JUDGMENT OF THE GENERAL COURT (Third Chamber)

21 May 2014 (*)

(Competition — Agreements, decisions and concerted practices — Power transformers market — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing agreement — Proof of distancing from the cartel — Restriction of competition — Effect on trade — Barriers to entry — Fines — Basic amount — Reference year — Section 18 of the 2006 Guidelines on the method of setting fines — Use of a notional market share in the EEA market)

In Case T‑519/09,

Toshiba Corp., established in Tokyo (Japan), represented by J. MacLennan, Solicitor, A. Schulz, J. Jourdan and P. Berghe, lawyers,

applicant,

v

European Commission, represented initially by J. Bourke and K. Mojzesowicz, and subsequently by K. Mojzesowicz and F. Ronkes Agerbeek, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision of 7 October 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.129 — Power Transformers), and, in the alternative, for a reduction in the amount of the fine imposed on the applicant in that decision,

THE GENERAL COURT (Third Chamber),

composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 10 April 2013,

gives the following

Judgment

 Background to the case and contested decision

1        The market at issue in the present case is that of power transformers, auto transformers and shunt reactors with a voltage range of 380 kV and above. A power transformer is a major electrical component the function of which is to reduce or increase the voltage in an electrical circuit. The transformers are sold as stand-alone equipment or as part of turnkey power substations.

2        The applicant, Toshiba Corp., is a Japanese company which is primarily active in three key domains: digital products, electronic devices and components and infrastructure systems.

3        In respect of the applicant’s activity in the power transformers sector during the relevant period for the present dispute, namely from 9 June 1999 until 15 May 2003, it is necessary to draw a distinction between two stages: (i) between 9 June 1999 and 30 September 2002, the applicant was active in that sector through its subsidiary, Power Systems Co., specifically through that subsidiary’s ‘Transmission & Distribution Systems’ division; and (ii) from 1 October 2002, the applicant’s activity was carried out by TM T & D, a joint venture between it and Mitsubishi Electric (‘Melco’), into which both those undertakings combined their production of power transformers. From 1 October 2002 until 15 May 2003, TM T & D was therefore responsible for the production and sale of power transformers.

4        From 2004 to 2008, the Commission of the European Communities received successive leniency applications relating to the existence of an unlawful cartel in the power transformers sector. It carried out inspections on the premises of the power transformer producers and sent requests for information to undertakings, including the applicant.

5        On 30 September 2008, the Commission decided to initiate proceedings in relation to the power transformers market.

6        The statement of objections was adopted on 20 November 2008. The applicant responded to it on 19 January 2009. The hearing took place on 17 February 2009.

7        On 7 October 2009, the Commission adopted its decision relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.129 — Power Transformers) (‘the contested decision’), in which it found that the applicant had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) and imposed on it a fine of EUR 13.2 million.

8        In that decision, the Commission found that the applicant had participated, at least from 9 June 1999 to 15 May 2003, in the ‘Gentlemen’s Agreement (GA)’, an unlawful cartel covering the entire EEA, consisting of an oral agreement between European and Japanese producers of power transformers to respect each other’s home markets and to refrain from selling in those markets.

9        As to the organisation of the Gentlemen’s Agreement, first of all, the Commission found that the undertakings who participated in it were divided into two groups, one European, the other Japanese; that each group had to nominate a secretary undertaking; and that, throughout the infringement, Siemens had acted as secretary of the European group and Hitachi that of the Japanese group. The Commission also stated that the market-sharing agreement had been supplemented by an agreement to notify enquiries (projects) coming from the territory of the other group and that those projects had to be notified to the secretary of the other group in order to be reallocated.

10      The Commission also held that, throughout the infringement referred to in the contested decision, the members met once or twice a year, the meetings having taken place in Europe and in Asia, more precisely in Malaga (Spain) from 9 to 11 June 1999, in Singapore (Singapore) on 29 May 2000, in Barcelona (Spain) from 29 October to 1 November 2000, in Lisbon (Portugal) from 29 to 30 May 2001, in Tokyo (Japan) from 18 to 19 February 2002, in Vienna (Austria) from 26 to 27 September 2002 and in Zurich (Switzerland) from 15 to 16 May 2003. According to the Commission, those meetings were used in particular to confirm the Gentlemen’s Agreement.

11      Furthermore, in the contested decision, the Commission distinguished the Gentlemen’s Agreement from two other agreements between the undertakings concerned. First, it mentioned the Aero Club Agreement (AC), an agreement which had already ended in 1996 but on which the basic organisation of the Gentlemen’s Agreement was founded. Secondly, the Commission referred to an agreement on ‘In-house Business’ (or ‘In-house business arrangement’). That agreement sought to preclude a legal person or a division belonging to one of the undertakings participating in that agreement from buying power transformers from a legal person or a division belonging to another undertaking participating in that agreement but to have them do so only from a division or from a company belonging to its own undertaking. The infringement established and the fine imputed by the contested decision concern neither the Aero Club Agreement nor the In-house Business.

12      Pursuant to its 2002 Notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the Leniency Notice’), the Commission granted Siemens AG and Siemens Aktiengesellschaft Österreich immunity from fines, and Fuji Electronics Holdings Co., Ltd a 40% reduction in the fine.

13      Furthermore, the Commission granted an 18% reduction, outside the scope of the Leniency Notice, both to Hitachi Ltd and to Areva T & D SA. 

14      Neither Melco nor TM T & D were penalised by the Commission for their participation in the Gentlemen’s Agreement.

 Procedure and forms of order sought

15      By application lodged at the Registry of the Court on 23 December 2009, the applicant brought the present action.

16      Since the Judge-Rapporteur was prevented from sitting, the present case was reassigned to a new Judge-Rapporteur sitting in the Third Chamber.

17      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 under Article 64 of its Rules of Procedure, to request the Commission to produce a document. The Commission complied with that request within the prescribed period.

18      The parties presented oral argument and replied to the questions put by the Court at the hearing which took place on 10 April 2013.

19      By letter of 19 April 2013, the applicant requested the reopening of the oral procedure on the ground that an element had been addressed for the first time during the hearing.

20      By order of 8 May 2013, the Court (Third Chamber) decided to order the reopening of the oral procedure, in accordance with Article 62 of the Rules of Procedure.

21      By letter of 17 June 2013, the applicant submitted a document mentioned in its letter of 19 April 2013.

22      By letter of 4 July 2013, the Commission submitted its observations on the applicant’s letter of 19 April 2013 and on the document submitted by the applicant on 17 June 2013.

23      By decision of 9 July 2013, the Court again closed the oral procedure.

24      The applicant claims that the Court should:

–        annul the contested decision in so far as it relates to the applicant;

–        cancel the fine imposed on it;

–        in the alternative, in the event that the contested decision is upheld in whole or in part, reduce the amount of the fine imposed on it;

–        order the Commission to pay the costs;

–        grant such other order as may be necessary to give effect to the judgment of the Court.

25      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

26      The applicant puts forward four pleas in law in support of its application. In its first plea, the applicant contends that the Commission has failed to establish to the requisite legal standard the existence of an unlawful cartel and its participation in it. In its second plea, the applicant claims that the Commission has not shown that any cartel had an immediate and substantial effect on competition in the European Union and an appreciable influence, direct or indirect, actual or potential on the pattern of trade between Member States. The third plea relates to the Commission’s findings on the duration of the cartel and the applicant’s participation in it. The fourth plea relates to errors of law and of fact concerning the calculation of the amount of the fine.

27      It is appropriate first to examine the first and third pleas, relating to the Commission’s findings on the existence and the duration of an unlawful cartel, then the second plea, relating to its findings on the restriction of competition and its effect on trade, before examining the fourth plea, relating to the determination of the amount of the fine by the Commission.

A –  The first plea, alleging that the Commission has failed to establish the existence of an unlawful cartel and the applicant’s participation in it

28      In Article 1 of the contested decision, the Commission held that the applicant had participated in the Gentlemen’s Agreement, an unlawful cartel under which the European and Japanese producers of power transformers undertook not to compete in their home markets.

29      The applicant claims that the Commission has failed to establish to the requisite legal standard the existence of such a cartel and the applicant’s participation in it.

30      This plea relates to the grounds invoked by the Commission in section 4 and section 5.2.1.4 of the contested decision in which the Commission found that the Gentlemen’s Agreement existed and that the applicant participated in it. In that context, the Commission relied, first, on the statements which Siemens and Fuji had made in their leniency applications, secondly, on the fact that Hitachi had confirmed its findings regarding the existence and the scope of the Gentlemen’s Agreement and, thirdly, on items of documentary evidence.

31      This plea may be broken down into three parts. First, the applicant argues that the various items of evidence upon which the Commission relied do not corroborate the existence of an unlawful cartel or that they have only a very low probative value. Secondly, the applicant claims that, in finding the existence of an unlawful cartel, the Commission infringed the in dubio pro reo principle. Thirdly, the applicant argues, in its reply, that the Commission did not adequately explain certain details of the Gentlemen’s Agreement.

32      Before examining those three parts, it is appropriate, first of all, to note the definition of the notion of a prohibited ‘agreement’ within the meaning of Article 81 EC and Article 53 of the EEA Agreement, the evidential requirements relating to such an agreement and the principles governing judicial review of a Commission decision finding the existence of such an agreement.

1.     The notion of unlawful cartel, its proof and judicial review

33      Article 81(1) EC provides that the following are to be prohibited as incompatible with the common market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.

34      For there to be an agreement within the meaning of Article 81(1) EC it is sufficient for the undertakings to have expressed their joint intention to behave on the market in a certain way (Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 112; Case T‑7/89 Hercules Chemicals v Commission [1991] ECR II‑1711, paragraph 256; and Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 199). An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition (see, to that effect, HFB and Others v Commission, paragraphs 157 and 206).

35      According to settled case-law, 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, and Joined Cases T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP Dresdner Bank and Others v Commission [2006] ECR II‑3567, paragraph 59).

36      Thus, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (Joined Cases 29/83 and 30/83 Compagnie Royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 20, and Case T‑54/03 Lafarge v Commission [2008] ECR II‑120, paragraph 55). The evidence submitted by the Commission must therefore permit the conclusion beyond all reasonable doubt that there was an infringement (Dresdner Bank and Others v Commission, paragraph 35 above, paragraphs 137 and 144).

37      As for the types of evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of EU law is that evidence may be freely adduced (Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 72, and Case T‑112/07 Hitachi and Others v Commission [2011] ECR II‑3871, paragraph 64).

38      The evidence on which the Commission relies in the contested decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (Case 48/69 ICI v Commission [1972] ECR 619, paragraph 68, and Case T‑53/03 BPB v Commission [2008] ECR II‑1333, paragraph 185). Different items of evidence may reinforce each other (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 275).

39      In addition, it should be remembered that, in practice, the Commission is often obliged to prove the existence of an infringement under conditions which are hardly conducive to that task, in that several years may have elapsed since the time of the events constituting the infringement and a number of the undertakings covered by the investigation have not actively cooperated with it. Whilst it is necessarily incumbent upon the Commission to establish that an unlawful agreement was concluded, it would be excessive also to require it to produce evidence of the specific mechanism by which that object was to be attained. Indeed, it would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an unlawful agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established. Undertakings are able properly to defend themselves in such circumstances provided that they have an opportunity to comment on all the evidence relied on against them by the Commission (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 203).

40      As regards judicial review of a Commission decision in which the Commission establishes the existence of an unlawful cartel, it is settled case-law that, where the Court hears an action for the annulment of such a decision, it must undertake a general, comprehensive review in order to establish whether the conditions for applying Article 81 EC are met (Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 34, and Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, paragraph 62).

41      Furthermore, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature (Case C‑386/10 P Chalkor v Commission [2011] ECR, paragraph 54). The Courts of the European Union must establish not only whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 67).

2.     The first part of the first plea, relating to the probative value of the items of evidence relied on by the Commission

42      The applicant argues that the probative value of the items of evidence relied on by the Commission to establish the existence of an unlawful cartel, namely the statements of Siemens and of Fuji, Hitachi’s letter of 30 March 2009 and the items of documentary evidence, is not sufficient and that the Commission ought to have taken into account the statements of ABB and of Areva, as well as the applicant’s own statements, which are inconsistent with the existence of an unlawful cartel and have high probative value.

a)     The statements of Siemens and Fuji

43      As set out in paragraphs 75 to 90 and 125 to 127 of the contested decision, the Commission established the existence of the Gentlemen’s Agreement as described in paragraphs 8 to 11 above and the applicant’s participation in it by relying, inter alia, on the statements which Siemens and Fuji had made in their leniency applications.

44      The applicant does not challenge the content of those statements in which Siemens and Fuji state that it participated in that agreement. However, the applicant challenges the probative value of their statements by arguing (a) that they are statements made in a leniency application and (b) that the statements of Fuji were contradictory.

 The probative value of declarations made in a leniency application

45      The applicant claims that the probative value of the statements of Siemens and of Fuji is significantly reduced because they were made with the objective of benefiting from the Commission’s leniency programme and therefore in Siemens’ and Fuji’s own interest.

46      In that connection, it should be recalled that no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other undertakings accused of having participated in the cartel. If that were not the case, the burden of proving conduct contrary to Article 81 EC, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 192; Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 285; and Hitachi and Others v Commission, paragraph 37 above, paragraph 67).

