JUDGMENT OF THE GENERAL COURT (Third Chamber)
20 March 2014 (*)
(Competition – Agreements, decisions and concerted practices – European markets in ESBO/esters heat stabilisers – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Fixing prices, allocating markets and customers and exchanging commercially sensitive information – Proof of one aspect of the infringement – Fines – Equal treatment – Good administration – Reasonable time – Proportionality)
In Case T‑46/10,
Faci SpA, established in Carasco (Italy), represented by S. Piccardo, lawyer, S. Crosby, Solicitor, and S. Santoro, lawyer,
applicant,
v
European Commission, represented initially by K. Mojzesowicz, F. Ronkes Agerbeek and J. Bourke, subsequently by F. Ronkes Agerbeek, J. Bourke and F. Castilla Contreras and lastly by F. Ronkes Agerbeek, F. Castilla Contreras and R. Sauer, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 – Heat Stabilisers), or, in the alternative, for annulment of the fine imposed on the applicant or a reduction in its amount,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: J. Weychert, Administrator,
having regard to the written procedure and further to the hearing on 18 September 2012,
gives the following
Judgment
Background to the dispute
1 This case concerns Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 – Heat Stabilisers) (‘the contested decision’; summarised in OJ 2010 C 307, p. 9).
2 By the contested decision, the Commission of the European Communities found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two groups of agreements and anti-competitive concerted practices covering the territory of the EEA and concerning, on the one hand, the tin heat stabiliser sector and, on the other, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).
3 The contested decision finds that there had been two infringements relating to two categories of heat stabilisers, which are products added to polyvinyl chloride (PVC) products in order to improve their thermal resistance (see recital 3 of the contested decision).
4 According to Article 1 of the contested decision, each of those infringements consisted in fixing prices, allocating markets through sales quotas, allocating customers and exchanging commercially sensitive information, in particular on customers, production and sales.
5 The contested decision states that the undertakings concerned participated in those infringements during several periods between 24 February 1987 and 21 March 2000, in the case of tin stabilisers, and between 11 September 1991 and 26 September 2000, in the ESBO/esters sector.
6 The applicant, Faci SpA is a company incorporated under Italian law established in Carasco (Italy), also with a presence in the United Kingdom and Spain, which manufactures and sells, inter alia, epoxidised soybean oil and esters (see recital 60 of the contested decision)
7 The investigation leading to the adoption of the contested decision was initiated following the submission by Chemtura on 26 November 2002 of a request for immunity, under the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’ (see recitals 79 and 80 of the contested decision).
8 On 12 and 13 February 2003 the Commission carried out inspections at the premises of CECA (France), Baerlocher (Germany, France, Italy and the United Kingdom), Reagens (Italy), Akcros (United Kingdom) and Rohm & Haas (France) pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87).
9 During the Akcros inspection the representatives of that company informed the Commission officials that certain documents were covered by legal professional privilege (see recital 81 of the contested decision). The claim to that protection was subsequently the subject of legal proceedings, brought on 11 April and 4 July 2003 before the General Court, which culminated in its judgment of 17 September 2007 in Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523 dismissing the actions (recitals 84 to 90 of the contested decision) (‘the Akzo proceedings’).
10 On 8 October 2007 and on several occasions in 2008, the Commission sent out requests for information to the undertakings concerned, including the applicant, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (see recitals 91 and 92 of the contested decision).
11 On 17 March 2009 the Commission adopted a statement of objections which was sent to several companies, including the applicant, on 18 March 2009 (recital 95 of the contested decision).
12 The applicant replied to the statement of objections on 25 May 2009.
13 On 11 November 2009 the Commission adopted the contested decision, the applicant being given notice thereof on 19 November 2009.
14 Article 1 of the contested decision holds the applicant liable for having participated, from 6 November 1996 until 26 September 2000, in a complex of agreements and concerted practices in the ESBO/esters sector covering the entire EEA and consisting in fixing prices, allocating markets through sales quotas, allocating customers and exchanging commercially sensitive information, in particular on customers, production and sales.
15 In order to set the amount of the fines, the Commission applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2) (‘the 2006 Guidelines’).
16 Article 2 of the contested decision states the following:
‘For the infringement(s) in the ESBO/esters sector ... the following fines are imposed:
…
38) Faci S.p.A is liable for EUR 5 940 000;
…’
Procedure and forms of order sought by the parties
17 By application lodged at the Registry of the General Court on 28 January 2010, the applicant brought the present action.
18 Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
19 As measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of the General Court, the Court requested inter alia that the applicant clarify which pleas it relied on in seeking the annulment of the contested decision and which it relied on only in seeking variation of the amount of the fine imposed.
20 The applicant replied to that question within the time allowed.
21 Further, the Commission was asked to produce to the Court the transcript of the statements made pursuant to the 2002 Leniency Notice and referred to in the statement of defence.
22 The Commission produced those statements within the time allowed.
23 At the applicant’s request, its legal representatives were able to have access to those statements before the hearing.
24 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 18 September 2012.
25 At the hearing, the applicant withdrew one of its heads of claim, namely its request in the application that the Court annul the contested decision in so far as the Commission granted a reduction of the fine imposed on another undertaking, Baerlocher, or lower substantially the amount of that reduction, and the Court took formal note.
26 The applicant claims that the Court should:
– annul the contested decision in so far as the Commission found that Faci colluded to fix prices, allocate markets through sales quotas and allocate customers on the ESBO/esters market;
– annul the fine imposed on it or substantially reduce its amount;
– order the Commission to pay the costs.
27 The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicant to pay the costs.
Law
28 The applicant puts forward five pleas in law in support of its action.
29 In its first plea in law, the applicant identifies a number of manifest errors of assessment, in that the Commission found that it had colluded to fix prices, allocate markets through sales quotas and allocate customers on the ESBO/esters market.
30 In its second plea, the applicant claims that there was an infringement of the principle of equal treatment. That plea consists of two parts, the first relating to the calculation of the amount of the fine and the second relating to information about the administrative procedure.
31 In its third plea in law, the applicant criticises the duration of the administrative procedure. That plea consists of two parts, the first relating to the principle of good administration and the second to the principle of equal treatment.
32 In its fourth plea in law, the applicant contests the reduction granted to another undertaking affected by the contested decision. That plea consists of two parts, the first relating to the principle of equal treatment and the second relating to the duty to state reasons.
