JUDGMENT OF THE GENERAL COURT (Third Chamber)
6 February 2014 (*)
(Competition — Agreements, decisions and concerted practices — European markets in tin heat stabilisers and ESBO/esters heat stabilisers — Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement — Fines — Duration of the infringement — Limitation — Legitimate interest in finding that an infringement was committed — Application for variation — Amount of the fines — Duration of the infringements — Unlimited jurisdiction)
In Joined Cases T‑23/10 and T‑24/10,
Arkema France, established in Colombes (France), represented initially by J. Joshua, Barrister, and E. Aliende Rodríguez, lawyer, and subsequently by J.‑P. Gunther and C. Breuvart, lawyers,
applicant in Case T‑23/10,
CECA SA, established in La Garenne-Colombes (France), represented initially by J. Joshua, Barrister, and E. Aliende Rodríguez, lawyer, and subsequently by J.‑P. Gunther and C. Breuvart, lawyers,
applicant in Case T‑24/10,
v
European Commission, represented by K. Mojzesowicz, F. Ronkes Agerbeek and J. Bourke, acting as Agents, and by J. Holmes, Barrister,
defendant,
APPLICATIONS for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers), or, in the alternative, for a reduction of the fines imposed on the applicants,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 22 May 2012,
gives the following
Judgment
Background to the dispute
1 The present cases concern Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) (‘the contested decision’, summarised in OJ 2010 C 307, p. 9).
2 By the contested decision, the Commission of the European Communities found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two sets of anti-competitive agreements and concerted practices covering the EEA and relating to, first, the tin stabilisers sector and, second, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).
3 The contested decision found that there were two infringements relating to two categories of heat stabilisers, which are products added to polyvinyl chloride (PVC) products in order to improve their thermal resistance (see recital 3 of the contested decision).
4 According to Article 1 of the contested decision, each of those infringements consisted of price fixing, allocation of markets through sales quotas, allocation of customers and exchange of commercially sensitive information, in particular on customers, production and sales.
5 The contested decision states that the undertakings concerned participated in those infringements during various periods between 24 February 1987 and 21 March 2000, in respect of tin stabilisers, and between 11 September 1991 and 26 September 2000, in respect of the ESBO/esters sector.
6 The applicant in Case T‑24/10, CECA SA, produces and sells speciality chemicals, including the products concerned by the contested decision.
7 CECA participated directly in the infringements in question (see recitals 25, 590 and 591 of the contested decision).
8 The applicant in Case T‑23/10, Arkema France (successor to Atochem, Elf Atochem, Atofina and Arkema) (‘Arkema’), produces and sells vinyl products, industrial chemical products and performance products.
9 As from 23 January 1988 Arkema was the direct parent company of CECA, with a 99.9% holding (see recitals 25 and 26 of the contested decision).
10 The contested decision held Arkema liable for the infringements concerned as the parent company of CECA (see recital 592 of the contested decision).
11 It is also evident from the contested decision that Arkema was a subsidiary of Elf Aquitaine from 1 January 1986 to 18 May 2006 (see recitals 27 and 590 to 605 of the contested decision).
12 The investigation leading to the adoption of the contested decision was initiated following the submission by Chemtura on 26 November 2002 of an application for immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (see recitals 79 and 80 of the contested decision).
13 On 12 and 13 February 2003 the Commission carried out inspections at the premises of CECA, Baerlocher (Germany, France, Italy and United Kingdom), Reagens (Italy), Akcros (United Kingdom) and Rohm & Haas (France) pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87).
14 During the inspection carried out at Akcros, Akcros’ representatives indicated to the Commission’s officials that certain documents were covered by legal professional privilege (see recital 81 of the contested decision). That claim was subsequently the subject of legal proceedings before the General Court brought on 11 April 2003 and 4 July 2003, which gave rise to the judgment of the General Court in Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523 dismissing the actions (see recitals 84 to 90 of the contested decision; ‘the Akzo proceedings’).
15 On 8 October 2007 and on several occasions in 2008, the Commission sent the undertakings concerned a number of requests for information pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (see recitals 91 and 92 of the contested decision).
16 On 17 March 2009 the Commission adopted a statement of objections which was sent to several companies, including the applicants, on 18 March 2009 (see recital 95 of the contested decision).