47      On the contrary, particularly high probative value may be attached to statements which (i) are reliable, (ii) are made on behalf of an undertaking, (iii) are made by a person under a professional obligation to act in the interests of that undertaking, (iv) go against the interests of the person making the statement, (v) are made by a direct witness of the circumstances to which they relate, and (vi) were provided in writing deliberately and after mature reflection (JFE Engineering and Others v Commission, paragraph 38 above, paragraphs 205 to 210, and Hitachi and Others v Commission, paragraph 37 above, paragraph 71).

48      Where a person admits that he committed an infringement and thus admits the existence of facts going beyond those which could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (JFE Engineering and Others v Commission, paragraph 38 above, paragraphs 211 and 212; Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 166; and Lafarge v Commission, paragraph 36 above, paragraph 59).

49      In that context, it must be noted that the adoption by the Commission of a decision finding that an undertaking participated in an infringement of Article 81 EC and Article 53 of the EEA Agreement might have disadvantages for that undertaking, even where it benefits from the Commission’s leniency programme. Such a finding may result, in particular, in regulatory implications, legal actions by private operators and damage to commercial reputation. Therefore, it is not plausible that an undertaking would admit the existence of an infringement and its own participation in it if that infringement was not committed.

50      In addition, even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, the fact remains that the fact of seeking to benefit from the Leniency Notice in order to obtain immunity from or a reduction in the amount of the fine does not necessarily create an incentive to submit distorted evidence as regards the participation of the other members in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice (Case T‑120/04 Peróxydos Orgánicos v Commission [2006] ECR II‑4441, paragraph 70, and Hitachi and Others v Commission, paragraph 37 above, paragraph 72).

51      Consequently, contrary to what the applicant argues, the fact that the statements of Siemens and of Fuji were made within the context of the Commission’s leniency programme does not call their probative value into question.

 The complaint alleging the contradictory nature of Fuji’s statements

52      The applicant claims that the probative value of Fuji’s statements is limited because of their contradictory nature. In that respect, it submits that, initially, Fuji argued in its statement of 18 July 2007 that the members confirmed their respect for the Gentlemen’s Agreement at the general meetings of the Aero Club, whereas, later, in its statement of 25 February 2009, it conceded that, during the first period, reference was not always made to an agreement.

53      In that regard, it must be stated that, in the sentence of its statement of 18 July 2007 to which the applicant refers, Fuji mentioned that, although the members confirmed their intention to respect the Gentlemen’s Agreement, no penalties were applicable in the event that it was not respected.

54      Next, the sentence in Fuji’s statement of 25 February 2009 to which the applicant refers shows that, although the agreement may not have been regularly referred to during the first period, it should have been well understood by the Aero Club Agreement members that the Japanese undertakings would not enter Europe and the European undertakings would not enter Japan.

55      Contrary to what the applicant argues, Fuji’s statements of 18 July 2007 and of 25 February 2009 are not contradictory. In its statement of 18 July 2007, Fuji pointed out that no penalty system had been set up in the event of non-compliance with the cartel. As the Commission correctly notes, it cannot be deduced from that statement that the undertakings participating in the cartel expressly reaffirmed their compliance with that cartel at each meeting. That aspect of Fuji’s statement of 18 July 2007 therefore does not conflict with Fuji’s statement of 25 February 2009 in which it submitted that the Gentlemen’s Agreement had not been regularly referred to during the first period of the cartel.

56      In addition, the two sentences clearly confirm the existence of a concurrence of wills on the very principle not to compete on the home markets.

57      Consequently, the complaint alleging the contradictory nature of Fuji’s statements must be rejected.

58      Therefore, all of the complaints seeking to call into question the probative value of the statements of Siemens and of Fuji must be rejected.

b)     Hitachi’s letter of 30 March 2009

59      In paragraph 128 of the contested decision, the Commission stated that the statements of Siemens and of Fuji were not the only source of evidence of the infringement and that it had also taken into account Hitachi’s letter of 30 March 2009, drawn up following the hearing, in which that undertaking had accepted the Commission’s findings relating to the existence and scope of the Gentlemen’s Agreement as had been set out in the statement of objections.

60      The applicant claims that the Commission could not reasonably deduce from that letter that Hitachi confirmed the existence of an unlawful cartel. According to the applicant, that undertaking merely stated that it was not going to challenge the factual findings of the Commission and that it was unable to provide evidence confirming the Commission’s findings.

61      In that regard, it must be held that, in the letter of 30 March 2009, the lawyer representing Hitachi stated that it accepted the Commission’s findings relating to the existence and scope of the Gentlemen’s Agreement as presented in the statement of objections but that it was unable to confirm the date on which the Gentlemen’s Agreement had started since it only had evidence that the Gentlemen’s Agreement had been discussed after the collapse of the Aero Club Agreement.

62      Contrary to the applicant’s submissions, Hitachi therefore did not merely state in its letter that it was unable to provide evidence confirming the Commission’s findings. On the contrary, it expressly accepted the Commission’s findings as regards the existence and scope of the Gentlemen’s Agreement. The Commission was therefore entitled to deduce from Hitachi’s letter of 30 March 2009 that that undertaking accepted its findings relating to the existence and scope of the Gentlemen’s Agreement.

c)     The documentary evidence

63      In the contested decision, the Commission also relied on items of documentary evidence. First of all, in paragraphs 91 to 98 of the contested decision, the Commission took into account three documents concerning the Tokyo meeting of 18 and 19 February 2002. Then, in paragraph 99 of the contested decision, it mentioned other documents.

64      The applicant contends that the Commission did not produce any documentary evidence corroborating the statements of Siemens and of Fuji. First, the applicant contends that the documents concerning the Tokyo meeting are not capable of confirming the existence of an unlawful cartel. Secondly, the applicant contends that no other item of documentary evidence mentioned by the Commission is capable of establishing the existence of an unlawful cartel.

 The documents concerning the Tokyo meeting of 18 and 19 February 2002

65      In paragraphs 91 to 98 of the contested decision, the Commission took into account three documents concerning the Tokyo meeting of 18 and 19 February 2002.

66      In paragraph 91 of the contested decision, the Commission mentioned the draft minutes of the Tokyo meeting which contain the following information:

‘GA/In-house Business

JT asked members to be received any inquiries and then T3 notified three European jobs.

E/J agreed to keep in touch with each other and discuss time to time.’

67      In paragraph 92 of the contested decision, the Commission mentioned the final version of those minutes of the Tokyo meeting, the relevant part of which reads as follows:

‘GA/In-house Business

T3 notified three European jobs.

E/J agreed to keep in touch with each other and discuss it if necessary.’

68      As is clear from paragraph 82 of the contested decision, which has not been challenged by the applicant, ‘T3’ was the code for Hitachi. It can therefore be deduced from the two aforementioned documents that Hitachi notified three projects during the Tokyo meeting of 18 and 19 February 2002.

69      However, as the Commission noted in paragraph 93 of the contested decision, those documents did not allow it to clearly establish whether that notification of Hitachi concerned the ‘GA’, which was, according to paragraph 75 of the contested decision, the abbreviation for the Gentlemen’s Agreement, or the In‑house Business.

70      Having regard to the fact that, in the contested decision, the Commission was penalising only the participation in the Gentlemen’s Agreement, it took into account a third document, namely the memorandum of Mr O. of Fuji on the Tokyo meeting of 18 and 19 February 2002, in paragraphs 93 to 98 of the contested decision.

71      As the Commission set out in paragraph 94 of the contested decision, the relevant part of that memorandum reads as follows:

‘GA/In-house Business

E/J:      It was confirmed that GA/[I]n-house [B]usiness would be respected.

GA
No specific project neither from E/J

T3:      Notified the following 3 projects.

Country          Customer                  …               …      
Italy                   ENEL via Jerico Ass.      …               …
Italy                   ENEL                            …                …
UK                        Inter Hen via Bechtel          …                …

The above projects were taken up by the USA subsidiary company. It would be difficult to decline due to the past relations. It was explained that though the [b]ase price would be estimated by T3, the [f]inal price would be [u]ncontrollable (it must be made at the same level with the USA domestic deals in the past).

TB :      It is not necessary to be mired in the past. It would not look odd if the price changed for each project.

There [was] some discussion but no conclusion was reached. In the end, a statement was made that it appreciated T3’s notification.’

72      In paragraphs 95 to 98 of the contested decision, the Commission set out the reasons why it took the view that that memorandum confirmed the existence of an unlawful cartel. In paragraph 95 of the contested decision, the Commission stated that the passage in the document found under the title ‘GA/In-house Business’ corroborated the statements of Siemens and of Fuji, according to which the adherence to the Gentlemen’s Agreement was regularly confirmed at the meetings. Then, in paragraphs 96 to 98 of the contested decision, the Commission held that the other elements of the memorandum confirmed the content of the Gentlemen’s Agreement as described by Siemens and Fuji.

73      The applicant contends that the Commission’s assessment is incorrect. First, the applicant contends that it is not possible to deduce the existence of an unlawful cartel from the content of the aforementioned documents. Secondly, the applicant contends that those documents have only low probative value.

–       The content of the documents

74      First of all, the applicant contends that the existence of an unlawful cartel cannot be deduced from the draft or the final version of the minutes of the Tokyo meeting of 18 and 19 February 2002 or from the memorandum of Mr O. on that meeting.

75      In that context, the applicant submits that the draft and the final version of the minutes of the meeting by themselves do not allow the existence of an agreement of an anti-competitive nature to be established. According to the applicant, it is not evident that the passages of those documents concern the Gentlemen’s Agreement. In any event, at best, it can only be deduced therefrom that Hitachi notified that it had won three projects, which is probably well-known. The reference to projects already won by Hitachi is inconsistent, however, with Fuji’s statement that the Gentlemen’s Agreement was supplemented by an agreement to signal the bids coming from the territory of the other group. Moreover, the applicant submits that it cannot be deduced from the memorandum of Mr O. of Fuji that there had been an agreement because that memorandum mentioned only ‘discussions’. The mere fact that Hitachi used the word ‘decline’ in relation to three projects is not sufficient corroboration to justify the existence of a market-protection agreement.

76      These complaints must be dismissed.

77      As regards the applicant’s argument that it cannot be deduced from the draft or the final version of the minutes of the Tokyo meeting that there existed an unlawful cartel between the undertakings concerned, it should be recalled that each item of evidence upon which the Commission relies does not necessarily have to establish by itself the existence of such a cartel. It is sufficient if the items of evidence as a whole support the firm conviction that an infringement of Article 81 EC was committed. Different items of evidence can therefore reinforce each other (see paragraphs 35 to 39 above). In the present case, there is therefore nothing to prevent the Commission from taking into account the draft and the final version of the minutes as items of evidence, even though those documents do not by themselves establish the existence of the Gentlemen’s Agreement.

78      Moreover, it must be stated that the aforementioned documents corroborate the statements of Siemens and of Fuji regarding the existence and the unlawful nature of the Gentlemen’s Agreement.

79      Those documents corroborate the statements of Fuji and of Siemens regarding the existence of a cartel called a Gentlemen’s Agreement and regarding its confirmation during the Tokyo meeting of 18 and 19 February 2002.

80      First, the passage in the memorandum of Mr O. in which, after the entry ‘E/J’, it is stated that ‘[i]t was confirmed that GA/[I]n-house [B]usiness would be respected’ strongly indicates the existence of a cartel between the undertakings participating in the meeting. As the Commission stated in paragraphs 75 and 84 of the contested decision, the term ‘GA’ was the abbreviation for Gentlemen’s Agreement and the capital letters ‘E’ and ‘J’ referred to the European and Japanese groups.

81      Secondly, the reference to ‘GA’ in the draft and the final version of the minutes also shows that the Gentlemen’s Agreement formed part of the issues tackled during the Tokyo meeting.

82      Moreover, the aforementioned documents also confirm the information given by Siemens and by Fuji regarding the unlawful nature of the Gentlemen’s Agreement.

83      First, as has been stated in paragraph 69 above, it is apparent therefrom that Hitachi notified the acceptance of three projects.

84      Secondly, contrary to the applicant’s submissions, the Commission has established to the requisite legal standard that the notification of those projects referred to the Gentlemen’s Agreement. Even if the draft and the final version of the minutes of the Tokyo meeting of 18 and 19 February 2002 do not by themselves allow it to be established whether that notification concerned the Gentlemen’s Agreement or the In-house Business, the Commission correctly held that that point could be clarified with the help of the memorandum of Mr O. of Fuji on that meeting. As has been stated in paragraph 71 above, that memorandum contains a part entitled ‘GA/In-house business’, which provides for a subsection entitled ‘GA’. Hitachi’s notification is mentioned in the subsection which refers only to the ‘GA’. Furthermore, it is apparent from the memorandum of Mr O. that that notification concerned customers outside the cartel. It therefore seems unlikely that it refers to the In-house Business since that agreement concerned only bids coming from undertakings participating in the Gentlemen’s Agreement.

85      Thirdly, the explanations which Hitachi gave concerning the acceptance of those three projects confirm that the Gentlemen’s Agreement was a market-sharing agreement between the Japanese and European producers under which they undertook not to compete in their domestic markets, as Siemens and Fuji had described it. It can be deduced from the memorandum of Mr O. that Hitachi notified the other participants that it had accepted three projects in Europe (in Italy and in the United Kingdom) and that it had to justify that acceptance. The justification put forward by Hitachi is very revealing. That undertaking contended that it was difficult to refuse those three projects because of past relations with the customers concerned and because of the fact that the final price was uncontrollable. That corroborates the statements of Siemens and of Fuji, according to which there was a mechanism of notification and of reallocation of projects when a customer situated in the territory of a group contacted a producer of the other group.

