation, it cannot be held that, in principle, the Commission was not entitled to take into account sales made by the applicant and Fujikura in order to calculate the value of the hypothetical sales made by Viscas in the EEA under point 18 of the 2006 Guidelines on the method of setting fines.

211    It must be noted that point 6 of the 2006 Guidelines on the method of setting fines states that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’. In accordance with point 13 of those guidelines, the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates must be taken into account.

212    It is true that, in general, the Commission takes into account only sales made by the joint venture for the purposes of calculating the fine ultimately imposed ‘jointly and severally’ on the parent companies, provided that it is shown that they have exercised a decisive influence on their subsidiary.

213    However, in the present case, the applicant and Fujikura did not transfer all the activities covered by the cartel to their subsidiary, but also retained some of those activities themselves.

214    The Commission stated that, during the period from 1 October 2001 to 31 December 2004, Viscas was a foreign sales agent for its parent companies. It follows from recital 818 of the contested decision that, as from 1 October 2001, all contacts relating to the cartel were made by Viscas and that they also concerned the protection of territories. Consequently, they included the protection of the sales made by the applicant and Fujikura in Japan. It also follows from recital 825 of the contested decision, which is not disputed by the applicant, that, during that period, the applicant and Fujikura transferred to Viscas their respective sales of submarine and underground power cables outside Japan to non-Japanese undertakings. The manufacturing facilities and the sales activities in Japan, including in respect of Japanese companies outside Japan, were retained by the parent companies. It follows from recital 828 of the contested decision that, following the changes introduced by the 2004 JVA, as from 1 January 2005, Viscas’s activities included the manufacture and sale of cables to all customers of its parent companies with the exception of Japanese domestic companies other than the national electricity companies, which were reserved to the parent companies.

215    Thus, the sales made by the applicant to its reserved customers covered, first, during the period in which the 2001 JVA was valid, sales to Japanese companies both in and outside Japan and, second, during the period in which the 2004 JVA was valid, sales to Japanese domestic companies other than the national electricity companies. In addition, those sales concerned high and extra high voltage submarine and underground power cables manufactured initially by the applicant and Fujikura and, later, by Viscas itself. Accordingly, during the period of activity of the joint venture, sales were shared between the parent companies and the joint venture according to clear criteria based on types of customers and geographic scope (recital 980 of the contested decision).

216    In accordance with the case-law, the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement. Accordingly, the Commission was entitled to take into account the sales of the parent companies because they had been made in a market affected by the cartel (judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraphs 55 and 56) and were, moreover, the sales of an undertaking to which the applicant belonged (see, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraphs 149 and 150).

217    The applicant’s argument that those sales were not affected by the cartel, since, as from 1 October 2001, it was no longer bound by the collusive agreements, cannot succeed. As is apparent from paragraphs 115 to 133 above, during the period from 1 October 2001 to 28 January 2009, the applicant participated in the cartel, since, by way of the close legal, organisational and economic links which bound it to Viscas, it exercised a decisive influence over the latter.

218    The sales of high and extra high voltage submarine and underground cables by the applicant for the benefit of its reserved customers therefore fell within the scope of the collusive agreements, in particular the ‘home territories’ agreement, where it concerned sales made to Japan, and the ‘export territories’ agreement, where it concerned sales outside Japan. Those sales must therefore be classified as sales to which the infringement directly or indirectly relates, within the meaning of point 13 of the 2006 Guidelines on the method of setting fines.

219    Accordingly, by including those sales in the value of sales used to determine the basic amount of the fine, the Commission did not infringe point 13 of the 2006 Guidelines on the method of setting fines.

220    That finding cannot be called into question by the applicant’s objections, alleging infringement of the duty to state reasons, the principle of equal treatment and the principle of the protection of legitimate expectations.

221    In that regard, it must be noted that those objections are based on the assertion that, in the present case, the Commission departed from the approach it adopted in the GIS II decision, without providing any justification in that regard. Those objections cannot succeed.