33 In its fifth plea in law, the applicant claims that the Commission was in breach of the 2006 Guidelines and the principle of proportionality.
34 Consequently, it is clear that the applicant claims that there were infringements of Article 81 EC and Article 53 of the EEA Agreement (the first plea); the principle of equal treatment (the second plea in law, the second part of the third plea in law and the first part of the fourth plea in law); the principle of good administration (the first part of the third plea in law); the obligation to state reasons (the second part of the fourth plea in law), and the 2006 Guidelines and the principle of proportionality (the fifth plea in law).
The first plea in law: infringements of Article 81 EC and Article 53 of the EEA Agreement, in that the Commission committed a number of manifest errors of assessment in finding that the applicant had colluded to fix prices, allocate markets through sales quotas and allocate customers on the ESBO/esters market
35 In its first plea in law, the applicant states that, in the contested decision, the Commission penalised two constituents of an infringement, namely, on the one hand, the fixing of prices and allocation of markets through sales quotas, and also the allocation of customers on the ESBO/esters market (‘the first aspect of the infringement’) and, on the other, the exchange of commercially sensitive information, in particular on customers, production and sales (‘the second aspect of the infringement’).
36 While the applicant admits having participated in the second aspect of the infringement, namely the exchange of commercially sensitive information, for its entire duration, the applicant claims that the contested decision is vitiated by the Commission’s numerous manifest errors of assessment by also holding that it was liable in respect of the first aspect of the infringement.
37 According to the applicant, the Commission itself accepted, in the contested decision, that, first, the nature of the ESBO/esters sector cartel had changed ‘in February/July 1996’, in that it was agreed no longer to implement the cartel, and, secondly, the applicant had not joined the cartel until November 1996.
38 The applicant claims that it participated in the cartel only in the last of its three phases, those three phases being, according to the applicant, from May 1980 until March 1987 – for which the Commission has no evidence of an infringement –, from March 1987 until November 1996 (‘the second phase of the cartel’) and from November 1996 until September 2000 (‘the third phase of the cartel’).
39 According to the applicant, before the start of the third phase of the cartel, its members had already agreed to remove the mechanisms for monitoring compliance with the terms of the cartel.
40 The applicant claims that, in the third phase of the cartel, there were no decisions on quotas, price agreements, or allocation of customers.
41 First, the applicant submits that the evidence adduced indicates at most that commercially sensitive information was being exchanged, since the elements which characterised the second phase (quota arrangements, customer allocation and price-fixing) no longer existed at the end of that phase and that, in any event, the applicant did not have any quotas or allocated customers and freely fixed its prices.
42 Secondly, the Commission, according to the applicant, committed various manifest errors of assessment, by understating the evidence for the second phase of the cartel and attaching too much importance to the evidence concerning the third phase of the cartel.
43 While the Commission concedes that, from November 1996, the members of the cartel changed methods and that its implementation and monitoring were less rigorous, which the Commission took into account when calculating the amount of the fine, it does not accept the applicant’s argument that, from that date, in other words during the third phase of the cartel, the cartel consisted of no more than the exchange of commercially sensitive information.
44 Consequently, in order to assess the applicant’s first plea in law, it is necessary to determine whether, in the contested decision, the Commission established, to the requisite legal standard, that the applicant participated in the first aspect of the infringement during the third phase of the cartel.
Reminder of the relevant case-law
45 It must be noted that, as regards the evidence to be produced of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58; Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86; and Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, paragraph 62).
46 It is therefore necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place (see Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR I‑2501, paragraph 179 and case-law cited).
47 Admittedly, if the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 16, and Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraphs 126 and 127).
48 However, it is also apparent from the case-law that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement, since it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement (JFE Engineering and Others v Commission, paragraph 180, and judgment of 8 July 2008 in Case T‑54/03 Lafarge v Commission, not published in the ECR, paragraphs 56 and 271).
49 It must also be taken into consideration that since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 55).
50 Further, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by inferences (Aalborg Portland and Others v Commission, paragraph 56).
51 Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (Aalborg Portland and Others v Commission, paragraph 57).
52 Further, according to the case-law, if there is no evidence directly establishing the full duration of an infringement, the Commission should adduce, at the least, evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (see, to that effect, Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79, and Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 132).
53 The Court of Justice has also held that, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti-competitive nature, the General Court was entitled to consider that it was for that undertaking to provide another explanation of the tenor of those meetings. In taking that approach, the General Court did not improperly reverse the burden of proof or set aside the principle of the presumption of innocence (Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraph 181).
54 Likewise, where the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned because of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls into question the probative value of the evidence relied on by the Commission (Case T‑141/08 E. ON Energie v Commission [2010] ECR II‑5761, paragraph 56).
55 Moreover, in accordance with settled case-law, to prove to the requisite legal standard that an undertaking participated in a cartel, it is sufficient to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention, by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see, to that effect, Aalborg Portland and Others v Commission, paragraph 81, and Case C‑510/06 P Archer Daniels Midland v Commission [2009] ECR I_1843, paragraph 119).
56 It is in the light of those considerations that the Court must determine whether the Commission has established to the requisite legal standard, in the contested decision, the participation of the applicant in the first aspect of the infringement during the third phase of the cartel.
The applicant’s unlawful conduct
57 In this case, it must first be observed that, while the applicant denies having participated, during the third phase of the cartel, in the first aspect of the infringement, since that first aspect had, according to the applicant, ceased to exist at the end of the second phase of the cartel, the applicant expressly admits, in its written pleadings submitted to the Court, that it participated in the second aspect of the infringement, namely in the exchange of commercially sensitive information, for the entire period identified by the Commission as far as the applicant was concerned, namely from 6 November 1996 to 26 September 2000, which the applicant confirmed at the hearing in reply to a question from the Court to that effect.
58 It must also be stated that the applicant does not dispute that almost all the undertakings which participated in the second phase of the cartel and also in the first aspect of the infringement equally participated in the third phase of the cartel.
59 The applicant further does not dispute that the second and third phases of the cartel were ‘facilitated’ by Mr S., an employee of AC-Treuhand, by means of meetings organised, particularly in Switzerland, by AC-Treuhand (‘the AC‑Treuhand meetings’).
60 Moreover, the applicant does not claim that, during the third phase of the cartel, it publicly distanced itself from the AC-Treuhand meetings.