86      Contrary to the applicant’s submissions, the fact that, according to the memorandum of Mr O., the acceptance of the three projects coming from Europe by Hitachi led to discussions between the participants, but that no other conclusion was drawn, does not call in question the existence of a cartel. It is only capable of establishing that, so far as concerns the three projects mentioned during the Tokyo meeting, either the other undertakings accepted the justification put forward by Hitachi, or no penalty was imposed on it. By contrast, it is not capable of calling in question the Commission’s finding that there was an agreement in principle not to compete in the domestic markets and that, in principle, Hitachi was not supposed to accept projects coming from European customers.

87      Fourthly, the passage in Mr O.’s memorandum which, under the title ‘GA’, refers to ‘[n]o specific project neither from E/J’ does not call in question the existence of a market-sharing agreement, but corroborates the evidence of Siemens and of Fuji regarding the existence of a notification system, according to which the members of a group had to signal the bids coming from customers situated in the territory of the other group in order to guarantee that those projects were assigned to the members of the other group.

88      Contrary to the applicant’s submissions, the fact that, in Mr O.’s memorandum on the Tokyo meeting, under the title ‘GA’, it is first of all stated ‘No specific project neither from E/J’ and subsequently ‘T3 … [n]otified the following three projects’ does not make that memorandum contradictory. As the Commission rightly holds, those two passages can be explained by the progress of the Tokyo meeting of 18 and 19 February 2002. During that meeting, the secretaries of the groups first of all notified the meeting that, at that time, there were no bids coming from customers situated in the territory of the other group. Then Hitachi, a Japanese producer, pointed out that, in the past, it had accepted projects coming from customers situated in Europe, which triggered discussions.

89      Fifthly, it follows that, contrary to the arguments of the applicant, the fact that Hitachi individually notified those three projects is not inconsistent with the description of the Gentlemen’s Agreement (see paragraph 9 above), according to which notifications concerning the Gentlemen’s Agreement had to be made by the secretaries of the groups. That notification rule applied only to notifications which occurred within the context of the first stage referred to in the preceding paragraph.

90      It must therefore be held that the content of the draft and of the final version of the minutes as well as the memorandum of Mr O. of Fuji corroborate the statements of Siemens and of Fuji regarding the existence and the unlawful nature of the Gentlemen’s Agreement.

–       The probative value of the documents

91      The applicant also challenges the probative value of the memorandum of Mr O. of Fuji on the Tokyo meeting.

92      In the first place, the applicant puts forward complaints relating to the content and to the nature of that memorandum. It notes that that document is neither dated nor signed and that it contains nothing to corroborate Fuji’s statement that the document is a report of one of its employees who participated in the Tokyo meeting of 18 and 19 February, Mr O., to his superior. Next, the applicant expresses doubt as to whether that memorandum is an accurate reproduction of Hitachi’s contribution to the meeting. It also argues that the memorandum is an internal document, which inevitably detracts from its probative value.

93      As for those arguments, it should be recalled that it is normal for unlawful cartels to take place clandestinely, for meetings of the participants to be held in secret and for the associated documentation to be reduced to a minimum (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 203, and Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 113). Even if the Commission discovers documents explicitly showing unlawful contact between traders, such as the minutes of a meeting, they will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction (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 et seq.; see also Dresdner Bank and Others v Commission, paragraph 35 above, paragraphs 64 and 65 and the case-law cited). Consequently, it is sufficient if the Commission relies on a body of evidence, the various items of which may reinforce each other (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 275).

94      Thus, the Court has already held that the fact that a document is undated or unsigned or is badly written does not impugn its entire probative force, especially where its origin, probable date and content can be determined with sufficient certainty (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 86, and Joined Cases T‑217/03 and T‑245/03 FNCBV v Commission [2006] ECR II‑4987, paragraph 124).

95      For the present case, it follows, first of all, that the fact that the memorandum on the Tokyo meeting which the Commission mentioned is not dated and signed and does not indicate the person to whom it was addressed does not impugn its entire probative force. As regards the date on which that memorandum was drawn up, it can be deduced from its content that it must have been drawn up shortly after the Tokyo meeting of 18 and 19 February 2002. In addition, on the basis of the items of evidence available to the Commission, it was able to find that it was a memorandum drawn up by Mr O. of Fuji. As it was an internal report on that meeting, it must have been prepared by an employee of Fuji who attended that meeting. As is apparent from Annex I to the contested decision, both Fuji and Siemens had stated that Mr O. had participated in the Tokyo meeting of 18 and 19 February 2002. In its statement of 18 July 2007, Fuji confirmed that interpretation.

96      Next, the doubts expressed by the applicant concerning the question of whether that memorandum of Mr O. on the Tokyo meeting of 18 and 19 February 2002 is an accurate reproduction of Hitachi’s contribution to that meeting are unfounded. First, the fact that Hitachi notified three projects during that meeting is confirmed by the draft and the final version of the minutes of that meeting. Secondly, the memorandum is corroborated by Fuji’s statement of 18 July 2007. Thirdly, Hitachi accepted the Commission’s findings regarding the existence and the scope of the Gentlemen’s Agreement as set out in the statement of objections.

97      Finally, as regards the applicant’s argument that the internal nature of a document inevitably detracts from its probative value, it is true that the Court held in paragraph 231 of JFE Engineering and Others v Commission (paragraph 38 above) that the internal nature of a document inevitably detracts from its probative value vis-à-vis the other undertakings. As the applicant rightly argues, unlike a document which was distributed amongst the undertakings or the persons who participated in the Tokyo meeting of 18 and 19 February 2002, a purely internal document cannot be controlled and corrected by the other participants and therefore reflects only the view of the undertaking or the person who drafted it. Vis-à-vis the other participants, it therefore has a lower probative value. However, that does not mean that an internal document does not have any probative value. As the General Court also held in paragraph 231 of JFE Engineering and Others v Commission (paragraph 38 above), nothing prevents the Commission from relying on an internal document as an item in a body of evidence.

98      In the present case, not only had the memorandum of Mr O. been drafted in tempore non suspecto, but its content is also corroborated by the draft and the final version of the minutes of the Tokyo meeting as well as by Fuji’s statements. In addition, it should be recalled that (i) in the statement of objections the Commission used the memorandum of Mr O., which mentions the notification of three projects by Hitachi, to establish the existence of the Gentlemen’s Agreement, and (ii) that Hitachi accepted the Commission’s findings in that regard.

99      Therefore, the complaints relating to the content and to the nature of the memorandum of Mr O. of Fuji on the Tokyo meeting must be rejected.

100    Secondly, the applicant contends that the explanations in the memorandum of Mr O. of Fuji on the Tokyo meeting of 18 and 19 February 2002 are directly contradicted by Siemens’ statements and that the interpretation of the draft and the final version of the minutes of the Tokyo meeting provided by Siemens is as credible as that provided by Fuji.

101    In that context, first of all, it must be held that the applicant rightly contends that the statements of Fuji and of Siemens concerning the Tokyo meeting of 18 and 19 February 2002 are not consistent. Siemens had assigned the notification of three projects by Hitachi to the In-house Business, which was not penalised in the contested decision (see paragraph 4.6 of the contested decision). In its statement of 3 May 2007, Siemens had stated that, according to the information collected up to that time, the reference in the minutes to the fact that Hitachi (T3) announced three ‘European jobs’ had to be understood as meaning not that specific transformer projects in Europe were discussed, but as meaning that Hitachi had announced that three inquiries allocated under the ‘In-house Business’ to European producers had been addressed to the undertakings of the Japanese group. Furthermore, according to the statement of Mr B., the Siemens employee who participated in that meeting, whilst it was stated that Hitachi (T3) had announced three ‘European jobs’, that did not mean, according to him, that specific transformer plans had been discussed, but that Hitachi had announced that three inquiries concerning the ‘In-house Business’ and falling within the field of the European producers had been addressed to the Japanese group.

102    In footnote 59 of the contested decision, the Commission took into account that difference between the statements of Fuji and of Siemens and stated that the observations of Siemens in that regard were somewhat inaccurate. The Commission therefore held that, on that point, the testimony of Mr O. of Fuji was more credible than that of Mr B. of Siemens.

103    It should therefore be examined whether the Commission was entitled to find that the testimony of Mr O. was more credible than that of Mr B.

104    Both Mr O. and Mr B. personally attended the the Tokyo meeting of 18 and 19 February 2002. However, Mr O. was able to corroborate his statements by his memorandum on that meeting, therefore by a document contemporaneous with the events, which is more detailed than the draft and the final version of the minutes and which associates Hitachi’s notification with the Gentlemen’s Agreement (see paragraph 85 above). In addition, it is apparent from Mr O.’s memorandum that the three projects notified concerned customers outside the cartel. They could not therefore be projects falling within the In-house Business (see paragraph 85 above). Finally, in that connection it must be recalled that Hitachi, thus the undertaking which according to Mr O.’s memorandum notified the three European projects, confirmed the Commission’s findings. Having regard to the fact that Mr O.’s memorandum is an essential element in the reasoning of the Commission, Hitachi probably would have questioned the content of that memorandum if it were incorrect. It would have been easy for Hitachi to show that either the customers concerned were not situated in Europe, or that they were not outside the cartel.

105    In the light of the foregoing considerations, the Commission rightly held that the testimony of Mr O. was more credible than that of Mr B.

106    Thirdly, the applicant contends that Fuji’s explanation concerning the memorandum of Mr O. of Fuji on the Tokyo meeting is contradictory. According to the applicant, the use of the word ‘directly’ in that explanation raises questions.

107    As a preliminary point, it must be noted that that complaint does not relate to Mr O.’s memorandum, but to Fuji’s explanatory note regarding Mr O.’s memorandum, which was also annexed to Fuji’s statement of 18 July 2007. In that explanatory note, Fuji stated that ‘[n]o specific projects were notified from either the European or the Japanese members, which meant that none of the members had directly received an inquiry from the other region’s customers’.

108    However, that element of the memorandum is not contradictory. It confirms the existence of a system for notifying bids coming from the territory of the other group which the Commission mentioned in the contested decision. In that respect, the word ‘directly’ expresses that no producer had been contacted directly by customers situated in the territory of the other group.

109    Furthermore, as stated in paragraph 89 above, it is not contradictory to state, first, that no specific projects were notified at the time of the Tokyo meeting and, secondly, that Hitachi mentioned three projects that it had accepted previously.

110    Therefore, the complaints which the applicant puts forward regarding the assessment by the Commission of the draft and the final version of the minutes of the Tokyo meeting of 18 and 19 February 2002 and regarding the memorandum of Mr O. of Fuji on that meeting must be dismissed in their entirety.

 The other documents

111    The applicant also claims that, contrary to what the Commission stated in paragraph 99 of the contested decision, the existence of an unlawful cartel is not corroborated by any other documentary evidence.

112    In that context, it should be borne in mind, as a preliminary point, that, in paragraph 99 of the contested decision, the Commission stated that the term ‘GA’ appeared in other documents, namely:

–        the draft agenda of 12 September 2002 of the Vienna meeting of 26 and 27 September 2002;

–        the minutes of the Vienna meeting of 26 and 27 September 2002;

–        the internal memorandum of Mr M. of Fuji on the Vienna meeting of 26 and 27 September 2002;

–        the internal memorandum of Mr K. of Hitachi of 21 May 2002 following the Tokyo meeting of 18 and 19 February 2002;

–        the draft agenda of 12 May 2003 of the Zurich meeting of 15 and 16 May 2003;

–        and the pre-draft agenda of the Zurich meeting of 15 and 16 May 2003.

113    In paragraph 130 of the contested decision, the Commission stated that the aforementioned documents showed that adherence to the Gentlemen’s Agreement had been confirmed periodically and that code names had been used in order to hide anti-competitive contacts.

114    Furthermore, in paragraph 131 of the contested decision, the Commission held that the fact that those documents did not define the term ‘GA’ did not prevent it from taking them into account. It is highly unlikely that the documents relating to a secret cartel and using code names so as not to reveal the names of its members would mention the Gentlemen’s Agreement clearly and precisely.

115    As regards that part of the Commission’s reasoning, the applicant puts forward, in essence, four complaints.

116    First, the applicant claims that all of the aforementioned documents refer only to a ‘GA’, but that it is not possible to infer the content of that ‘GA’ from them, and, still less, that it was a market-sharing agreement between the European and Japanese power transformer producers.

117    In that regard, it should be recalled that, because of the unlawful nature of cartels, the associated documentation is often reduced to a minimum and that, 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. The Commission cannot therefore be required to produce evidence explicitly showing contact between the traders concerned. Consequently, it is sufficient if the Commission relies on a body of evidence the various items of which can reinforce each other (see paragraphs 38 and 39 above).

118    It follows that the mere fact that the items of documentary evidence mentioned in paragraph 99 of the contested decision do not define the term ‘GA’ or that they do not allow, in isolation, the anti-competitive object of the Gentlemen’s Agreement to be established does not prevent them from being taken into account by the Commission as items in a body of evidence.

119    In the present case, the signification of the term ‘GA’ and the detailed rules for the functioning of the unlawful cartel called a Gentlemen’s Agreement had been established by the statements of Siemens and of Fuji, by the three documents concerning the Tokyo meeting of 18 and 19 February 2002, which corroborate them, and by Hitachi’s confirmation. The Commission could therefore rightly find that the reference to the term ‘GA’ in the documents cited in paragraph 112 above confirmed that the Gentlemen’s Agreement had been the object of the meetings to which those documents referred.