17 On 22 May 2009 the applicants submitted a joint response to the statement of objections.
18 On 11 November 2009 the Commission adopted the contested decision.
19 Article 1 of the contested decision holds the applicants and Elf Aquitaine liable for the participation of CECA in the infringement concerning tin stabilisers from 16 March 1994 until 31 March 1996 (‘the March 1994 to March 1996 period’) and from 9 September 1997 until 21 March 2000, and for its participation in the infringement concerning the ESBO/esters sector from 11 September 1991 until 26 September 2000.
20 With regard to its power to impose fines for the abovementioned infringements, the Commission rejected, inter alia, the arguments, put forward by the undertakings concerned, that the suspension resulting from the Akzo proceedings, pursuant to Article 25(6) of Regulation No 1/2003, applied only to the parties to those proceedings, namely Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd. The Commission held that the suspension had an effect erga omnes, so that the limitation period was suspended with regard to all the undertakings concerned by the investigation, including the applicants (see recitals 672 to 682 of the contested decision).
21 Article 2 of the contested decision reads as follows:
‘For the infringement(s) in the tin stabiliser sector … the following fines are imposed:
…
(11) Elf Aquitaine [and the applicants] are jointly and severally liable for: EUR 3 864 000;
(12) [Arkema] is liable for: EUR 3 477 600;
…
For the infringement(s) in the ESBO/esters sector … the following fines are imposed:
…
(28) Elf Aquitaine [and the applicants] are jointly and severally liable for: EUR 7 154 000;
(29) [Arkema] is liable for: EUR 6 438 600;
…’
22 The Commission did not, however, impose fines on the applicants for the infringement which it identified in the tin stabiliser sector in the March 1994 to March 1996 period (see recital 437 of the contested decision).
Procedure and forms of order sought
23 By applications lodged at the General Court Registry on 27 January 2010 (Cases T‑23/10 Arkema France v Commission and T‑24/10 CECA v Commission), the applicants brought the present actions.
24 By letter lodged at the Court Registry on 24 May 2011, the applicants requested approval for the language of the cases to be changed from that chosen in the applications to another language, one reason for that request being the instruction of new legal representation in the present cases. By letters lodged at the Court Registry on 7 June 2011, the Commission objected to that request. By decision of the President of the Third Chamber of the General Court of 14 June 2011, the applicants’ request was refused.
25 By letters lodged at the Court Registry on 12 July 2011, the Commission declared that, in the light of the judgment of the Court of Justice of 29 March 2011 in Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I‑2239, it would withdraw its arguments to the effect that the suspension of the limitation period, under Article 25(6) of Regulation No 1/2003, by the Akzo proceedings had an effect erga omnes, including the applicants. The Commission also stated that it was maintaining all the other arguments put forward in relation to the applicants’ plea in relation to limitation. The Court took formal note of this.
26 The applicants did not lodge observations on the letters referred to in the preceding paragraph within the prescribed period.
27 By order of 12 March 2012 the Court, after hearing the parties, decided to join Cases T‑23/10 and T‑24/10 for the purposes of the oral procedure and of the judgment, in accordance with Article 50 of the Rules of Procedure of the General Court.
28 Upon hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, put questions to the parties in writing. The parties complied with that request within the prescribed period.
29 The parties presented oral argument and replied to the questions put by the Court at the hearing on 22 May 2012.
30 The applicants claim that the Court should:
– annul Articles 1 and 2 of the contested decision in so far as they concern them;
– in the alternative, annul Article 1(1)(i) and (j) of the contested decision in so far as it finds that the applicants participated in an infringement in the tin stabilisers sector in the period from 16 March 1994 to 31 March 1996;
– also in the alternative, in the exercise of the Court’s unlimited jurisdiction, reduce the fines imposed on them;
– order the Commission to pay the costs.
31 The Commission contends that the Court should:
– dismiss the actions in their entirety;
– order the applicants to pay the costs.
Law
32 In support of the actions, the applicants rely on three pleas in law, of which two are put forward in support of their claim for annulment of the contested decision — that is, first, infringement of Article 25(5) of Regulation No 1/2003 and, secondly, infringement of the last sentence of Article 7(1) of Regulation No 1/2003 — and one is in support of their alternative plea that the contested decision should be varied as to the amount of the fines imposed on them.
Plea alleging infringement of Article 25(5) of Regulation No 1/2003
33 In support of the actions in so far as they seek annulment of the contested decision, the applicants submit that the Commission has not established that the infringements continued until 11 November 1999.
34 Since the contested decision was adopted on 11 November 2009, the Commission’s powers to impose fines were time-barred on that date, under Article 25(5) of Regulation No 1/2003.