222    First, it should be recalled that, according to settled case-law, in fields characterised by broad discretion on the part of the EU institutions, such as competition policy, traders cannot have a legitimate expectation that an existing situation which is capable of being altered in the exercise of that discretion will be maintained (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 171 and 172 and the case-law cited).

223    Second, it must be recalled that the Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and in the 2006 Guidelines on the method of setting fines. Consequently, decisions in other cases can only be indicative for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 260).

224    However, observance of the principle of equal treatment, which prevents comparable situations from being treated differently and different situations from being treated in the same way unless such difference in treatment is objectively justified, is incumbent on the Commission when it imposes a fine on an undertaking for infringement of the competition rules, as it is on any institution in carrying out all its activities. Nevertheless, previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case (judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraphs 261 and 262).

225    In the present case, first, it must be held that the markets, products, undertakings and periods, on the one hand, of the infringement found in the GIS II decision and, on the other hand, the infringement referred to in the contested decision, are different. Next, it must be noted that the fine imposed on the undertakings concerned by the GIS II decision was established on the basis of the rules set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), which lay down a method for calculating the basic amount of the fine which differs from that laid down in the 2006 Guidelines on the method of setting fines, applied in the present case. Finally, as the Commission notes, the situation of the Japanese undertakings concerned by the GIS II decision, namely Mitsubishi Electric Corp., Toshiba Corp. and their joint venture TM T&D Corp., differed from that of the applicant in that, unlike the applicant and Fujikura, the parent companies of the joint venture TM T&D did not remain active on the market covered by the cartel, but transferred all of their sales to that joint venture.

226    It follows that the situation of the applicant and that of the undertakings concerned by the GIS II decision are not comparable. Accordingly, any difference in the treatment to which they were subject is not capable of constituting an infringement of the principle of equal treatment.

227    Third, in the light of the differences identified in the above paragraph, the Commission was not required to provide any more specific justification than it did in recitals 977 to 982 of the contested decision for its reasoning relating to the calculation of the value of sales required to establish the basic amount of the fines to be imposed on the Japanese undertakings participating in the cartel, including the applicant.

228    In that regard, it must be borne in mind that the Commission is not required to adopt a position on all the arguments relied on by the parties concerned; rather, it is sufficient if it sets out the facts and the legal considerations having decisive importance in the context of the decision. In particular, it is not required to define its position on matters which are manifestly irrelevant or insignificant or plainly of secondary importance (see judgment of 16 June 2011, Air liquide v Commission, T‑185/06, EU:T:2011:275, paragraph 64 and the case-law cited).

229    The first part of the fifth plea in law of the action must therefore be rejected.

–       The multiplier relating to the duration of the infringement

230    By the second part of the fifth plea in law, the applicant asks the Court to draw conclusions from its arguments put forward in the context of the first and second pleas in law and, consequently, to modify the multiplier of 2.58 relating to the duration of the infringement in the context of the early period of its alleged participation in the cartel.

231    In that regard, it must be held that the present part is based on the assumption that, on the one hand, the first and second pleas in law would be upheld and, on the other hand, the period of the applicant’s direct participation from between 18 February 1999 and 30 September 2001 would be reduced.

232    In the light of the rejection of the first and second pleas in law, the present part of the fifth plea in law must therefore also be rejected.

–       The failure to take specific account of the conduct of the cartel members from 18 February 1999 to 30 September 2001 when assessing the gravity of the infringement

233    The applicant claims that the Commission made a manifest error of assessment when assessing the gravity of the alleged infringement by failing to take account of the substantially different nature of the conduct of the cartel members during the early period of that cartel.

234    The applicant maintains that it was only after the early period of the cartel, that is to say, after the end of 2001, that the number of participants in the cartel increased. In addition, it claims that it was only from 2002 onwards that the Commission noted the increased intensity of communications between cartel members, the emergence of the practice of notification to the R members of the cartel of calls for tender and information received by the Asian members from European customers and the emergence of requests from the R members of the cartel to the A members of the cartel not to bid for projects located in Europe.

235    The Commission disputes the applicant’s arguments and contends that the second part of the third plea in law should be rejected.