61 Consequently, in order to assess the applicant’s first plea in law, it is sufficient to determine whether the Commission, in the contested decision, established, to the requisite legal standard, that the AC-Treuhand meetings which the applicant attended during the third phase of the cartel, that is, between 6 November 1996 and 26 September 2000, had an anti-competitive object which included the first aspect of the infringement, namely the fixing of prices and allocation of markets through sales quotas, and also the allocation of customers on the ESBO/esters market.
62 In the contested decision, first, in respect of 1996, the Commission referred to Ciba’s handwritten notes of 6 November 1996, obtained as part of the cooperation of that undertaking during the administrative procedure.
63 It is apparent from those notes, drafted at the time of an AC-Treuhand meeting of 6 November 1996, which the applicant, as it does not dispute, attended, that the participating undertakings agreed on target prices for France (see recital 256 of the contested decision), a matter which the applicant does not expressly dispute in its written pleadings submitted to the Court.
64 Second, in respect of 1997, the Commission produced in the contested decision handwritten notes of Reagens, seized by the Commission during an inspection at the premises of that undertaking, drafted in October 1997 and commencing with the words, in capital letters, ‘very confidential’ and ‘please read and destroy’ (‘the Reagens notes of October 1997’).
65 It is apparent from the Reagens notes of October 1997, drafted at the time of a meeting of 14 October 1997 in Milan (Italy) which the applicant, as it does not dispute, attended, that the participating undertakings not only exchanged commercially sensitive information on their production capacities, but also fixed ‘minimum prices’ and ‘special minimum prices’ (see recital 268 of the contested decision). It is also clearly apparent from those notes that that meeting had been preceded by and would be followed, on 25 November 1997, by, another meeting involving the same participants.
66 Third, in respect of 1998, the applicant attended eight AC-Treuhand meetings, organised on 11 and 12 March, 20 and 25 May, 20 July, 13 August and 19 and 20 October (recital 278 of the contested decision), as it does not dispute.
67 Fourth, as regards the AC-Treuhand meeting which took place in Switzerland on 12 March 1998 and which the applicant, as it does not dispute, attended, the Commission produced notes by the representative of CECA (‘the CECA notes of March 1998’), that undertaking having also attended that meeting (see recital 279 of the contested decision).
68 It is apparent from the CECA notes of March 1998 that the participating undertakings not only exchanged commercially sensitive information on their respective market shares in Western Europe for the years 1996 and 1997, but also, first, discussed price increases for the second quarter of 1998 in a number of European states and, secondly, agreed on a minimum price and a target price to be achieved by the end of 1998, the content of those notes being supported by the Ciba notes of 12 March 1998, obtained as part of the cooperation of that undertaking during the administrative procedure (see recital 280 of the contested decision).
69 Fifth, as regards the AC-Treuhand meeting which took place in Zurich on 20 May 1998 which the applicant, as it does not dispute, attended, the Commission relies on notes drafted by CECA (‘the CECA notes of May 1998’), that undertaking having also attended the meeting (see recital 281 of the contested decision).
70 The CECA notes of May 1998 show, for the months of January, February, March and April 1998, concerning Western Europe and Eastern Europe, the market shares of the various undertakings, including the applicant, as it does not dispute, in a column headed ‘Quotas’.
71 Sixth, as regards the AC-Treuhand meeting which took place in Zurich on 25 May 1998 which the applicant, as it does not dispute, attended, the Commission relied, in recital 282 of the contested decision, on contemporaneous handwritten notes of that meeting drafted by an employee of Arkema (‘the Arkema notes of May 1998’) and on contemporaneous handwritten notes of that meeting drafted by an employee of Ciba.
72 It is apparent from the Arkema notes of May 1998 that the participating undertakings exchanged commercially sensitive information not only on the various price levels to be applied in a number of European states, but also on ‘quotas’ and sales volumes of the participating undertakings, including the applicant.
73 The content of the Arkema notes of May 1998 is supported by the abovementioned notes of May 1998 drafted by an employee of Ciba, from which it is further apparent that the participating undertakings also agreed on new target prices to be applied from June and July 1998.
74 Seventh, as regards the AC-Treuhand meeting which took place in Lugano (Switzerland) on 20 July 1998 which the applicant, as it does not dispute, attended, the Commission relied, in recital 284 of the contested decision, on contemporaneous handwritten notes of that meeting drafted by an employee of CECA (‘the CECA notes of July 1998’) and on contemporaneous handwritten notes of that meeting drafted by an employee of Ciba (‘the Ciba notes of July 1998’).
75 It is apparent from the CECA notes of July 1998 that the participating undertakings discussed sales volumes and prices, and also that they agreed new quotas and new target and minimum prices, those notes containing the wording ‘Guideline: 1,95 now (no decrease)’.
76 The Ciba notes of July 1998 contain wording of the same kind, namely: ‘No price reduction! [Objective]: 1,95 DM’.
77 Eighth, as regards the AC-Treuhand meeting of 20 October 1998, which the applicant, as it does not dispute, attended, the Commission relied, in recital 287 of the contested decision, on contemporaneous handwritten notes drafted at the time of that meeting by an employee of Ciba (‘the Ciba notes of October 1998’).
78 The Ciba notes of October 1998 contain a table showing the allocation of customers between the participating undertakings, including the applicant, and the prices applied for each of them, which the applicant does not expressly dispute in its written pleadings.
79 Ninth, in respect of 1999, eight AC-Treuhand meetings which the applicant attended took place, namely two in January, two in May and two in September as well as one on 14 and another on 15 December (see recital 305 of the contested decision), as the applicant does not dispute.
80 Tenth, the Commission stated that Chemtura’s monthly report for August 1999, dated 16 September 1999, indicated that the undertakings had succeeded ‘with a price increase of about 10% for [the ESBO/esters sector] effective in October’ (see recital 308 of the contested decision).
81 Eleventh, the Commission produced the handwritten notes of one of the Arkema employees reporting on an AC-Treuhand meeting of 29 September 1999, which the applicant attended (see recital 309 of the contested decision), as it does not dispute.
82 Those notes in September 1999 by an Arkema employee record an agreement on prices with the wording ‘oct. min. 1,9 nov. 2,0 DM’.