35 According to the applicants, the Commission has not properly established that the infringements continued beyond the ‘end of February 1999’ for tin stabilisers, and beyond 29 September 1999 for the ESBO/esters sector.
36 The applicants dispute in that respect the admissibility or the probative value of the evidence which the Commission accepted in the contested decision.
37 Taking the view that the limitation period expired on 11 November 2009, the applicants claim that the Commission did not have or no longer had a legitimate interest in finding that infringements had been committed. The Commission rejects the applicants’ arguments, contending that it has established to the requisite legal standard that the infringements continued beyond 11 November 1999, that accordingly its power to impose fines was not time-barred and that it therefore did not have to demonstrate a legitimate interest in finding that infringements were committed.
Reminder of the relevant case-law
38 It must be noted that, as regards the evidence to be produced of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58; Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86; and Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, paragraph 62).
39 It is therefore necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR I‑2501, paragraph 179 and case-law cited).
40 Admittedly, if the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where the undertakings concerned put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 16 and Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström and Others v Commission [1993] ECR I‑1307, paragraphs 126 and 127).
41 However, it is also apparent from the case-law that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement, since it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering and Others v Commission, paragraph 180, and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraphs 56 and 271).
42 It must also be taken into consideration that since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 55).
43 Further, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by inferences (Aalborg Portland and Others v Commission, paragraph 56).
44 Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 57).
45 Further, according to the case-law, if there is no evidence directly establishing the full duration of an infringement, the Commission should adduce, at the least, evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see, to that effect, Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79, and Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 132).
46 The Court of Justice has also held that, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti-competitive nature, the General Court was entitled to consider that it was for that undertaking to provide another explanation of the tenor of those meetings. In taking that approach, the General Court did not unduly reverse the burden of proof and did not set aside the presumption of innocence (Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraph 181).
47 Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting its probative value. On the contrary, except in cases where such proof could not be provided by the undertaking concerned because of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls into question the probative value of the evidence relied on by the Commission (Case T‑141/08 E.ON Energie v Commission [2010] ECR II‑5761, paragraph 56).
48 It is in the light of those considerations that the Court must determine whether the Commission has established to the requisite legal standard, in the contested decision, that the infringements continued at least until 11 November 1999.
Duration of the infringements
49 In the present case, it must be noted at the outset that the Commission found in the contested decision that the infringements had lasted — in the form of meetings of the undertakings involved, organised inter alia in Switzerland by Fides Trust AG, then by AC-Treuhand AG (‘the AC-Treuhand meetings’) — until 21 March 2000 with respect to the tin stabilisers infringement, and until 26 September 2000 with respect to the ESBO/esters sector infringement (see recital 100 of the contested decision).
50 The Commission also found that ‘[f]or a considerable number of the meetings … there [was] contemporaneous direct evidence that the participants … had regular anti-competitive discussions’ (recital 137 of the contested decision).
51 It should also be stated that the applicants expressly acknowledge in their written pleadings that the AC-Treuhand meetings had an anti-competitive object at least until the ‘end of February 1999’ in respect of tin stabilisers and until 29 September 1999 in respect of the ESBO/esters sector.
52 The applicants also acknowledge having participated in those meetings and do not dispute that all the AC-Treuhand meetings were facilitated by Mr S., an AC-Treuhand employee.
53 Accordingly, though they dispute the duration of the infringements of Article 81 EC in the tin and ESBO/esters stabiliser sectors, the applicants admit their participation in them.
54 The applicants do not dispute either that there were AC-Treuhand meetings after the ‘end of February 1999’ for tin stabilisers, and after 29 September 1999 for the ESBO/esters sector, as well as after 11 November 1999, and that all those AC-Treuhand meetings were facilitated by Mr S.
55 They also do not dispute having participated in the AC-Treuhand meetings after 11 November 1999.
56 However, the applicants maintain that the Commission has not established to the requisite legal standard the existence of the alleged unlawful conduct with sufficiently conclusive evidence in respect of the AC-Treuhand meetings which took place after 11 November 1999.
57 Consequently, in order to assess whether the present plea is well founded, it is sufficient to determine whether, in this case, the Commission established to the requisite legal standard that the AC-Treuhand meetings which took place after 11 November 1999 and in which the applicants participated had, like all the previous meetings, an anti-competitive object (see, to that effect, Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraph 155; Commission v Anic Partecipazioni, paragraph 96; and Aalborg Portland and Others v Commission, paragraph 81).