120    Furthermore, the applicant does not provide a satisfactory alternative explanation which would be capable of explaining the meaning of the term ‘GA’. It contends that the items of documentary evidence mentioned by the Commission could allude to a notification system concerning bids already won by the undertakings concerned and which was intended to touch on the evolution of the market. However, such an interpretation is contradicted by the content of some of those documents. Thus, it is apparent from the internal memorandum of Mr M. of Fuji on the Vienna meeting of 26 and 27 September 2002 that the participants ‘confirmed the GA’ at that meeting and it is apparent from the internal memorandum of Mr K. of Hitachi of 21 May 2002 that they accepted ‘respect [for the] GA (E/J)’. However, the applicant does not explain why a notification system such as it describes should be ‘confirmed’ or ‘respected’.

121    Secondly, the applicant contends that, so far as concerns the memorandum of Mr M. of Fuji on the Vienna meeting of 26 and 27 September 2002, the Commission did not explain what the term ‘Gr’ could mean in the passage ‘re-confirmation that GA = Gr’.

122    That complaint must be rejected. First of all, it must be stated that the Commission explained the passage in question, namely in its full form, ‘[r]e-confirmation that GA = Gr to Gr, In[-]house = bilateral’, in footnote 71 of the contested decision. In that footnote, it stated that that passage concerned the different systems for notifying enquiries (projects) falling within either the Gentlemen’s Agreement (GA) or the In-house Business. According to that explanation, the projects falling within the Gentlemen’s Agreement had to be notified ‘from group to group’, that is to say by the secretaries of the European and Japanese groups, as the memorandum stated, since the secretaries were the points of contact between the two groups.

123    Thirdly, the applicant contends, essentially, that the content of the internal memorandum of Mr K. of Hitachi of 21 May 2002 following the Tokyo meeting of 18 and 19 February 2002 does not corroborate the existence of a market‑sharing agreement. First of all, the reference to ‘GA projects’ is hardly compatible with the existence of a market-protection agreement. Next, the references to ‘especially J’ for the past three to four years, and ‘especially within E’ for future discussion are inconsistent with the idea that the term ‘GA’ stands for a home market-protection agreement. Finally, that document refers to market analyses.

124    As a preliminary point, it should be recalled that the relevant part of the memorandum of Mr K. is worded as follows:

‘Current Status of AC

…

2. Current situation

Discussions in this 3-4 years

Market analysis (search for a market) → GA projects (especially J) → discussion on In-house Business (especially E) → Introduction of integrations (E/J) → How to deal with [I]nternet business → Market discussion, analysis (understanding of the tendency)

Matters agreed

Respect of GA (E/J) and contact of In-house Business and determination (each member)

Future discussion point

The point would be about GA projects (especially within E) and In-house Businesses.’

125    As for the arguments put forward by the applicant, it must be stated, first of all, that the reference to ‘GA projects’ in the memorandum of Mr K. does not contradict the existence of a market-sharing agreement. As already stated (see, in particular, paragraphs 87 and 88 above), the market-sharing agreement was supplemented by a system for notifying enquiries, that is to say ‘projects’, coming from the territory of the other group.

126    Also, contrary to the applicant’s submissions, it cannot be deduced from the content of that memorandum that the agreement had focused on projects in Japan for the past three to four years and that the participants wanted to focus on projects in Europe in the future.

127    First, in so far as that memorandum mentions the discussions which took place during the three to four years before it was drawn up, it clearly refers to ‘GA projects (especially J)’. However, having regard to the fact that the capital letter ‘J’ was a code for the Japanese group (see paragraph 84 of the contested decision), it is conceivable that that passage relates to discussions on the conduct of the members of the Japanese group concerning the Gentlemen’s Agreement and not discussions concerning projects in Japan. In that context, it should be recalled that the memorandum of Mr K. of 21 May 2002 was drawn up only three months after the Tokyo meeting of 18 and 19 February 2002, during which Hitachi, a Japanese producer, informed the other participants that it had accepted enquiries coming from European customers, which led to discussions between the participants.

128    Secondly, even if it had to be accepted that it is possible to deduce from that memorandum that the discussions during the three to four years before it was drawn up related in particular to projects in Japan, that is not capable of calling into question the existence and the unlawful nature of the Gentlemen’s Agreement established on the basis of the statements of Siemens and of Fuji, the three documents concerning the Tokyo meeting of 18 and 19 February 2002 and Hitachi’s confirmation.

129    Finally, contrary to the applicant’s submissions, it cannot be deduced from the memorandum of Mr K. that the Gentlemen’s Agreement was only a market analysis. It is true that that memorandum mentions not only the Gentlemen’s Agreement, but also market analyses. However, it cannot be deduced therefrom that the Gentlemen’s Agreement was limited to a market analysis. First, it must be stated that the market analysis and the Gentlemen’s Agreement are mentioned in a list including subjects of a different nature, such as the In-house Business, the Internet business and the ‘introduction of integrations’. Secondly, a reading that they were separate elements is corroborated not only by the declarations of Siemens and of Fuji, but also by the draft agenda for the Vienna meeting of 26 and 27 September 2002 which treated the Gentlemen’s Agreement and the market analysis as separate points.

130    Therefore, the complaints relating to the assessment which the Commission made of the memorandum of Mr K. of Hitachi of 21 May 2002 following the Tokyo meeting of 18 and 19 February 2002 must be rejected.

131    Fourthly, as regards the pre-draft agenda of the Zurich meeting of 15 and 16 May 2003 and the draft agenda of that meeting, the applicant claims, essentially, that the reference to the term ‘GA’ under the title ‘Possible cooperation’ and the reference to future discussion in those two documents prove that the Gentlemen’s Agreement was not an existing agreement. In addition, the applicant claims that the minutes of that meeting prove that the Gentlemen’s Agreement was not discussed during that meeting.

132    That complaint must also be rejected.

133    First of all, so far as concerns the pre-draft agenda of the Zurich meeting of 15 and 16 May 2003, it should be remembered that the relevant part of that document is worded as follows:

‘Possible cooperation

Usually we confirm two things. One is the notification to SEC in respect of the GA …’

134    It must therefore be held that, even though the Gentlemen’s Agreement is mentioned under a title named ‘Possible cooperation’, it is apparent from the sentences under that title, particularly the use of the word ‘usually’, that the ‘GA’, therefore the Gentlemen’s Agreement, was not a project contemplated only for the future.

135    Also, although the Gentlemen’s Agreement is only mentioned as a ‘possible’ cooperation in the pre-draft and draft agenda of that meeting, that does not in any way call in question the Commission’s findings regarding the existence of the Gentlemen’s Agreement. As is apparent from the documents in the case, particularly the minutes of the Vienna meeting of 26 and 27 September 2002, the internal memorandum of Mr M. of Fuji on that meeting and Fuji’s statement of 18 July 2007, during the Vienna meeting the applicant had informed the other undertakings that Melco and it were going to form a joint venture and that the question of participation in the future meetings was not yet resolved. In addition, it is apparent from the minutes of the Vienna meeting of 26 and 27 September 2002 that the usefulness of the future meetings depended on the future participation of the applicant. In the light of those circumstances, the use of the expression ‘possible cooperation’ is, admittedly, capable of expressing doubts concerning the continuation of the Gentlemen’s Agreement in the future, but is not capable of challenging its existence in the past.

136    Finally, to the extent that the applicant argues that the minutes of 16 May 2003 of the Zurich meeting show that the Gentlemen’s Agreement was not discussed at the meeting, it must be stated that that complaint is ineffective in the context of the first plea, which seeks to challenge the very existence of the Gentlemen’s Agreement. It is not capable of calling into question the very existence of the Gentlemen’s Agreement, but only its duration. That argument must therefore be examined in the context of the third plea, which relates to the duration of the infringement.

137    The complaints challenging the probative value of the items of documentary evidence relied upon by the Commission must therefore be rejected.

d)     The content and the probative value of the statements of Areva, of ABB and of the applicant

138    The applicant argues that the statements of Siemens and of Fuji are directly contradicted by the statements of Areva, of ABB and by its own statements, which have, according to the applicant, the same probative value as the statements of Siemens and of Fuji.

 The statements of Areva

139    The applicant relies on the statements of Mr T., an employee of Areva, during a meeting between Areva and the Commission of 29 March 2007, as were summarised by Areva in a document dated 13 April 2007.

140    However, contrary to the applicant’s submissions, that document does not show that Mr T. denied the existence of a market-sharing agreement. In response the question of the Commission, which had asked whether the application of the home-market rule (Japan-EU) was also part of the ‘Aero Club (AC)’, he only stated that that was difficult to say. Then he stated that, consequently, the Europeans never clearly admitted that they did not feel able to compete in Japan and the same applied for the Japanese in Europe, and that, while that issue was never discussed, in a way there was some type of understanding that one would not attack one another in one’s home territory. Mr T. therefore admitted the existence of a ‘type of understanding’. Furthermore, it must be stated that the doubts expressed by Mr T. in that context seem to relate to the question of whether the Japanese producers were able to compete with the European producers in Europe and not that of the existence of a cartel.

141    Next, in so far as the applicant maintains that Mr T. had stated that an agreement on those issues was never reached, it is apparent from the context of that sentence that it concerns the In-house Business and not the Gentlemen’s Agreement.

142    Finally, in so far as the applicant submits that Mr T. of Areva was not able to explain the term ‘GA’ and stated that he did not think that the Gentlemen’s Agreement necessarily makes sense in that context, that statement is hardly credible. Having regard to the fact that (i) as is apparent from paragraph 99 of the contested decision, the term ‘GA’ appears inter alia in the draft agenda of the Tokyo meeting of 18 and 19 February 2002 as well as in the draft minutes and in the final minutes of that meeting, as well as in the draft agenda of the Vienna meeting of 26 and 27 September 2002 and in the minutes of that meeting, and that (ii) Mr T. participated in those two meetings (see Annex I to the contested decision), the Court is of the view that it is not credible that he cannot remember the meaning of the term.

143    Contrary to the applicant’s submissions, the statements of Mr T. of Areva are therefore not capable of calling into question the statements of Siemens and of Fuji.

 The statements of ABB

144    In so far as the applicant relies on ABB’s response of 12 September 2007 following the Commission’s request for information, it must be noted that, in that statement, ABB did in fact deny the existence of the ‘Gentlemen’s Agreement’ or of a ‘GA’.

145    However, first of all, the Court rejects the applicant’s argument that ABB’s statement should be considered as particularly credible because of the fact that that undertaking was a leniency applicant at the time it made the aforementioned statement. It is true that, according to the case-law, it is unlikely for an undertaking to admit the existence of an infringement whilst at the same time concealing the existence of a similar infringement (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 214). However, ABB was not in such a situation. Although ABB submitted a leniency application on 2 February 2005 concerning a cartel called Aero Club, that leniency application did not concern an infringement of EU competition law since the territories of the European Union and EEA Member States were at that time excluded from that cartel (see footnote 30 of the contested decision). Consequently, ABB cannot be considered to have admitted the existence of an infringement of EU competition law, as was the case in JFE Engineering and Others v Commission (paragraph 38 above).

146    Also, in the light of the aforementioned items of documentary evidence, that statement of ABB, which is based on the testimony of its employee, Mr N., is hardly credible. It must be noted that ABB denied the existence both of the Gentlemen’s Agreement and of the In-house Business although (i) the term ‘GA’ and the expression ‘In-house Business’ appear in the draft agenda of the Tokyo meeting of 18 and 19 February 2002, and in the minutes of that meeting, as well as in the draft agenda of the Vienna meeting of 26 and 27 September 2002 and the minutes of that meeting, and that (ii) Mr N. participated in those meetings (Annex I to the contested decision). Neither Mr N. nor ABB provided a satisfactory alternative explanation concerning those terms.

147    Therefore, the statement of ABB of 12 September 2007 is not credible.

 The applicant’s statements

148    Thirdly, the applicant contends that its employees, Mr I., Mr A. and Mr U., who attended some of the meetings listed in the contested decision, deny the existence of the Gentlemen’s Agreement or of any home market-protection agreement and have no recollection of the term ‘GA’ having a precise definition.

149    In that context, it must be pointed out that, if they are credible, the testimonies of persons who attended the meetings referred to by the Commission have a particularly high probative value because of the fact that those persons have direct knowledge of the facts (JFE Engineering and Others v Commission, paragraph 38 above, paragraph 298).

150    However, in the present case, first, it must be stated that the testimonies of the applicant’s employees were collected at a time when the applicant already knew that the Commission had begun to suspect a cartel infringement and the undertakings concerned had therefore received a warning. That fact limits their probative value (Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraphs 277 and 290, and Lafarge v Commission, paragraph 36 above, paragraph 379).

151    Secondly, the fact that the applicant had not submitted a leniency application and therefore had no interest in admitting the existence of an unlawful cartel must be taken into account.

152    Thirdly, the statements of Mr I., Mr A. and Mr U. seem hardly credible. First, the term ‘GA’ appears inter alia in the draft agenda of the Tokyo meeting of 18 and 19 February 2002 and the minutes of that meeting, as well as in the draft agenda of the Vienna meeting of 26 and 27 September 2002 and the minutes of that meeting; secondly, all those employees participated in the Vienna meeting, and Mr I. and Mr U. also participated in the Tokyo meeting (Annex I to the contested decision). It is hardly likely that they would not be able to explain the meaning of the term ‘GA’.

153    It must therefore be held that, contrary to the applicant’s submissions, the statements of Areva, of ABB and its own statements are not capable of challenging the existence of the Gentlemen’s Agreement.

154    All the complaints concerning the probative value of the evidence relied upon by the Commission must therefore be rejected.