236    It must be noted that, as recalled in paragraph 18 above, in order to assess the gravity of the infringement at issue, the Commission took into account, in accordance with point 22 of the 2006 Guidelines on the method of setting fines, the nature of the infringement, the cumulative market share held by the participants in the cartel, the geographic scope of the cartel and its implementation.

237    The Commission also found that an infringement consisting, as in the present case, of allocating customers and markets constituted, by its very nature, one of the most harmful restrictions of competition, that those practices were, as a matter of principle, heavily fined and that the degree of gravity was generally at the high end of the scale, in accordance with point 23 of the 2006 Guidelines on the method of setting fines. The Commission considered that this would justify a multiplier for gravity of 15%. The Commission applied an additional multiplier of 2% to all the cartel participants having regard to the cumulative market share they held and the geographical scope of the cartel. Consequently, the Commission applied a multiplier for gravity of 17% with regard to the applicant for calculation of the amount of the fine imposed on it for its direct participation in the infringement from 18 February 1999 to 30 September 2001.

238    It must therefore be held that the applicant’s arguments relating to the increase, as from 2002, of the number of communications between members of the cartel and to the practice of notification, to the R members of the cartel, of calls for tender and information received by the Asian members from European customers are irrelevant, in so far as the Commission did not base the assessment of the gravity of the infringement on those circumstances.

239    It must also be held that the applicant does not claim that the cartel had a narrower geographical scope during the period of its direct participation, but only that during that period it included fewer members and that the ‘home territory’ agreement did not apply. Assuming that they are well founded, those arguments would be capable of affecting certain factors on which the Commission based the assessment of the gravity of the infringement, namely the nature of the infringement and the cumulative market share held by the participants in the cartel.

240    However, as was found in paragraph 91 above, it is apparent from examination of the first plea in law of the present action that, as from 18 February 1999, the principal Japanese and European suppliers of high and extra high voltage submarine and underground power cables, including the applicant, shared a common intention to restrict competition by sharing markets, which involved a commitment on the part of the Japanese producers not to compete for projects in the EEA, in breach of Article 101(1) TFEU.

241    It follows that, contrary to what the applicant claims, the Commission correctly assessed the gravity of the infringement for the purposes of calculating the fine imposed on it for its direct participation in the infringement of 18 February 1999 to 30 September 2001.

242    The second part of the third plea in law must therefore be rejected.

–       The failure to take into account the greater role played by the European producers in conceiving, instigating and implementing the whole of the infringement when assessing the gravity of the infringement

243    By the third part of the third plea in law, the applicant claims that the Commission made a manifest error of assessment by failing to take account of the greater role played by the European producers in the cartel when assessing the gravity of the infringement.

244    According to the applicant, the Commission recognised the more serious conduct of the European producers with regard to the EEA market on account of their participation, in addition to the ‘A/R cartel configuration’, in the ‘European cartel configuration’. However the increased percentage of 2% of the value of sales imposed on the European producers for that reason does not adequately reflect the harm caused by the ‘European cartel configuration’ to the EEA market, compared with that caused to the same market by the ‘A/R cartel configuration’, which therefore overestimates the weight of the Asian producers in the infringement.

245    In addition, the 2% percentage increase in the value of sales imposed on the European producers in the calculation of the amount of the fine does not reflect the key role they played in conceiving, instigating and implementing the whole of the infringement, which thus also overestimates the weight of the Asian producers in the infringement.

246    In particular, the applicant submits that the STEA and the SMEA, whose practices were replicated in the cartel, were designed by the European producers and that they asked the Japanese producers to resume cooperation after they were dissolved. The applicant also claims that the Commission recognised the key role of certain European producers in the cartel, in particular Nexans France.

247    The Commission disputes the applicant’s arguments and contends that the third part of the third plea in law of the action should be rejected.

248    In that regard, in the first place, it must be held at the outset that the applicant’s argument that the 2% increase in the proportion of the value of sales imposed on the European producers in the calculation of the amount of the fine does not sufficiently reflect the harm caused to the EEA market by the ‘European cartel configuration’ compared with that caused by the ‘A/R cartel configuration’ on the same market is based on the incorrect premiss that ‘European configuration’ and the ‘A/R cartel configuration’ operated independently.