Whether the infringement relating to tin stabilisers continued after 11 November 1999
58 With regard to the tin stabilisers sector, the Commission found, in the contested decision, that the unlawful conduct had lasted until 21 March 2000, that is to say, at least after 11 November 1999, on the basis of the evidence variously referred to in recitals 299 to 304 for the year 1999, and in recitals 316 to 323 for the year 2000.
59 First, as regards the year 1999, nine AC-Treuhand meetings were held in Zurich (Switzerland) and Lugano (Switzerland), that is two in February, two in April, two in July, one in September and two others on 29 and 30 November 1999, bringing together Akcros, Baerlocher, CECA, Reagens and Chemtura (see recital 299 of the contested decision), which the applicants do not dispute.
60 Second, as regards the year 2000, two AC-Treuhand meetings were held in Zurich, that is on 20 and 21 March, bringing together Akcros, Baerlocher, CECA, Reagens and Chemtura (see recital 316 of the contested decision), which the applicants do not dispute.
61 Third, in recital 317 of the contested decision, the Commission referred to a memorandum dated 16 February 2000 drawn up by an Akcros employee for the attention of one of his superiors (‘the Akcros memorandum’), the terms of which, not disputed by the applicants, must be reproduced in full below:
‘I spoke with Marketing Managers, who have between them substantial history in the EU stabiliser markets … Today we and most of our EU competitors participate in industrial groups (one for ESBO and one for [tin stabilisers]) whose major function it is to consolidate market information in the form of tonnes sales each month … This information is sent in to AC-Treuhand, Switzerland by each member company, the results of which are sent back out to the participants in total. … No competitive information is seen. This, to me, seems quite above board and useful. However, two to four times per year the member companies come together in Switzerland to discuss issues of common interest such as market outlooks, trends, activities of non-member companies and the like. While the actual meeting chaired by AC-Treuhand does not seem improper, it was indicated to me that while together, competitors do have conversations about price levels and customers. It is for this reason, I would recommend that we indicate to AC-Treuhand that we will no longer participate in the meetings, but will send in our sales information to take advantage of that service. The situation over two years before in these groups was altogether different. Then so-called “red papers” were generated, which contained minutes from the meetings detailing group decisions to raise prices and divide markets. Specific customers were discussed as well. These minutes were not distributed, but were kept in AC-Treuhand’s files which were “safe” as Switzerland was not an EU member. In 1996 or 1997, this type of meeting no longer took place, presumably because of the increased pressure to not do business like this as laws and enforcement became more stringent. More than one member of the Tins group has put pressure upon our representative to go back to this situation where price fixing and market allocation was regularly done at the AC-Treuhand meetings. Baerlocher is applying the greatest amount of such pressure upon us and other members who are not in favour of such an arrangement. They talk specifically about “freezing” market shares, whereas if one member increases his share by taking an account, he would have to give back another account to balance things out again. This would be confirmed via monthly quota checks. We will not agree to participate in such improper activities, and this is one more reason why we should back off from these meetings ... In summary, there seemingly were improper meetings/discussions in which Akcros did participate. Although we probably do still have the occasional discussion that might be considered to be wrong, no longer do we participate in the formal meetings that are clearly inappropriate. I would recommend the following: (1) Notify AC-Treuhand that we will no longer attend meetings in Switzerland for the Tin and [ESBO/esters] groups, although we will continue to send in our sales data as before[;] (2) Have … put on awareness training that our Marketing Managers (and others) must attend so that they know clearly what actions they can and cannot take related to contact with competitors. Please let me know if you agree to these suggestions.’
62 Fourth, and to support its interpretation of the Akcros memorandum, the Commission stated in recital 318 of the contested decision that Akzo had admitted that the Akcros memorandum had been preceded by the handwritten notes of the author of that memorandum (‘the handwritten Akcros notes’), from which it is clear, as the applicants do not dispute, that there had been discussions which were ‘not written up’ concerning ‘price levels’ which ‘need[ed] to go up’, or be supported, and on ‘some customer[s]’, and, moreover, that the meetings had taken place in ‘Switzerland — not EU member’, as they ‘can’t get raided’.
63 Fifth, the Commission noted that, as a follow-up to the Akcros memorandum, the representative of Akcros stated, at a meeting on 21 March 2000 in Zurich, that it would no longer attend the AC-Treuhand meetings, ‘while continuing its participation in the exchange of sales data’ (see recital 319 of the contested decision), a matter the applicants do not dispute.