83 Twelfth, the Commission reproduced, in recital 284 of the contested decision, an e-mail from Chemtura, dated 23 November 1999 and headed ‘Developments with ESBO[/esters] price increases’, worded as follows:
‘ESBO[/esters], after price increase early this year, April announcement, we lost too much volume and decreased the price again. ... Since August, price has increased by 0.1 DM per kilogramme, per month, in order to reach a minimum pricing of 2.10 DM per kilogramme to the end of the year. Realised average increase ca. 7% expected more that 10% by December.’
84 Thirteenth, as regards the year 2000, five AC-Treuhand meetings, at which the applicant attended, took place, namely two in March, one in June and two in September (see recital 316 of the contested decision), which the applicant does not dispute.
85 Fourteenth, in recital 317 of the contested decision, the Commission referred to a memorandum dated 16 February 2000 and drafted by an Akcros employee for one of his superiors (‘the Akcros memorandum’) which is not contested by the applicant and should be reproduced in its entirety, as follows:
‘I spoke with Marketing Managers, who have between them substantial history in the EU stabiliser markets … Today we and most of our EU competitors participate in industrial groups (one for ESBO and one for [tin stabilisers]) whose major function it is to consolidate market information in the form of tonnes sales each month … This information is sent in to AC-Treuhand, Switzerland by each member company, the results of which are sent back out to the participants in total. … No competitive information is seen. This, to me, seems quite above board and useful. However, two to four times per year the member companies come together in Switzerland to discuss issues of common interest such as market outlooks, trends, activities of non-member companies and the like. While the actual meeting chaired by AC-Treuhand does not seem improper, it was indicated to me that while together, competitors do have conversations about price levels and customers. It is for this reason, I would recommend that we indicate to AC-Treuhand that we will no longer participate in the meetings, but will send in our sales information to take advantage of that service. The situation over two years before in these groups was altogether different. Then so-called “red papers” were generated, which contained minutes from the meetings detailing group decisions to raise prices and divide markets. Specific customers were discussed as well. These minutes were not distributed, but were kept in AC-Treuhand’s files which were “safe” as Switzerland was not an EU member. In 1996 or 1997, this type of meeting no longer took place, presumably because of the increased pressure to not do business like this as laws and enforcement became more stringent. More than one member of the Tins group has put pressure upon our representative to go back to this situation where price fixing and market allocation was regularly done at the AC-Treuhand meetings. Barloecher is applying the greatest amount of such pressure upon us and other members who are not in favour of such an arrangement. They talk specifically about “freezing” market shares, whereas if one member increases his share by taking an account, he would have to give back another account to balance things out again. This would be confirmed via monthly quota checks. We will not agree to participate in such improper activities, and this is one more reason why we should back off from these meetings ... In summary, there seemingly were improper meetings/discussions in which Akcros did participate. Although we probably do still have the occasional discussion that might be considered to be wrong, no longer do we participate in the formal meetings that are clearly inappropriate. I would recommend the following: (1) Notify AC-Treuhand that we will no longer attend meetings in Switzerland for the Tin and [ESBO/esters] groups, although we will continue to send in our sales data as before [;] (2) Have … put on awareness training that our Marketing Managers (and others) must attend so that they know clearly what actions they can and cannot take related to contact with competitors. Please let me know if you agree to these suggestions’.
86 Fifteenth, and to support its interpretation of the Akcros memorandum, the Commission stated in recital 318 of the contested decision that Akzo had admitted that the Akcros memorandum had been preceded by the handwritten notes of the author of that memorandum (‘the handwritten Akcros notes’), from which it is clear, as the applicant does not dispute, that there had been discussions which were ‘not written up’ concerning ‘price levels’ which ‘need[ed] to go up’, or ‘be supported’, and on ‘some customer[s]’, and, moreover, that the meetings had taken place in ‘Switzerland – not EU member’, as they ‘can’t get raided’.
87 Sixteenth, the Commission referred to the minutes of a meeting of 26 September 2000 organised by AC-Treuhand in Italy, which it had obtained from Chemson during the administrative procedure and which mentioned the possibility that ‘cooperation’ might not be carried on ‘as in the past’ (see recital 323 of the contested decision), which the applicant does not dispute.
88 In the light of all the foregoing, taken together, the Court considers that the Commission has proved the participation of the applicant in the first aspect of the infringement during the third phase of the cartel relating to the ESBO/esters sector, by adducing evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting that first aspect of the infringement during the meetings attended by the applicant and from which it did not distance itself, and consequently the Commission referred, in the contested decision, to sufficient evidence to support the firm conviction that the applicant participated in the first aspect of the infringement relating to the ESBO/esters sector.
89 Taken as a whole, the various items of evidence referred to in paragraphs 62 to 87 of this judgment, establish, to the requisite legal standard, that, during the third phase of the cartel, the participants in that cartel agreed on the fixing of prices and the allocation of customers by means of quotas, and consequently the collusion at issue went well beyond a mere exchange of commercially sensitive information.
90 That evidence clearly demonstrates that the meetings which the applicant attended had as their object the fixing of prices and the allocation of customers by means of quotas, with particular reference to the AC-Treuhand meetings held between 1996 and 2000, the Akcros memorandum, speaking of discussions on prices and quotas, and the handwritten Akcros notes, also mentioning discussions on prices and customers.
91 It follows that the AC-Treuhand meetings during the third phase of the cartel, which the applicant admits having attended, did not take a different turn, in respect of their anti-competitive object, from the previous meetings over several years, when the same undertakings and the same individuals were convened in the same context by Mr S.
92 Consequently, it must be held that the Commission referred, in the contested decision, to a body of evidence which, assessed as a whole, supports the firm conviction that the applicant participated in the first aspect of the infringement during the third phase of the cartel.
93 All the foregoing considerations cannot be called into question by the arguments of the applicant.
94 In essence, the applicant claims that none of the evidence brought together by the Commission refers to discussions on quotas or on the allocation of customers and that the evidence of discussions on price indicate that the participating undertakings were in disagreement or that the agreements on prices were never implemented. The applicant also emphasises its competitive conduct, in relation to the application of prices, and the fact that the Commission has itself admitted that the implementation of the cartel was less rigorous during its third phase. More generally, the applicant claims that the anti-competitive object of all the meetings which it attended was, at most, an exchange of commercially sensitive information.
95 However, none of the arguments relied on by the applicant to that effect can be accepted.
96 First, the applicant cannot complain that the Commission attached too little weight to or understated the evidence prior to 6 November 1996, since it was the responsibility of the Commission to establish its participation in the first aspect of the infringement, not during the second phase of the cartel, but during its third phase.