3.     The second part of the first plea, relating to infringement of the in dubio pro reo principle

155    The applicant challenges the overall assessment of the items of evidence which the Commission made in paragraphs 125 to 132 of the contested decision. The applicant is of the view that a reasonable doubt exists as regards the existence of a market-sharing agreement. It is just as likely that the power transformer producers were meeting to notify or communicate to each other the major bids they had won and to discuss the evolution of the market.

156    In that context, it should be recalled that any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed (Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 60, and Hitachi and Others v Commission, paragraph 37 above, paragraph 58).

157    Within the context of the judicial review of a Commission decision imposing a fine for an infringement of Article 81 EC or of Article 82 EC, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which is one of the fundamental rights which are general principles of EU law (see, to that effect, Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 61, and Hitachi and Others v Commission, paragraph 37 above, paragraph 59).

158    None the less, the presumption of innocence and the in dubio pro reo principle do not require every item of evidence produced by the Commission to necessarily satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (Dresdner Bank and Others v Commission, paragraph 35 above, paragraph 63).

159    In the present case, it must therefore be examined whether the items of evidence on which the Commission relied support the firm conviction that an infringement of Article 81 EC was committed and the conclusion beyond reasonable doubt that that infringement existed.

160    In that context, first, it must be held that the Commission’s findings as regards the existence and the unlawful nature of the Gentlemen’s Agreement may be based on the statements of Siemens and of Fuji. As the Commission rightly held in paragraph 126 of the contested decision, those statements were based on discussions with the employees who directly participated in the cartel meetings and were direct witnesses of the situations described. Furthermore, Siemens was the secretary of the European group (paragraph 81 of the contested decision) and therefore had to be particularly well informed. The statements of Siemens and of Fuji overlap as regards the general characteristics and numerous details of the cartel. It is true that there are some differences. However, those differences can be explained by the fact that in issue are events which took place several years beforehand. In essence, the statements of Siemens and of Fuji corroborate each other.

161    Secondly, as stated above (paragraphs 63 to 137 above), the statements of Siemens and of Fuji were corroborated by items of documentary evidence, in particular by the memorandum of Mr O. of Fuji on the Tokyo meeting of 18 and 19 February 2002, but also by the documents mentioned in paragraph 112 above. Although those documents are fragmentary, they clearly confirm the description of the Gentlemen’s Agreement given by Siemens and by Fuji not only so far as concerns the basic principles, but also so far as concerns the detailed points of that cartel. A large part of those documents was drawn up shortly after the facts, by direct witnesses of those facts, at a time when the undertakings concerned did not yet suspect an investigation by the Commission, which strengthens their probative value. Furthermore, it is not only a question of documents which were submitted by Siemens and by Fuji in support of their leniency application, but also of documents which the Commission was able to collect during its inspections on the premises of the undertakings mentioned in paragraph 4 above. Those items of documentary evidence therefore have high probative value.

162    Thirdly, it must be held that, in its letter of 30 March 2009, therefore after the statement of objections and the hearing, Hitachi accepted the Commission’s findings as regards the existence and scope of the Gentlemen’s Agreement as described in the statement of objections. Admittedly, Hitachi’s acceptance of those findings is succinct. However, it is not without importance because Hitachi was particularly well placed to give an alternative explanation for the items of evidence submitted by the Commission. First, Hitachi was the secretary of the Japanese group (paragraph 81 of the contested decision) and therefore had to be particularly well informed and, secondly, substantial parts of the objections which had been communicated to it by the Commission directly concerned it, such as the notification of three projects coming from European customers which had been discussed during the Tokyo meeting of 18 and 19 February 2002. Hitachi should therefore have been able to prove that the Commission’s findings were incorrect.

163    Fourthly, and for the sake of completeness, it must be observed that, as was stated by the Commission in paragraphs 82 to 84 of the contested decision and as is confirmed by the documentary evidence, secret codes were used to refer to the undertakings participating in the meetings concerning the Gentlemen’s Agreement. That constitutes further evidence of the unlawful nature of the meetings, even though not all the names of the natural persons who attended those meetings were rendered anonymous.

164    Fifthly, it must be observed that the applicant’s alternative explanation that the meetings between the power transformer producers were lawful is hardly convincing. It is hardly likely that those meetings had only a ‘social nature’ or that the participating undertakings did no more than notify or communicate to each other the major bids they had won in order to discuss the evolution of the market. As stated above (paragraphs 138 to 153), the statements by undertakings and the testimonies relied on by the applicant either do not confirm the alternative explanation proposed by it, or are not credible. They provide, in particular, no satisfactory explanation for the reference to the term ‘GA’ in the documentary evidence put forward by the Commission and do not explain why what corresponded to the term ‘GA’ had to be regularly ‘confirmed’ or ‘respected’ by the participants in those meetings. Furthermore, that situation is contradicted by the fact that Hitachi had to justify itself during the Tokyo meeting of 18 and 19 February 2002 for having accepted three projects coming from customers situated in Europe. Finally, it seems hardly likely that, at meetings of a purely social nature, the participating undertakings would take care to use secret codes to refer to each other.

165     The Court therefore considers that the items of evidence submitted by the Commission support the firm conviction as to the existence and the unlawful nature of the Gentlemen’s Agreement and that there is no reasonable doubt in that regard.

4.     The third part of the first plea, put forward in the reply

166    In its reply, the applicant submits for the first time that the Commission did not explain some details of the Gentlemen’s Agreement, in particular how the undertakings agreed on the precise content of the Gentlemen’s Agreement, how the group secretaries gathered the information, how the prices for the quotes in the territory of the other group were fixed and what was the exact meaning of the term ‘Europe’. In that regard, the Court does not need to rule on the admissibility of those complaints; it should be recalled that it is not necessary for the Commission to prove all the details of an unlawful agreement within the meaning of Article 81 EC (see the case-law mentioned in paragraph 39 above). The Court is of the view that the items of evidence submitted by the Commission by themselves support a firm conviction as to the existence and the unlawful nature of the Gentlemen’s Agreement.

167    Therefore, without prejudice to paragraph 136 above, the first plea must be rejected in its entirety.

B –  The third plea, relating to the Commission’s findings on the duration of the infringement and the applicant’s participation in it

168    In the context of the third plea, the applicant submits that the Commission did not establish that the unlawful cartel lasted from 9 June 1999 to 15 May 2003 and that the applicant participated in it throughout that period.

169    This plea consists of two parts. First, the applicant contends that the Commission did not establish to the requisite legal standard the existence of the Gentlemen’s Agreement and the applicant’s participation in it before the Tokyo meeting of 18 and 19 February 2002. Secondly, the applicant submits that the Commission did not establish its participation in the Gentlemen’s Agreement for the stage after the Vienna meeting of 26 and 27 September 2002.

1.     The first part of the third plea, relating to an error concerning the starting date of the infringement

170    The first part of the third plea is directed at paragraph 75 of the contested decision, in which the Commission established 9 June 1999 as the starting date of the infringement.

171    That part consists of three complaints. First, the applicant contends that the Commission did not provide sufficient reasons for the choice of that date. Secondly, it submits that the Commission did not establish that one of its employees participated in the Malaga meeting of 9 to 11 June 1999. Thirdly, the applicant maintains that the Commission did not establish the anti-competitive nature of the meetings preceding the Tokyo meeting of 18 and 19 February 2002.

a)     The choice of the Malaga meeting of 9 to 11 June 1999 as the beginning of the infringement

172    The applicant submits that the contested decision does not contain any justification for the choice of the Malaga meeting of 9 to 11 June 1999.

173    That complaint, alleging the inadequacy of the statement of reasons of the contested decision, must be rejected.

174    As the Commission correctly maintains, it is apparent from paragraphs 75, 87 and 216 to 218, as well as from Annex I to the contested decision, that the Commission chose the date of the Malaga meeting as the starting date of the infringement because the Commission considered that it constituted the first meeting which all the addressees of the contested decision had attended.

b)     The applicant’s participation in the Malaga meeting

175    The applicant submits that the Commission did not establish its participation in the Malaga meeting. The Commission relied only on imprecise statements of two undertakings. It would be extremely easy for an undertaking to make a mistake as to who was present at a particular meeting since no documentary evidence established the identity of the participants in that meeting. The applicant itself has been unable to identify any of its employees who attended the meeting.

176    In that regard, it should be remembered that it is for the Commission to establish not only the existence, but also the duration of an infringement of Article 81 EC (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79, and Case T‑62/98 Volkswagen v Commission [2000] ECR II‑2707, paragraph 188). In that regard, the contested decision must also meet the requirements mentioned in paragraphs 35 to 39 above.

177    In Annex I to the contested decision, the Commission stated that a representative of the applicant’s London (United Kingdom) office attended the Malaga meeting. First of all, the Commission relied on Fuji’s statement of 1 August 2007, according to which a representative of the London office was present at the Malaga meeting of 9 to 11 June 1999 (Annex I to the contested decision). That statement of Fuji is based on discussions with its former employees who participated in that meeting. The Commission then relied on ABB’s statement of 23 March 2007, according to which the applicant participated in that meeting (Annex I to the contested decision). That statement is based on a discussion with Mr N., an employee of ABB who participated in the Malaga meeting.

178    Contrary to the applicant’s submissions, those items of evidence represent a body of evidence sufficient to establish that the applicant participated in the Malaga meeting from 9 to 11 June 1999.

179    It is true that the Commission’s finding is not based on any item of documentary evidence. However, the Commission may rely not only on the statement of Fuji, which took advantage of the Commission’s leniency programme, but also on the statement of ABB, which denied the existence of the Gentlemen’s Agreement and did not benefit from the Commission’s leniency programme. In that context, it should also be remembered that, in the present case, the Commission is obliged to prove the existence of an unlawful cartel which took place several years beforehand, and that the applicant did not actively cooperate with it. It would be too easy for an undertaking guilty of an infringement to escape any penalty if it was entitled to base its argument on the vagueness of the information produced regarding the operation of an unlawful agreement in circumstances in which the existence and anti-competitive purpose of the agreement had nevertheless been sufficiently established (see paragraph 39 above).

180    As for the applicant’s argument that it could be a case of an error by an undertaking, it should be noted that the statements of Fuji and of ABB are corroborated by the information provided by Siemens. In its reply of 23 February 2007 following the Commission’s request for information and in its statement of 3 May 2007, Siemens also mentioned Mr U. as the regular representative of the applicant during the meetings. That information does not show that the applicant did not participate in all of the meetings. Therefore, there would have to have been an error of two undertakings (Fuji and ABB), as well as incorrect information of a third undertaking, which seems hardly likely.

181    Furthermore, having regard to the facts of the present case, the applicant cannot merely submit that it was not able to identify the person who participated in the Malaga meeting. In that context, it should be recalled that the Commission stated in Annex 2 to the contested decision that the applicant’s employees, Mr U., Mr A. and Mr I., had represented it during the meetings. More specifically, in respect of Mr U., the applicant does not dispute his participation in the Singapore meeting of 29 May 2000, the Barcelona meeting of 29 October to 1 November 2000, the Tokyo meeting of 18 and 19 February 2002 and the Vienna meeting of 26 and 27 September 2002. In its reply of 23 February 2007 following the Commission’s request for information and in its statement of 3 May 2007, Siemens also mentioned Mr U. as the regular representative of the applicant during the meetings. In addition, in its reply to the statement of objections of 19 January 2009, the applicant itself states that Mr U. was expatriated to London from 1997 to 2002 as ‘Managing Director Toshiba International (Europe)’, that is to say for a period during which the Malaga meeting took place. Moreover, it cannot be deduced from the testimony of Mr U. of 9 January 2009 that he did not participate in the Malaga meeting. In that testimony, he merely states that he remembers the Barcelona meeting of 29 October 2000 and denies having participated in the Zurich meeting of 15 and 16 May 2003. In the light of those documents in the case, the applicant’s claim that it was not able to identify the person who participated in the Malaga meeting is too general and insufficiently detailed to challenge the evidence on which the Commission relied.

182    It must be held, therefore, that the Commission established to the requisite legal standard that the applicant participated in the Malaga meeting.

c)     The anti-competitive object of the meetings preceding the Tokyo meeting of 18 and 19 February 2002

183    The applicant challenges the contested decision in so far as the Commission stated therein that the meetings which preceded the Tokyo meeting of 18 and 19 February 2002, namely the Malaga meeting of 9 to 11 June 1999, the Singapore meeting of 29 May 2000, the Barcelona meeting of 29 October to 1 November 2000 and the Lisbon meeting of 29 to 30 May 2001, had an anti‑competitive object.

184    In that regard, it must be noted, first of all, that the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (see paragraph 35 above). Therefore it is not sufficient for the Commission to establish the applicant’s participation in the meetings. The Commission must also demonstrate the anti-competitive nature of those meetings (Case C‑199/92 Hüls v Commission [1999] ECR I‑4287, paragraphs 154 and 155, and judgment of 12 September 2007 in Case T‑36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraph 96).

185    The Commission stated in paragraphs 86 and 87 of the contested decision that, during the meetings which are mentioned in Annexes I and II (which include the aforementioned meetings), the participants periodically confirmed the Gentlemen’s Agreement. In that regard, it relied, inter alia, on the statements of Siemens and of Fuji, which it mentioned in paragraphs 88 and 89 of the contested decision, and on the internal memorandum of Mr K. of Hitachi of 21 May 2002 following the Tokyo meeting of 18 and 19 February 2002, which it mentioned in paragraph 99 of the contested decision. In paragraph 133 of the contested decision, the Commission held that the statements of undertakings and the aforementioned items of documentary evidence constituted a body of evidence sufficient to show that the Gentlemen’s Agreement had started at the latest with the Malaga meeting of 9 to 11 June 1999.