64 Sixth, the Commission noted that Akcros had confirmed by letter of 5 June 2000 addressed to Mr S., then an AC-Treuhand employee, that it would no longer participate in AC-Treuhand meetings (see recital 321 of the contested decision), a matter the applicants do not dispute.
65 Seventh, the Commission referred to the statements made by Chemtura in the context of its cooperation with the Commission during the administrative procedure, referring to the continuation of the tin stabilisers cartel ‘until 2000’ (see recital 420(a) of the contested decision).
66 In the light of all that evidence, taken together, the Court considers that the Commission has proved the infringement which it identified in the contested decision in relation to tin stabilisers, by adducing evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement in relation to tin stabilisers in the present case, in that the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the infringement relating to tin stabilisers was committed by the applicants.
67 Considered together, the various items of evidence referred to in paragraphs 59 to 65 above with regard to tin stabilisers preclude the possibility that the AC-Treuhand meetings which were held at the end of November 1999 and in March 2000, as regards tin stabilisers, did not have an anti-competitive object.
68 That evidence clearly demonstrates the anti-competitive object of those AC-Treuhand meetings, having particular regard to the Akcros memorandum, which criticises the anti-competitive nature of the AC-Treuhand meetings; the decision of that undertaking no longer to participate in them; the fact that it distanced itself publicly, on two occasions in 2000, and further that it envisaged competition rules awareness training for its marketing managers; the statements by Chemtura attesting to the continuation of the cartel ‘until 2000’, and the lack of any evidence from the applicants of a change in the nature of the AC-Treuhand meetings.
69 It follows that the AC-Treuhand meetings at the end of November 1999 and in March 2000 could not have had a different object from that of the previous meetings when the same undertakings and the same individuals were convened in the same context by Mr S.
70 Consequently, it must be held that the Commission produced, in the contested decision, a body of evidence which, assessed as a whole, supports the firm conviction that there was unlawful conduct in relation to tin stabilisers at the AC-Treuhand meetings, after 11 November 1999.
71 That assessment cannot be called into question by the applicants’ arguments asserting that, unlike other addressees of the contested decision, they are not claiming that the infringement ended ‘in 1996-1997’ but that, in respect of the period after the end of February 1999, there is insufficient solid and reliable evidence of the cartel activities to support the conviction that the cartel was still operating on 11 November 1999. With regard to tin stabilisers, the applicants submit that the Commission cannot assume that all the AC-Treuhand meetings, the last of which took place on 21 March 2000, had an illicit object, in so far as there is no evidence of the anti-competitive object of the meetings that is probative subsequent to 27 April 1999 and that is admissible subsequent to 23 February 1999.
72 First, the applicants cannot reasonably maintain that the contested decision does not contain any contemporaneous note of the facts relating to the AC-Treuhand meetings after the meeting of 27 April 1999, since the Commission referred to a body of evidence, including, in particular, the Akcros memorandum and the handwritten Akcros notes, which, assessed as a whole, serves to prove the anti-competitive object of the AC-Treuhand meetings after that date.
73 Nor, second, can they criticise the Commission for failing to refer in the contested decision to meetings other than the AC-Treuhand meetings, since it is precisely the AC-Treuhand meetings that constituted the formal framework of the cartel in question.
74 Third, the applicants dispute the admissibility of certain evidence also referred to in the contested decision, in that that evidence was not mentioned in the statement of objections as regards the infringement relating to tin stabilisers. The evidence in question is, in particular, a Chemtura monthly report for August 1999, a Chemtura monthly report for October 1999, a Chemtura email of 23 November 1999 and a Chemtura monthly report for November 1999.
75 However, while the Commission did not refer to that evidence with regard to the infringement relating to tin stabilisers, the fact remains that the applicants’ arguments must be rejected as ineffective, since the Court considers that the Commission established, to the requisite legal standard, that the infringement continued to 11 November 1999 on the basis of evidence, referred to in paragraphs 59 to 65 of the present judgment, the admissibility of which is not disputed by the applicants.
76 Fourth, the applicants cannot convince the Court by maintaining, for the purposes of refuting the evidential value of the Chemtura statement mentioned in paragraph 65 of this judgment, that ‘much’ of that statement ‘relates to North America’, since that statement relates, at least in part, to the EEA, as the very wording of the applicants’ argument shows.
77 Nor, fifth, can the applicants convince the Court by disputing the evidential value of the Akcros memorandum, mentioned in paragraph 61 of this judgment, and of the handwritten Akcros notes, mentioned in paragraph 62 of this judgment, on the basis of internal contradictions.