249    It must be noted that the Commission considered that the cartel had two configurations which formed a composite whole, namely the ‘A/R cartel configuration’ and the ‘European cartel configuration’. As noted in paragraph 12 above, the ‘A/R cartel configuration’ made it possible to achieve the objective of allocating territories and customers between the European, Japanese and South Korean producers in the context of two agreements. On the one hand, the home territories agreement guaranteed the European producers that the Asian producers would withdraw from the European ‘home territory’, in exchange for the European producers’ withdrawal from the Japanese and South Korean home territories. On the other hand, the ‘export territories’ agreement permitted the allocation of cable projects in most of the rest of the world, in accordance with a ‘60/40 quota’, meaning that 60% of the projects were reserved for the European producers and the remaining 40% for the Asian producers. The ‘European cartel configuration’ involved the allocation of territories and customers by the European producers, for projects located in the European ‘home territory’ and the allocation of specific projects in the context of the European quota arising from the ‘export territories’ agreement.

250    As regards the ‘European cartel configuration’, the Commission stated the following in recital 534 of the contested decision:

‘The European cartel configuration (as well as the allocation among the Asian companies) was subordinate to the almost global arrangement and gave effect to it. Indeed, at the European R meetings, the European coordinator would relay the discussions that took place at the A/R meetings ... To this end, the parties would often organise R meetings shortly after an A/R meeting ... Moreover, at the R meetings, the parties expressed their interest in projects in the export territories that were to be discussed in the A/R meetings. Equally, the parties to the A/R meetings were also informed of the main discussions in the European cartel configuration ... The European cartel configuration formed therefore an integral part of the overall plan.’

251    Contrary to what the applicant claims, the Commission’s finding in recital 534 of the contested decision, cited above, is not vitiated by any error. It thus follows from the description of the mechanisms for allocating the cable projects between the members of the cartel, set out in the contested decision, that the ‘European cartel configuration’ could have been implemented only through the existence of the ‘home territories’ agreement, which constitutes the basis of the ‘A/R cartel configuration’. The European producers were able to share the European projects among themselves only in so far as the Asian undertakings decided to refrain from competing with them in the European ‘home territory’, in exchange for a commitment by the European producers not to compete for projects located in the Japanese and South Korean home territories. It is important to note that the Japanese undertakings’ abandonment of the European ‘home territory’ and the subsequent division of that territory among the European undertakings was not the result of a free choice on the part of the Japanese undertakings, but a consequence of the agreement they concluded with the European undertakings.

252    In the second place, as regards the applicant’s argument that the 2% increase in the proportion of the value of sales imposed on the European producers for calculation of the amount of the fine does not sufficiently reflect the role played by them with regard to the whole of the infringement, in particular as regards conceiving, instigating and implementing the cartel, it must be held that no binding or exhaustive list of the criteria to be applied when assessing the gravity of the infringement has been drawn up. Nevertheless, it follows from the case-law that the factors capable of affecting the assessment of the gravity of infringements include, not only the particular circumstances of the case, but also its context and the dissuasive effect of fines, the conduct of the undertaking concerned, the role it played in the establishment of the practice in question, the profit which it was able to derive from that practice, its size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraphs 273 and 274; see, also, judgment of 8 December 2011, KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraph 96 and the case-law cited).

253    The Commission may therefore take into account the role played by an undertaking in conceiving, promoting and implementing the cartel in order to assess the relative gravity of its conduct compared with that of the other participants in the cartel.

254    However, in the present case, contrary to what the applicant claims, the role played by the European undertakings in that regard is comparable, as regards the infringement as a whole, to that played by the Japanese undertakings.

255    First, it is apparent from the findings set out in paragraphs 62 to 67 above that, although the Japanese producers did not design the mechanisms under the STEA and the SMEA, they were involved in those agreements, meaning that they were in agreement with their operating mechanisms including, inter alia, the principle of observing the respective ‘home territories’ of the European and Japanese producers.