186    The applicant contends that the Commission did not establish to the requisite legal standard the anti-competitive nature of the Malaga meeting of 9 to 11 June 1999, the Singapore meeting of 29 May 2000, the Barcelona meeting of 29 October to 1 November 2000 and the Lisbon meeting of 29 to 30 May 2001. According to the applicant, the Commission relied only on the general statements of Siemens and of Fuji, according to which the Gentlemen’s Agreement was confirmed at each meeting. However, those statements were contradicted by ABB, Areva, Hitachi and by the applicant itself. Consequently, the Commission should have corroborated the statements of Siemens and of Fuji with contemporaneous documentary evidence, which it did not do. The applicant contends that the only document that the Commission invoked in this regard is the memorandum of Mr K. of Hitachi of 21 May 2002. However, it cannot rely on that memorandum as it does not prove the existence of a Gentlemen’s Agreement before the memorandum was drawn up, but, at most, the existence of an agreement at the date when the memorandum was drawn up.

187    As regards those complaints, it should be borne in mind that the Commission relied, first of all, on the statements of Siemens of 3 May 2007 and on those of Fuji of 18 July 2007, from which it is apparent that the Gentlemen’s Agreement had been reaffirmed at the beginning of each meeting. It is true that Fuji’s statement is rather general. However, the statement of Siemens is quite detailed. It is based on the testimony of Mr B., who attended the meetings concerned, which strengthens its probative value.

188    The Commission then relied on the memorandum of Mr K. of Hitachi, the relevant part of which is set out in paragraph 124 above.

189    In that regard, first, it must be held that, contrary to the applicant’s submissions, the content of that memorandum corroborates the statements of Siemens and of Fuji, according to which the Gentlemen’s Agreement already existed at the time of the Malaga meeting of 9 to 11 June 1999. That memorandum, which dates from 21 May 2002 and assesses the ‘Current Status of AC’, states the ‘GA projects (especially J)’ under the title ‘Discussions in this 3-4 years’. Furthermore, under the title ‘Matters agreed’, that memorandum mentions ‘Respect of GA (E/J)’, and, under the title ‘Future discussion point’, it mentions inter alia the ‘GA projects (especially within E)’.

190    Although that memorandum does not explicitly show that the Gentlemen’s Agreement was respected during the three to four years before the memorandum was drawn up, that fact can be deduced from all of the information contained in that memorandum. The fact that ‘GA projects’, therefore projects falling within the Gentlemen’s Agreement, were discussed in the three to four years before the memorandum was drawn up shows that the Gentlemen’s Agreement already existed during that period.

191    In that context, the applicant submits that the passage of the memorandum of Mr K. on which the Commission relied is not capable of establishing the situation before the drawing up of that memorandum because it clearly refers to the ‘current situation’. According to the applicant, the ‘matters agreed’ to which that passage refers can therefore be only a reflection of the current situation in May 2002. The applicant contends that the reference to ‘GA projects’ under the title ‘Discussions in this 3-4 years’ merely refers to general tendencies.

192    However, the applicant’s reading of that memorandum is unconvincing. In that context, it must be noted, first of all, that, in the memorandum, reference is made not only to ‘GA projects’ but also to ‘respect of GA’ and that the reading proposed by the applicant does not take that distinction into account. Also, when read in the manner proposed by the applicant, there is an internal contradiction in the memorandum of Mr K. If the indication of ‘GA projects’ under the title ‘Discussions in this 3-4 years’ referred to the negotiation of the Gentlemen’s Agreement itself, it would seem contradictory to mention the ‘respect of GA’ under the title ‘Matters agreed’ and then to call that classification into question by mentioning the ‘GA projects’ under the title ‘Future discussion point’. By contrast, the reading proposed by the Commission corroborates the existence of an agreement concerning the bids (projects).

193    The Commission therefore rightly held that the memorandum of Mr K. of Hitachi of 21 May 2002 confirmed that the Gentlemen’s Agreement had been confirmed during the meetings which took place during the three to four years preceding the drawing up of the memorandum, therefore at least from May 1999.

194    Secondly, as regards the probative value of that memorandum, it must be held that Mr K. drew up that memorandum at a time when the cartel was still active and when he did not suspect an investigation by the Commission. Therefore, even if the memorandum was not concomitant with the Malaga meeting of 9 to 11 June 1999, the Singapore meeting of 29 May 2000, the Barcelona meeting of 29 October to 1 November 2000 and the Lisbon meeting of 29 to 30 May 2001, the date on which it was drawn up gives it a non-negligible probative value. That probative value is strengthened by the fact that the memorandum contains information that is self-incriminating for Hitachi (see paragraph 48 above) and the fact that Hitachi was the secretary of the Japanese group and, for that reason, Mr K. was particularly well placed to assess the duration of the Gentlemen’s Agreement.

195    Also, as to the applicant’s argument regarding the internal nature of that memorandum, it should be remembered that, as was stated in paragraph 97 above, nothing prevents an internal document from being taken into account as an item of evidence in a broader body of consistent evidence.

196    It must therefore be held that, contrary to the applicant’s submissions, the memorandum of Mr K. of 21 May 2002, which had high probative value, corroborated the statements of Siemens and of Fuji concerning the duration of the Gentlemen’s Agreement.

197    The body of evidence consisting of the statements of Siemens and of Fuji and the memorandum of Mr K. of Hitachi of 21 May 2002 therefore supports the firm conviction that the Malaga meeting of 9 to 11 June 1999, the Singapore meeting of 29 May 2000, the Barcelona meeting of 29 October to 1 November 2000 and the Lisbon meeting of 29 to 30 May 2001 related to the Gentlemen’s Agreement and therefore had an anti-competitive object.

198    That finding is not called into question by the applicant’s complaints that there are contradictions between various items of evidence.

199    First of all, in so far as the applicant submits that Hitachi contradicted the statements of Siemens and of Fuji and denied the existence of the Gentlemen’s Agreement, it suffices to refer to paragraphs 59 to 62 above.

200    The applicant also submits that, as secretary of the group, Hitachi should have been able to give information about the functioning of the Gentlemen’s Agreement. In that regard, it must be held that, in its letter of 30 March 2009, Hitachi only stated that it was not able to confirm the date of the beginning of the Gentlemen’s Agreement. Moreover, Mr K.’s memorandum is a document coming from Hitachi which in fact corroborates the statements of Siemens and of Fuji. In any event, as the secretary of the Japanese group, Hitachi should have been able to show that the Malaga, Singapore, Barcelona and Lisbon meetings did not have an anti-competitive object. However, it accepted the Commission’s findings that those meetings had an anti-competitive object.

201    Furthermore, in so far as the applicant submits, generally and without details, that ABB and Areva contradicted the statements of Siemens and of Fuji, it must be stated that the applicant does not explain how those undertakings specifically called into question the date of the beginning of the infringement. The Court therefore rejects those arguments by referring to paragraphs 139 to 147 above.

202    It is therefore necessary to reject the third complaint of the first part of the third plea, and, therefore, the first part of the third plea in its entirety.

2.     The second part of the third plea, relating to the end of the infringement

203    The second part of the third plea concerns the Commission’s finding in paragraph 79 of the contested decision that the applicant participated in the Zurich meeting of 15 and 16 May 2003. The applicant submits that its participation in the Gentlemen’s Agreement ended at the Vienna meeting of September 2002.

204    That part consists of three complaints. First of all, the applicant contends that it publicly distanced itself from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002. Secondly, it contends that it did not participate in the Zurich meeting of 15 and 16 May 2003. Thirdly, it contends that that meeting did not have an anticompetitive object.

a)     The distancing from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002

205    The applicant contends that it publicly distanced itself from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September and hence brought to an end any infringement of Article 81 EC. According to the applicant, the participants in the Vienna meeting understood that it would no longer participate in future meetings.

206    In that regard, it should be remembered that, according to well-established case‑law, where an undertaking participates, even if not actively, in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what occurred at them, thus giving the impression to the other participants that it subscribes to the results of the meeting and will act in conformity with them, it may be concluded that it is participating in the cartel in question (Case T‑12/89 Solvay v Commission [1992] ECR II‑907, paragraph 98; Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 1353; JFE Engineering and Others v Commission, paragraph 38 above, paragraph 327; and Bolloré and Others v Commission, paragraph 48 above, paragraph 196).

207    It should therefore be examined whether the items of evidence relied on by the applicant, namely the minutes of the Vienna meeting, the internal memorandum of Mr M. of Fuji on that meeting and Fuji’s explanatory note on that meeting of 18 July 2007, show that it publicly distanced itself from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002.

208    Those documents do indeed show that the applicant announced during the Vienna meeting of 26 and 27 September 2002 that, because of the fact that it would form the joint venture TM T & D with Melco, its participation in the future meetings had still to be decided. It may also be deduced from the internal memorandum of Mr M. of Fuji and from Fuji’s explanatory note on that meeting that the applicant had ruled out its individual participation in future meetings, and it can be deduced from the minutes of the Vienna meeting that the undertakings participating in that meeting were of the view that there would no longer be an interest in continuing the Gentlemen’s Agreement without the participation of the applicant.

209    Those documents are therefore capable of showing, first, that, during the Vienna meeting of 26 and 27 September 2002, there were doubts concerning the applicant’s future participation in the Gentlemen’s Agreement and concerning the continuation of the Gentlemen’s Agreement and, secondly, that a future meeting was to take place, during which that question was to be discussed.

210    However, it cannot be inferred therefrom that the applicant had already distanced itself from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002.

211    It must be stated that it is also apparent from the documents relied on by the applicant that, after its announcement that the participation of TM T & D in the future meetings had still to be decided and that its participation would depend on that decision, the undertakings participating in that meeting nevertheless confirmed the Gentlemen’s Agreement and the rules requiring notification of the projects falling within that cartel.

212    In that context, it should be remembered that, according to the case-law mentioned in paragraph 206 above, for there to be participation in a cartel it is sufficient that an undertaking gives the impression to the other participants that it subscribed to the result of the meetings and that it would act in conformity with them.

213    Although it can be inferred from the documents mentioned that doubts were cast as to the applicant’s future participation and the continuation of the Gentlemen’s Agreement, it cannot be inferred from those documents that the applicant distanced itself once and for all during the Vienna meeting. The confirmation of the rules on the notification of the projects clearly shows that the undertakings participating in the Vienna meeting of 26 and 27 September 2002 wanted to provisionally prolong the Gentlemen’s Agreement until the next meeting. If there had been no Gentlemen’s Agreement, those rules would no longer have been relevant.

214    It must therefore be held that, during the Vienna meeting of 26 and 27 September 2002, the applicant did not publicly distance itself within the meaning of the above case-law. The first complaint of the second part of the third plea must therefore be rejected.

b)     The participation of the applicant in the Gentlemen’s Agreement until the Zurich meeting of 15 and 16 May 2003

215    The applicant submits that the Commission erred in finding in paragraph 79 of the contested decision that the applicant participated in the Gentlemen’s Agreement until the Zurich meeting.

216    In that passage of the contested decision, the Commission stated that, at the Zurich meeting of 15 and 16 May 2003, all the addressees of the contested decision got together and marked the end of the infringement. As for the applicant, the Commission stated in Annex II to the contested decision that it was represented by Mr R. during that meeting.

217    The applicant submits that the Commission erred in finding, in Annex I to the contested decision, that Mr R. represented it at the Zurich meeting of 15 and 16 May 2003. According to the applicant, he was a Melco employee who represented only TM T & D, the joint venture with Melco. Moreover, the applicant contends that, unlike Fuji and Hitachi, who continued to participate in the meetings even after the creation of a joint venture between them, the applicant stopped participating in the meetings after the Vienna meeting of 26 and 27 September 2002. The Commission did not demonstrate that Mr R. ought to be considered as having acted on behalf of the applicant. The applicant also submits that, in any event, the Zurich meeting of 15 and 16 May 2003 did not have an anti‑competitive object.

218    Those arguments must be rejected as ineffective.

219    Even if they were well founded, they would not be capable of challenging the Commission’s finding that the applicant participated in the Gentlemen’s Agreement until 15 May 2003.

220    As has been explained in paragraphs 205 to 214 above, the applicant did not distance itself from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002. On the contrary, the participants agreed during that meeting to discuss the applicant’s future participation in the Gentlemen’s Agreement during the next meeting, that is to say at the Zurich meeting of 15 and 16 May 2003. In those circumstances, even on the assumption that the applicant did not participate in the Zurich meeting and that that meeting did not have an anti-competitive object, it must be held that, in the absence of any public distancing from the Gentlemen’s Agreement, the applicant participated in the Gentlemen’s Agreement until that meeting.

221    In that context, the applicant cannot successfully claim that it ceased to participate in the Gentlemen’s Agreement at the time of the creation of the joint venture TM T & D, that is to say from 1 October 2002. The applicant had still to be regarded as a participant in that cartel even after that date because it had not publicly distanced itself from that cartel and had not informed the other participants that TM T & D would not participate in it. According to the case-law mentioned in paragraph 206 above, it is sufficient that the applicant gave the impression to the other participants that it or TM T & D still participated in the Gentlemen’s Agreement which had been provisionally confirmed during the Vienna meeting of 26 and 27 September 2002 until the next meeting, that is to say the Zurich meeting of 15 and 16 May 2003.