78 It is clear that, in their written pleadings, the applicants submit that the Commission’s interpretation is wrong but fail to read the Akcros memorandum, reproduced in paragraph 61 of this judgment, in its entirety.
79 Yet it is patent from certain passages of the Akcros memorandum, dated 16 February 2000, that its author recommended no further participation in the AC-Treuhand meetings, and in fact did so twice in that document, and that Akcros should do no more than send in ‘sales information’. He also referred, using, it must be emphasised, the present tense, to ‘freezing market shares’ and to ‘the occasional discussion that might be considered to be wrong’ and that is ‘clearly inappropriate’.
80 In any event, a reading of the entire Akcros memorandum proves, to the requisite legal standard, the existence of the unlawful conduct of which the applicants are accused in the contested decision, in that it provides, with regard, moreover, both to the tin stabilisers market and to that of the ESBO/esters sector, proof that an undertaking participating in the AC-Treuhand meetings identified their anti-competitive object and that that undertaking considered it appropriate no longer to participate in those meetings in March 2000 and to distance itself openly, on two occasions, from their object, and did so in the first quarter of the year 2000, that is to say, contemporaneously with AC-Treuhand meetings whose occurrence is not disputed by the applicants.
81 Sixth, the applicants submit that the AC-Treuhand meetings had no illicit objective, but were solely designed as a blind system for the gathering and exchange of statistical information, the AC-Treuhand meetings having been anodyne meetings for the exchange of information with AC-Treuhand, who consolidated the information, so that each undertaking could see their sales by country.
82 That argument cannot be successful, in the light of the case-law recalled in paragraphs 40 and 41 of this judgment, since the applicants do no more than dispute the anti-competitive object of the AC-Treuhand meetings at issue, while admitting having participated in them, and submit no evidence capable of calling into question the probative value of the factors relied on by the Commission.
83 Seventh, the applicants dispute the probative value of the distancing from the cartel mentioned in paragraphs 63 and 64 of this judgment.
84 According to the applicants, there can be no presumption of an undertaking’s continued involvement in an infringement until the production of proof to the contrary by some affirmative act of withdrawal.
85 That argument cannot be accepted, in that, first, it concerns the imputation of the unlawful conduct not to the applicants, but to another undertaking and, secondly, in any event, the Commission did not rely on any presumption, but relied on specific and detailed evidence, mentioned in paragraphs 59 to 65 of this judgment, in order to conclude that the infringement concerned continued beyond 11 November 1999.
86 In the light of all the foregoing, it must be held that the Commission established, to the requisite legal standard, the continuation, beyond 11 November 1999, of the infringement concerned on the part of the applicants.
The continuation, beyond 11 November 1999, of the infringement relating to the ESBO/esters sector
87 As regards the ESBO/esters sector, the Commission considered, in the contested decision, that the unlawful conduct had continued into 1999 and until 26 September 2000, in other words beyond 11 November 1999, on the basis of various items of evidence set out in recitals 305 to 315, for 1999, and in recitals 316 to 323, for 2000.
88 First, as regards 1999, eight AC-Treuhand meetings took place, namely two in January, two in May, two in September, one on 14 December and one on 15 December, the participants in those meetings being Akcros, CECA, Chemson, Faci and Chemtura (see recital 305 of the contested decision), which the applicants do not dispute.
89 Second, the Commission stated that Chemtura’s monthly report for August, dated 16 September 1999, indicated that the undertakings had succeeded with ‘a price increase of about 10% for [the ESBO/esters sector] effective in October’ (see recital 308 of the contested decision).
90 Third, the Commission referred, in recital 315 of the contested decision, to the minutes of a meeting of 15 December 1999, drafted by AC-Treuhand and mentioning the impossibility of ‘closer cooperation … at present’ with another undertaking not yet attending the AC-Treuhand meetings.
91 Fourth, as regards 2000, five AC-Treuhand meetings took place, namely two in March, one in June and two in September, the participants in those meetings being Akcros, CECA, Chemson, Faci and Chemtura (see recital 316 of the contested decision), which the applicants do not dispute.
92 Fifth, the Commission relied on the Akcros memorandum, the content of which was reproduced in paragraph 61 of this judgment.
93 Sixth, the Commission also relied on the handwritten Akcros notes, which were mentioned in paragraph 62 of this judgment.
