JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

11 July 2013(*)

(Competition – Agreements and abuse of a dominant position – Rough diamond market – ‘Supplier of Choice’ (SOC) system of distribution – Decision rejecting a complaint – No Community interest – Legal basis – Procedural rights of a complainant – Access to documents – Obligations in relation to the investigation of a complaint – Market foreclosure effects – Manifest error of assessment)

In Joined Cases T‑104/07 and T‑339/08,

Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD), established in Antwerp (Belgium), represented initially by L. Levi and C. Ronzi and, in Case T‑104/07, by G. Vandersanden, and subsequently by L. Levi and M. Vandenbussche, lawyers,

applicant,

v

European Commission, represented initially by F. Castillo de la Torre, R. Sauer and J. Bourke, and subsequently by F. Castillo de la Torre and R. Sauer, acting as Agents, and, in Case T‑104/07, initially by S. Drakakakis, lawyer, and by T. Soames, Solicitor, and subsequently by T. Soames, and, in Case T‑339/08, by T. Soames,

defendant,

supported by

De Beers, established in Luxembourg (Luxembourg),

De Beers UK Ltd, formerly The Diamond Trading Co. Ltd, established in London (United Kingdom),

represented initially by W. Allan and S. Horwitz, Solicitors, and subsequently by W. Allan, J. Ysewyn, lawyer, and N. Gràcia Malfeito, Solicitor, and lastly by N. Gràcia Malfeito, B. van de Walle de Ghelcke, J. Marchandise, lawyers, and P. Riedel, Solicitor,

interveners,

APPLICATIONS for the annulment of the Commission’s Decisions of 26 January 2007 (Case COMP/39.221/B-2 – BVGD/De Beers) and of 5 June 2008 (Case COMP/39.221/E-2 – De Beers/DTC Supplier of Choice) rejecting the applicant’s complaint against the interveners alleging infringement of Articles 81 EC and 82 EC in the rough diamond market through their use of distribution agreements known as ‘Supplier of Choice’ (SOC) arrangements.

THE GENERAL COURT (Eighth Chamber),

composed of L. Truchot (Rapporteur), President, M. E. Martins Ribeiro and A. Popescu, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 24 October 2012,

gives the following

Judgment

 Background to the dispute

1.     Case COMP/E-3/38.139 and the comfort letter of 16 January 2003

1        On 3 May 2001, with a view to obtaining negative clearance or, alternatively, for exemption under Article 81(3) EC, The Diamond Trading Co. Ltd (‘DTC’), part of the De Beers group of companies, notified to the Commission of the European Communities a set of standard agreements between itself and its customers who are known as sightholders; the purpose of those agreements was to establish a system for the supply of rough diamonds by DTC to its customers, the ‘Supplier of Choice’ (‘SOC’) system.

2        The objective of the Supplier of Choice agreements (‘SOC agreements’) is to drive growth in consumer demand for diamond jewellery, by encouraging long‑term growth at the retail level by the creation of a multi-brand environment and shorter distribution channels. In order to do this, through the SOC agreements, DTC intends to limit the number of sightholders selected, encourage them to work with downstream partners in order to improve the efficiency of diamond distribution and invest in retail branding.

3        The documents supplied in the context of the notification of the SOC agreements were as follows:

–        a questionnaire sent to existing sightholders and applicants alike, the ‘Sightholder profile’, to solicit information on the basis of which they will be selected and evaluated;

–        a document entitled ‘Sightholder criteria and other considerations’ setting out set pre-defined criteria which the sightholder must meet in order to be selected;

–        a ‘Policy Statement’ setting forth the general principles applicable to the commercial relationship between the contracting parties;

–        a code of conduct (‘Best Practice Principles’) to which sightholders must adhere, intended to ensure that consumers buying diamond jewellery are able to rely on professional and ethical standards;

–        ‘conditions of sale’ which are incorporated into every contract.

4        On 25 July 2001, the Commission opened proceedings against DTC (Case COMP/E-3/38.139) and issued a statement of objections to it as regards the SOC agreements.

5        The Commission’s objections alleged infringement of Article 81 EC and Article 82 EC. In its view, the implementation of the SOC agreements would give the De Beers group the possibility of restricting the commercial behaviour of its customers. Those restrictions would result from the way the selection criteria are applied, the amount of detailed confidential information requested from sightholder applicants and the contractual commitments required from them, once they are selected. Furthermore, since those restrictions would be imposed by a dominant company, the implementation of the SOC agreements would also constitute an abuse of a dominant position.

6        On 8 October 2001, DTC replied to the statement of objections from the Commission. It stated that it was willing to explore any modifications to the SOC agreements that might address the Commission’s concerns whilst preserving the general features of the arrangements.

7        Several proposals to amend the SOC agreements were submitted to the Commission. The last version of the amended SOC agreements was forwarded to the Commission on 24 September 2002. The principal changes were as follows:

–        the appointment of an Ombudsman (‘the Ombudsman’): this appointment is subject to the approval of the Commission; the Ombudsman is able to determine whether improper procedures have been followed by DTC in making selection or de-selection decisions and supply decisions that it proposes to make to sightholders over a six-month period; complaints as to the selection or evaluation of sightholders can be addressed to the Ombudsman, who may issue recommendations, which are binding on the parties and final, except if the matter is referred to arbitration or to litigation; DTC and the applicant have a right to refer the matters in dispute to the London Court of International Arbitration or to litigate in the courts, should they be unhappy with the Ombudsman’s recommendations;

–        revised sightholder profile: the number of questions was reduced and some of the remaining questions have been reformulated; special confidentiality notices have been inserted in the questionnaire so that those filling it in are aware that business secrets will be treated as such;

–        amendment of the documents entitled ‘Sightholder criteria and other considerations’ and ‘Policy statement’ and the conditions of sale.

8        By notice of 9 November 2002 (OJ 2002 C 273, p. 2, ‘the 2002 notice’), the Commission announced that it intended to adopt a favourable position with regard to the SOC agreements and gave interested third parties the opportunity of being heard, pursuant to Article 19(3) of Council Regulation No 17 of 6 February 1962, First regulation implementing Articles [81 EC] and [82 EC] (OJ 1962, English Special Edition, Series I, 1959-1962, p. 87).

9        On 16 January 2003, the Commission closed the procedure by means of a comfort letter, while reserving the right to reopen it ‘if the factual or legal situation changes as regards any essential aspect of the [SOC] agreements, which affects the view which was taken of them’. The Commission also stated that it ‘w[ould] pay attention to the fact that the implementation of the Supplier of Choice agreements does not result in De Beers artificially limiting the availability of certain categories of diamonds on the market or in selection/allocation criteria under Supplier of Choice not allowing traders to be provided with adequate quantities of diamonds in order to ensure enough liquidity in the market’.

2.     The applicant’s complaint

10      On 14 July 2005, the applicant, the Belgische Vereniging van handelaars in– en uitvoerders geslepen diamant (‘BVGD’), the Belgian Association of Dealers, Importers and Exporters of Polished Diamonds, filed a complaint against De Beers and DTC, alleging that the SOC system introduced by them constituted an infringement of Articles 81 EC and 82 EC. In the complaint, BVGD requested that the Commission reopen the proceedings concerning SOC.

11      From 2004, following other complaints filed against SOC, the Commission sent requests for information to the operators who were sightholders at the time, former sightholders who had been deselected in 2003 (‘the excluded sightholders’), brokers, rough diamond producers and diamond bourses.

12      The Commission received confidential replies from 54 sightholders, 13 excluded sightholders, 11 diamond bourses, five brokers and four rough producers. Non‑confidential summaries of those replies were made available to the applicant.

13      On 17 March 2006, the applicant submitted additional arguments supplementing its complaint, following the adoption of Commission Decision 2006/520/EC of 22 February 2006 relating to a proceeding pursuant to Article 82 [EC] and Article 54 of the EEA Agreement (Case COMP/B-2/38.381 – De Beers) (summary in OJ 2006 L 205, p. 24; ‘the De Beers commitments decision’). That decision made binding the commitments made by the largest rough diamond producer in the world, De Beers, to cease purchasing from 2009 onwards diamonds from the second largest rough diamond producer in the world, Alrosa, established in Russia, following a period of gradual reduction in the amounts purchased between 2006 and 2008.

14      On 29 March 2006, the Commission sent BVGD a case-orientation letter informing it of its initial view, namely that there was insufficient Community interest to investigate the complaint further and inviting it to consider withdrawing its complaint.

15      On 12 April 2006, BVGD submitted its comments on that letter and stated that it would not withdraw its complaint.

16      Under Article 7(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18), the Commission informed BVGD, by letter of 4 August 2006, that its preliminary view was that there was insufficient Community interest to investigate the complaint further (‘the Article 7 letter’).

17      On 1 September 2006, BVGD requested access from the Commission to all the documents on which it based its provisional assessment.

18      By letter of the same date, the Commission responded to that request for access, stating that it had annexed to the Article 7 letter all the documents on which its provisional assessment was based.

19      On 19 September 2006, BVGD replied to the Article 7 letter.

20      On 26 January 2007, the Commission adopted a decision rejecting the applicant’s complaint (Case COMP/39.221/B-2 – BVGD/De Beers) (‘the rejection decision’), pursuant to Article 7(2) of Regulation No 773/2004.

3.     Rejection decision

21      After noting the objections raised by the applicant in its complaint, the Commission examined them under three headings entitled ‘Foreclosure effects’, ‘Abusive gathering and use of customers’ confidential information, including the risk of collusion’ and ‘Other claims as to the illegality of the SOC’.

22      First, the analysis of the rough diamond market, and in particular of the operators on that market, led the Commission to take the view that ‘as regards the question of whether De Beers infringe[d] Article 81 [EC] and/or Article 82 EC by foreclosing rough as well as polished diamond supplies as an input to diamond operators who are not DTC sightholders, … there appear[ed] to be a small likelihood of finding any appreciable anti-competitive effects that would warrant a reopening of the SOC proceedings’. The Commission took the view that the volumes of rough diamonds from Alrosa made available as a result of the De Beers commitments decision (see paragraph 13 above) and the quantities of rough diamonds resold by sightholders ensure that there is sufficient competition on the secondary market. The Commission concluded from this that there was not sufficient Community interest to investigate further the claims as to input foreclosure.

23      Secondly, the Commission rejected all the arguments against its preliminary assessment that it would be disproportionate to investigate further the alleged abusive gathering and use of confidential information by De Beers, in view of the SOC dispute resolution mechanism, and in particular the establishment of the Ombudsman, whose terms of reference had moreover been revised.

24      Thirdly, the Commission examined other arguments as to the illegality of SOC, and in particular those relating to the levy for value added services (‘the VAS levy’).

25      The Commission thereby concluded that there was not sufficient Community interest to investigate further, and rejected the applicant’s complaint on that ground.

4.     The General Court’s judgment in Alrosa and the supplementary procedure

26      By its judgment in Case T‑170/06 Alrosa v Commission [2006] ECR II‑2601 (‘the General Court’s judgment in Alrosa’), the General Court annulled the De Beers commitments decision on which the Commission had based its rejection decision (see paragraph 22 above). The Court held that, by adopting the De Beers commitments decision, the Commission had infringed Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), the principle of proportionality and Alrosa’s right to be heard.

27      Following that annulment, on 9 October 2007 the Commission sent requests for information to the main diamond producers and on 29 October 2007 it sent follow-up questions to De Beers.

28      Pursuant to Article 7(1) of Regulation No 773/2004, the Commission informed BVGD, by letter of 13 November 2007, of its preliminary view that the annulment of the De Beers commitments decision did not require it to revisit its conclusion in the rejection decision (‘the supplementary Article 7 letter’).

29      On 10 January 2008, BVGD requested access from the Commission to all the documents on which its provisional assessment was based, referring to a number of them in particular.

30      On 14 January 2008, the Commission rejected that application for access.

31      On 15 January 2008, BVGD replied to the supplementary Article 7 letter.

32      By letter of the same date, BVGD complained to the Hearing Officer that it had not had sufficient access to the file. On 7 February 2008, the Hearing Officer informed BVGD that revised non-confidential versions of De Beers’ replies to the requests for information of 9 and 29 October 2007 had been sent to it on 4 February 2008. The Hearing Officer otherwise dismissed BVGD’s request.

33      On 12 February 2008, BVGD supplemented its reply to the supplementary Article 7 letter, in order to take into account the additional information thereby transmitted.

34      On 14 March 2008, the Commission communicated to BVGD the non‑confidential version of Alrosa’s belated response to the Commission’s request for information. BVGD submitted its observations on that response on 31 March 2008.

35      On 5 June 2008, the Commission adopted a decision again rejecting the applicant’s complaint (Case COMP/39.221/E-2 – De Beers/DTC Supplier of Choice) (‘the supplementary rejection decision’), pursuant to Article 7(2) of Regulation No 773/2004.

5.     Supplementary rejection decision

36      After giving reasons for the legality of the supplementary procedure, by referring to its legal basis and its relationship to the initial procedure, the Commission devoted most of the supplementary rejection decision to assessing the consequences of the General Court’s judgment in Alrosa (paragraph 26 above) for its provisional assessment that there was insufficient Community interest to investigate the complaint further.

37      The Commission thus began by examining to what extent calling in question De Beers’ commitments to decrease and then cease its purchases of diamonds from Alrosa was likely to alter the Commission’s assessment as to the foreclosure effects of SOC. In order to do this, it analysed each of the sources of supply available outside SOC, namely Alrosa’s sales other than to De Beers and the sales of other producers, those of sightholders, and those of Diamdel, a subsidiary of De Beers specialised in sales of rough diamonds to non‑sightholders. The Commission concluded from this that the aggregate value of rough diamond sources outside SOC exceeded USD 7 billion and possibly even USD 8 billion. Consequently, over half the rough diamonds sold worldwide remain outside De Beers’ control.

38      The Commission then found that that overall conclusion was not called in question by other recent or envisaged aspects of market developments, and in particular the ‘beneficiation process’ underway in the major African diamond‑producing countries (that is, South Africa, Namibia and Botswana), which account for the vast majority of DTC’s rough diamond intake. The Commission noted, in that connection, that the beneficiation process sought to add value to the natural resources of those countries by enabling (by legislation or contractually) a portion of rough diamond mine output to be allocated to the local cutting and polishing industry.

39      According to the Commission, the supplementary investigation thus fully confirmed the findings of the rejection decision, namely that competition between downstream operators is not sufficiently distorted to justify further investigation, since there were a sufficient number of sources of supply for which those operators could compete. Consequently, the Commission confirmed the rejection of the applicant’s complaint in respect of the claim that SOC had foreclosure effects.

 Procedure and forms of order sought by the parties

40      By applications lodged at the Court Registry on 6 April 2007 and 18 August 2008 respectively, the applicant brought the present actions.

41      By document lodged at the Court Registry on 3 July 2007, De Beers and DTC, now De Beers UK Ltd (individually or jointly ‘De Beers’ or ‘the interveners’) applied for leave to intervene in support of the form of order sought by the Commission in Case T‑104/07.

42      By order of the President of the Seventh Chamber of the Court of 20 May 2008, De Beers was granted leave to intervene in that case in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.

43      By document lodged at the Court Registry on 5 December 2008, De Beers also applied for leave to intervene in support of the form of order sought by the Commission in Case T‑339/08.

44      By order of the President of the Sixth Chamber of the Court of 11 May 2009, De Beers was granted leave to intervene in that case in support of the form of order sought by the Commission. The decision on the merits of the application for confidential treatment was reserved.

45      On 22 July 2010, the General Court requested the parties, by way of measures of organisation of procedure, to indicate the consequences to be drawn regarding the purpose of the present actions from the judgment of the Court of Justice in Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949 (‘the Court of Justice’s judgment in Alrosa’), which set aside the judgment at first instance (paragraph 26 above). The parties replied to that question within the prescribed time-limits.