97 Second, for the same reason, the applicant cannot validly claim that the Commission attached too much weight to the evidence concerning the third phase of the cartel.
98 Third, for the reasons stated in paragraphs 89 to 92 of this judgment, nor can the applicant complain that the Commission ‘exaggerated’ the evidence relating to the third phase of the cartel.
99 Fourth, the applicant claims that the Reagens notes of October 1997 do not provide any evidence of an agreement intended to fix prices, since the notes use the conditional mood and since they were drafted by that undertaking in its capacity as a ‘visitor’ to the ESBO/esters group. The applicant thus claims that, since Reagens was not a supplier, but a purchaser, in the ESBO/esters sector, it was unlikely that the other undertakings participating in the cartel on that market would have fixed prices in its presence and that, in any event, the applicant did not comply with any agreement on prices, and freely pursued its own pricing policy.
100 That argument cannot be accepted.
101 First, it is very clear from the Reagens notes of October 1997 that the object of the Milan meeting in question was to fix minimum prices for the future and that those attending the meeting in question had already met previously and were going to meet again in the very near future.
102 Next, the fact that the author of those notes was not then a supplier, but a purchaser, on the market in question cannot rule out an agreement on prices by the other participating undertakings, particularly where, as the Commission stated without challenge from the applicant in its written pleadings submitted to the Court, Reagens was, according to the information provided by that undertaking to the Commission during the administrative procedure, contemplating entering the ESBO/esters market as a supplier.
103 Lastly, the applicant cannot rely on the fact that it was free to fix its prices, since that fact precludes not the existence of an agreement, but only the applicant’s compliance with that agreement (see, to that effect, Case T‑348/08 Aragonesas Industrias y Energía SAU v Commission [2011] ECR II‑7583, paragraph 297 and case-law cited).
104 Fifth, the applicant submits that, during 1998, the undertakings participating in the cartel never succeeded in reaching an agreement on prices, since the alleged agreement on minimum prices and on target prices to be achieved by the end of the year, discussed at the AC-Treuhand meeting of 12 March 1998, was never translated into practice, and consequently that alleged agreement was replaced almost immediately by persistent disagreements, as is clear from the evidence adduced by the Commission.
105 Nor can that argument be accepted.
106 It is apparent from the CECA notes of March 1998 that the undertakings did, at the meeting of 12 March 1998, at least agree on minimum prices and on target prices to be achieved by the end of 1998.
107 That finding cannot be called into question by the content of the CECA notes of May 1998, the Arkema notes of May 1998, the CECA notes of July 1998, the Ciba notes of July 1998 or the Ciba notes of October 1998, since, while those notes record prices which vary over time, the fact remains that they do not preclude the existence of an agreement on prices and an adverse effect on competition, but, at most, the non-implementation of an anti-competitive agreement by certain undertakings and repeated renegotiations of the terms of that agreement concerning prices.
108 That finding is, in any event, supported by the content of the Chemtura e-mail dated 23 November 1999, referred to above, its content being reproduced in paragraph 83 of this judgment.
109 Sixth, the applicant cannot validly rely on its independent pricing policy, since its failure to comply with the terms of the cartel cannot suffice to relieve it of liability for participation in that cartel (see, to that effect, Aragonesas Industrias y Energía SAU v Commission, paragraph 297 and case-law cited).
110 Seventh, the applicant claims that the evidence brought together by the Commission to support the finding that there was an allocation of customers and markets by means of quotas indicates, at most, no more than an exchange of commercially sensitive information.
111 The applicant maintains, in particular, that the Arkema notes of May 1998 show neither an allocation of quotas nor any deviation from quotas, but ‘actual’ market shares, as is stated in recital 281 of the contested decision, and the changes in those market shares resulting from the normal play of market forces.
112 The applicant also claims that, in 1995, in other words before joining the cartel, it built up its own customer base and that it subsequently kept it.
113 That argument cannot be accepted.
114 The term ‘quotas’ is expressly used in the Arkema notes of May 1998 and, contrary to what is claimed by the applicant, the Commission did not at all define that term as designating ‘actual’ market shares in recital 281 of the contested decision, but referred to ‘allocated [quotas] (initial and actual)’, and to ‘deviations from those [quotas] in the time period January – April 1998’.
115 Further, the fact that the applicant built up its own customer base in 1995, in other words before joining the cartel, and kept it subsequently, does not rule out the fact that customers and markets were allocated to it within the cartel. On the contrary, that fact is capable of demonstrating that its market shares, in terms of customers, were fixed within the cartel, in the sense that the other participating undertakings did not interfere with them, which is characteristic of an allocation of customers.
116 Eighth, the applicant does not accept the Commission’s interpretation of the Akcros memorandum, and claims that it is apparent from that memorandum that the situation of undertakings participating in the cartel concerning the ESBO/esters sector was ‘altogether different’ before the applicant joined them at the stage of the third phase of the cartel.
117 That argument cannot be accepted.
118 It is clear that the applicant does not take account of the full text of the Akcros memorandum, which is produced in its entirety in paragraph 85 of this judgment and which, it must be emphasised, dates from the first quarter of 2000.
119 It is in fact clear from that memorandum, particularly in the light of the handwritten Akcros notes, that, at the AC-Treuhand meetings which the applicant attended, discussions took place on prices, customers and markets and that the author of that memorandum recommended, in the first quarter of the year 2000, that Akcros formally distance itself from those meetings.
120 Ninth, the applicant’s submission that the Commission did not assess the significance of ‘discontinuing the auditing and enforcement system in February or July 1996’ is not persuasive.
121 In the first place, that fact cannot preclude the participation of the applicant, during the third phase of the cartel, in the first aspect of the infringement, since an absence of monitoring or failure to comply does not permit the inference that the cartel did not exist.
122 Next, it is clear that the Commission did not find, in the contested decision, that the cartel had not been implemented, but only that its implementation had been less rigorous during the third phase of the cartel, a factor the Commission took into account when setting the amount of the fine, as is apparent from recital 707 of the contested decision.
123 Consequently, the first plea in law must be rejected.
The second plea in law, the second part of the third plea in law and the first part of the fourth plea in law: infringements of the principle of equal treatment
124 In its second plea in law, the second part of the third plea in law and the first part of the fourth plea in law, the applicant pleads infringements of the principle of equal treatment.