94 Seventh, the Commission submitted that, as a follow-up to the Akcros memorandum, the representative of that company announced, at an AC-Treuhand meeting of 22 March 2000 in Zurich, that it would no longer attend AC-Treuhand meetings (see recital 319 of the contested decision).
95 Eighth, the Commission also stated that Akcros confirmed, by email of 5 June 2000, its intention no longer to attend the AC-Treuhand meetings (see recital 320 of the contested decision), which the applicants do not dispute.
96 Ninth, the Commission referred to the minutes of a meeting of 26 September 2000 organised by AC-Treuhand in Italy, which it had obtained from Chemson during the administrative proceedings and which mentioned the possibility that the ‘cooperation’ might not continue ‘as in the past’ (see recital 323 of the contested decision), which the applicants do not dispute.
97 Tenth, the Commission also relied on the statements made by Chemtura as part of its cooperation with the Commission during the administrative proceedings which referred to the continuation of the cartel in the ESBO/esters sector ‘until 2001’ (see recital 420(b) of the contested decision).
98 In the light of all the foregoing, taken together, the General Court considers that the Commission proved the infringement concerning the ESBO/esters sector that it found in the contested decision by adducing evidence capable of demonstrating, to the requisite legal standard, the existence of facts constituting the infringements at issue in this case, in that the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the infringement concerning the ESBO/esters sector was committed by the applicants.
99 Considered as a whole, the various items of evidence referred to in paragraphs 88 to 97 of this judgment, as regards the ESBO/esters sector, preclude the possibility that AC-Treuhand meetings which took place, at least in December 1999, for that sector, did not have an anti-competitive object.
100 That evidence clearly demonstrates the anti-competitive object of those AC-Treuhand meetings, having particular regard to the minutes of the AC-Treuhand meeting dated 15 December 1999 referred to in paragraph 90 of this judgment; the Akcros memorandum, which criticises the anti-competitive nature of the AC-Treuhand meetings; the Akcros decision no longer to attend those meetings; the fact that Akcros publicly distanced itself, on two occasions in 2000; the fact that Akcros envisaged that its managers should have competition rules awareness training; Chemtura’s statements testifying to the continuation of the cartel ‘until 2001’, and the failure of the applicants to produce any evidence that the nature of the AC-Treuhand meetings changed.
101 It follows that the AC-Treuhand meetings of December 1999 and March 2000 could not have had any object other than that of the preceding meetings when the same undertakings and the same individuals were convened in the same context by Mr S., which the applicants do not dispute.
102 Consequently, it must be held that the Commission produced, in the contested decision, a body of evidence which, assessed as a whole, supports the firm conviction that the applicants’ engagement in the unlawful conduct concerning the ESBO/esters sector, in the AC-Treuhand meetings, continued beyond 11 November 1999 at least.
103 That finding cannot be called into question by the applicants’ arguments, which claim, in essence, that the Commission did not prove the existence of the infringement beyond 29 September 1999 and that the Commission could not presume that the anti-competitive object of those meetings continued.
104 It is more than improbable that a cartel should come to an end on the day of the last meeting of its participants, because, particularly where the object of the cartel consists of the infringements at issue in this case, that cartel is capable of continuing to produce its effects after the date of that meeting.
105 The price increase, discussed at the meeting of 29 September 1999 and admitted by the applicants, was more than capable of producing its effects after 11 November 1999.
106 In the light of all the foregoing, it must be held that the Commission proved to the requisite legal standard in the contested decision that the applicants’ unlawful conduct in the ESBO/esters sector had continued after 11 November 1999, and consequently its powers to impose penalties were not time-barred on 11 November 2009.
107 Lastly, it must be held that the applicants’ argument concerning the lack of a legitimate interest to find that an infringement had been committed thereby loses its factual premiss and that it must, therefore, be rejected.
108 Consequently, the plea claiming an infringement of Article 25(5) of Regulation No 1/2003, which the applicants have relied on to support the annulment of the contested decision, must be rejected.
The plea claiming an infringement of Article 7(1) of Regulation No 1/2003
109 In their plea in law relied on solely to support the annulment of Article 1(1)(i) and (j) of the contested decision, the applicants claim that the Commission was in breach of the last sentence of Article 7(1) of Regulation No 1/2003, in that it found that the applicants participated in the infringement concerning tin stabilisers in the March 1994 to March 1996 period.
110 In contending that this plea should be rejected, the Commission states that, in recital 437 of the contested decision, it stated reasons, to the requisite legal standard, why there was a legitimate interest in finding that an infringement had been committed in that period.