46      In their replies to that question, the Commission and De Beers also requested that Cases T‑104/07 and T‑339/08 be joined. The applicant did not object to that request.

47      Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Eighth Chamber, to which the present cases were accordingly allocated.

48      By orders of 8 and 10 May 2012 respectively, the President of the Eighth Chamber of the General Court dismissed the applications for confidential treatment in Cases T‑104/07 and T‑339/08.

49      On hearing the report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure, asked the parties to reply to certain questions and to produce a document. The parties complied with those requests within the prescribed time-limits.

50      Cases T‑104/07 and T‑339/08 were joined for the purposes of the oral procedure and the judgment, by order of the President of the Eighth Chamber of 12 September 2012.

51      The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 24 October 2012. At that hearing, the Commission requested the Court to place on the file certain additional documents. The Court reserved its decision on that request.

52      In Case T‑104/07, the applicant claims that the Court should:

–        annul the rejection decision;

–        order the Commission to provide:

–        the complete answers provided by 54 sightholders, 11 diamond bourses, 13 excluded sightholders and four competitors to the requests for information sent by the European Commission pursuant to Article 18 of Regulation No 1/2003;

–        the Trade Agreement between De Beers and Alrosa of 17 December 2001 (‘the De Beers-Alrosa Agreement’);

–        the ‘price book’ between De Beers and Alrosa, on which should figure the prices at which Alrosa sells its diamonds to De Beers;

–        the minutes of the meeting(s) held in 2001-2002 between the Managing Director of De Beers, the then Competition Commissioner and his predecessor,

–        all documents in relation to the complaint and SOC which De Beers has communicated to the Commission;

–        the procedural guides of the Ombudsman, mentioned in clause 75 of the last version of the Ombudsman’s terms of reference communicated;

–        order the Commission to pay the costs.

53      In Case T‑339/08, the applicant claims that the Court should:

–        annul the supplementary rejection decision;

–        order the Commission to provide:

–        a ‘proper and meaningful’ non-confidential version of the replies provided by De Beers and Alrosa in the framework of the supplementary procedure;

–        non-confidential versions of the complaints and related documents submitted to the Commission concerning SOC and the De Beers‑Alrosa Agreement, including the statement of objections;

–        non-confidential versions of the investigation documents concerning SOC and the De Beers-Alrosa Agreement;

–        the application lodged by Alrosa in Case T‑170/06;

–        the statements of objections to which it refers in the supplementary rejection decision;

–        the annual reports on De Beers’ commitments drafted by the Trustee;

–        order the Commission to pay the costs.

54      In Cases T‑104/07 and T‑339/08, the Commission and the interveners contend that the Court should:

–        dismiss the actions;

–        order the applicant to pay the costs.

55      In their supplementary statements in intervention, the interveners contend that the Court should order the applicant to bear its own costs relating to the applications for confidential treatment and pay those which they have incurred as a result of those applications, should the present actions be upheld.

 Law

56      In support of the actions, the applicant relies essentially on five pleas in law. The first plea alleges illegality of the supplementary procedure and the second infringement of the applicant’s procedural rights, while the third plea relates to the Commission’s obligations in handling a complaint, the fourth the assessment of the Community interest and the fifth the obligation to state reasons, respectively.

1.     The plea in law alleging that the supplementary procedure is unlawful (Case T‑339/08)

57      In Case T‑339/08, the applicant submits, in essence, that there is no legal basis for the Commission to open a supplementary procedure following a rejection decision and adopt the supplementary rejection decision and that, in so doing, the Commission failed to observe the principles of legal certainty and sound administration and committed an abuse of process.

 The lack of a legal basis and the existence of an abuse of process

58      The applicant submits that Article 7 of Regulation No 773/2004 does not constitute the correct legal basis for initiating the supplementary procedure and adopting the supplementary rejection decision, since that provision only deals with the rejection of complaints and does not empower the Commission to re‑examine a situation. By relying on that provision, the Commission committed an abuse of process. It used the procedure under Regulation No 773/2004 to try to ‘validate’ its original procedure, in particular by sending requests for information to diamond producers.

59      It suffices to note, in that regard, that the objection pleaded is based on an incorrect premiss since, in the supplementary rejection decision, under the heading ‘Legal basis of the supplementary procedure’, the Commission stated clearly that ‘the Commission’s right to review, amend or withdraw its decisions [did] not derive from concrete provisions of Regulation No 773/2004 but from a general principle of law’. It also stated that it had issued the supplementary letter pursuant to Article 7, since Article 7(1) of Regulation No 773/2004 is the only provision on the basis of which complainants may be invited to submit their views on the Commission’s preliminary assessment that there are no grounds to act on the complaint.

60      It follows that the Commission initiated the supplementary procedure on the basis of the ‘general principle of the right [of an administrative authority] to re-examine, amend or withdraw its decisions’ and that, since a complaint was being examined, it applied in the context of that procedure a provision from Chapter IV of Regulation No 773/2004, ‘Handling of complaints’. Since the Commission did not therefore initiate the supplementary procedure on the basis of Article 7 of Regulation No 773/2004, the contention that there was an abuse of process must be rejected, and there is no need to examine whether that contention, as set out by the applicant, actually corresponds to a claim of abuse of process, defined by the case-law as when an institution uses a power with the exclusive or main purpose of evading a procedure specifically prescribed for dealing with the situation in question (see Case C‑442/04 Spain v Council [2008] ECR I‑3517, paragraph 49, and the case-law cited), nor whether such an abuse of process has been proved in the present case.

61      As regards the general principle invoked by the Commission, the applicant submits, however, that this cannot constitute the legal basis for the supplementary rejection decision either.

62      First, the applicant states that, under that principle, the Commission has the right to undertake a fresh examination of a decision only when the decision imposes a burden or charge, which is not the case here.

63      It is sufficient to note in that regard, like Advocate General Ruiz-Jarabo Colomer in his Opinion in Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, paragraph 67, that the general principle of law based on the laws of the Member States, according to which authorities are able to re‑examine and if need be withdraw an administrative measure of an individual nature, has been recognised since the first judgments of the Court of Justice (Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly [1957 and 1958] ECR 39, at pages 55 and 56, and Joined Cases 42/59 and 49/59 SNUPAT v High Authority [1961] ECR 53, at page 87).

64      Contrary to the applicant’s claims, the application of that principle has not been restricted in the case-law to decisions imposing a burden or charge. The case cited by the applicant, which gave rise to the judgment in Commission v AssiDomän Kraft Products and Others (paragraph 63 above), is indeed one of the very few cases concerned with the withdrawal of decisions of that kind, but most of the judgments applying the principle in question adjudicate on a decision favourable to the appellant who is challenging the fact that that decision has been withdrawn (see, with regard to a decision finding that the appellant was suffering from an occupational disease and invalidity, Case C‑90/95 P de Compte v Parliament [1997] ECR I‑1999, and, with regard to a decision approving a concentration, Case T‑251/00 Lagardère and Canal+ v Commission [2002] ECR II‑4825).

65      It follows from that case-law that withdrawal of an unlawful administrative act which is favourable or, to use a different form of words, which has created individual rights, is permissible, provided that the institution which adopted the act complies with the conditions relating to reasonable time-limits and the legitimate expectations of beneficiaries of the act who have been entitled to rely on its lawfulness (Case T‑25/04 González y Díez v Commission [2007] ECR II‑3121, paragraph 97, and Case T‑53/10 Reisenthel v OHIM – Dynamic Promotion (Hampers, crates and baskets) [2011] ECR II‑0000, paragraph 40; see also, to that effect, de Compte v Parliament, paragraph 64 above, paragraph 35).

66      In the present case, the Commission took the view in the supplementary rejection decision that, since the rejection decision was not an act favourable to the applicant, it does not create legitimate expectations that must be safeguarded, so that there were no legal constraints with regard to re-examining it.

67      The applicant submits, in that regard, that it may rely on a legitimate expectation that the rejection decision is lawful even if it is not favourable to it – which limits the possibility of re-examination – and that the rejection decision conferred on it an individual right, namely the right to challenge that decision before the courts.

68      It is sufficient to note in that regard that the necessary protection of legitimate expectations as to the legality and stability of a tainted measure has a raison d’être only in relation to measures which are favourable or grant individual rights to the applicant and that it has none as regards measures imposing a burden or charge (see, to that effect, the Opinion of Advocate General Ruiz-Jarabo Colomer in Commission v AssiDomän Kraft Products, paragraph 63 above, paragraphs 66 and 67, and the judgment in Case C‑362/09 P Athinaïki Techniki v Commission [2010] ECR I‑13275, paragraphs 59 and 60). The principle of the protection of legitimate expectations applies by definition only to entitlements or advantages.

69      In the present case, the Commission confines itself, in the rejection decision, to rejecting the applicant’s complaint, stating that it will not investigate SOC further and that it closes the file. The rejection decision does not in itself therefore confer an individual right on the complainant and the right of appeal against that decision, invoked by the applicant, is granted by the Treaty, not by the decision – as the Commission correctly states – and that right was indeed exercised in bringing the action in Case T‑104/07.

70      In addition, for the sake of completeness, having regard precisely to that action brought against the rejection decision, the applicant cannot, without contradicting itself, invoke a legitimate expectation that that decision is lawful.

71      Secondly, the applicant contests the outcome of the re-examination carried out by the Commission, submitting that the latter did not undertake any of the three authorised actions when it re-examined the rejection decision, namely to withdraw, amend or re-affirm it.

72      It is sufficient to cite in that regard the wording of the supplementary rejection decision which establishes clearly that the Commission confirmed its decision to reject the applicant’s complaint. The Commission stated, in the last sentence of the supplementary rejection decision’s conclusion that it ‘confirm[ed] the rejection of this complaint in relation to the issue of input foreclosure’.

73      For all those reasons, the contentions that there was a lack of a legal basis for the supplementary rejection decision and an abuse of process must be rejected.

 Infringement of the principles of legal certainty and sound administration

74      The applicant submits that the Commission’s re-examination in the course of the supplementary procedure ought to have led it, in accordance with the principles of sound administration and legal certainty, to withdraw the rejection decision and to adopt a new one. First, such a withdrawal would have made it possible to clarify the legal situation and avoid any uncertainty as to categorisation of the supplementary rejection decision as either a new challengeable act or a purely confirmatory one. Secondly, it would have avoided the Commission ‘re-writ[ing] a posteriori’ the statement of reasons of the rejection decision, in particular correcting the faults committed in the original procedure. Thirdly, withdrawal of the rejection decision would have avoided ‘double judicial proceedings’ which the applicant was forced to commence by bringing an action against the rejection decision and a further one against the supplementary rejection decision.

75      The applicant also criticises the fact that the Commission decided to adopt the rejection decision while it was aware of the action brought against the De Beers commitments decision in Case T‑170/06, and hence of the challenge to the lawfulness of one of the bases of its decision.

76      The last argument raised by the applicant (see paragraph 75 above) must be rejected at the outset as ineffective, in that it relates to the rejection decision, which is not the subject-matter of the action in Case T‑339/08 in the context of which the present plea in law is raised.

77      As to the remainder, it must be found that the applicant’s line of argument shows a misunderstanding of the conduct of the supplementary procedure, as set out in the supplementary rejection decision.

78      The supplementary procedure was initiated following the General Court’s judgment in Alrosa (paragraph 26 above), which annulled the De Beers commitments decision (see paragraphs 26 et seq. above). As the supplementary rejection decision itself states, the De Beers commitments decision was one of the bases for the rejection decision. As is also apparent from the supplementary rejection decision, the supplementary procedure related primarily to that basis for the rejection decision and sought to examine the impact which the new circumstance of the General Court’s judgment in Alrosa (paragraph 26 above), delivered after the rejection decision, might have on the analysis of that decision. Since the Commission took the view that that new circumstance and the market developments since the adoption of the rejection decision did not alter its analysis, it expressly confirmed, in the conclusion of the supplementary rejection decision, the rejection of the complaint (see paragraph 72 above).

79      It follows from those factors that the Commission did not provide a statement of reasons for the rejection decision a posteriori, but that it analysed a new circumstance in the course of the supplementary procedure which led it to adopt the same solution as in the rejection decision. It also follows that there is no uncertainty as to the ‘characterisation’ of the supplementary rejection decision. Even though the Commission confirmed, in the supplementary rejection decision, the rejection of the applicant’s complaint arising from the rejection decision, the supplementary rejection decision cannot be described as merely confirmatory, since it contains new factors as compared with the rejection decision and was preceded by a re-examination (see, to that effect, the order in Case T‑308/02 SGL Carbon v Commission [2004] ECR II‑1363, paragraph 51, and the case-law cited).

80      Nor can the Commission be criticised, in the present case, for not withdrawing the initial rejection decision and adopting a fresh rejection decision, since such a withdrawal would have been contrary to the case‑law relating to the general principle governing the withdrawal of administrative measures. Even when the measure in question does not confer individual rights, as in the case of the rejection decision (see paragraph 69 above), the Courts of the European Union, relying in particular on the principles of sound administration and legal certainty, have held that the possibility of withdrawal is limited to unlawful measures. The Court of Justice has thus held, in the case of State aid, that the Commission could withdraw a decision to take no further action on a complaint regarding alleged unlawful aid only in order to remedy illegality affecting that decision (Athinaïki Techniki v Commission, paragraph 68 above, paragraph 70). The Court relied, in particular, on the fact that, if the Commission were entitled to withdraw such a decision, it could perpetuate a state of inaction, contrary to its obligations in State aid cases, and avoid any judicial review, an action directed at a letter closing the file and subsequently withdrawn being devoid of purpose (Athinaïki Techniki v Commission, paragraph 68 above, paragraph 69). The solution applied in State aid cases may also be applied in the circumstances of the present case, in which the Commission is under an obligation to adjudicate on complaints under Article 81 EC and Article 82 EC (see, to that effect, Case C‑282/95 P Guérin Automobiles v Commission [1997] ECR I‑1503, paragraphs 36 to 38, and T‑423/07 Ryanair v Commission [2011] ECR II‑2397, paragraph 53), so that the rejection decision could be re-examined and, where necessary, withdrawn only if that decision were unlawful. Since only one of the bases for the rejection decision was declared unlawful and then annulled by the General Court’s judgment in Alrosa (paragraph 26 above), the supplementary rejection decision could relate only to that basis and the rejection decision could have been withdrawn – as the Commission states in the supplementary rejection decision – only if the Commission had inferred from the absence of the De Beers’ commitments the need to investigate SOC further, the illegality in question thereby affecting the decision to reject the complaint. Contrary to the applicant’s claims, in proceeding in the manner in which it did, the Commission did not confuse elements relating to the withdrawal procedure with the substance of the case characterised by the lack of sufficient Community interest, but simply examined whether the condition necessary for withdrawing a measure, namely its unlawfulness, was satisfied in the present case.

81      It must be added that the withdrawal of the rejection decision would not have prevented two actions from being brought. Since the General Court’s judgment in Alrosa (paragraph 26 above), which gave rise to the supplementary procedure, was delivered close to six months after the rejection decision was adopted, and the period for bringing an action was two months, the applicant had no option but to bring an action against the rejection decision, even if the latter were to have been withdrawn at the completion of the supplementary procedure. In addition, as the Commission states in the supplementary rejection decision, the applicant had the option of amending the form of order which it sought in Case T‑104/07, as authorised by case-law, instead of bringing a separate action against that decision.

82      Consequently, none of the arguments put forward by the applicant in support of its claim that the principles of sound administration and legal certainty have not been observed can be upheld, so that the plea in law alleging that the supplementary procedure is unlawful must be rejected in its entirety.