125 Before assessing the arguments on which the applicant relies in support of its various complaints in that regard, it must be recalled that the effect of the principle of equal treatment is that it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 406; 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 219, and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 131).
The first part of the second plea in law
126 In the first part of its second plea in law, the applicant claims, in essence, that, when fixing the amount of the fines, the Commission infringed the principle of equal treatment by not taking account of the fact that, unlike the other penalised undertakings, it did not commit any hard core infringement.
127 The Commission thus applied a rate of 19% in respect of the variable amount based on sales values, for the purposes of Paragraphs 21 and 22 of the 2006 Guidelines, and in respect of the entry fee, for the purposes of Paragraph 25 of the 2006 Guidelines, for all the undertakings concerned, except for the applicant and Chemtura, for whom the Commission set a rate which was not sufficiently differentiated (18%), notwithstanding the significant differences in unlawful conduct, the fact that the applicant did not implement the agreements, its late entry into the cartel and the fact that the duration of its participation in the infringement was much shorter.
128 Further, by treating the applicant and Chemtura in the same way, the Commission infringed the principle of equal treatment, having regard, in particular, to Chemtura’s unlawful conduct.
129 In that regard, it must, as a preliminary point, be observed that, pursuant to Paragraphs 21 and 22 of the 2006 Guidelines, the Commission assessed the nature of the infringement, the market shares of participants, the geographic scope of the infringement and the implementation of the cartel. Given the very serious nature of the infringement, the Commission started with an amount equivalent to 16% of the value of sales. This was increased by 1% due to geographic scope and 1% due to the market share of the participants. Finally, the Commission considered that the infringement merited a further increase of 1% on account of the fact that there had been rigorous implementation of the cartel up to 1996.
130 However, as is stated in recital 706 of the contested decision, that last increase of 1% was not applied either to the applicant or to Chemtura, because they joined the cartel only on 6 November 1996 and 29 May 1998, respectively.
131 Thus, when assessing the gravity of the infringement, the Commission drew a distinction between, on the one hand, the applicant and Chemtura and, on the other, the other cartel members.
132 However, in the first place, the applicant complains that the Commission infringed the principle of equal treatment by failing to differentiate it sufficiently from the other undertakings with regard to the gravity of the infringement, although their situations were different.
133 It can be stated, as sufficient ground for the rejection of this complaint, that the Commission established, to the requisite legal standard, that the applicant had, exactly like all the other undertakings involved, participated in the two aspects of the infringement, as has been held in the assessment of the first plea in law, and consequently the Commission was not obliged, by the requirement of equal treatment, to fix, for the applicant, a rate significantly lower than that fixed for the undertakings which participated in the second phase of the cartel with regard to the gravity of the infringement.
134 The only difference between the situation of the applicant and that of the other undertakings concerned, of relevance in this context at the stage of calculating the amount of the fine, consisted in the fact that the cartel was not rigorously implemented during its third phase.
135 However, as stated above, the Commission’s calculation fully reflected that difference in situation by not taking account of a rigorous implementation of the cartel and by setting a lower rate for the applicant, and consequently the complaint cannot be made that the Commission infringed the principle of equal treatment on this point.
136 Likewise, the applicant cannot, in this context, claim that its entry into the cartel was late and that the duration of its participation in the infringement was shorter, since that argument relates not to the gravity of the infringement, but to its duration, which was fully taken into account by the Commission as regards the applicant, as is apparent from recital 713 of the contested decision.
137 In any event, the Court considers, in the exercise of its unlimited jurisdiction, that the rate applied for the applicant on the value of its sales in the relevant market and in respect of an entry fee are appropriate, having regard to the gravity of the infringement and the objective of deterrence.
138 Secondly, the applicant complains that the Commission infringed the principle of equal treatment by treating it in the same way as Chemtura, in terms of the rates set for the value of sales and entry fee, although their situations were different, since Chemtura had taken the place of a company, part of the same undertaking, which had participated in the second phase of the cartel, unlike the applicant.
139 That argument cannot be accepted.
140 While it is indeed true that Chemtura took the place of a company which had participated in the second phase of the cartel, which, unlike the third phase, involved the rigorous implementation of the cartel, it is clear that, in the contested decision, the Commission took account of that factor by adopting a reduced rate, as for the applicant, only in respect of the third phase of the cartel and not the second.
141 In any event, the applicant cannot rely, to its own benefit, on an unlawful act that may have been committed in favour of another party (Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 170), particularly where, in this case, the Court considers, in the exercise of its unlimited jurisdiction, that the rates applied in respect of the applicant on the value of its sales in the relevant market and for the entry fee are appropriate, having regard to the gravity of the infringement and the objective of deterrence.
142 Therefore, the first part of the second plea in law must be rejected.
The second part of the second plea in law
143 In the second part of its second plea in law, the applicant claims, in essence, that the treatment to which it was subject before the statement of objections was issued and that accorded to the other undertakings involved were not equal, in that it was informed that it was under investigation only at the time of the request for information of 8 October 2007, and not, unlike other undertakings, in 2003, following Chemtura’s request for the application of the 2002 Leniency Notice.
144 The Commission contends that it was not guilty of any unequal treatment by informing the applicant of the investigation only at the same time as the request for information of 8 October 2007, since it has a discretion as regards the order and time-frame within which it conducts the various procedural steps of its investigation and is under no obligation whatsoever to contact undertakings and to inform them that an investigation is underway before sending them a statement of objections.
145 In that regard, it must be stated that in the second part of its second plea in law the applicant is not claiming an infringement of the principle that the Commission should act within a reasonable time or an infringement of its rights of defence, but an infringement of the principle of equal treatment.
146 More specifically, the applicant claims that, unlike the undertakings which were informed before it was of the commencement of the administrative procedure, it was not in a position to build up at an earlier stage reserves for the payment of any fine.
147 Such an argument cannot succeed.
148 First, as the Commission correctly states, the Commission is under no obligation to inform at the same time all the undertakings involved in a cartel which is under investigation by it, and consequently there can be no unequal treatment in this context.
149 Secondly, if late information as to existence of an investigation has the effect declared by the applicant on the constitution of reserves, that cannot influence the Court’s assessment.