222    The Commission was therefore entitled to find that the applicant participated in the cartel until 15 May 2003.

223    It is therefore necessary to reject the argument put forward within the framework of the first part of the first plea, mentioned in paragraph 136 above, as well as the second and third complaints of the second part of the third plea and, consequently, the first and third pleas as a whole.

C –  The second plea, alleging that the Commission did not prove a restriction of competition and an effect on trade

224    The second plea relates to the Commission’s findings that the Gentlemen’s Agreement restricted competition in the EEA and had an effect on trade between the Member States and between contracting parties to the EEA Agreement. The applicant essentially submits that the Commission did not establish that those conditions under Article 81 EC were satisfied. According to the applicant, the Commission did not sufficiently take into account the fact that insurmountable barriers precluded the entry of Japanese producers onto the European market.

1.     Restriction of competition

225    As regards a restriction of competition, the Commission stated in paragraphs 163 and 164 of the contested decision that the Gentlemen’s Agreement was a restriction by object. In paragraphs 165 to 169 of the contested decision, the Commission took into account the objection put forward by some of the undertakings concerned that the Japanese and European producers were not competitors because of insurmountable barriers to entry to the market. In that context, first of all, the Commission pointed out that, having regard to the anti‑competitive object of the Gentlemen’s Agreement, it was not obliged to demonstrate anti-competitive effects (paragraph 166 of the contested decision). The Commission also stated that, in any event, it had shown that the Gentlemen’s Agreement had been implemented and that the Japanese producers had refrained from selling power transformers in Europe (paragraph 167 of the contested decision). Lastly, the Commission set out the reasons why the barriers to entry to the market were not insurmountable, namely that the Korean undertaking Hyundai had recently entered the European market, and that the Japanese producers had recorded considerable sales in the United States, the undertakings concerned not having produced any evidence showing that the barriers to entry to the American market were very different to the barriers to entry to the European market (paragraph 168 of the contested decision).

226    The applicant submits that, in the light of those barriers to entry, the examination carried out by the Commission was insufficient. It did not carry out an economic assessment.

227    In that regard, it should be remembered that Article 81(1) EC prohibits cartels whose object or effect is to restrict competition. Where a cartel has the object of restricting competition, it is therefore unnecessary to show that it had actual effects (Case C‑209/07 Beef Industry Development Society and Barry Brothers [2008] ECR I‑8637, paragraph 16, and Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 43).

228    The Commission rightly held in paragraphs 163 and 164 of the contested decision that, as a market-sharing agreement, the Gentlemen’s Agreement had to be classified as a restriction by object. Consequently, the Commission was fully entitled to state in paragraph 166 of the contested decision that it was not obliged to show that the Gentlemen’s Agreement had had anti-competitive effects.

229    The applicant submits, however, that, notwithstanding its nature, the Gentlemen’s Agreement was not capable of restricting competition within the EEA to a sufficiently appreciable extent because the Japanese producers were not competitors of the European producers in the European market.

230    Admittedly, in that context it must be borne in mind that the question of whether the Gentlemen’s Agreement has the object of preventing, restricting or distorting competition must be examined not only in the light of the agreement’s content, but also in the light of the its economic context (Beef Industry Development Society and Barry Brothers, paragraph 227 above, paragraph 16). However, it should also be recalled that Article 81 EC protects not only actual competition, but also potential competition between undertakings. Consequently, an agreement such as the Gentlemen’s Agreement, which is designed to protect the European producers in their home territories from actual or potential competition from Japanese producers, is capable of restricting competition, unless insurmountable barriers to entry to the European market exist which rule out any potential competition from Japanese producers. In the present case, the Commission could therefore restrict itself to showing that the barriers to entry to the European market were not insurmountable.

231    First, it must be held that the very existence of the Gentlemen’s Agreement provides a strong indication that a competitive relationship existed between the Japanese and European producers. As the Commission correctly notes, it is unlikely that they would have entered into a market-sharing agreement if they had not considered themselves to be at least potential competitors. The acceptance of the Gentlemen’s Agreement therefore constitutes an argument which seriously calls into question the plausibility of the applicant’s argument that the barriers to entry to the European market were insurmountable.

232    Secondly, in paragraph 167 of the contested decision, the Commission referred back to paragraphs 91 to 98 thereof in which it established that Hitachi had accepted projects coming from clients situated in Europe. Contrary to the applicant’s submissions, that example to which the Commission referred in the contested decision shows that the barriers to entry were not insurmountable for a Japanese producer and that, as regards the projects in Europe, the Japanese and European producers were not only potential competitors, but actual competitors.

233    In that regard, the applicant maintains that, in its reply to the request for information of 28 February 2008 and during the hearing, Hitachi stated that it had not sold power transformers in the European Union or the EEA in the period from 2001 to 2003. However, in that context, it should be remembered that in its letter of 30 March 2009 Hitachi altered its statements and accepted the Commission’s findings relating to the existence and scope of the Gentlemen’s Agreement as set out in the statement of objections (paragraphs 59 to 62 above).

234    Finally, none of the other arguments put forward by the applicant is capable of challenging the finding that the barriers to entry were not insurmountable. Neither the argument regarding the barriers to entry to the European market, nor the argument that Melco and the applicant had not made sales in Europe, nor the argument based on the statements of ABB, of Areva and of Siemens is capable of explaining why, notwithstanding those barriers, Hitachi was able to sell power transformers to European customers.

235    The Commission therefore correctly held that the Gentlemen’s Agreement had as its object the restriction of competition within the meaning of Article 81 EC and Article 53 of the EEA Agreement.

236    As for the applicant’s complaints relating to the merits of the alternative arguments which the Commission put forward in paragraph 168 of the contested decision, they must be rejected as ineffective. Even on the assumption that they are well founded, they would not be capable of calling into question the finding that the Commission established to the requisite legal standard that the Gentlemen’s Agreement had as its object the restriction of competition.

2.     The effect on trade

237    As for the effect on trade between Member States and between contracting parties to the EEA Agreement, the Commission stated in paragraphs 171 to 174 of the contested decision that it was sufficient if the agreements were of such a kind as to be capable of appreciably affecting that trade. The Commission noted in paragraph 172 of the contested decision that the activity of power transformers was characterised by substantial trade between Member States and between contracting parties to the EEA Agreement. In paragraph 173 of the contested decision, the Commission held that the application of Article 81 EC and of Article 53 of the EEA Agreement was not limited to cases in which goods were actually transferred from one State to another and that it was not necessary to show that each participant in the unlawful cartel had affected trade between Member States. The Commission stated in paragraph 174 of the contested decision that, in the present case, the existence of a market-sharing agreement must have resulted in the automatic diversion of trade patterns from the course that they would otherwise have followed.

238    In the present case, the applicant does not call into question the existence of trade between the Member States and between contracting parties to the EEA Agreement. However, it argues that the Commission did not examine to the requisite legal standard whether trade between Member States was affected by the Gentlemen’s Agreement.

239    In that regard, it should be borne in mind, as a preliminary point, that, if an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or of fact that the agreement, decision or practice may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way that there is a risk that it might impede the realisation of a single market between Member States. Moreover, that influence must not be insignificant (Case C‑306/96 Javico [1998] ECR I‑1983, paragraph 16; Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 47; and Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 90).

240    Any cartel which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition within the common market, therefore affects trade (Case 22/78 Hugin Kassaregister and Hugin Cash Registers v Commission [1979] ECR 1869, paragraph 17; Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 47; and Dalmine v Commission, paragraph 239 above, paragraph 89).

241    In the present case, the Commission correctly stated that the Gentlemen’s Agreement was capable of having an effect on the structure of competition in the EEA. A market-sharing agreement which is designed to protect the European producers from Japanese producers results, or is at least likely to result, in the diversion of trade patterns from the course they would otherwise have followed (Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 172).

242    None of the arguments put forward by the applicant is capable of challenging that finding.

243    First, in so far as the applicant submits that the Gentlemen’s Agreement cannot have had consequences for the structure of competition within the common market because of insurmountable barriers to entry to that market, that argument must be rejected, reference being made to paragraphs 225 to 235 above.

244    Secondly, as regards the applicant’s argument that transportation of power transformers from Japan to Europe did not take place and would not have been economically viable, the Court confirms the ground relied on by the Commission according to which the application of Article 81 EC is not limited to cases in which there is a physical transfer of goods from a third country to the European Union or to the EEA.

245    The Commission therefore rightly held that the Gentlemen’s Agreement was capable of affecting trade between Member States and contracting parties to the EEA Agreement within the meaning of Article 81 EC and Article 53 of the EEA Agreement.

246    The second plea must accordingly be rejected in its entirety.

D –  The fourth plea, alleging errors concerning the setting of the amount of the fine

247    By its fourth plea, the applicant submits that the Commission committed errors concerning the setting of the amount of the fine, more specifically, so far as concerns the basic amount.

248    This plea consists of two parts. In the first part, the applicant complains that the Commission chose the year 2001 as the reference period for the purposes of point 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’). In the second part, the applicant contends that the Commission should not have ascribed to it a value of notional sales in the EEA on the basis of its worldwide market share.

249    In that context, it must be stated that the applicant does not seek only the annulment of the fine, but also, in the alternative, the reduction of the amount of that fine. As appropriate, the fourth plea must therefore be examined not only as a plea relating to the annulment of the contested decision, but also as a plea requesting the Court to alter the contested decision in the exercise of its unlimited jurisdiction in accordance with Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules of competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), interpreted in the light of Article 261 TFEU.

1.     The first part of the fourth plea, relating to the choice of 2001 as the reference period

250    The applicant complains that the Commission deviated from the principle laid down in point 13 of the 2006 Guidelines, according to which it normally uses the sales made by the undertaking during the last full business year of the infringement as the reference period.

251    The Commission justified that decision in paragraphs 227 and 228 of the contested decision by stating that point 13 of the 2006 Guidelines allowed it to deviate from that principle and that, in the present case, the value of the sales made by the Japanese producers during the last full business year of the infringement, namely 2002, was distorted because of the creation of joint ventures between the applicant and Melco (TM T & D) and between Hitachi and Fuji (JAEPS). For that reason, it decided to choose 2001 as the reference period.

252    The applicant contends that, in so doing, the Commission infringed the principle of legal certainty and the principle of equality of treatment.

a)     The principle of legal certainty

253    The applicant claims that the Commission infringed the principle of legal certainty by choosing 2001 instead of 2002 as the reference period. According to the applicant, the Commission did not adequately justify the departure from the principle laid down in point 13 of the 2006 Guidelines.

254    In that regard, first of all, it should be noted that, once the Commission decides to apply in a particular case the method laid down by the Guidelines it is required, in the light of the undertaking given when those guidelines were published, to adopt that method when calculating the amount of the fines, unless it gives specific reasons which justify a departure from them on a precise point in a particular case. The Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting fines and, consequently, they ensure legal certainty for undertakings (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission, ECR I‑5425, paragraphs 211 and 213).

255    It should also be noted that point 13 of the 2006 Guidelines shows that the Commission normally uses the sales made by the undertaking during the last full business year of its participation in the infringement. As is apparent from the word ‘normally’, the Commission did not bind itself to take into account systematically the value of sales in the last year of the undertaking’s participation.

256    In the present case, 2002 was the last full business year of the applicant’s participation in the Gentlemen’s Agreement. However, in the contested decision, the Commission chose 2001 as the reference period. In that respect, it explained that the value of sales for 2002 was distorted because of the formation of joint ventures between the applicant and Melco (TM T & D) and between Hitachi and Fuji (JAEPS).

257    The applicant contends that the creation of joint ventures during 2002 did not justify not taking into account the sales made in that year. According to the applicant, that fact was irrelevant because the Commission had all the necessary data. The applicant contends that, in particular, as regards the sales made by the joint venture, the Commission could have taken into account the sales of power transformers which were produced in the factory that it brought into that joint venture.

258    That complaint must be rejected. The Commission rightly stated that the formation of TM T & D between the applicant and Melco, in which those two undertakings had transferred their respective activities concerning power transformers to TM T & D, was likely to distort the value of sales.

259    In the present case, all of the sales made by TM T & D could not have been attributed to the applicant. First, contrary to the applicant’s submissions, the determination of the share of the sales of a joint venture is not easy. Therefore, the approach proposed by the applicant, which consists in attributing to each parent company the sales of goods produced in the factory that it brought into the joint venture, does not necessarily reflect the economic reality in an appropriate manner. Within the context of a joint venture which is responsible for the production and sales, it is possible that the goods produced in the factory of one parent company are sold thanks to the commercial network and the customers of the other parent company. Furthermore, the decision of the joint venture to produce the goods in one factory rather than in the other may depend on a multitude of factors and it is not certain that that factory would have produced the goods in the absence of the joint venture. Secondly, the position of a joint venture in the market does not necessarily correspond to the sum of the positions which its parent companies had in the market.

260    The Commission could therefore rightly consider that the value of sales during 2002 was distorted by the existence of TM T & D and of JAEPS. Consequently, the Commission did not infringe the principle of legal certainty by deviating from the normal method provided for in point 13 of the 2006 Guidelines and by choosing 2001 rather than 2002 as the reference period.

b)     The principle of equality of treatment

261    The applicant also argues that the Commission infringed the principle of equality of treatment by deviating from its own practice and by treating two similar situations in a dissimilar way. In its decision of 1 October 2008 (Case COMP/39.181 — Candle Waxes) (‘the Candle Waxes decision’), the Commission relied on the value of sales of an undertaking for a year, despite the fact that that undertaking had created a joint venture during that year.