2.     The plea in law alleging infringement of the applicant’s procedural rights (Cases T‑104/07 and T‑339/08)

83      In Cases T‑104/07 and T‑339/08, the applicant submits that the Commission infringed its right of access to the documents on which it based its provisional assessment during the initial and supplementary procedures. In Case T‑104/07, concerning the initial procedure alone, it also submits that the Commission created confusion concerning the stage of the procedure reached, exerted undue pressure by setting unnecessarily short time‑limits and by refusing to grant extensions of time, and prevented the applicant from commenting on the new information available after the Article 7 letter had been sent.

84      It is apparent from the case-law that proceedings initiated further to a complaint do not constitute adversarial proceedings between the undertakings concerned. They are proceedings initiated by the Commission, following an application, in fulfilment of its duty to ensure that the rules on competition are observed. It follows that the undertakings which are the subject of the investigation and the undertakings which have submitted a complaint are not in the same procedural situation and the latter cannot invoke the right to a fair hearing. The complainants must, however, be given the opportunity to defend their legitimate interests in the course of the proceedings initiated by the Commission and therefore be associated closely with them, although the procedural rights of the complainants are not as far‑reaching as the right to a fair hearing of the undertakings which are the subject of the Commission’s investigation (see, to that effect, Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1987] ECR 4487, paragraphs 19 and 20, and Case T‑5/97 Industrie des poudres sphériques v Commission [2000] ECR II‑3755, paragraph 229; see also recital 8 in the preamble to Regulation No 773/2004).

85      The applicant’s complaints alleging infringement of its procedural rights in its capacity as a complainant must be considered in the light of those principles.

 Infringement of the right of access to the documents on which the Commission based its provisional assessment (Cases T‑104/07 and T‑339/08)

 Objections alleging infringement of the right of access

86      The applicant submits that the Commission infringed its right under Article 8(1) of Regulation No 773/2004 to have access to the documents on which it based its provisional assessment.

87      Article 8(1) of Regulation (EC) No 773/2004 is worded as follows:

‘1. Where the Commission has informed the complainant of its intention to reject a complaint pursuant to Article 7(1) the complainant may request access to the documents on which the Commission bases its provisional assessment. For this purpose, the complainant may however not have access to business secrets and other confidential information belonging to other parties involved in the proceedings’.

88      Point 69 of the Commission Notice on the handling of complaints by the Commission under Articles 81 [EC] and 82 [EC] (OJ 2004 C 101, p. 65, [corrigendum OJ 2004, C 148, p. 10,] ‘the notice on the handling of complaints’) states:

‘Pursuant to Article 8(1) of Regulation [No] 773/2004, the complainant has the right to access the information on which the Commission bases its preliminary view. Such access is normally provided by annexing to the letter a copy of the relevant documents.’

89      It is also apparent from the case-law that third parties cannot claim a right of access to the file compiled by the Commission on the same basis as the undertakings under investigation (Case T‑17/93 Matra Hachette v Commission [1994] ECR II‑595, paragraph 34; Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 34; and Industrie des poudres sphériques v Commission, paragraph 84 above, paragraph 229; see also point 59 of the notice on the handling of complaints).

90      The complainants’ right of access is therefore limited to the documents on which the Commission bases its provisional assessment. It does not have the same scope as the right of access to the Commission file afforded to persons, undertakings and associations of undertakings that have been sent a statement of objections by the Commission, which relates to all documents which have been obtained, produced or assembled by the Commission Directorate General for Competition during the investigation (points 7, 8, 30 and 31 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles 81 [EC] and 82 [EC], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004, OJ 2005 C 325, p. 7, ‘the notice on the rules for access to the file’).

–       The right of access during the initial procedure

91      In the present case, during the initial procedure, the Commission stated, in the Article 7 letter, that its provisional assessment was based on the documents already in BVGD’s possession (such as public Commission documents) as well as on an analysis of the replies to the Commission’s requests for information, which it presented in the non-confidential overview tables annexed to that letter. The Commission also stated, in that letter, that it had enclosed copies of all quoted public documents which were not readily available on the internet, and attached the Ombudsman’s revised terms of reference. In addition, in its reply of 1 September 2006 to the applicant’s letter of the same date requesting access to all the documents on which its provisional assessment was based, the Commission stated that it had annexed all those documents to the Article 7 letter, reproducing the relevant passage from that letter.

92      The applicant submits, first, that the reference to ‘public Commission documents’ already in the applicant’s possession was insufficient, because those documents ought at least to have been identified.

93      That first argument has no factual basis. The Article 7 letter includes precise references to the public documents from the Commission – such as the 2002 notice or the De Beers commitments decision – and even from third parties – such as Alrosa’s annual reports or the articles from specialist publications – on which the Commission relied. Hypertext links appear in the letter when those documents are available on the internet. The public documents on which the Commission relied were therefore identified in the Article 7 letter and were easily accessible to the applicant.

94      The applicant submits, second, that the analysis of the replies to the Commission’s requests for information, presented in non-confidential overview tables, contained inconsistencies in relation to those requests.

95      In that regard, it must be noted, first of all, that, as the Commission acknowledges, the document initially forwarded to the applicant contained an error concerning the request for information to the sightholders, since the questionnaire sent contained only sixteen questions whereas the replies summarised related to 26 questions. That error was, however, corrected by the Commission the same day as it was pointed out by the applicant, and a table of correspondence between the questionnaires and the summary tables was also supplied by the Commission, in response to the applicant’s request (the Commission letter of 6 September 2006 in reply to the applicant’s letter of the same date).

96      Next, the Court notes that the applicant does not specify, in its pleadings, which other inconsistencies it found. It simply refers to paragraph 33 of its observations of 19 September 2006 on the Article 7 letter.

97      Such a reference cannot be accepted, in the light of the settled case-law according to which, even though the body of the application may be supported and supplemented, in regard to specific points, by references to extracts of documents appended thereto, a reference to other documents, even those annexed to the application, cannot make up for the absence of the essential elements, since the annexes have a purely evidential and instrumental function. The annexes cannot therefore serve as a basis for developing a plea set out in summary form in the application by putting forward objections or arguments which are not contained in that application. The applicant must indicate in its application the specific objections on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those objections are based. To allow the annexes to provide the detail of an argument which is not presented in a sufficiently clear and precise manner in the application would be contrary to their purely evidential and instrumental function (see Case T‑340/03 France Télécom v Commission [2007] ECR II‑107, paragraphs 167 and 204, and the case-law cited).

98      The applicant submits, thirdly, that the Commission’s reference to alleged confidentiality through a stylistic formula, and the excessive shortness of the summaries communicated which made them incomprehensible, meant that the applicant was unable to obtain proper access to the documents underlying the provisional assessment.

99      It must be noted that Article 8(1) of Regulation No 773/2004 specifically excludes the communication to the complainants of business secrets and other confidential information belonging to other parties involved in the proceedings (see paragraph 87 above; see also point 32 of the Notice on the rules for access to the file).

100    In the present case, the applicant addressed itself to the Hearing Officer on several occasions, in particular in order to complain that the non‑confidential summaries forwarded to it did not enable it to understand the replies to the questions. The Hearing Officer replied that the transmission of the replies to the questions in the form of non‑confidential overview tables sought to protect the commercial interests of the respondents as well as to present certain anonymised empirical data that could not be made available in any other format. The Hearing Officer also stated that the Commission’s director responsible for the case had confirmed to him that the Commission had transmitted all the passages on which it intended to base the rejection of the complaint, except for the parts which were considered confidential.

101    However, the applicant has not provided any evidence, either before the Hearing Officer or in the context of the present procedure, capable of establishing that the Commission incorrectly classified certain information as confidential, thus rendering the summaries incomprehensible, when the applicant was able, by comparing the non-confidential questionnaires forwarded to it with the non‑confidential summaries of the replies to those questionnaires which referred in general to the numbers of the corresponding questions, to identify the information which had been redacted and thus to challenge, where appropriate, its confidential nature. Thus, for example, it is apparent from reading the summary of the sightholders’ replies to the questions that the Commission had not set out in that summary the sightholders’ replies to question No 2 asking them about their turnovers.

102    It may also be noted that it has been acknowledged in the case-law, as the Commission stated, that access to the file may be granted to the addressees of a statement of objections in the form of a non-confidential summary of the responses to the Commission’s requests for information, in order to safeguard the anonymity of the third parties concerned (Case T‑221/95 Endemol v Commission [1999] ECR II‑1299, paragraph 69, and Case T‑5/02 Tetra Laval v Commission [2002] ECR II‑4381, paragraph 100). Recourse to that means of access is therefore all the more acceptable as regards a complainant’s right of access.

103    If by that third argument the applicant also submits that inadequate reasons have been provided for not communicating certain confidential information, it must be found that reasons are given in the Article 7 letter, the abovementioned response of the Hearing Officer and in the rejection decision which all essentially reproduce the reasoning set out in paragraph 100 above. Such reasoning is sufficient since (i) the Commission has stated the basis for the confidentiality, namely the protection of the respondents’ commercial interests, and (ii) it follows from the notice on the rules for access to the file that information will be classified as confidential where the person or undertaking in question has made a claim to this effect and such a claim has been accepted by the Commission (point 21). With regard to the complainant, and in the absence of any specific challenge from it, more detailed reasoning cannot be required from the Commission, all the more so since that reasoning was sufficient in the present case for the applicant to dispute the confidentiality applied (see paragraph 101 above).

104    In addition, it is not apparent from reading the summaries of the replies to the questions that those summaries are incomprehensible. Admittedly, although some of the summaries of the sightholders’ replies are brief, such brevity is attributable to the content of the questions asked, which called for brief replies, such as a yes or no answer, the provision of figures or a list. The summaries of that type of reply, even if brief, thereby necessarily reproduce almost all the non-confidential data provided in reply to the relevant questions and are not purged of information which might affect their comprehension. Furthermore, in general, the summaries of the replies and the related questions may easily be read together – even when the summaries do not refer to the numbers of the corresponding questions, as is the case of the summary of the diamond producers’ responses – and this avoids any problems of comprehension.

105    The applicant submits, fourthly, that its right of access to the documents on which the Commission based its provisional assessment was also infringed when the Commission rejected its fresh request submitted on 19 September 2006. In particular, the applicant disputes the ground of lateness raised by the Commission in order to justify its rejection, which contradicts the reasons previously given that all the documents on which the Commission’s provisional assessment was based had already been communicated to it.

106    The Court takes the view that the Commission was justified in rejecting that request on the ground that it was out of time, as it did in its letter of 11 October 2006.

107    Indeed, Article 7(1) of Regulation No 773/2004 provides:

‘Where the Commission considers that on the basis of the information in its possession there are insufficient grounds for acting on a complaint, it shall inform the complainant of its reasons and set a time‑limit within which the complainant may make known its views in writing. The Commission shall not be obliged to take into account any further written submission received after the expiry of that time-limit’.

108    As is apparent from Article 8(1) of Regulation No 773/2004, the right of access granted to a complainant by that provision is intended to enable him to submit his observations on the Article 7 letter informing him of the Commission’s intention to reject the complaint. In the present case, since BVGD’s application for access was included precisely in its observations on the Article 7 letter, for which, it is alleged, the documents requested would have been useful, and it did not request permission to lodge supplementary observations, nor an extension of the time‑limit to that effect, the Commission was entitled, without infringing the applicant’s procedural rights, to reject its application for access.

–       The right of access during the supplementary procedure

109    In the course of the supplementary procedure, the Commission also rejected, on 14 January 2008, the applicant’s request for access dated 10 January 2008 relying, first, on the confidential nature of certain information in De Beers’ replies to the requests for information and, secondly, on the fact that the Commission had not based its provisional assessment on the other documents requested.

110    The applicant challenges those two bases.

111    First, the applicant submits that the Commission’s reference to alleged confidentiality through a stylistic formula meant that the applicant was unable to obtain proper access to the documents underlying the provisional assessment. The applicant notes in that regard the risks which ‘abuse of confidentiality’ poses for the effectiveness of access to documents.

112    In the present case, the Commission forwarded to the applicant, in the supplementary Article 7 letter, the non-confidential versions of the diamond producers’ replies to the supplementary questions asked of them, including those of De Beers. By letter of 4 February 2008, before the Hearing Officer took a decision to that effect, the Commission communicated to the applicant a new non‑confidential version of De Beers’ replies, replacing certain information completely redacted in the first version, including information relating to an estimate of worldwide diamond production, by ranges of figures enabling a definite scale to be given.

113    The information concerning De Beers was therefore communicated in part to the applicant, and indeed not by means of a summary, and was supplemented during the procedure, in particular by the communication of a definite scale for De Beers’ assessment of world rough diamond production, the absence of which had been criticised by the applicant. The Court also notes that a complainant may not be supplied with confidential information (see paragraphs 87 and 99 above) and finds that the applicant has not made any other specific claim in relation to the information not communicated, since it has simply stated that ‘[m]uch information that should have been communicated to [it] has been withheld’. The applicant’s first argument alleging breach of its right of access during supplementary procedure must therefore be rejected.

114    It must be added that, if the applicant is pleading in the present context, as in the initial procedure (see paragraph 103 above), that an inadequate statement of reasons has been provided for the non-communication of certain confidential information, that contention must also be rejected. The Commission set out on several occasions, and in a particularly detailed manner in its letter of 14 January 2008 in response to a specific challenge from the applicant regarding the replies given by De Beers, why the confidentiality of the redacted information had to be ensured. It thus explained that the communication of the precise estimate of world rough diamond production by De Beers would reveal its own view of the market and undermine the secrecy of sensitive information gathered by it through its own market intelligence activities.

115    Secondly, the applicant submits that the Commission could not seriously maintain that it had not based its provisional assessment on the documents requested in relation to Cases T‑170/06 and C‑441/07 P, since the supplementary procedure had been initiated in response to the General Court’s judgment in that case (paragraph 26 above), which was challenged on appeal in Case C‑441/07 P.

116    It must be found, first of all, that of all the documents requested by the applicant in its letter of 10 January 2008 to which access was not granted, the applicant refers expressly in its application only to the procedural documents in Case T‑170/06 and the appeal in Case C‑441/07 P. It makes no reference to the non-confidential versions of the complaints and related documents, submitted to the Commission, concerning SOC and the De Beers-Alrosa Agreement, including the statement of objections, or to the non-confidential versions of the documents obtained in the context of the investigation concerning SOC and the De Beers‑Alrosa Agreement, and therefore puts forward no arguments in relation to them.

117    It must be noted, next, that the pleadings in Cases T‑170/06 and C‑441/07 P are not referred to either expressly or impliedly in the supplementary Article 7 letter, and that the applicant does not adduce any evidence capable of establishing that the Commission relied on those documents. As the Commission correctly states in the defence, the only document relevant to the supplementary procedure was the General Court’s judgment in Alrosa (paragraph 26 above), which led to the opening of the supplementary procedure and which is referred to on several occasions and analysed in the supplementary Article 7 letter. The pleadings in Case T‑170/06 contain only the positions and arguments of the parties, which were examined by the Court in order to settle the dispute in that case, and which were moreover summarised in the General Court’s judgment in Alrosa (paragraph 26 above). Similarly, the appeal lodged against that judgment in Case C‑441/07 P expresses only the Commission’s position in relation to that judgment, which must be complied with as such pursuant to Article 266 TFEU, irrespective of that non‑suspensory appeal.

118    It follows from all the foregoing that the applicant has not established that the Commission had infringed its right of access to the documents on which it had based its provisional assessments in the initial and supplementary procedures.

119    Consequently, the first part of the second plea in law alleging breach of the applicant’s right of access to the documents on which the Commission based its provisional assessment must be rejected in its entirety.

 The requests for access during the present proceedings

120    By its second head of claim in Cases T‑104/07 and T‑339/08, the applicant requests the Court to order the Commission to provide it with several documents (see paragraph 52 above, second indent, and paragraph 53 above, second indent). Those requests for access to certain documents held by the Commission may be categorised as measures of organisation of procedure, inasmuch as they seek, in accordance with the applicant’s own wording describing them as such, disclosure of those documents ‘within the present appeal[s] as they appear necessary for a proper understanding of the impugned decision’ and are therefore aimed at clarifying certain points at issue in order to facilitate the conduct of proceedings and the resolution of the case.