256    Second, it also follows from those findings that the Japanese producers, including the applicant, were fully involved in the discussions which followed the dissolution of the STEA and the SMEA by the European producers with a view to resuming cooperation between the European and Japanese producers. The latter insisted, moreover, that any future agreement should be based on observance by all the European producers of the A/R procedure, the allocation quota in the ‘export territories’ and the ‘current ... balance sheet’, which shows that there was indeed a negotiation and not a unilateral proposal by the European producers to their Japanese counterparts (see recital 126 of the contested decision).

257    Third, although the Commission found that certain European producers, such as Nexans France, played a key role in the cartel on account of their role as the coordinator of the side of the R members, the Commission made the same findings as regards certain Japanese producers, such as J-Power Systems and Exsym.

258    In the light of the foregoing considerations and, moreover, in so far as the Commission considered that the conduct of the European undertakings was more harmful to competition than that of the other undertakings, since, in addition to their participation in the ‘A/R cartel configuration’, the European undertakings had shared cable projects among themselves in the context of the ‘European cartel configuration’ (see paragraph 18 above), it must be held that the 2% increase in the percentage of the value of sales imposed on the European producers for the purposes of calculating the amount of the fine does not appear to be inappropriate in order to reflect the difference in gravity of their conduct compared with that of the Japanese producers.

259    Therefore, it is necessary to reject the third part of the third plea in law and that plea in law in its entirety.

–       The Commission’s refusal to afford the applicant the benefit of mitigating circumstances and to take into account the existence of barriers to entry to the EEA market

260    The applicant maintains that since the application of point 18 of the 2006 Guidelines on the method of setting fines favoured the European producers, the Commission should have afforded it the benefit of mitigating circumstances in order to take into account the fact that it did not belong to the core group of the cartel, the different nature of its conduct during the early period of the cartel, and the fact that the infringement committed by the A members of the cartel was less serious than that committed by its R members. Failing that, the Commission should have applied the exception laid down in point 37 of the 2006 Guidelines on the method of setting fines, as it has done in the past in decisions relating to cartels in the window mountings and trade in North Sea shrimp sectors. Finally, the applicant maintains that, on account of the significant barriers to entry to the EEA market, any participation on its part in the cartel would have had only negligible effects on that market.

261    The Commission disputes the applicant’s arguments and contends that the third part of the fifth plea in law should be rejected.

262    In the first place, as regards the applicant’s argument that the application of point 18 of the 2006 Guidelines on the method of setting fines favoured the European producers in the present case, it must be recalled that that point states the following:

‘Where the geographic scope of an infringement extends beyond the EEA (e.g. worldwide cartels), the relevant sales of the undertakings within the EEA may not properly reflect the weight of each undertaking in the infringement. This may be the case in particular with worldwide market-sharing arrangements.’

263    In the present case, since the applicant participated in a market-sharing agreement designed, inter alia, to reserve the EEA market for European producers, the Commission was right to find that it would not be appropriate to apply a methodology based on its actual sales in the EEA. As the Commission pointed out, that would amount to not penalising the applicant for its participation in the cartel.

264    Next, in the light of the nature of the infringement in question, a methodology which takes into account the worldwide market shares is appropriate for reflecting the weight of the infringement (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 282).

265    Finally, as the Court has already held in respect of a market-sharing agreement between undertakings competing on a worldwide scale, the worldwide market shares give the best adapted representation of the capacity of those undertakings to cause significant damage to other operators in the European market and give an indication of their contribution to the effectiveness of the cartel as a whole or, conversely, of the instability which would have affected the cartel had they not participated (see, to that effect, judgments of 29 April 2004, Tokai Carbon and Others v Commission, T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01, EU:T:2004:118, paragraph 198, and of 15 June 2005, Tokai Carbon and Others v Commission, T‑71/03, T‑74/03, T‑87/03 and T‑91/03, not published, EU:T:2005:220, paragraph 186).

266    Having regard to the extremely harmful nature of a market-sharing agreement, one of the most serious infringements of Article 101 TFEU, the imposition of sufficiently dissuasive penalties against non-European producers which undertake not to compete with European producers in their territory is justified (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 284).