150 It must be observed, inter alia, that the applicant could have built up reserves as soon as it received the request for information of 8 October 2007 or the statement of objections of 17 March 2009 or again the notification of the contested decision on 19 November 2009. Similarly, the applicant had the option not to pay the fine immediately, but to provide a bank guarantee, which, it may be added, the Commission accepted, as the applicant does not dispute.
151 It must finally be noted that the applicant does not claim any inability to pay, for the purposes of paragraph 35 of the 2006 Guidelines, and that it made no request to the Commission in that context.
152 In any event, the Court considers, in the exercise of its unlimited jurisdiction, that the amount of the fine imposed on the applicant is appropriate having regard to the gravity of the infringement.
153 Therefore, the second part of the second plea in law must also be rejected, as consequently must the second plea in law in its entirety.
The second part of the third plea in law
154 In the second part of its third plea in law, the applicant claims, in essence, that the Commission infringed the principle of equal treatment by granting, to all the undertakings concerned, with the exception of Akzo, a reduction at the same rate, having regard to the duration of the administrative procedure, although the applicant was not informed of the investigation in 2003, but only in 2008.
155 Irrespective of whether the Commission is obliged, in the light of an administrative procedure of long duration, to grant reductions which differentiate undertakings, that argument cannot be accepted, since, for the applicant, the investigation was significantly less long than it was for some of the other undertakings involved.
156 As far as the applicant is concerned, the investigation commenced on 8 October 2007, via a request for information, and ended on 11 November 2009, with the adoption of the contested decision, and consequently the investigation lasted slightly more than two years and two months, whereas, for other undertakings, the investigation lasted more than six and a half years.
157 In any event, in the exercise of its unlimited jurisdiction, the Court considers that the reduction granted to the applicant is appropriate having regard to the circumstances of this case.
158 The second part of the third plea in law must therefore be rejected.
The first part of the fourth plea in law
159 In the first part of the fourth plea in law, the applicant claims that the Commission, by the contested decision, infringed the principle of equal treatment, by granting, pursuant to paragraph 35 of the 2006 Guidelines, a reduction to Baerlocher and not to itself.
160 According to the applicant, the reduction granted to Baerlocher is the equivalent of a subsidy and is therefore illegal, in that it distorted competition and infringed the principle of equal treatment.
161 The applicant claims that this plea in law is admissible since it is one of a defined group of undertakings whose position is altered by the reduction and that the reduction may have an influence on the calculation of the fine imposed on it.
162 On the substance, the applicant claims that the Commission did not take account of Baerlocher’s substantial financial reserves.
163 Baerlocher thus received an unjustified subsidy which had the effect of distorting competition.
164 That subsidy was granted contrary to the principle of equal treatment, having regard to the respective financial situations of Baerlocher and the applicant.
165 That complaint cannot be accepted.
166 It must be considered that, by that plea in law, the applicant is in essence claiming that the Commission was wrong not to have granted to it the benefit of Paragraph 35 of the 2006 Guidelines, although that benefit was granted to Baerlocher. In that regard, where any benefit of an exceptional reduction in the fine on account of economic difficulties pursuant to Paragraph 35 of the 2006 Guidelines is subject to inter alia the submission of a request (see, to that effect, Joined Cases T‑204/08 and T‑212/08 Team Relocations and Others v Commission [2011] ECR II‑3569, paragraph 171, and Case T‑199/08 Ziegler v Commission [2011] ECR II‑3507, paragraph 165), suffice it to observe that the applicant did not submit such a request. Its situation was therefore not comparable to that of Baerlocher who had submitted such a request.
167 Consequently, the first part of the fourth plea in law must be rejected.
The first part of the third plea in law: infringement of the principle of good administration because of the duration of the administrative procedure
168 In the first part of its third plea in law, the applicant claims that the Commission, by the contested decision, infringed the principle of good administration, having regard to the duration of the administrative procedure.
169 The applicant claims that, by not having acted within a reasonable period, the Commission infringed the principle of good administration, and this caused the applicant prejudice.
170 The applicant considers that the Commission could certainly have made use of the documents at issue in the Akzo proceedings, and consequently the Commission could not suspend its investigation for five years if it was to respect the principle of good administration.
171 The Commission contends that this argument should be rejected, stating that it acted diligently throughout the administrative procedure and that the excessive length of the procedure was caused by the Akzo proceedings, a factor which it took into account, exercising its discretion, by granting a reduction of 1% to all the undertakings, including the applicant, but excepting Akzo.
172 In that regard, it must be stated that, in the first part of its third plea in law, the applicant is in essence claiming an infringement of the principle of acting within a reasonable time.
173 It must however be recalled that, in accordance with settled case-law, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of law whose observance the Courts of the European Union must ensure (see Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831, paragraph 40 and case-law cited), that principle being enshrined in Article 41 of the Charter of Fundamental Rights of the European Union.
174 It is however also clear from the case-law that there is no legal basis for the annulment of a Commission decision, even when proceedings have been excessively long, unless it has been fully proved that it has adversely affected the rights of defence of the undertakings concerned and unless there is therefore reason to believe that the excessive length of the procedure had an effect on the content of the Commission’s decision (see, to that effect, Baustahlgewebe v Commission, paragraph 49, and Case T‑276/04 Compagnie maritime belge v Commission [2008] ECR II‑1277, paragraph 45).
175 Consequently, since the applicant does not claim infringement of its rights of defence by reason of the duration of the administrative procedure, its argument cannot be accepted.
176 In any event, it has been stated above that, as far as the applicant is concerned, the administrative procedure lasted only slightly more than two years and two months, with the result that the Commission cannot be criticised for being in breach of the principle that it must act within a reasonable time.
177 Further, the Court considers, exercising its unlimited jurisdiction, that, having regard to the gravity and duration of the infringement and also the procedural background of this case, the reduction in the amount of the fine granted to the applicant is entirely appropriate.
178 Accordingly, the first part of the third plea in law must also be rejected.
The second part of the fourth plea in law: infringement of the obligation to state reasons
179 In the second part of its fourth plea in law, the applicant claims that there was no adequate statement of reasons for the alleged subsidy granted to Baerlocher in the contested decision via the reduction in the amount of the fine permitted to it pursuant to Paragraph 35 of the 2006 Guidelines.
180 In that regard, it is clear that the applicant does not claim either that the statement of reasons in the contested decision did not allow it to be aware of the grounds for the measure adopted against it, or that that statement of reasons has not allowed the Court to carry out its review of the legality of the contested decision in so far as it concerns the applicant, and accordingly its argument cannot be accepted.