121    It is apparent from examining the first part of the present plea in law that the applicant has not established that the Commission had infringed its right of access to the documents on which it had based its provisional assessments, which were set out in the contested decisions. There is therefore no need to grant the requests for access in the context of the present proceedings, which relate, as the applicant stated in reply to a question from the Court, to documents already requested during the administrative procedures and to which the Commission had refused access during those procedures.

 The confusion concerning the stage of the procedure in question (Case T‑104/07)

122    The applicant submits that the Commission created confusion concerning the stage of the procedure reached when the case-orientation letter was sent on 29 March 2006 (see paragraph 14 above), since the wording of a passage of that letter and the date on which it was sent led the applicant to think that it was the letter laid down under Article 7(1) of Regulation No 773/2004.

123    It must be borne in mind that points 54 to 57 of the Notice on the handling of complaints set out the different stages of the Commission’s procedure for dealing with complaints, as distinguished in the case-law (Case T‑64/89 Automec v Commission [1990] ECR II‑367, paragraphs 45 to 47, and Case T‑37/92 BEUC and NCC v Commission [1994] ECR II‑285, paragraph 29). Those points are worded as follows:

‘54. In the Commission’s procedure for dealing with complaints, different stages can be distinguished.

55. During the first stage, following the submission of the complaint, the Commission examines the complaint and may collect further information in order to decide what action it will take on the complaint. That stage may include an informal exchange of views between the Commission and the complainant with a view to clarifying the factual and legal issues with which the complaint is concerned. In this stage, the Commission may give an initial reaction to the complainant allowing the complainant an opportunity to expand on his allegations in the light of that initial reaction.

56. In the second stage, the Commission may investigate the case further with a view to initiating proceedings pursuant to Article 7(1) of Regulation 1/2003 against the undertakings complained of. Where the Commission considers that there are insufficient grounds for acting on the complaint, it will inform the complainant of its reasons and offer the complainant the opportunity to submit any further comments within a time-limit which it fixes (Article 7(1) of Regulation [No] 773/2004).

57. If the complainant fails to make known its views within the time‑limit set by the Commission, the complaint is deemed to have been withdrawn (Article 7(3) of Regulation [No] 773/2004). In all other cases, in the third stage of the procedure, the Commission takes cognisance of the observations submitted by the complainant and either initiates a procedure against the subject of the complaint or adopts a decision rejecting the complaint.’

124    In the present case, the case-orientation letter of 29 March 2006 constitutes the communication by the Commission of its initial reaction to the complainant, referred to in point 55 of the Notice on the handling of complaints, and not the letter under Article 7(1) of Regulation No 773/2004, which was sent on 4 August 2006.

125    The applicant submits that it thought that the case-orientation letter was the letter pursuant to Article 7(1) of Regulation No 773/2004, because, first, it was issued nine months after the lodging of the complaint and five months after the information, in November 2005, that the complaint was at the first stage of the proceedings and, secondly, it ended with the following paragraph:

‘Should no reply arrive before the abovementioned deadline we will deem BVGD’s complaint to be withdrawn. Should you decide not to withdraw your complaint, we will proceed with rejecting your complaint pursuant to Article 7 of Regulation (EC) No 773/2004.’

126    It must be found that the date on which the case-orientation letter was sent and the drafting of its final paragraph were capable of giving rise to confusion on the applicant’s part, notwithstanding the fact that the subject line of the letter was headed ‘Case orientation’ and no reference was made to Article 7(1) of Regulation No 773/2004, as required by point 68 of the notice on the handling of complaints.

127    As regards the date on which the case-orientation letter is sent, the Court notes that the Commission’s handling of complaints is not bound by restrictive time‑limits. The Commission is, however, under an obligation to decide on complaints within a reasonable time (Guérin automobiles v Commission, paragraph 80 above, paragraph 37), which must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraph 57; see also point 60 of the Notice on the handling of complaints).

128    The notice on the handling of complaints also lays down, at point 61, an indicative time frame of four months from the reception of the complaint, within which the Commission will in principle endeavour to inform the complainant of the action that it proposes to take on the complaint, specifying that ‘[t]his time-limit does not constitute a binding statutory term’. Point 62 of the notices states:

‘[W]ithin this four month period, the Commission may communicate its proposed course of action to the complainant as an initial reaction within the first phase of the procedure (see point 55 [of this notice]). The Commission may also, where the examination of the complaint has progressed to the second stage (see point 56 [of this notice]), directly proceed to informing the complainant about its provisional assessment by a letter pursuant to Article 7(1) of Regulation [No] 773/2004.’

129    Since the applicant’s complaint was lodged on 14 July 2005, the indicative four‑month time frame, referred to in points 61 and 62 of the notice on the handling of complaints, had expired over four months before the case-orientation letter of 29 March 2006 was sent and by then over eight months had elapsed since the complaint was lodged. In those circumstances, the applicant was entitled, relying on the date on which it was sent, to think that the case-orientation letter constituted the letter under Article 7(1) of Regulation No 773/2004 (see, to that effect, the second sentence of point 62 of the notice on the handling of complaints).

130    The drafting of the final passage of the case-orientation letter was likely to reinforce that impression, because of the allusion therein to the rule laid down in Article 7(3) of Regulation No 773/2004, which states ‘[i]f the complainant fails to make known its views within the time-limit set by the Commission [in the letter provided for by Article 7(1) of Regulation No 773/2004], the complaint shall be deemed to have been withdrawn’.

131    However, that confusion was only temporary. The Commission put an end to it on 12 April 2006 by an email sent to the applicant in response to a request for access to the documents on which the Commission had based its provisional assessment, in which the Commission states that the case-orientation letter is not a letter provided for by Article 7(1) of Regulation No 773/2004 and that the applicant would have all the rights granted by that regulation once the procedure foreseen by that provision was launched.

132    It follows that the temporary confusion, which lasted two weeks, resulting from the date on which the case-orientation letter was sent, in conjunction with the wording of the final passage of that letter, did not affect the applicant’s right to be closely associated with the procedure. As foreshadowed by the email of 12 April 2006, the requests for access to the file lodged by the applicant as soon as the case-orientation letter was communicated – which could be lodged only after the Article 7 letter was sent – were dealt with subsequently. In addition, the applicant had the opportunity to express its views on the Article 7 letter, in accordance with Article 8(1) of Regulation No 773/2004, after it had already expressed its views on the case-orientation letter.

133    Consequently, the objection based on confusion as to the stage of the procedure at issue must be rejected.

 Exercise of undue pressure by setting unnecessarily short time-limits (Case T‑104/07)

134    The applicant submits that the Commission put undue pressure on it by refusing to grant the extensions of time which it requested on three occasions in the course of the procedure in order to provide its comments on the case-orientation letter, the Ombudsman’s draft revised terms of reference and the Article 7 letter.

135    In addition, the Article 7 letter was sent only to the applicant, whose President was on leave, whereas it ought to have been sent to its lawyers, as stated in the complaint. The Commission ought thus to have found that the applicant had not been notified until the date on which the applicant’s President could have learned of the letter’s existence and started the four-week time-limit to run only from that date.

136    Article 17 of Regulation No 773/2004, relating to time-limits, is worded as follows:

‘1. In setting the time-limits provided for in Article 3(3), Article 4(3), Article 6(1), Article 7(1), Article 10(2) and Article 16(3), the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case.

2. The time-limits referred to in Article 6(1), Article 7(1) and Article 10(2) shall be at least four weeks. However, for proceedings initiated with a view to adopting interim measures pursuant to Article 8 of Regulation … No 1/2003, the time-limit may be shortened to one week.

3. The time-limits referred to in Article 3(3), Article 4(3) and Article 16(3) shall be at least two weeks.

4. Where appropriate and upon reasoned request made before the expiry of the original time-limit, time-limits may be extended.’

137    Points 70 and 71 of the notice on the handling of complaints provide the following clarification:

‘70. The time-limit for observations by the complainant on the letter pursuant to Article 7(1) of Regulation [No] 773/2004 will be set in accordance with the circumstances of the case. It will not be shorter than four weeks (Article 17(2) of Regulation [No] 773/2004). If the complainant does not respond within the time-limit set, the complaint is deemed to have been withdrawn pursuant to Article 7(3) of Regulation [No] 773/2004. Complainants are also entitled to withdraw their complaint at any time if they so wish.

71. The complainant may request an extension of the time-limit for the provision of comments. Depending on the circumstances of the case, the Commission may grant such an extension.’

138    First, it must be examined whether the time-limits set by the Commission comply with those requirements.

139    It is apparent from the abovementioned provisions that, as regards the three pieces of correspondence concerned, the Commission is bound by a statutory time-limit only as regards the letter under Article 7(1) of Regulation No 773/2004, the complainant having to be granted a period within which it may submit its observations on that letter, which cannot be less than four weeks.

140    In the present case, the Commission set a time-limit of six weeks for the applicant to submit its observations, which was therefore greater than the minimum laid down by Article 17 of Regulation No 773/2004. The Commission stated in a letter of 6 September 2006 that it had granted those additional two weeks to take account of the holiday period. The applicant adduces no evidence to show that, by selecting a six-week period rather a four-week period as referred to by it in the application (see paragraph 135 above), the Commission failed to have regard to the time required for the preparation of its submissions and to the urgency of the case.

141    As regards the other pieces of correspondence, the provisions applicable do not prescribe a time-limit. It may, however, be considered that the Commission must, in accordance with the principle of sound administration and in order to ensure the effectiveness of a complainant’s right to be associated closely with the procedure, have regard to the time required for the preparation of its submissions and to the urgency of the case. In setting a two-week time-limit for submitting observations on the case-orientation letter and an eight-day time-limit for the Ombudsman’s draft revised terms of reference, the Commission set short time-limits, while nonetheless having regard to the abovementioned requirements.

142    The Commission may be considered to have had regard to the time required for the preparation of the applicant’s submissions. First, the case-orientation letter is only four pages long and the Commission’s course of action is set out on fewer than two pages. Secondly, the applicant was aware, before the Ombudsman’s revised terms of reference were sent, at least of the previous version of those terms, which was communicated to the sightholders some of which are its members. This is shown in particular by the fact that on 17 March 2006 the applicant expressed a number of criticisms in relation to the Ombudsman’s role, as governed by his terms of reference, in the context of SOC. It was therefore in a position, within the eight-day time-limit granted to it, to submit detailed and reasoned observations on the Ombudsman’s revised terms of reference of more than five pages. The Commission may also be considered to have had regard to the urgency of the case, inasmuch as the Ombudsman’s revised terms of reference were sent to it by De Beers over three months after the case‑orientation letter was sent and it was therefore appropriate to set a short time‑limit in order not to delay sending the Article 7 letter, which was finally sent on 4 August 2006.

143    As regards, secondly, the refusal to extend the time-limits set, it must be stated that the Commission is not required by the relevant provisions to grant the extensions requested, as shown by the use of the expression ‘Where appropriate … may’ in Article 17(4) of Regulation No 773/2004 and the clarification that it takes a decision ‘Depending on the circumstances of the case’, pursuant to point 71 of the notice on the handling of complaints.

144    The Commission therefore has discretion in the matter. Consequently, the object of the Court’s review of refusals to grant the extensions requested is only to penalise a manifest failure to have regard to the circumstances of the case likely to compromise the applicant’s right to be associated closely with the procedure.

145    This is not such a case. The reason for the applications for an extension of time, in all three cases at issue, was holidays (Easter and subsequently the summer holidays). Although it is common to avoid setting a time-limit expiring in August, the Commission cannot be required to extend every time-limit on the ground that it includes a holiday period, in particular as regards the Article 7 letter, when it has already granted, in setting the initial time-limit, two additional weeks in relation to the minimum time-limit provided for by Regulation No 773/2004.

146    As regards, thirdly, the point from which the six-week time-limit set for submitting observations on the Article 7 letter starts to run, it cannot be accepted that the date of notification of that letter to the applicant is not taken into account because the complaint had made it clear that all correspondence had to be through the applicant’s advisers. A decision must as a rule be notified to the person to whom it is addressed, not to that person’s adviser. Indeed, notification to an applicant’s adviser constitutes notification to the addressee only when such a form of notification is expressly provided for (i) by legislation (see, to that effect, the order of 8 July 2009 in Case T‑545/08 Thoss v Court of Auditors, not published in the ECR, paragraphs 41 and 42), a situation which does not apply to Regulation No 773/2004, or (ii) by agreement between the parties, and not unilaterally by one party as here. Next, provided that a decision has been notified, the day on which a measure actually came to the knowledge of an applicant cannot be taken into account. Such knowledge may constitute the starting point of the period in question only when no notification has been given (see, as regards the time-limits for bringing proceedings, Case T‑14/96 BAI v Commission [1996] ECR II‑139, paragraph 33, and the case-law cited).

147    It follows from all the foregoing that the objection alleging that undue pressure was exerted as a result of setting excessively short time-limits must be rejected.

 The impossibility for the applicant of commenting on the new information available after the Article 7 letter was sent (Case T‑104/07)

148    The applicant submits that it has not had the opportunity to comment on the new information available after the Article 7 letter was sent. More specifically, it submits that it has been unable to comment on (i) the changes to SOC proposed by De Beers after that letter was sent, (ii) the signature of the Memorandum of Understanding between De Beers and Alrosa on their joint diamond prospecting activities and (iii) Alrosa’s press statements on its action against the De Beers commitments decision.

149    First of all, it is not apparent from the file that the Commission was aware of amendments to SOC after the date on which the Article 7 letter was sent. In addition, the applicant does not specify the information on which it bases that assertion, which is disputed by the Commission in the rejection decision and in the letter of 18 September 2006, where the Commission states that it had not been informed of any prospective changes by De Beers after the Article 7 letter was sent.

150    Next, it must be noted, first, that the applicant submitted observations on the Memorandum of Understanding between De Beers and Alrosa and on Alrosa’s press statements on its action against the De Beers commitments decision in its response of 19 September 2006 to the Article 7 letter and, secondly, that the Commission set out those observations briefly before responding to them in the rejection decision.

151    Consequently, the contention that it was impossible for the applicant to comment on the new information available after the Article 7 letter was sent must be rejected.

152    It follows from all the foregoing that the plea in law alleging that the applicant’s procedural rights have been infringed must be rejected in its entirety.

3.     The plea in law alleging infringement of the Commission’s obligations in handling a complaint (Cases T‑104/07 and T‑339/08)

153    In Cases T‑104/07 and T‑339/08, the applicant submits, essentially, that, in rejecting its complaint on the ground of insufficient Community interest, the Commission, first, failed to examine its complaint carefully and impartially and, secondly, failed to take into account all the relevant factual and legal particulars.

154    As regards the investigation of a complaint, Regulations Nos 1/2003 and 773/2004 do not contain any provisions laying down obligations on the part of the Commission to carry out such an investigation and determining the action to be taken by it as regards the substance of the complaint.

155    According to settled case-law, the Commission is not required to take a final decision as to the existence or non-existence of an alleged infringement (Case C‑119/97 P Ufex and Others v Commission [1999] ECR I‑1341, paragraph 87; see also point 41 of the notice on the handling of complaints).

156    The Commission, entrusted by Article 85(1) EC with the task of ensuring the application of Articles 81 EC and 82 EC, is responsible for defining and implementing competition policy and for that purpose has a discretion as to how it deals with complaints (Case C‑425/07 P AEPI v Commission [2009] ECR I‑3205, paragraph 31, and Case T‑427/08 CEAHR v Commission [2010] ECR II‑5865, paragraph 26). When, in the exercise of that discretion, the Commission decides to assign different priorities to the examination of complaints submitted to it, it may not only decide on the order in which they are to be examined but also reject a complaint on the ground that there is an insufficient Community interest in further investigation of the case (see CEAHR v Commission, paragraph 27, and the case‑law cited; see also recital 18 of Regulation No 1/2003 and points 41 and 45 of the notice of the handling of complaints).