267    In so far as the applicant’s line of argument should be interpreted to mean that the application of the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines led the Commission to underestimate the weight of the European producers in the infringement and, accordingly, to overestimate the weight of the Asian producers, that that line of argument cannot succeed.

268    It must be observed that the applicant’s view rests on the premiss that the application of the methodology laid down in point 18 of the 2006 Guidelines on the method of setting fines favoured the European producers by reducing the share of the sales actually made in the EEA which would have been allocated to them pursuant to point 13 of those guidelines. However, that premiss is incorrect since, having regard to the nature of the infringement, which consisted, inter alia, of restricting access by the Japanese producers to the EEA, the share of sales actually made by the European producers in the EEA could not be used as the basis for assessing their weight in the infringement as provided for in point 13 of the 2006 Guidelines on the method of setting fines. Accordingly, the use of the share of sales actually made by the European producers in the EEA would have led, in the present case, to their weight in the cartel being overvalued and their being penalised in excess of their participation in that cartel. It cannot therefore be held, as the applicant suggests, that the difference between the value of the sales actually realised by the European producers in the EEA and that allocated to them pursuant to point 18 of the 2006 Guidelines on the method of setting fines demonstrates an advantage conferred on them by the Commission.

269    It must therefore be considered that the applicant’s premiss that the application of point 18 of the 2006 Guidelines on the method of setting fines in the present case favoured the European producers over the Japanese producers is incorrect.

270    In the second place, as regards the objection that the Commission failed to grant a reduction on account of mitigating circumstances to the applicant in order to take account of the fact that, on the one hand, the applicant did not belong to the core group of the cartel and, on the other hand, when assessing gravity, the Commission did not take into account the different nature of the conduct of the cartel members in the early period of the cartel and the more significant role played by the European producers in conceiving, instigating and implementing the cartel, it should be noted that those arguments have already been rejected in the context of the examination of the three parts of the third plea in law. It follows that, in so far as it is based on those arguments, the present part of the fifth plea in law cannot succeed.

271    In addition, the applicant’s argument that the Commission should have applied point 37 of the 2006 Guidelines on the method of setting fines is insufficiently sustained, with the result that it must be rejected as inadmissible. The applicant merely refers to two press releases relating to cases in which the Commission, for precise reasons specific to those cases, decided to apply the clause in that point. The applicant fails to explain the extent to which the specific circumstances of those cases, which led the Commission to apply the clause in question, are relevant in the present case.

272    In the third place, as regards the applicant’s argument that the barriers to entry to the EEA market meant that the effects of the commitment by the Japanese undertakings not to enter the EEA market were negligible, which the Commission should have taken into account at the mitigating circumstances stage, it must be recalled that, as set out in paragraphs 189 and 195 above, the Commission used, pursuant to point 18 of the 2006 Guidelines on the method of setting fines, an approach based on the worldwide market shares of the undertaking, for the purposes of Article 101(1) TFEU, as formed by the applicant, Fujikura and Viscas. It must be held that, as the Court has ruled previously, an approach based on the applicant’s worldwide market shares takes into account, even if only in aggregated form, the possible barriers to entry that may exist in the various geographic segments of the worldwide market (judgment of 21 May 2014, Toshiba v Commission, T‑519/09, not published, EU:T:2014:263, paragraph 288).

273    Having regard to the above findings, the present part of the fifth plea in law must be rejected, as well as that plea in law in its entirety.

274    In the light of the foregoing, it must be held that the applicant has not succeeded in demonstrating the existence of unlawful conduct on the part of the Commission justifying the annulment of the contested decision in so far as it concerns the applicant.

 The claim for a reduction in the amount of the fines imposed on the applicant

275    The fourth and fifth heads of claim ask the Court, on the one hand, to reduce the amount of the fine imposed on the applicant by Article 2(n) of the contested decision, for its direct participation in the cartel from 18 February 1999 to 30 September 2001 and, on the other hand, to grant a reduction in the amount of the fine imposed on it jointly and severally with Fujikura and Viscas, by Article 2(p) of the contested decision, for the decisive influence it exercised on the latter from 1 October 2001 to 28 January 2009, by an amount equivalent to the reduction granted, as the case may be, to Viscas in the context of the action it brought against the contested decision.