262    In that regard, it suffices to state that, contrary to the applicant’s submissions, the present case is not comparable to the cases covered by recitals 639 and 637 of the Candle Waxes decision.

263    First, contrary to the applicant’s submissions, recital 639 of the Candle Waxes decision does not show that the Commission took into account the last full business year of the participation of an undertaking in the infringement although that undertaking had established a joint venture with another undertaking during the year in question. In that recital, the Commission did not take into account the sales of 2002, the year during which the joint venture had been established, but only the sales from 1999 to 2001. Consequently, the problem of attributing the value of sales made by a joint venture did not arise in that case.

264    Secondly, in so far as the applicant refers to recital 637 of that decision, it must be held that that point does not relate to the establishment of a joint venture, but to the acquisition of a subsidiary which was not active in the sector concerned. Consequently, the problem of dividing the value of the sales made by a joint venture did not arise in that case, and, in any event, the value of the sales made by that subsidiary had no impact on the basic amount because its sales were not sales in connection with the infringement.

265    Therefore, the complaint alleging infringement of the principle of equality of treatment must also be rejected.

266    Consequently, the whole of the first part of the fourth plea must be rejected in so far as it seeks the annulment of the contested decision. Moreover, in the exercise of its unlimited jurisdiction, the Court considers that, for the reasons mentioned above, it was appropriate to choose 2001 as the reference period.

2.     The second part of the fourth plea, concerning the methodology used to establish the notional amount of the sales of the applicant in the EEA

267    Secondly, the applicant refers to section 8.3.2 of the contested decision, in which the Commission determined the notional value of the sales concerned of the applicant in the EEA so as to establish the basic amount of the fine.

268    In paragraphs 231 to 236 of the contested decision, the Commission decided not to take into account the actual amount of the sales concerned of the Japanese producers within the EEA. In that respect, the Commission stated that the Gentlemen’s Agreement was a market-sharing agreement. Consequently, if it used only the sales of the applicant for the EEA for the determination of the basic amount of the fine, the applicant’s fine would be zero. That result would not appropriately reflect the weight of the Japanese producers in the infringement and would reward them for having conformed to the Gentlemen’s Agreement. For those reasons the Commission decided to follow the methodology provided for in point 18 of the 2006 Guidelines, according to which, in a case where the cartel concerns a larger market than the EEA, the Commission may assess the market shares of the undertakings in that market and apply them to the aggregate sales within the EEA. The Commission justified that decision on the grounds that it sought to apply a balanced and non-arbitrary approach, to ensure deterrence and that it took into account the relative weight of each undertaking participating in the infringement, as well as the actual impact of each individual action of the undertakings on the free play of competition. The participants in the Gentlemen’s Agreement had intentionally renounced one of the most important parameters of the free play of competition, that is the acquisition of market shares. As they were worldwide producers, their participation had the consequence that their potential had not been used to the advantage of the EEA market. Finally, the Commission referred to point 37 of the 2006 Guidelines, according to which it is authorised to depart from the general methodology for the setting of the amounts of fines when the particularities of a given case or the need to achieve deterrence justify it.

269    The applicant pleads, principally, that the Commission did not comply with the 2006 Guidelines and, in the alternative, that the methodology provided for in the 2006 Guidelines is inconsistent with the principle of proportionality and is not appropriate.

a)     The complaint alleging non-compliance with the 2006 Guidelines

270    The applicant submits that the Commission misinterpreted point 18 of the 2006 Guidelines. According to the applicant, the relevant geographic area covered by the cartel is at most the EEA and Japan. The applicant contends that the fact that the addressees of the contested decision are worldwide producers is irrelevant for the application of point 18. According to the applicant, the Commission should therefore have assessed the total value of the applicant’s sales of power transformers in Europe and Japan instead of taking into account its sales on the worldwide market, thereby resulting in a disproportionate fine that was made higher.

271    In that regard, it must be held that, in so far as the applicant submits that the Commission did not comply with the 2006 Guidelines, the applicant pleads, in essence, infringement of the principle of legal certainty. It should therefore be examined whether the Commission departed without justification from the 2006 Guidelines.

272    In that respect, it must be held that, according to point 13 of the 2006 Guidelines, the Commission takes, in principle, the value of the undertaking’s sales to which the infringement relates in the relevant geographic area within the EEA. Point 18 of the 2006 Guidelines provides, however, for an exception to that principle. It reads 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.’

273    It must be stated that the Commission’s approach in the present case corresponds exactly to the methodology provided for in point 18 of the 2006 Guidelines.

274    First, it must be held that point 18 of the 2006 Guidelines is applicable in the present case. Contrary to the applicant’s submissions, the barriers to entry to the EEA market do not preclude the applicability of that point of the 2006 Guidelines. It covers precisely a case like the present case, in which worldwide traders decide not to compete against each other in the EEA and in the European Union, in which the barriers to entry to the European market are not insurmountable (see paragraphs 225 to 236 above) and in which the value of sales in the EEA of an undertaking which has waived a right to gain market shares in the EEA does not adequately reflect the weight of its infringement.

275    Secondly, by taking into account the worldwide market share of the applicant to determine its (notional) market share in the EEA, the Commission also followed the methodology provided for in point 18 of the 2006 Guidelines. Point 18 of those Guidelines provides that, in order to determine the market share of an undertaking in the EEA, the Commission may assess the total value of the sales to which the infringement relates in the relevant geographic area. Contrary to the applicant’s submissions, in the present case, the relevant geographic area does not consist only of the EEA and of Japan. In so far as point 18 of the 2006 Guidelines mentions the relevant geographic area, it refers to the relevant geographic market within the meaning of the Commission notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5). In the present case, since the Commission stated in paragraph 236 of the contested decision that the Gentlemen’s Agreement had the result that the worldwide, competitive potential of the undertakings concerned had not been used to the advantage of the EEA market, it did not infringe point 18 of the 2006 Guidelines by determining the notional market share of the applicant in the EEA by relying on its notional market share at worldwide level.

276    Furthermore, the approach supported by the applicant, according to which only the sales in the EEA and those in Japan must be taken into account because only those sales would be affected by the Gentlemen’s Agreement, is manifestly contrary to the objective pursued by point 18 of the 2006 Guidelines. That point seeks to determine the weight of each undertaking in the infringement by determining notional sales values in the EEA. In that respect, the Commission relies on the presumption that, in the absence of the market-sharing agreement under which the Japanese producers refrained from competing with European producers in Europe, the market shares of the Japanese producers would be equivalent to their market shares on the worldwide market. It follows that, in the present case, not only the sales in the EEA and in Japan, but also all of the worldwide sales of the undertakings in question, must be taken into account.

277    Thirdly, the applicant contends that the Commission was not entitled to postulate that the applicant had an EEA market share equal to that of its worldwide market, but should have taken into account the barriers to entry to the European market. In so far as that complaint relates to an infringement of point 18 of the Guidelines, it must also be rejected. That point provides precisely for such a methodology.

278    The complaint alleging an infringement of the principle of legal certainty because of the infringement of the 2006 Guidelines must therefore be rejected.

b)     The proportionality and the appropriateness of the method provided for in point 18 of the 2006 Guidelines

279    The applicant contends that the application of the methodology provided for in point 18 of the Guidelines to the present case, in which there were very high barriers to entry to the European market, is contrary to the principle of proportionality or, at least, inappropriate. According to the applicant, the Commission should take into consideration the actual impact of the infringement when establishing the amount of the fine. The applicant contends that in the present case, however, the methodology provided for in point 18 of the Guidelines is excessively abstract. The applicant submits that the amount of the fine is therefore disproportionate and contrary to Article 49 of the Charter of Fundamental Rights of the European Union.

280    It is therefore necessary to examine whether the applicants received a fine the amount of which properly reflects the gravity and the duration of the infringement in question, so that the fines are proportionate in the light of the criteria set out in Article 23(3) of Regulation No 1/2003, and which is consistent with Article 49(3) of the Charter of Fundamental Rights.

281    First of all, the Court considers that, in the present case, since the applicant participated in a market-sharing agreement designed to restrict access by Japanese producers to the EEA, the Commission rightly held that it would not be appropriate to apply a methodology which is 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 Gentlemen’s Agreement.

282    The Court also considers that, 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.

283    As the Court has already held in respect of a market-sharing agreement between undertakings which compete at a worldwide level, 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 (Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 198, and judgments of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 186).

284    Having regard to the extremely harmful nature of a market-sharing agreement, one of the most serious infringements of Article 81 EC, the imposition of sufficiently dissuasive penalties against non-European producers which undertake not to compete with European producers in their territory is justified.

285    Contrary to the applicant’s submissions, it is unnecessary in the present case to examine what market share it would have had in the EEA in the absence of the Gentlemen’s Agreement.

286    First, it must be held that, by participating in a market-sharing agreement which was aimed at restricting the access of Japanese producers to the EEA, the applicant itself contributed to circumstances in which its actual sales in the EEA cannot be used as a factor reflecting its relative weight in the infringement.

287    Secondly, the Court rejects the applicant’s complaint that the methodology set out in point 18 of the Guidelines is not consistent with the case-law because it is a mere presumption.

288    Contrary to the applicant’s submissions, the methodology set out in paragraph 18 of the 2006 Guidelines is not a mere presumption. As stated above, in a case such as the present, 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 the case-law mentioned in paragraph 283 above). Moreover, an approach which takes into account 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.

289    As for paragraphs 82 and 83 of Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, which the applicant cites in support of its argument, it must be stated that those paragraphs do not concern the application of the 2006 Guidelines, but that of 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 set out a different methodology for the determination of the basic amount. Consequently, that case-law is hardly transposable to the fixing of the basic amount pursuant to the 2006 Guidelines.

290    Thirdly, contrary to the applicant’s submissions, it is not necessary to consider what the economic effects would have been in the absence of the Gentlemen’s Agreement, by using the tools which the Commission uses concerning mergers. It is not obvious that such a forecast would be capable of more appropriately reflecting the weight of the applicant in the infringement than the methodology set out in point 18 of the 2006 Guidelines.

291    It must therefore be held that the methodology set out in paragraph 18 of the Guidelines is consistent with Article 23(3) of Regulation No 1/2003 and is not contrary to Article 49(3) of the Charter of Fundamental Rights.

292    Moreover, in the exercise of its unlimited jurisdiction, the Court considers that, for the reasons mentioned above, the application of the methodology set out in point 18 of the Guidelines is appropriate in the present case.

293    Therefore, the second part of the fourth plea must be rejected, and, accordingly, the fourth plea in its entirety.

294    In the light of the foregoing, the claims for annulment must be rejected in their entirety.

295    In addition, as regards the application, submitted in the alternative, for alteration of the amount of the fine imposed on the applicant, in the light of the foregoing considerations in particular, there is no cause for the Court, in the exercise of its unlimited jurisdiction, to uphold that application.

296    Finally, since all the pleas must be rejected, the head of claim seeking the grant of such other order as might be necessary to give effect to the judgment of the Court must also be rejected and it is not necessary to give a ruling as to its admissibility.

 Costs

297    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to pay the costs.

298    On those grounds,

THE GENERAL COURT (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Toshiba Corp. to pay the costs.

Czúcz Labucka Gratsias

Delivered in open court in Luxembourg on 21 May 2014.

[Signatures]

Table of contents

Background to the case and contested decision

Procedure and forms of order sought

Law

A –  The first plea, alleging that the Commission has failed to establish the existence of an unlawful cartel and the applicant’s participation in it

1.  The notion of unlawful cartel, its proof and judicial review

2.  The first part of the first plea, relating to the probative value of the items of evidence relied on by the Commission

a)  The statements of Siemens and Fuji

The probative value of declarations made in a leniency application

The complaint alleging the contradictory nature of Fuji’s statements

b)  Hitachi’s letter of 30 March 2009

c)  The documentary evidence

The documents concerning the Tokyo meeting of 18 and 19 February 2002

–  The content of the documents

–  The probative value of the documents

The other documents

d)  The content and the probative value of the statements of Areva, of ABB and of the applicant

The statements of Areva

The statements of ABB

The applicant’s statements

3.  The second part of the first plea, relating to infringement of the in dubio pro reo principle

4.  The third part of the first plea, put forward in the reply

B –  The third plea, relating to the Commission’s findings on the duration of the infringement and the applicant’s participation in it

1.  The first part of the third plea, relating to an error concerning the starting date of the infringement

a)  The choice of the Malaga meeting of 9 to 11 June 1999 as the beginning of the infringement

b)  The applicant’s participation in the Malaga meeting

c)  The anti-competitive object of the meetings preceding the Tokyo meeting of 18 and 19 February 2002

2.  The second part of the third plea, relating to the end of the infringement

a)  The distancing from the Gentlemen’s Agreement during the Vienna meeting of 26 and 27 September 2002

b)  The participation of the applicant in the Gentlemen’s Agreement until the Zurich meeting of 15 and 16 May 2003

C –  The second plea, alleging that the Commission did not prove a restriction of competition and an effect on trade

1.  Restriction of competition

2.  The effect on trade

D –  The fourth plea, alleging errors concerning the setting of the amount of the fine

1.  The first part of the fourth plea, relating to the choice of 2001 as the reference period

a)  The principle of legal certainty

b)  The principle of equality of treatment

2.  The second part of the fourth plea, concerning the methodology used to establish the notional amount of the sales of the applicant in the EEA

a)  The complaint alleging non-compliance with the 2006 Guidelines

b)  The proportionality and the appropriateness of the method provided for in point 18 of the 2006 Guidelines

Costs

* Language of the case: English.