157    The Commission’s discretion is not unlimited, however. It must take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint. It must also consider attentively all the matters of fact and of law which the complainant brings to its attention (see Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 57, and Case T‑110/95 IECC v Commission [1998] ECR II‑3605, paragraph 51; see also point 42 of the notice on the handling of complaints).

 The failure to examine the complaint carefully and impartially

158    The applicant submits that the contested decisions must be annulled on the ground that the Commission failed to examine the factual and legal particulars of its complaint carefully and impartially. In support of that claim, it puts forward three sets of arguments.

159    First, the applicant submits that a former Competition Commissioner was recruited as Director on the Board of a company owning 42% of De Beers, shortly before the introduction of SOC by De Beers, notwithstanding the obligations arising from his office as a Member of the Commission. The applicant is also astonished that the Member of the Commission succeeding him agreed to meet the managing director of De Beers, and questions the purpose of that meeting.

160    It must be pointed out that the recruitment alleged is that of a former member of the Commission who ceased to hold office in 1999 and dates from 2002. Similarly, the meeting referred to, on the basis of an interview granted to a journal by the former managing director of De Beers, predates the initiation of the present procedure, since the Competition Commissioner concerned ceased to hold office in 2004. Those contentions as to a lack of impartiality on the part of the Commission based on the existence of relationships between former members of the Commission and De Beers relate therefore to the procedure in Case COMP/E‑3/38.139 and the comfort letter of 16 January 2003, which are not the subject-matter of the present actions.

161    It follows that that first set of arguments must be rejected.

162    Secondly, the applicant criticises the ‘negative approach’ of the Commission in relation to the Community interest during both the initial and supplementary investigations. Instead of using the elements in its possession to establish whether there was such an interest, the Commission sought rather to determine that there was not a Community interest in the present case. This is shown during the initial procedure, inter alia, by the six meetings between the Commission and De Beers – whereas the applicant was heard only once – and by the fact that certain information relating to the investigation was provided solely to De Beers throughout that procedure. It is also shown, during the supplementary procedure, by the importance attached to the observations of the diamond producers, in particular those of De Beers.

163    It is sufficient to note in that regard that the applicant does not adduce any evidence capable of establishing that the Commission has breached its duty of impartiality. It confines itself, first, to criticising the more frequent exchanges between the Commission and De Beers than those between itself and the Commission. Since De Beers was the undertaking which introduced SOC, the Commission maintained close contact with it in order to obtain the information necessary to enable it to investigate the complaint concerning SOC and then to inform De Beers of the progress of its investigation which might have a considerable impact on SOC already in force at the time of the investigation. The exchanges criticised by the applicant do not therefore in themselves show that the Commission lacked impartiality with regard to De Beers during the initial procedure. The applicant relies, secondly, on the importance attached to the positions of De Beers and thus, essentially, on the rejection of its complaint. While such a rejection by the supplementary rejection decision is indeed favourable to De Beers, it is not in itself sufficient to prove the existence of any indulgence on the part of the Commission in respect of De Beers during the supplementary procedure.

164    That second set of arguments must therefore be rejected.

165    Thirdly, the applicant criticises the limited nature of the inquiries conducted during the initial and supplementary investigations.

166    It states that, in the initial investigation, the Commission confined itself to sending requests for information one year before the complaint was lodged, without assessing with all due care – for example by means of an economic impact study – important information supplied in particular by the applicant, other undertakings operating in the diamond sector or the diamond bourses. The applicant emphasises the relevance of the information supplied by the diamond bourses, representing over 11 000 members, stressing that SOC has foreclosure effects, which shows that there is a Community interest in investigating further. The applicant emphasises, by contrast, the necessarily imprecise nature, discrepancies, contradictions and even inaccuracies of the sightholders’ replies to the requests for information for fear of reprisals from De Beers. The applicant also questions the relevance of the questions asked and the impact on the replies given of the date on which the requests for information were sent.

167    In the supplementary procedure, the applicant complains that the Commission sent the requests for information to the diamond producers only, whereas it also ought to have reconsulted other key players in the market, such as the sightholders or diamond bourses, and suggests a number of questions which ought to have been put to them.

168    According to settled case-law, when the Commission decides to proceed with an investigation of a complaint referred to it, it must, unless duly detailed reasons are given, conduct it with the requisite care, seriousness and diligence so as to be able to assess with full knowledge of the case the factual and legal particulars submitted for its appraisal by the complainants (Case T‑7/92 Asia Motor France and Others v Commission [1993] ECR II‑669, paragraph 36, and Case T‑204/03 Haladjian Frères v Commission [2006] ECR II‑3779, paragraph 29). However, even when such an investigation has been carried out, no provision of law gives the complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and thus to seek evidence of the existence or non-existence of that infringement (see Haladjian Frères v Commission, paragraph 28, and the case-law cited; see also paragraph 154 above).

169    It follows that, when the Commission does not rule on the existence of the infringements alleged in a complaint, but restricts its assessment to whether there is sufficient Community interest regarding the allegations in that complaint, as in the present case, the scope of the Commission’s investigation is necessarily narrower than a full investigation into whether or not the alleged infringement exists, as the Commission correctly notes in the rejoinder (see, to that effect, Case T‑5/93 Tremblay and Others v Commission [1995] ECR II‑185, paragraph 91, and the case‑law cited).

170    In the present case, in the context of its investigation of SOC, it must be noted that the Commission sent, between February and October 2004, requests for information to operators with sightholder status, excluded sightholders, brokers, rough diamond producers and diamond bourses (see paragraph 11 above). Following the General Court’s judgment in Alrosa (paragraph 26 above), the Commission sent supplementary requests for information to the main diamond producers on 9 October 2007 and follow-up questions to De Beers on 29 October 2007 (see paragraph 27 above).

171    As regards, first of all, the Commission’s chosen instruments of investigation, the Court notes that the Commission has freedom of action in the conduct of its investigations in competition cases (Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 212). Indeed, no provision requires it to use one method rather than another. In addition, the Court has held that, far from providing evidence of any prejudice on its part, the sending by the Commission of the requests for information attested to its willingness to examine carefully and impartially all the relevant aspects of the individual case in order, in particular, to be able to adopt a decision in full knowledge of the facts (see, to that effect, Joined Cases T‑191/98, T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 412).

172    It must be added that the Commission stated, without being contradicted by the applicant, that the Chief Economist of its Directorate-General for Competition was involved in the examination of the complaint against SOC, even though he did not draw up the economic impact study that the applicant demanded. Similarly, as regards the measure seeking the production of the sightholder profiles also advocated by the applicant, it must be noted that the information in those profiles was less reliable than that in the replies to the request for information sent to the sightholders. Sightholders are liable to a fine if they provide incorrect or misleading information in reply to a request for information (see paragraph 181 below). In addition, the replies given in the sightholder profiles, which are formulated by SOC applicants, may by the same token contain information not reflecting reality, notified solely for the purpose of obtaining selection as a sightholder.

173    The applicant cannot therefore successfully complain that the Commission failed to conduct its investigation carefully and seriously by sending requests for information without obtaining an economic impact study, requesting the production of sightholder profiles sent to De Beers or carrying out any other investigative measure.

174    As regards, next, the use of requests for information, it must be noted that Article 18 of Regulation No 1/2003 provides in paragraph 1 thereof that, ‘[i]n order to carry out the duties assigned to it by this Regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide all necessary information’. Under Article 18(2) of Regulation No 1/2003, the Commission must state in its request for information the legal basis and the purpose of that request, specify what information is required and fix the time-limit within which the information is to be provided, and state the penalties provided for supplying incorrect or misleading information. The Court has inferred from this that the powers of investigation provided for in Article 18 of Regulation No 1/2003 are subject only to the requirement that the information requested be necessary (see Joined Cases T‑458/09 and T‑171/10 Slovak Telekom v Commission [2012] ECR I‑0000, paragraph 45, and the case‑law cited; see also, to that effect, Atlantic Container Liner and Others v Commission, paragraph 171 above, paragraph 48).

175    Regulation No 1/2003 therefore imposes no obligation on the Commission as regards the addressees of the requests for information, the information requested, other than that such information must be necessary, or the date on which the requests must be sent. In addition, the applicant has adduced no evidence capable of establishing that those three aspects of the requests for information sent in the present case demonstrate a lack of care, seriousness and diligence on the part of the Commission in the investigations carried out.

176    As regards the addressees of the requests for information, it is sufficient to note that the Commission sent requests to all the SOC protagonists, that is to the companies which established the system, namely De Beers, those participating in it, the sightholders, or which had participated in the system, the excluded sightholders, and more broadly to the companies and organisations operating on the diamond markets, including, in particular, the diamond bourses. The Commission cannot therefore be criticised for failing to question the independent operators, namely jewellery makers and jewellers. Most of the excluded sightholders questioned who replied to the requests for information stated that they were involved in the manufacture of jewels, namely jewellery (see the first column of the summary of the excluded sightholders’ replies to the requests for information). In addition, the applicant does not challenge their independence from De Beers (see also paragraph 181 below).

177    It should also be added that the diamond bourses were questioned and their replies expressly taken into account and appraised in detail by the Commission in the rejection decision, the Commission comparing them with the other replies given to the requests for information. The applicant cannot therefore claim that the Commission failed to evaluate with all due care the information supplied by the diamond bourses. If the applicant is criticising the result of the comparison, contrary to the diamond bourses’ contentions and its own contentions against SOC, it is in fact disputing the substantive assessment of the Community interest by the Commission, which will be considered when the fourth plea in law is examined.

178    Contrary to the applicant’s contentions, the rough diamond producers were questioned both during the initial and supplementary investigations (see paragraphs 11 and 27 above). The applicant cannot criticise the Commission on the ground that during the supplementary procedure it sent requests for information only to the producers. That procedure was initiated further to the annulment by the General Court of the De Beers commitments decision. Since that decision restricted the rough diamonds capable of being purchased by De Beers from another rough diamond producer, Alrosa, it was for the Commission to evaluate the amounts of sales and purchases of those two producers in the absence of that restriction and thus to question them on that point in respect of the years concerned by the abovementioned commitments. It was also for the Commission to compare those replies with those of the other rough diamond producers which had not yet been questioned in relation to the years in question. The Commission therefore requested each of the producers to specify their actual or projected annual sales of rough diamonds between 2006 and 2009 (question No 2) and their actual or projected annual rough sales to and purchases from other producers for the same years (question No 6). By contrast, since the annulment of the De Beers commitments decision had an impact only on the relations between rough diamond producers, the Commission was not required to send new questionnaires to all the parties questioned during the initial investigation in order for them to update their replies.

179    The arguments put forward by the applicant do not call in question those considerations. It simply questions whether it was disproportionate to send fresh requests for information to all those already questioned, when sending such requests had not been considered to be disproportionate during the initial investigation, states that a more extensive investigation would have shown that there is market foreclosure and insists on the need to update all the information.

180    It follows that the Commission did not infringe its obligation to examine the complaint carefully and seriously in questioning only the producers for the purposes of re-examining its initial assessment. In addition, the Commission carried out a detailed supplementary investigation, even sending several sets of questions to the main producer concerned, De Beers (see paragraph 27 above).

181    Nor can the applicant criticise the Commission for having questioned the sightholders and taken account of their replies. For the sightholders are the main operators in SOC, the subject of the investigation in question. Next, the Commission sought to ensure that the sightholders did not provide imprecise, incomplete, or even inaccurate, information for fear of reprisals from De Beers. It communicated to De Beers only a non-confidential version of the sightholders’ replies, omitting their names in particular. The Commission reminded the sightholders of the risk of being fined if they supplied incorrect or misleading information (see paragraph 174 above) and requested them, in the introduction to the questionnaire sent to them, to be very specific in their answers and to give sufficient details for non-specialists to understand their replies. In addition, if the present argument must be construed as meaning that, in the rejection decision, the Commission attached too much weight to the replies given by the sightholders, that argument cannot be addressed in this part of the present plea, since such a contention falls within the substantive assessment of the Community interest, considered in the examination of the fourth plea in law. Lastly, it may be added that the Commission did not simply question the De Beers sightholders in 2004, but it also sent requests for information to the sightholders which had been excluded from SOC (see paragraph 11 above) – which by definition cannot be subject to retaliatory measures by De Beers and thus to the fear of such measures – in order to compare their replies with those given by the sightholders.

182    As regards the information requested during the initial procedure, the applicant complains that three questions were not put to the sightholders, namely whether they thought that De Beers would have access to their replies to the requests for information, how much De Beers was controlling their commercial decisions, and whether they refrained from selling on the secondary market because of concern for the evaluation of their replies to the sightholder profile. In addition to the fact that, by proposing those questions, the applicant goes back on its own reservations concerning questions to the sightholders, it must be found that in so doing it does not cast doubt on the need for the questions asked, which is the only obligation imposed on the Commission by Regulation No 1/2003 (see paragraph 174 above). It must also be noted that the addressees of simple requests for information are not under an obligation to reply (see, as regards Article 11(2) of Regulation No 17, which contains in essence the same distinction between a request for information and a decision requiring information, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 279); it is therefore for the Commission to ask the appropriate questions in order to obtain the most replies. However, through the direct questions suggested by the applicant, encouraging sightholders to make accusations against De Beers – and given the fear of retaliatory measures from it to which the applicant itself referred and which are indeed expressed in the first question suggested – the number of replies obtained would undoubtedly have been limited. On the other hand, in so far as the Commission’s questions sought to obtain the same type of information more subtly (see, in particular, question No 14 of the request for information sent to the sightholders asking them the reasons for their resales of rough diamonds on the secondary market or even question No 25 asking them whether De Beers knew their customers’ names), they show that the investigation concerning SOC was carried out carefully and seriously.

183    As regards the time of sending the requests for information in the initial procedure, namely 2004, the Court notes that, in contending that the sightholders’ replies were distorted in favour of De Beers because of favourable price conditions awarded to the sightholders by the latter during 2004, the applicant overlooks the fact that the information requested did not relate to 2004 alone, but also to the years 1998 to 2003. Therefore, it cannot be considered that all the replies provided by the sightholders were distorted by those specific conditions.

184    In addition, if by that contention the applicant is arguing that the favourable price conditions at issue led the sightholders to express in general a favourable position towards SOC, reference should be made, first, to the considerations developed in paragraph 181 above in relation to the means deployed by the Commission in order to avoid inaccurate information being communicated and, secondly, it should be noted that the Commission was aware of the favourable price conditions, as a result in particular of the applicant’s reference to them in its observations on the Article 7 letter, and was therefore able to analyse the sightholders’ replies in the light of that information.

185    Lastly, if the applicant criticises the Commission on the ground that it did not update the information from the requests for information at issue by sending their initial addressees fresh requests for information before the rejection decision was adopted, it should be borne in mind that the complaint giving rise to that decision was lodged on 14 July 2005, that the requests for information had been sent in 2004 following other complaints challenging SOC lodged beforehand (see paragraph 11 above) and that those requests for information asked their recipients for their estimates for 2004, the first year of implementation of SOC. Consequently, when the applicant’s complaint was lodged and without the need to adopt measures of investigation, the Commission had at its disposal updated information concerning SOC, the subject-matter of the complaint, since that information related to the last full year before the matter was referred. Furthermore, as the Commission notes, neither the applicant nor any other complainant had suggested during the administrative procedure that the market conditions had changed since the 2004 investigation.

186    Accordingly, the Commission did not fail to display seriousness and diligence in relying on the replies to the requests for information sent in 2004, all the more so since the Commission is required under case-law, as it noted in reply to a question from the Court, to assess as a whole the complaints challenging the same conduct (see paragraphs 190 et seq. below).