 The application for a reduction in the amount of the fine imposed on the applicant by Article 2(n) of the contested decision, for its participation in the cartel from 18 February 1999 to 30 September 2001

276    The applicant maintains that the amount of the fine is manifestly disproportionate, excessive and inappropriate, in particular, because the Commission unfairly considered it to be a member of the core group of the cartel, overestimated the weight of the ‘A/R cartel configuration’ by comparison with the weight of the ‘European cartel configuration’, ignored the change in the intensity of the infringement and refused to correct the consequences of its application of point 18 of the 2006 Guidelines on the method of setting fines. The applicant submits, in that regard, that, in accordance with the case-law, the Court is entitled, in the exercise of its unlimited jurisdiction, to substitute its own appraisal in regard to the appropriateness of the fine imposed on it, even in the absence of any illegality in the contested decision, and even if it considers that the level of the fine constitutes the logical consequence of the application of the 2006 Guidelines on the method of setting fines. Consequently, the applicant asks the Court to reduce the amount of the fine imposed on it under Article 2(n) of the contested decision.

277    The Commission contests the argument put forward by the applicant.

278    It must be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71).

279    Article 261 TFEU provides that ‘regulations adopted jointly by the European Parliament and the Council, and by the Council, pursuant to the provisions of the Treaties, may give the Court of Justice of the European Union unlimited jurisdiction with regard to the penalties provided for in such regulations’. Making use of the power granted by that provision, the EU legislature stated, in Article 31 of Regulation No 1/2003, that ‘the Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment [and that] it may cancel, reduce or increase the fine or periodic penalty payment imposed’ (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 74).

280    That jurisdiction empowers the Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgment of 8 December 2011, KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraph 130).

281    However, in the present case, first, since no irregularity or illegality vitiates the contested decision, the claim for reduction of the amount of the fine submitted by the applicant cannot in any event be accepted, in so far as it asks the Court to draw conclusions, with respect to the amount of the fine imposed on the applicant by Article 2(n) of the contested decision, from such illegalities or irregularities. Second, it should be noted that there is no evidence capable of justifying a reduction in the amount of that fine.

282    In those circumstances, the claim submitted by the applicant must be rejected in so far as it seeks to obtain a reduction in the amount of the fine imposed on it by Article 2(n) of the contested decision for its participation in the cartel from 18 February 1999 to 30 September 2001.

 The application for a reduction in the amount of the fine imposed on the applicant by Article 2(p) of the contested decision, for its participation in the infringement from 1 October 2001 to 28 January 2009

283    The applicant claims that, in accordance with the case-law, it is entitled to ask the Court to reduce the amount of the fine imposed on it by Article 2(p) of the contested decision, in an amount equivalent to that granted to Viscas, since its liability is purely derived from that of the latter, without any need on its part to demonstrate the error which the Commission may have committed in calculating the amount of the fine imposed on Viscas.

284    The Commission disputes the admissibility of that request and maintains that it is based on a misreading of the case-law. It submits, inter alia, that the conditions for recognising an entitlement to benefit from a reduction granted to a subsidiary have not been met in the present case.

285    It must be recalled that the fine imposed on the applicant by Article 2(p) of the contested decision seeks to penalise its participation in the cartel as the parent company of Viscas, over which it exercised a decisive influence, together with Fujikura.

286    In a situation in which the parent company’s liability results exclusively from the direct participation of its subsidiary in the infringement and the two companies have brought parallel actions having the same object, the Court may, without ruling ultra petita, take account of the annulment of the finding that the subsidiary committed an infringement for a certain period and make a corresponding reduction in the amount of the fine imposed on the parent company jointly and severally with its subsidiary.

287    In order to impute liability to an economic unit, it is necessary to prove that one entity at least has committed an infringement of the EU competition rules and for that fact to be noted in a decision which has become definitive. The reason for which it was found that the subsidiary had not acted unlawfully is irrelevant in that regard.