111 In that regard, as a preliminary point, it must, first, be recalled that, in accordance with the last sentence of Article 7(1) of Regulation No 1/2003, ‘[i]f the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past’.
112 It must, secondly, be observed that it is apparent from recital 437 of the contested decision that the Commission did not, in this case, impose any fine on the applicants in respect of the infringement concerning tin stabilisers for the March 1994 to March 1996 period, in the exercise of the discretion accorded to it by Article 23(2) of Regulation No 1/2003, and accordingly, for the purposes of assessing this plea of the applicants, there is no need to determine whether the powers of the Commission to impose fines for the March 1994 to March 1996 period were time-barred.
113 Having made those preliminary points, in order to assess the merits of the applicants’ plea in these Cases that there was an infringement of the last sentence of Article 7(1) of Regulation No 1/2003, in that the Commission found, in the contested decision, that they had participated in the infringement concerning tin stabilisers during the March 1994 to March 1996 period, it must be observed that, in the contested decision, to demonstrate the existence of a legitimate interest in finding that an infringement had been committed on the tin stabilisers market, the Commission, in recital 437, considered that ‘Arkema France (CECA) participated in the cartel on tin stabilisers during the [March 1994 to March 1996] period, because Arkema France (CECA) later rejoined the same cartel’, and that, ‘moreover, this finding [was] appropriate with a view to discouraging repeat infringements by Arkema France (CECA) and the interest of enabling any injured parties to bring matters before national civil courts’.
114 It is therefore clear that the Commission, in the contested decision, established, to the requisite legal standard, its legitimate interest in adopting a decision finding that the applicants committed an infringement concerning tin stabilisers during the March 1994 to March 1996 period.
115 The Commission was entitled for that purpose to rely solely on the fact that the applicants participated in the tin stabilisers cartel in the March 1994 to March 1996 period, because they later rejoined the same cartel.
116 That consideration on the part of the Commission is, in itself, sufficient ground for a legitimate interest in finding that an infringement had been committed.
117 Consequently, it must be observed that the Commission was not, in the contested decision, required to support its argument concerning there being a legitimate interest in discouraging ‘repeat infringements by Arkema France (CECA)’.
118 For the same reason, nor was the Commission required, in the contested decision, to provide information, specific to the circumstances of this case, on the legal proceedings brought or even contemplated by third parties who were harmed by the unlawful conduct at issue concerning tin stabilisers in the March 1994 to March 1996 period, but could confine itself, in the circumstances of this case, to a general assertion in that regard.
119 Accordingly, the Commission was fully entitled to take the view that the unlawful conduct at issue concerning tin stabilisers in the March 1994 to March 1996 period was such that it was necessary to find in the contested decision that it had occurred.
120 Therefore, the plea in law alleging an infringement of Article 7(1) of Regulation No 1/2003 must be rejected.
The plea in law relied on in support of the claims in the alternative for the variation of the contested decision in respect of the amounts of the fines imposed
121 In their claims in the alternative seeking the variation of the contested decision, the applicants ask that the Court, exercising its unlimited jurisdiction, vary the amount of the fines imposed on them.
122 In this case, as the applicants confirmed at the hearing in their reply to a question from the Court to that effect, the applicants are seeking a variation of the contested decision as regards the amount of the fines imposed on them solely in the event that the Court were to hold that the infringements did indeed continue ‘after September 1999’, but that they came to an end before 21 March 2000, in respect of the tin stabilisers, and before 26 September 2000, in respect of the ESBO/esters sector.
123 However, the Court’s analysis, in its examination of the application for the annulment of the contested decision, of the evidence relied on by the Commission has disclosed nothing from which it could be concluded that the applicants’ participation in the infringements had come to an end on dates earlier than those stated in the contested decision. It must further be noted that the applicants have not specified the dates when, according to them, the infringements came to an end.
124 In any event, the Court, exercising its unlimited jurisdiction, considers that the amount of the fines imposed on the applicants is appropriate, having regard, inter alia, to the gravity of the unlawful conduct established in the contested decision.
125 Consequently, the applicants’ application that the contested decision should be varied in respect of the amount of the fines imposed on them must be rejected, and the action must be dismissed in its entirety.
Costs
126 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
127 Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those of the Commission, in accordance with the latter’s pleadings.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the actions;
2. Orders Arkema France and CECA SA to pay the costs.
Delivered in open court in Luxembourg on 6 February 2014.
[Signatures]