187    That first part of the third plea in law must therefore be rejected in its entirety.

 The infringement of the obligation to take into consideration all relevant matters of law or of fact

188    The applicant alleges several gaps in the examination of its complaint by the Commission.

 The lack of an overall assessment of the complaint (Cases T‑104/07 and T‑339/08)

189    The applicant submits that the Commission did not examine its complaint in an overall manner. The Commission failed to take into account other similar complaints lodged against SOC and failed to carry out an overall assessment of all the evidence in its possession, as it was required to do by the case-law. That lack of an overall approach is shown, first, by the fact that none of the similar complaints are even mentioned in the rejection decision and that the Commission stated in the supplementary rejection decision that its conclusion was without prejudice to the statements of objections in another case (Case COMP/E‑2/38.381); secondly, each of the factors put forward by the applicant was the subject of a separate and distinct examination in those rejection decisions, contrary to the Commission’s approach in other cases. The applicant further submits that limiting the supplementary procedure to re-examination of foreclosure effects is also contrary to an overall approach.

190    According to the case-law, when assessing the Community interest in investigating a complaint the Commission must not investigate it in isolation but rather in the context of the situation on the relevant market in general. The existence of a number of complaints alleging similar conduct by the same operators is one of the factors the Commission must take into account in its assessment of the Community interest (Case T‑62/99 Sodima v Commission [2001] ECR II‑655, paragraph 55).

191    Similarly, where the Commission assesses the likelihood of being able to establish the existence of an infringement and the extent of the investigative measures needed for that purpose, it must take into account all the evidence in its possession and must not merely assess separately the individual items of evidence submitted by each complainant and conclude that each of the complaints taken in isolation is not supported by sufficient evidence (Sodima v Commission, paragraph 190 above, paragraph 56).

192    However, the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, since the conduct of an investigation falls within the scope of its discretion. In particular, the fact that there are a number of complaints from operators belonging to different categories cannot preclude the dismissal of such of those complaints as appear, according to the evidence available to the Commission, to be unfounded or of insufficient Community interest. Consequently, the fact of having treated the different complaints separately cannot be regarded as such as being improper (see Sodima v Commission, paragraph 190 above, paragraph 57, and the case-law cited).

193    Therefore, first, the Commission cannot be criticised for having organised matters by theme with regard to competition law, distinguishing, in particular, the issue of foreclosure effects and that of the abusive gathering and use of information. That analytical approach does not mean that the Commission investigated the complaint in isolation or that it failed to take into account the context of the situation on the relevant market in general. The applicant misinterprets the above mentioned case-law, when it perceives it as prohibiting the Commission from investigating separately the information adduced by it. The Commission must take into account the interaction between the various pieces of information and a possible cumulative effect of the alleged restrictions of competition, but it is not prohibited from carrying out a structured investigation of the complaint, differentiating the various alleged restrictions according to their nature. That is true all the more so when, as in the present case, the Commission makes explicit links between those restrictions by cross-referring to the subdivisions of the rejection decision concerned with them. It also follows from that interpretation of the abovementioned case-law that re-examination of an aspect of a decision cannot be ruled out because a new fact affects only that aspect, where, as in the present case, the new fact has an impact only on the analysis of foreclosure effects and is not linked to the other restrictions of competition ruled out in the rejection decision.

194    Secondly, the separate treatment of the complaints received by the Commission concerning SOC – at least two in number, namely the applicant’s complaint, and that of Diamanthandel A. Spira BVBA, the applicant in related Case T‑108/07 – cannot be regarded as such as being improper, since the Commission is not required to join the procedures for examining different complaints concerning the conduct of a particular undertaking, as is apparent from the judgment in Sodima v Commission (paragraph 190 above).

195    On the other hand, the Commission’s failure to take into account the existence of other complaints against SOC during its assessment of the Community interest would constitute an irregularity, as would a failure to take into account evidence in the Commission’s possession, submitted in another complaint against SOC, which in conjunction with the evidence adduced by the applicant in its complaint was sufficient to establish a Community interest in investigating the complaints further.

196    In the present case, it follows from the supplementary rejection decision that the statement that the Commission’s conclusion regarding the applicant’s complaint is without prejudice to the statements of objections in relation to Case COMP/E‑2/38.381, which gave rise to the De Beers commitments decision, cannot be construed as a failure to take into account the information stemming from that other case. All the explanations in the supplementary rejection decision in relation to the assessment of Alrosa’s supplies of diamonds concern the taking into account of the commercial relationships between Alrosa and De Beers, the subject-matter of the abovementioned case. It is apparent that the Commission stated that its conclusion was without prejudice to the content of the statements of objections in that other case in order to preclude – as a precautionary measure, as shown by the use of the expression ‘For avoidance of doubt’ – its position on that case being inferred from the considerations in the supplementary rejection decision concerning the relationships between Alrosa and De Beers. That other case had not then concluded when the supplementary rejection decision was adopted, given the annulment of the De Beers commitments decision by the General Court’s judgment in Alrosa (paragraph 26 above).

197    As regards the rejection decision, the Commission confirmed, in response to a question from the Court, that it had not referred, either in the Article 7 letter or that decision, to other complaints lodged against SOC. It had stated, on the other hand, in the letter of 4 July 2006 sent to the applicant during the administrative procedure, that it had received complaints against SOC.

198    However, while the reference to other complainants may amount to evidence showing that the existence of those other complaints was taken into account, it is not determinative (see, to that effect, Case T‑26/99 Trabisco v Commission [2001] ECR II‑633, paragraph 38). Indeed, it is only during its assessment of the Community interest that the Commission must not carry out a separate evaluation of the evidence submitted by each complainant and must take into account the existence of other complaints. In the present case, several factors tend to show that the Commission did not compartmentalise the evidence. First, in order to reject the applicant’s various contentions, the Commission relies each time in its decision on considerations of a general nature, in relation for example to the foreclosure effects on the market in general and the implementation of the Ombudsman’s terms of reference with regard to sightholders or sightholder applicants in general, not on considerations restricted to the applicant’s individual situation. Secondly, it must be noted that the principal letters sent by the Commission further to the various complaints were sent on the same date and, in particular, that the rejection decision contested in Case T‑108/07 was adopted on the same date as the rejection decision in Case T‑104/07, which gives good grounds for assuming that the corresponding complaints were examined in parallel and overall. The first objection must therefore be rejected.

 The failure to take into account the continued effects of the alleged anti‑competitive practices (Cases T‑104/07 and T‑339/08)

199    The applicant complains, generally, that the Commission failed to take into account the continued effects of the anti-competitive practices in question, all the more so since, as in the present case, those practices have not ceased.

200    More specifically, the applicant complains that the Commission never specified whether it had assessed the quantity of diamonds sold by Alrosa outside De Beers’ channels since February 2006, the date of the De Beers commitments decision. Nor did the Commission take into account the agreement between Alrosa and De Beers of September 2006 and its impact on the quantity of rough diamonds available to De Beers. Even though it still maintains the contrary, the Commission also failed to take into account during the supplementary procedure the General Court’s annulment of the De Beers commitments decision.

201    According to settled case-law, in deciding to discontinue consideration of a complaint against certain allegedly infringing practices on the ground of lack of Community interest, the Commission cannot rely solely on the fact that those practices have ceased, but must first ascertain that anti-competitive effects have ceased and, as the case may be, that the seriousness of the alleged interferences with competition or the persistence of their effects were not such as to give the complaint a Community interest (Case C‑119/97 P Ufex and Others v Commission, paragraph 155 above, paragraph 95; see also point 44 of the notice of the handling of complaints). However, that case-law only applies where the Commission bases its decision on the fact that the alleged anti‑competitive practices have ceased (Case T‑60/05 Ufex and Others v Commission [2007] ECR II‑3397, paragraph 74).

202    Since in the present case the Commission did not reject the contention that SOC has foreclosure effects on the basis that the practices allegedly criticised in the complaint had ceased, but because there was a small likelihood of finding any appreciable anti-competitive effects (see paragraph 22 above), the Commission cannot be criticised on the ground that it did not take into consideration the alleged continued effects of those practices.

203    Even if, by the present objection, the applicant is complaining that the Commission failed to take into account certain factors which, in the applicant’s submission, show that anti-competitive effects were produced after the rejection decision was adopted, that objection cannot be upheld either.

204    As regards, first, the amount of diamonds sold by Alrosa to De Beers outside De Beers’ channels after the adoption of the De Beers commitments decision, it must be noted that this was taken into account by the Commission. As the applicant indeed observes, the Commission stated in the rejection decision that a current assessment needed to take into account the De Beers commitments decision and the quantities of diamonds that Alrosa has since then started to sell outside De Beers. Although the Commission did not provide figures in that regard in the rejection decision, it is expressly stated in the Article 7 letter issued in 2006 that Alrosa was at that time independently selling, that is to say outside De Beers’ channels, around 7% of the world rough diamond production.

205    As regards, secondly, the agreement between Alrosa and De Beers of 6 September 2006 (see paragraph 148 above), this relates to the future joint prospecting of diamonds, not to the purchases of diamonds resulting therefrom. Even if, as the applicant claims, that prospecting would lead to an increase in the amount of rough diamonds controlled by De Beers, the Commission was not entitled, in the absence of certain and precise information in that regard when adopting the rejection decision, to take into account in its analysis diamonds from mines not yet discovered. The Commission therefore correctly stated in the rejection decision that it could initiate an investigation should it receive information that a joint venture between De Beers and Alrosa was used in order to circumvent the De Beers commitments decision.

206    As regards, thirdly, the annulment of the De Beers commitments decision by the General Court, it is sufficient to note that the supplementary procedure was initiated in order to take account of that annulment and also to point out that all the measures adopted during that procedure, including the supplementary rejection decision closing it, show the central place of that annulment in the Commission’s analysis (see paragraphs 36 et seq. and 78 above).

207    That second objection must therefore be rejected.

 The failure to take into account and analyse De Beers’ dominant position (Case T‑104/07)

208    The applicant complains, essentially, that the Commission rejected its complaint without analysing – or even considering in its analysis – De Beers’ dominant position resulting, first, from its market shares in the world market for rough diamonds (60-70%) and the market for the better quality diamonds (almost 90%), and, secondly, from its control over the entire diamond pipeline.

209    It must be noted that the Commission took the view in the 2002 notice (points 9 to 14 and 30) and in the De Beers commitments decision that De Beers held a dominant position, at least on the market for the supply of rough diamonds. However, it did not refer to contentions or considerations regarding the dominant position of De Beers in any of the documents in the initial procedure, except when repeating the applicant’s arguments.

210    The applicant correctly inferred from this that the Commission did not examine or take into account De Beers’ dominant position in the course of that procedure. However, the Commission cannot be criticised in the present case for the failure to examine or take into account De Beers’ dominant position.

211    The Court notes in that regard that, according to settled case-law, the Commission is not required to take a final decision as to the existence or non-existence of the infringement alleged in the complaint (see paragraph 155 above). Consequently, a decision to reject a complaint does not definitively rule on the question of whether or not there is an infringement of Article 81 EC or Article 82 EC, even where the Commission has assessed the facts on the basis of those articles (judgment of 23 November 2011 in Case T‑320/07 Jones and Others v Commission, not published in the ECR, paragraphs 112 to 114; see also point 79 of the notice on the handling of complaints). It follows that the obligation of the Commission to take into consideration all the relevant matters of law and of fact in order to decide on what action to take in response to a complaint (see paragraph 157 above) relates, as regards a complaint rejected on the ground of a lack of Community interest, not to the constituent elements of an infringement of Article 81 EC or Article 82 EC, but to the matters relevant to the test used in order to conclude that there was an insufficient Community interest.

212    In the present case, the Commission rejected the applicant’s complaint on the ground of insufficient Community interest, applying the criteria normally used to assess Community interest, namely the significance of the alleged infringement for the functioning of the common market, the probability of being able to establish its existence and the extent of the investigative measures necessary (see CEAHR v Commission, paragraph 156 above, paragraph 158, and the case-law cited; see also point 44, third indent, of the notice on the handling of complaints). It is also apparent from the case-law that the Commission may consider that there is no longer sufficient Community interest where the undertakings concerned agree to change their conduct in a manner conducive to the general interest (Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraphs 48 and 49; see also point 44, sixth indent, of the notice on the handling of complaints). In the rejection decision, the Commission therefore relied, in essence, (i) as regards the contention that SOC had foreclosure effects, on the small likelihood of finding appreciable anti-competitive effects, (ii) as regards the criticisms of the sightholder selection and the role of the Ombudsman, on the amendments in relation to the Ombudsman introduced into SOC by De Beers and (iii) as regards the other claims that SOC was unlawful, including those relating to the VAS levy, on the small likelihood of establishing the existence of an infringement (see paragraphs 22 to 24 above and 353 and 354 below).

213    None of the reasons relied on for rejecting the applicant’s complaint on the ground of insufficient Community interest gave grounds for taking into account and examining the issue of De Beers’ dominance.

214    As regards the claims of foreclosure effects of SOC, the Commission took the view that they did not give grounds for further investigation since the likelihood of foreclosure effects was small on the market. In so doing, the Commission took into account the ‘actual’ seriousness of the alleged infringement in the sense of its impact on the market (see, to that effect, Case T‑60/05 Ufex and Others v Commission, paragraph 201 above, paragraph 142). It thus applied the criterion of serious impediment to the proper functioning of the market, which entails ascertaining the seriousness of the alleged interferences with competition and how persistent their effects are, and in particular the duration, extent and impact of the infringements on the competition situation on the market (see AEPI v Commission, paragraph 156 above, paragraphs 52 and 53, and the case-law cited). It follows that the Commission was entitled to find, regardless of any dominant position of De Beers and without needing to ascertain the existence, or determine the scope, of that dominance, that the effects of the anti-competitive conduct alleged were not of such a scale as to justify further investigation.

215    As regards the criticisms of sightholder selection, the Commission took the view that the amendments to the Ombudsman’s terms of reference addressed those criticisms. It therefore relied on the fact that De Beers had agreed to alter its conduct, by revising the Ombudsman’s terms of reference, so that there was no longer a sufficient Community interest. Such a consideration is also independent from De Beers’ dominance and does not require that it be examined first.

216    As regards the other claims of the illegality of SOC, the Commission concluded in respect of the VAS levy that the applicant’s contention in that regard did not contain sufficient Community interest, on the ground essentially that the likelihood of establishing an infringement was small. In particular, the Commission based its argument on the premiss that the likelihood of establishing the existence of the alleged abuse was small, considering that the applicant had not explained how the VAS levy would distort competition between diamond manufacturers and traders, and had not demonstrated why a VAS levy does not offer the appropriate economic counter-value to the services supplied (see paragraphs 353 and 354 below). Consequently, in the light of the fact that Article 82 EC prohibits only abuses by an undertaking in a dominant position, the Commission was not required to extend its investigation to cover De Beers’ dominance (see, to that effect, judgment of 13 September 2012 in Case T‑119/09 Protégé International v Commission, not published in the ECR, paragraph 95).

217    Consequently, the present objection must be rejected and hence the third plea in law in its entirety.

4.     The plea in law alleging the incorrect assessment of the Community interest (Cases T‑104/07 and T‑339/08)

218    According to settled case-law, the assessment of the Community interest raised by a complaint in competition matters depends on the factual and legal circumstances of each case, which may differ considerably from case to case, and not on predetermined criteria which must be applied (see Case T‑193/02 Piau v Commission [2005] ECR II‑209, paragraph 80 and the case-law cited; see also point 43 of the notice on the handling of complaints). The Commission must weigh, in particular, the significance of the alleged infringement as regards the functioning of the common market against the probability of its being able to establish the existence of the infringement and the extent of the investigative measures necessary in order to fulfil, under the best possible conditions, its task of ensuring the observance of Articles 81 EC and 82 EC (see the case-law referred to in paragraph 212 above).