288    It is in such a context that it is necessary to refer to the wholly derivative nature of the liability incurred by the parent company solely because of a subsidiary’s direct participation in the infringement. In that situation, the parent company’s liability arises from its subsidiary’s unlawful conduct, which is attributed to the parent company in view of the economic unit formed by those companies. Consequently, the parent company’s liability necessarily depends on the facts constituting the infringement committed by its subsidiary and to which its liability is inextricably linked.

289    For the same reasons, it must be specified that, in a situation in which no factor individually characterises the conduct for which the parent company is held liable, the reduction of the amount of the fine imposed on the subsidiary jointly and severally with its parent company must, in principle, where the necessary procedural requirements are satisfied, be extended to the parent company.

290    In the present case, it must be noted that both the applicant and Viscas brought an action against the contested decision. Those actions have, in part, the same objective, namely to reduce the fine provided for in Article 2(p) of the contested decision which was jointly imposed on them.

291    In those circumstances, it would be necessary to recognise that the applicant is entitled to benefit in the same way from any annulment of the contested decision as Viscas in the context of the action brought in Case T‑422/14.

292    However, it must be pointed out that, by today’s judgment in Case T‑422/14, Viscas v Commission, the Court has dismissed the action in that case.

293    Accordingly the applicant’s request to benefit from any reduction granted to Viscas following the action brought against the contested decision in Case T‑422/14, Viscas v Commission, cannot succeed. The claim for a reduction in the amount of the fine imposed on the applicant must therefore be rejected as a whole.

294    In the light of all the above considerations, the action must be dismissed in its entirety.

 Costs

295    Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the applicant has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. The intervener must bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Furukawa Electric Co. Ltd to bear its own costs and to pay those of the European Commission;

3.      Orders Viscas Corp. to bear its own costs.

Collins Kancheva Barents

Delivered in open court in Luxembourg on 12 July 2018.

E. Coulon A.M. Collins

Registrar President

Table of contents

Background to the dispute

The applicant and the sector concerned

The administrative procedure

The contested decision

The infringement at issue

The applicant’s liability

The fine imposed

Procedure and forms of order sought

Law

The claim for annulment

The first plea in law, alleging infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the applicant’s conduct and that of the other cartel members during the initial period of its alleged involvement in the cartel

The second plea in law, alleging infringement of Article 101(1) TFEU, and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission failed to adduce evidence that the applicant had continued to participate in the cartel, first directly, after 11 June 2001, then through Viscas after 30 September 2001

– The evidence of the applicant’s participation in the cartel from 1 October 2001 to 28 January 2009

– The evidence of the applicant’s participation in the cartel from 11 June to 30 September 2001

The third plea in law, alleging infringement of Article 101(1) TFEU and Article 53 of the EEA Agreement and of Regulation No 1/2003, in so far as the Commission incorrectly assessed the degree of the applicant’s involvement in the cartel

The fourth plea in law, alleging infringement of Article 25(1)(b) of Regulation No 1/2003

The fifth plea in law, alleging infringement of the 2006 Guidelines on the method of setting fines, and the second and third parts of the third plea in law

– The principles governing the calculation of the amount of the fine and their application in the present case

– The inclusion, in the value of sales used to determine the basic amount of the fine imposed on Viscas, of sales independent of the applicant and Fujikura

– The multiplier relating to the duration of the infringement

– The failure to take specific account of the conduct of the cartel members from 18 February 1999 to 30 September 2001 when assessing the gravity of the infringement

– The failure to take into account the greater role played by the European producers in conceiving, instigating and implementing the whole of the infringement when assessing the gravity of the infringement

– The Commission’s refusal to afford the applicant the benefit of mitigating circumstances and to take into account the existence of barriers to entry to the EEA market

The claim for a reduction in the amount of the fines imposed on the applicant

The application for a reduction in the amount of the fine imposed on the applicant by Article 2(n) of the contested decision, for its participation in the cartel from 18 February 1999 to 30 September 2001

The application for a reduction in the amount of the fine imposed on the applicant by Article 2(p) of the contested decision, for its participation in the infringement from 1 October 2001 to 28 January 2009

Costs

* Language of the case: English.

1 Confidential information omitted.