181 In any event, even were the view to be taken that the Commission did, pursuant to Paragraph 35 of the 2006 Guidelines, grant a subsidy to Baerlocher and thereby distorted free competition, and that the reasons stated in the contested decision in that regard are insufficient, the applicant cannot validly rely thereon in order to obtain the annulment of the contested decision, in so far as it concerns the applicant, or the variation of the decision as to the amount of the fine imposed on the applicant.
182 The applicant cannot rely, to its own benefit, on an unlawful act that may have been committed in favour of another party (Scandinavian Airlines System v Commission, paragraph 170).
183 The second part of the fourth plea in law must therefore be rejected.
The fifth plea in law: infringements of the 2006 Guidelines and the principle of proportionality
184 In its fifth plea in law, the applicant claims that the Commission infringed the 2006 Guidelines and the principle of proportionality and relies on seven grounds of complaint in support of that plea in law.
185 First, according to the applicant the Commission took into account acts which were not attributable to it in order to set the amount of the fine, as the applicant has shown in its first plea in law.
186 Second, the applicant, had, in the carrying out of the infringement, a secondary role which the Commission failed to take into account.
187 Third, the Commission erred in its assessment of the gravity of the infringement, by failing to take into account the change in the nature of the cartel before the applicant joined it.
188 Fourth, the Commission failed to take into consideration the applicant’s limited size and economic power, in particular by comparison with the other undertakings identified as offending, in terms of global turnover.
189 Fifth, the applicant complains that the Commission was wrong not to take into account its competitive conduct.
190 Sixth, the applicant complains that the Commission failed to take its cooperation into account.
191 Seventh, the applicant considers that it was not appropriate to impose on it an entry fee, since it did not participate in the first aspect of the infringement.
192 None of those grounds of complaint can succeed.
193 First, it is sufficient ground to reject the applicant’s first, second, third and seventh grounds of complaint to observe that the applicant repeats the arguments which it put forward in support of its first plea in law.
194 Consequently, for the same reasons as those which led to the rejection of the first plea in law, those grounds of complaint must be rejected.
195 Second, it is sufficient ground to reject the fourth ground of complaint to recall that the applicant did not submit to the Commission a request for a reduction on the basis of an inability to pay, for the purposes of Paragraph 35 of the Guidelines.
196 Further, it follows from settled case-law that the fact that the method of calculation set out in the Guidelines is not based on the overall turnover figures of the undertakings concerned and therefore allows disparities to appear between the undertakings as regards the relationship between their turnover figures and the amount of the fines imposed on them is irrelevant to an assessment of whether the Commission infringed the principles of proportionality and equal treatment. The Commission is not required, when determining fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover (Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087, paragraph 86 and case-law cited).
197 Third, in order to reject the fifth ground of complaint which the applicant puts forward in its fifth plea in law, that its conduct on the market was competitive, it must, first, be observed that the Commission, in recital 726 of the contested decision, stated that a cartel is a joint enterprise in which each participant may play its own particular role, and that while internal conflicts and rivalries, or even cheating, may occur, that will not prevent the arrangement from constituting an agreement or concerted practice for the purposes of Article 81 EC where there is a single, common and continuing objective.
198 In the same context, the Commission held that the applicant had not provided evidence that it had avoided implementing the agreements by adopting competitive conduct or by clearly and substantially acting in breach of the obligations relating to the implementation of the cartel to the point of disrupting its operation.
199 In recital 727 of the contested decision, the Commission added that the applicant had not adduced evidence demonstrating that it had publicly distanced itself from all the competitors participating in the cartel with regard to all its elements, but, on the contrary, it was proven that the applicant had continued to meet the other participants in the cartel and to discuss price increases, prices and sales volumes until the end of the cartel.
200 Next, it must be recalled that it follows from the case-law that the fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors is not necessarily something which has to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 490 and case-law cited).
201 An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit and an undertaking which does not distance itself from the results of a meeting in which it was present in principle retains full responsibility for the fact of its participation in the cartel. Therefore, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non‑implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the cartel in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition (see Raiffeisen Zentralbank Österreich and Others v Commission, paragraph 491 and case-law cited).
202 An undertaking participating in a cartel can be given the benefit of a mitigating circumstance only where the undertaking concerned has produced evidence that its participation in the infringement was substantially reduced and has demonstrated consequently that, during the period in which it was a party to the infringing agreements it actually avoided applying them by adopting competitive conduct in the market (see, to that effect, the judgment of 12 December 2012 in Case T‑400/09 Ecka Granulate et non ferrum Metallpulver v Commission, paragraph 86 and case-law cited).
203 In the present case, it is ultimately clear that the applicant did not in any way produce such evidence.
204 While admitting that it participated in unlawful meetings, the applicant does no more than claim that it pursued an independent policy on the market while failing to claim that it publicly distanced itself from the cartel.
205 The applicant has moreover not attempted to demonstrate that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting its very operation.
206 In any event, it must be recalled that it was held, in paragraphs 45 to 123 of this judgment, that the Commission, in the contested decision, established to the requisite legal standard that the applicant had participated in all the unlawful conduct which was imputed to it.
207 Further, in the exercise of its unlimited jurisdiction, the Court considers that, having regard to the gravity and duration of the infringement which the applicant committed, the amount of the fine imposed on the applicant is appropriate.
208 Fourth and last, it is sufficient ground to reject the sixth ground of complaint which the applicant puts forward in its fifth plea in law, namely that its cooperation was not taken into account, to observe that the applicant claims that there was an infringement not of the 2002 Leniency Notice, which the Commission applied in respect of other undertakings, but only of the 2006 Guidelines.
209 However, having regard to the documents in the court file, the applicant did not provide information other than that which it was obliged to provide under Regulation No 1/2003.
210 In any event, having regard to the gravity and the duration of the infringement, it must be held that the amount of the fine imposed on the applicant is appropriate and cannot be contrary to the principle of proportionality.
211 Consequently, the applicant’s fifth plea in law must be rejected and the action must be dismissed in its entirety.
Costs
212 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.
213 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the latter’s pleadings.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action.
2. Orders Faci SpA to pay the costs.
Delivered in open court in Luxembourg on 20 March 2014.
[Signatures]