219    Review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it in dealing with complaints must not lead them to substitute their assessment of the Community interest for that of the Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers (see CEAHR v Commission, paragraph 156 above, paragraph 65, and the case law cited). Similarly, it is settled case-law, in the case of the rejection of complaints, that the Commission’s assessments concerning allegations of infringement of Article 81 EC or Article 82 EC involve a complex economic appraisal, all the more so when, as in the present case, the Commission carries out prospective analyses, the review of which by the Courts of the European Union is limited to verifying, in particular, whether the facts have been accurately stated and whether there has been any manifest error of appraisal (see Haladjian Frères v Commission, paragraph 168 above, paragraph 30, and the case-law cited).

220    However, that restriction of the review by the Courts of the European Union does not mean that they must decline to establish whether the evidence put forward is factually accurate, reliable and consistent and to determine whether that evidence contains all the relevant data that must be taken into consideration and whether it is capable of substantiating the conclusions drawn from it (see Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 89, and the case-law cited).

221    By this fourth plea in law, the applicant disputes all the Commission’s assessments which led it to reject the complaint on the ground of insufficient Community interest. It challenges, in essence, as based on incorrect facts or vitiated by manifest errors, the Commission’s assessments of each of the principal contentions in the complaint concerning, respectively, the foreclosure effects of SOC (Cases T‑104/07 and T‑339/08), the role of the Ombudsman and the VAS levy (Case T‑104/07).

 Assessment of foreclosure effects (Cases T‑104/07 and T‑339/08)

222    In the rejection decision, the Commission relied, principally, on two factors in order to conclude that there was a small likelihood of finding any appreciable anti‑competitive effects of SOC resulting from the alleged foreclosure of access to rough diamonds for the secondary market operators. It relied on (i) the rough diamonds available from Alrosa and (ii) the rough diamonds resold by the sightholders. In Case T‑104/07, the applicant disputes the assessments relating to those two factors and the assessment concerning the supply from producers other than De Beers and Alrosa (‘the other producers’) and the conclusion drawn therefrom by the Commission. It also challenges, as a preliminary point, the market taken into consideration by the Commission for its analysis.

223    In its supplementary rejection decision, the Commission reached the same conclusion relying, on the one hand, on those same two factors, while taking into account the impact of the General Court’s judgment in Alrosa (paragraph 26 above), and, on the other, on the rough diamonds from other producers and Diamdel and market developments since the adoption of the rejection decision. In Case T‑339/08, the applicant disputes all those considerations.

224    Before examining those objections of the applicant, the Court must reject the Commission’s contention that the arguments set out in Annex A.13 to the application in Case T‑339/08 are inadmissible on the ground that they were not developed separately in the application. The applicant simply gave to that annex, as permitted by the case-law, a purely evidential and instrumental function (see paragraph 97 above). It refers to that annex, which includes information on the diamond market, in order to facilitate a better understanding of that market in that part of the application setting out the facts of the dispute. That reference cannot therefore be construed as a reference to arguments not included in the application. By contrast, the applicant’s reference in Case T‑339/08 to certain arguments developed in its observations on the supplementary Article 7 letter, to which, it claims, the Commission did not respond in the supplementary rejection decision, is such a reference (paragraphs 64 to 70 of those observations; see paragraph 361 below). Those arguments were not set out, even in a summary form, in the application itself and must therefore be rejected as inadmissible.

 The relevant market (Case T‑104/07)

225    The applicant submits that the Commission made a manifest error of assessment by examining the potential foreclosure effects of SOC only on the secondary market and not on the overall rough diamond market.

226    It must be noted in that regard, first of all, that the Commission has, from the date of the case-orientation letter and in all the subsequent measures of the initial procedure, analysed the world rough diamond market, in particular by examining the sales of rough diamonds between diamond producers (see, in particular, the following subsection concerning the sales of rough diamonds by Alrosa, in particular to De Beers).

227    It may be observed, next, that in the passage of the rejection decision cited by the applicant the Commission did indeed refer to the foreclosure effects on the ‘secondary market’, stating that its assessment related to the ‘[foreclosure of] access to rough and, consequently, polished diamonds for the secondary market’. However, as the Commission correctly notes in the defence, it did not thereby in that passage set the framework of its analysis by defining the relevant market. It was simply responding to the applicant’s contention that there was a problem of availability on the market for the supply of rough diamonds to non‑sightholders, that is on the secondary market, which, the Commission stated, did not constitute a market within the meaning of European Union competition law, yet was a commonly used concept in the diamond industry.

228    Consequently, the present objection must be rejected.

 Alrosa’s supply (Cases T‑104/07 and T‑339/08)

229    In the rejection decision, the Commission confirmed its provisional view that the diamonds produced and sold by Alrosa limited any possible foreclosure impact on the secondary market, on the grounds, first, that the De Beers commitments decision would phase out purchases by De Beers from Alrosa by the end of 2008 and, secondly, that Alrosa’s rough diamonds had been progressively sold outside De Beers’ channels since 2003. In doing so, the Commission rejected all the applicant’s criticisms of that assessment.

230    In the supplementary rejection decision, the Commission took the view that, notwithstanding the annulment of the De Beers commitments decision by the General Court, its fresh assessment of the source of diamond supplies constituted by Alrosa did not enable it to reverse its conclusion in the rejection decision.

231    It must, first of all, be recalled that the judgment of the Court of Justice in Alrosa (paragraph 45 above) set aside the General Court’s judgment in that case (paragraph 26), which had annulled the De Beers commitments decision, so that that decision must be considered to be final. It follows, as the Commission stated in response to the question from the General Court regarding the consequences of the Court of Justice’s judgment in Alrosa (paragraph 45 above), that the considerations of the rejection decision in relation to the diamonds produced by Alrosa that are based on the De Beers commitments decision are not affected by the action brought against that decision, and that all the objections to those considerations must be examined. The same is true of the objections directed at the considerations of the supplementary rejection decision that are not strictly concerned with the need to take account of the annulment of the De Beers commitments decision and are intended to supplement the analysis of the rejection decision, in particular by updating market data.

232    By contrast, on account of the Court of Justice’s judgment in Alrosa (paragraph 45 above), the considerations of the supplementary rejection decision concerned solely with the need to take into account the annulment of the De Beers commitments decision can no longer serve as the legal basis for that supplementary decision, given the obligation on the institutions to take the necessary measures to comply with a judgment setting aside another judgment (see, to that effect, Joined Cases 45/70 and 49/70 Bode v Commission [1971] ECR 465, paragraph 12). Consequently, in the circumstances of the present case characterised, first, by the failure to adapt – following the abovementioned question from the Court – the applicant’s claims and pleas in law seeking in particular the annulment of the supplementary rejection decision in the light of the Court of Justice’s judgment in Alrosa (paragraph 45 above), and, secondly, by the fact that the Commission did not confine itself in the supplementary procedure to examining the impact of the absence of De Beers’ commitments, but also took into account market data after the rejection decision, the Court must reject as ineffective the objections to the considerations of the supplementary rejection decision concerned solely with the need to take into account the annulment of the De Beers commitments decision. The alleged illegality of those considerations could not in the present case result in the annulment of the supplementary rejection decision (see paragraph 247 below).

–       The objections against the rejection decision

233    First, the applicant submits that the two considerations underlying the Commission’s assessment of the diamonds produced by Alrosa, namely the De Beers’ commitments and Alrosa’s sales outside De Beers’ channels, are contradictory, since there would be no need for the former if the latter were established.

234    That first argument must be rejected. It must be found that the two considerations for the rejection decision described by the applicant are not contradictory, since they are two complementary considerations for the Commission’s conclusion concerning Alrosa’s diamonds. They cover separate, successive periods: the first consideration, the De Beers commitments decision, relates primarily to De Beers’ purchases from Alrosa after 2008, whereas the period covered by the second consideration, the analysis of the exports of rough diamonds by Alrosa outside De Beers’ channels, commenced in 2003. In addition, if by that argument the applicant is seeking to challenge the De Beers commitments decision, it is sufficient to note that that decision is not the subject-matter of the present action, which the applicant indeed acknowledges in the reply.

235    Secondly, referring in particular to Alrosa’s 2005 annual report, the applicant denies the Commission’s claim that the value of diamonds actually exported from Russia is double that indicated by the applicant (that is, double USD 800 million). It also submits that Alrosa’s exports available to non-sightholders represent only 4% of the worldwide supply (23%, the Commission’s figure, of Alrosa’s market share of 18%) and rejects as unsubstantiated any claim that that share was merely a minimum percentage.

236    In the rejection decision, the Commission responded to the applicant’s contention that Alrosa is only allowed to export USD 800 million per year, whereas the remainder can only be sold outside Russia if domestic manufacturers do not purchase them. It took the view in that regard that, in any event, the value of diamonds actually exported from Russia was double the value alleged, as indicated in the Article 7 letter. Although that letter does not mention the total value of rough diamonds exported by Alrosa, it does refer to two articles, the first of which states that Alrosa exported diamonds to the value of USD 1.514 billion in 2005, making clear that some of Alrosa’s diamonds sold on the Russian domestic market will inevitably be exported. The second article states that Russia’s rough diamond exports in 2005 reached a total of USD 1.7 billion according to the data released by the Russian customs authorities.

237    Without even having to consider the alleged errors which, in the Commission’s view, vitiate Alrosa’s annual reports for 2005 and 2006, it must be found that the information supplied by the applicant does not establish that the Commission made a manifest error of assessment in taking the view that the value of the diamonds exported from Russia was double USD 800 million. As the Commission stated in response to a question from the Court, the figure put forward by the applicant was inaccurate, since it did not take into account a fundamental factor for determining the real value of Alrosa’s diamond exports – acknowledged moreover by the applicant – that is the resale outside Russia of rough diamonds sold by Alrosa on the Russian domestic market. In the rejection decision, the Commission therefore contrasts Alrosa’s exports, amounting at most to USD 800 million according to the applicant, with the ‘diamonds exported from Russia’ by Alrosa and by other companies established there.

238    It follows that, contrary to the applicant’s claims, inasmuch as they only distinguish between the amounts of diamond exports and domestic sales, Alrosa’s annual reports did not enable the actual amount of total exports outside Russia to be determined or that amount to be called in question either. Consequently, the Commission relied on a press article from the specialist diamond market press regularly consulted by operators in the industry, which was written by an industry expert and reproduced data communicated by the Russian customs authorities, and which, furthermore, was the only one to provide figures in relation to the actual amounts of exports outside Russia. It follows, lastly, that the Commission was entitled simply to refer to an approximate amount double that alleged by the applicant, given the amount mentioned in that press article – USD 1.7 billion – which greatly exceeded the amount alleged by the applicant, and in view of the fact that it was simply a matter of responding to the applicant’s claim.

239    It follows moreover from the foregoing that the applicant’s argument based on the percentage of worldwide supplies represented by Alrosa’s exports must be rejected (see paragraph 235 in fine above), since it fails to take into account the exports of Alrosa’s diamonds other than by Alrosa itself.

240    Thirdly, the applicant submits that the Commission overestimates the quality of Alrosa’s rough diamonds available to non-sightholders.

241    In the rejection decision, the Commission took the view, in response to the applicant’s contention that Alrosa only sold diamonds of low quality to purchasers other than De Beers and that the average export value was not a reliable indicator, that the evidence adduced was insufficient. In the Article 7 letter, the Commission relied on the figures from a press article according to which the per carat value of diamonds sold to De Beers is equivalent to that of the diamonds exported to other purchasers, in order to deduce that the quality of both types of diamond was equivalent. The Commission added that, since Alrosa could no longer rely on De Beers’ purchases, it enhanced the quality of its supplies to render them more competitive.

242    Nor does the evidence adduced by the applicant support the finding that the Commission made a manifest error of assessment in that regard. First, the applicant simply refers to ‘market contacts’ which had informed it of the low quality of diamonds sold by Alrosa to purchasers other than De Beers and, secondly, it simply challenges the method of the average per carat value, stating that that value does not enable the proportion of high quality, and thus high value, diamonds to be taken into account. The applicant relies on the following example: ‘If Alrosa sells to De Beers 10,000 ct at USD 200/ct and 2,000ct at USD 2000/ct, thus a total of 12,000ct for a total of USD 6 million, the average per carat value is USD 500/ct. By selling 12,000ct of worth USD 500/ct to the market, Alrosa would sell at the same per carat value, but only De Beers gets the higher (and more desirable) goods.’

243    It must be noted in that regard that, inasmuch as it constitutes a single value between the lowest and highest of a set of values, an average value does not indeed enable the exact proportion of high values in that set to be determined. Consequently, the average value referred to by the applicant in the abovementioned example does not make it possible as such to determine whether De Beers or the other purchasers receives the best quality diamonds. However, a comparison of one average value with other average values makes it possible to determine which set of values contains the highest values. In the example provided by the applicant, if De Beers receives 17% of high quality diamond carats (namely 2 000 carats with a value of USD 2 000 per carat), approximately 83% (10 000 carats), that is the vast majority of diamonds received from Alrosa, would be of a considerably lower quality than that of the diamonds received by the other purchasers, since their per carat value would be USD 200 rather than USD 500. This would represent a 60% reduction in per carat value. Although it may be deduced from this example that De Beers received best quality diamonds from Alrosa, it cannot be inferred that all the diamonds sold to purchasers other than De Bears are of a lower quality than the diamonds sold to De Beers.

244    It follows that, in the present case, the Commission was entitled, without making a manifest error of assessment, to deduce from the comparison of the average per carat value of diamonds sold to De Beers (USD 75.90), the average value of exports in general (USD 72.08 USD per carat) and the average carat values of diamonds sold in Belgium (USD 61.30), Israel (USD 97.08) or China and Hong Kong (USD 96.92), that the diamonds sold to De Beers were not of a higher quality than those sold to other companies. It also follows that the Commission was not required to investigate further on that point, in particular by questioning Alrosa as proposed by BVGD in the application.

–       The objections against the supplementary rejection decision

245    First of all, the applicant complains that the Commission minimises a posteriori, that is in the supplementary rejection decision, the importance of the De Beers commitments decision. This was, however, an essential factor on which the Commission based its assessments of foreclosure effects in the rejection decision. In that connection, the applicant relies, inter alia, on the Commission’s pleadings in Case T‑170/06 Alrosa.

246    Next, the applicant submits that the Commission’s assessment of the impact of the annulment of the De Beers commitments decision on the analysis of foreclosure effects is based on materially incorrect facts and manifest errors of assessment of them. Consequently, it complains that the Commission took into account De Beers’ announcement that it would comply with its commitments even though they had been annulled and also Alrosa’s distribution system, whereas it failed to have regard to Alrosa’s sales to sightholders and the quality of the diamonds sold by it. The Commission also made a number of errors concerning the figures taken into account, in relation to (i) the inclusion of sales to De Beers in the amounts of Alrosa’s sales outside De Beers’ channels, (ii) the use of Alrosa’s overall sales instead of its exports, (iii) the figure for the amount of Alrosa’s sales to De Beers prior to the commitments, (iv) the ‘inflation’ of the value of Alrosa’s exports, (v) the resale of Alrosa’s diamonds outside Russia by operators established in that country, (vi) stock sales by Alrosa and (vii) the use of Alrosa’s provisional figures for 2007.

247    It must be noted, first of all, that some of the objections set out above are directed against assessments concerned solely with the Commission’s taking into account the annulment of the De Beers commitments decision and must therefore be rejected as ineffective for the same reason as that referred to in paragraph 231 above. That is the case of the objection as to the importance of the De Beers commitments decision for rejecting the complaint (see paragraph 245 above), the objection alleging that the Commission took into account De Beers’ announcement that it would comply with its commitments even though they had been annulled and one of the claims of errors in the figures taken into account, namely the figure for the amount of Alrosa’s sales to De Beers prior to the commitments (see paragraph 246 above).

248    Consequently, the Court will examine below only the merits of the objections in paragraph 246 above directed against the assessments in the supplementary rejection decision that are not concerned solely with the taking into account of the annulment of the De Beers commitments decision.

249    As regards the account taken of Alrosa’s distribution system, the very existence of which the applicant contests, the Court notes that the passage of the supplementary rejection decision setting out that distribution system reads as follows: ‘Moreover, ALROSA has been progressively building up its distribution channels, with a sight system foreseen for 2008’. By that statement, the Commission expressed uncertainty as to whether, following the annulment of the De Beers commitments decision, De Beers’ purchases from Alrosa were in the same amount as those made before the commitments. However, in the following sentence, the Commission stated that, ‘in order to assess all possible ramifications’ of the applicant’s complaint, it had opted ‘to rely on the most conservative assessment of the value of ALROSA’s rough diamonds available outside De Beers’, that is on the amounts of De Beers’ purchases from Alrosa existing before the commitments.

250    It follows that the reference to the distribution system was not the basis for the supplementary rejection decision, as the Commission states in the defence, and that the argument complaining that the Commission took that system into account must therefore be rejected. It also follows that the Court must reject as ineffective the applicant’s argument essentially that the Commission was precluded from taking into account Alrosa’s distribution system as a factor contributing to the availability of rough diamonds, and that it was very likely that the effect of the system put in place by the second largest rough diamond producer in the world would be to reduce even further the availability of rough diamonds.

251    As regards the failure to have regard to Alrosa’s sales to the sightholders, the Commission did not make a manifest error of assessment in not deducting those sales from Alrosa’s sales. The Commission sought to determine the quantity of diamonds outside De Beers’ control that were available for the ‘free’ market. First, since they were sold directly to sightholders, the diamonds from Alrosa reached them without passing through De Beers, and thus without entering beforehand De Beers’ SOC distribution system to the sightholders. Secondly, the applicant has adduced no evidence to show that sightholders do not take their own commercial decisions concerning the diamonds purchased from producers other than De Beers, in particular the decision to resell them to non-sightholders (see, as regards the possibility for sightholders to resell diamonds obtained from De Beers to non‑sightholders, paragraphs 272 et seq. below). In that regard, it is apparent from the summary of the sightholders’ replies to question No 13 of the request for information questioning them on their resales of non-De Beers diamonds – those replies not being specifically challenged by the applicant – that the vast majority of sightholders involved in the resale of rough diamonds stated that they resold non-De Beers rough diamonds to non-sightholders in particular, and indeed generally at a higher percentage resale than that of De Beers diamonds. Therefore, the diamonds sold by Alrosa to sightholders could be taken into account for the purposes of determining the rough diamonds available for the free market.

252    As regards the failure to take into account the quality of the diamonds sold by Alrosa, and in particular the alleged lower quality of the diamonds sold to purchasers other than De Beers, the Commission stated in response to that claim in the supplementary rejection decision that it had already been addressed in the rejection decision and that the applicant had not provided any evidence in support of that claim, except for the fact that ‘market contacts’ had informed it of that lower quality. Since the issue of the quality of Alrosa’s diamonds sold to purchasers other than De Beers had been examined in the rejection decision (see paragraph 241 above) and the applicant had not put forward and substantiated any fresh contention as to the lower quality of the diamonds sold to purchasers other than De Beers – it indeed acknowledges that it does not have the means or sufficient investigative powers, complaining that the Commission failed to use its own – the Commission was not required to alter its assessment in the rejection decision.

253    As regards, lastly, errors in relation to the figures taken into account by the Commission, none have been proved.

254    First, as regards the alleged contradiction concerning whether or not Alrosa’s sales to De Beers are included in the figures referred to in the supplementary rejection decision, it must be noted that the passage of that decision at issue is worded as follows:

‘Based on the information submitted by ALROSA in its reply to the request for information of [9] October 2007, these sales from ALROSA outside De Beers amounted to USD 2.1 billion in 2005 and to USD 2.3 billion in 2006. These supplies are available to customers locally present in Russia, as well as for manufacturers outside Russia. It should be noted that the amount of sales for 2005 and 2006 includes both sales to De Beers and other customers. The value of the sales to De Beers only in 2006 amounts approximately to USD 600 m.’

255    It is indeed true that in that passage the Commission refers twice to Alrosa’s sales, in the first sentence by referring to the amount of those sales less the sales to De Beers and, in the third sentence, by stating that Alrosa’s sales include the sales to De Beers. Despite the somewhat ambiguous wording of that passage, the Commission did not base its analysis on contradictory reasoning. It follows from both an overall reading of the passage in question, and from reading the passage in the light of Alrosa’s replies to the request for information which it analyses, that the reference to the amount of Alrosa’s sales in the third sentence of that passage sought to explain the calculation performed by the Commission on the basis of those replies, which produced the amounts of USD 2.1 billion and USD 2.3 billion referred to in the first sentence of the passage, by noting the sales to De Beers (reply to question No 6) which were deducted from Alrosa’s total sales (reply to question No 2).

256    Secondly, as regards the alleged error in taking into account the amount of Alrosa’s overall sales of rough diamonds instead of its sales outside Russia and the alleged failure to prove the sale of diamond stocks by Alrosa, the relevant passage of the supplementary rejection decision is worded as follows:

‘The assessment of the value of ALROSA’s sales outside De Beers’ channel is based on the figures related on the total sales from which the sales to De Beers for 2005 and 2006 are deducted. Since the Commission considers the sales worldwide, the figures pertaining to the precise value of exports from Russia and domestic production in Russia are irrelevant and do not affect the Commission’s conclusion as regards the value of sales from ALROSA outside De Beers’ channel. Furthermore, I cannot share your concern with regard to the fact that the figures pertaining to ALROSA’s sales are greater than the figures pertaining to its production. The difference between production and sales figures may have a logical explanation, for example, realisation of stock sales or re-sales of purchased diamonds.’

257    In the supplementary Article 7 letter, the Commission stated, relying on the data for Alrosa’s sales for 2005, supplied by Alrosa itself, that the sales to De Beers (amounting to USD 650 million) represented 23% of those sales and 52% of Alrosa’s exports. The Commission added that, according to the data from the Russian customs authorities reproduced in press articles, the value of diamonds exported directly by Alrosa or through other operators but not sold to De Beers was estimated at between USD 850 million to USD 1 billon. It deduced from this that the total value of rough diamonds from Alrosa available outside de De Beers’ channels both for customers established in Russia and for those established outside Russia would amount to around USD 2.2 billion.

258    It must be found that the Commission did not make a manifest error of assessment in taking into consideration Alrosa’s overall sales and not only its exports. As the Commission suggested in the rejection decision by its reference to ‘sales worldwide’ (see paragraph 256 above) and in the supplementary Article 7 letter by its reference to the availability of rough diamonds for customers established in Russia and for those established outside Russia (see the final sentence of paragraph 257 above), its analysis concerned the availability of rough diamonds for operators other than De Beers, whether or not they were established in Russia. Since the relevant market in the present case was the worldwide rough diamond market (see paragraph 226 above), which includes Russia, the assessment of the availability of Alrosa’s rough diamonds could not fail to take into account the diamonds sold on the Russian domestic market. It follows that not only Alrosa’s exports but also its sales inside Russia are relevant.

259    It also follows that the Court must reject as ineffective the contention that Alrosa ‘inflated’ the value of its exports and the contention that the Commission failed to provide precise figures for the resale of Alrosa’s diamonds outside Russia by operators established in Russia to which Alrosa had sold its diamonds. Since the Commission was entitled, without making a manifest error of assessment, to take into consideration the amount of Alrosa’s overall sales and the applicant did not dispute that overall amount, it does not matter, first, whether or not the amount of exports decided on was precise and, secondly, whether the exports resold outside Russia are differentiated within Alrosa’s sales on the Russian market.

260    Nor did the Commission make a manifest error of assessment in explaining the difference between the amount of Alrosa’s sales and its production on the basis of the sale of stocks. The Commission did indeed simply refer to that reason in the supplementary rejection decision without giving further details or references. However, since it was a classic economic explanation – the Commission described it as a ‘logical explanation’ in the supplementary rejection decision – which had been referred to during the initial and supplementary administrative procedures, in particular by De Beers in its replies to the request for information of 29 October 2007 (reply to question No 1) and which, furthermore, is ‘known’ in the diamond sector, as shown by the fact that it is referred to on several occasions in Alrosa’s annual reports of 2005 and 2006, the Commission was not required to substantiate further its reference to Alrosa’s resale of stocks. In addition, the applicant does not provide any other evidence capable of calling in question the reasoning based on the sale of stocks, whereas the goods at issue in the present case, rough diamonds, may readily be stocked over a long period and the accumulation (and reduction) of stocks is even a instrument for regulating prices which was in fact used during the period at issue, as shown by the abovementioned references in Alrosa’s annual reports.

261    Thirdly, as regards the objection that the Commission relied on provisional information from Alrosa in relation to the year 2007, it is sufficient to note that the definitive information for that year was not available at the time the supplementary rejection decision was adopted, as indeed confirmed by the applicant, and that the Commission’s decision may be taken only on the basis of the facts and circumstances of which it was possible for it to be aware at the time when it adopted its decision (see, to that effect, Case C‑239/05 BVBA Management, Training en Consultancy [2007] ECR I‑1455, paragraph 59).

262    It follows from the foregoing that, in the supplementary rejection decision, the Commission did not make a manifest error of assessment or an error of fact in its assessment of the supply of rough diamonds by Alrosa. Consequently, the objections to the assessment of that supply in the rejection decision and the supplementary rejection decision must be rejected in their entirety.

 Supplies by sightholders (Cases T‑104/07 and T‑339/08)

263    In the rejection decision, the Commission noted that it had examined, in the Article 7 letter, the applicant’s contentions concerning (i) the prohibition on dealers becoming sightholders, (ii) the prohibition on sightholders reselling rough diamonds from De Beers to non‑sightholders and (iii) the proportion of those diamonds resold. It had therefore taken the view, in the Article 7 letter, that it was apparent from the sightholders’ replies to the requests for information, first, that the rough dealers had not been eliminated from SOC – the Commission stated that four sightholders resold 75% or more of the De Beers’ diamonds (two of whom sold over 90%) and that another four sightholders resold more than half of those diamonds – and secondly, that, on average, a sightholder resold 15-20% of rough diamonds received from De Beers. In answer to the criticisms levelled against those considerations, the Commission stated, in the rejection decision, that a number of rough traders have remained sightholders. It also stated that as regards the allegedly contradictory reply of sightholder No 3, which claims to participate in downstream SOC programmes while at the same time reselling 92% of its diamond purchases, the fact of re‑selling such a high proportion of diamonds is not irreconcilable with participation in the downstream programmes with the remainder of diamond supplies.

264    In the supplementary rejection decision, the Commission noted the proportion of rough diamonds from De Beers resold by the sightholders, that is 15% to 20%, and the corresponding amounts for 2004 and 2005, namely USD 770 million to USD 1.020 billion and USD 880 million to USD 1.180 billion, respectively. It then found that the arguments put forward by the applicant during the supplementary procedure had already been examined during the initial procedure, so that there was no need to amend its initial assessment.

265    The applicant complains, first of all, that the Commission fails to provide figures on how many sightholder traders exist and also the proportion of rough diamonds resold by sightholders. In that connection, it submits that the data provided by the interveners in relation to traders now sightholders and the proportion of rough diamonds resold by sightholders is unsubstantiated.

266    The applicant submits, next, that the Commission was not entitled to rely in its decisions solely on the replies provided in 2004 by the sightholders completely dependent on De Beers who claim to resell De Beers’ rough diamonds, all the more so since all the diamond bourses contradict some of the sightholders’ replies. The applicant refers in that regard to its observations on the Article 7 letter. It thus states that some of the sightholders did not answer the question related to the resale of rough diamonds. The applicant also raises the point of the inconsistency of the response of sightholder No 3, which claims to receive 96% of its rough diamonds from De Beers and to resell 92% of diamonds purchased while also participating in downstream programmes. However, 4% of rough diamonds might not be sufficient to participate in the downstream programmes imposed by De Beers. The applicant indeed claims that the Commission inaccurately reported sightholder No 5’s reply.

267    The applicant contends, lastly, relying in particular on case-law, that even if De Beers has crafted the SOC rules in a clever way by not explicitly prohibiting sightholders from reselling rough diamonds acquired in the context of SOC, the fact remains that that absence of resales happened de facto and there are no rough dealer sightholders any more. It further contends that the sightholder resales are sporadic, irregular and unreliable and concern poorer quality diamonds which they cannot process themselves.

268    It must be noted first of all that, contrary to the applicant’s contentions, the Commission mentioned in the Article 7 letter, to which it refers in the rejection decision, figures both for the number of sightholders involved in resale activities and the average proportion of diamonds resold by the sightholders, taken from the sightholders’ replies to the requests for information (see paragraph 263 above), a summary of which had been communicated to the applicant in annex to the Article 7 letter.

269    As regards specifically the Commission’s taking into account the sightholders’ replies to the requests for information – which the applicant disputes on the ground that those replies are contradicted by the diamond bourses’ replies – it may be noted that the applicant does not refer to any extract from the summary of the diamond bourses’ replies to the requests for information, which is the only document from the diamond bourses included in the file. Nor can it be inferred from that summary of replies that all the diamond bourses contradicted the sightholders’ statement that they resold De Beers’ diamonds. Indeed, since the issue of whether sightholders were involved in the resale of De Beers’ diamonds was not put to the diamond bourses, only a few of them clearly adopted a position in that regard. Furthermore, of the 11 diamond bourses replying to the Commission’s request for information, although three of them expressly stated that sightholders did not resell their rough diamonds on the secondary market (replies of diamond bourses Nos 1, 8 and 10), two others by contrast conceded that sightholders were involved in the resale of diamonds. One of the bourses stated that the amount of those sales was low, and the other attributed the lack of competition between sightholders to supply the secondary market to the fact that demand on the secondary market was high (replies of diamond bourses Nos 4 and 6).

270    As regards the taking into account of the allegedly inconsistent reply of sightholder No 3, it must be noted that that sightholder states that it resells 92% of the rough diamonds received and takes part in downstream marketing programmes provided for by SOC. Without the need to rule on the percentage of rough diamonds purchased by sightholder No 3 used in the context of its participation in marketing programmes – 4% or more – it is sufficient to note that the applicant has not provided any evidence establishing that sightholders must have a minimum quantity or percentage in order to take part in downstream programmes. The Commission did not therefore incorrectly infer from sightholder No 3’s reply that the resale of diamonds was compatible with participation in SOC.

271    The Court must also reject the claim that sightholder No 5’s reply was incorrectly reported: the Commission did not refer to it expressly in the rejection decision and the Article 7 letter, but only in the defence, and did not distort its content. Indeed, the applicant misinterprets the reply by which sightholder No 5 stated ‘[The company] expects to increase manufacturing and lessen resale on SM’ as meaning ‘[The company] expects an increase in manufacturing and a reduction in resales on the [secondary market]’.

272    It must be found next that the arguments and evidence adduced by the applicant are not capable of calling in question the arguments in the contested decisions relating to the supplies by sightholders.

273    First, the applicant submits that all the rough diamond dealers were excluded from SOC. However, even if such an exclusion were established, it could not support the conclusion that sightholders did not resell De Beers’ diamonds. The resale capacity of sightholders must not be determined solely according to the principal status of sightholders as either dealers or manufacturers. It thus follows from the table summarising the sightholders’ replies to the requests for information that, while a considerable amount of the rough diamonds purchased by a number of sightholders is used for their principal, manufacturing activity, they also resell a certain amount on the secondary market (see the penultimate column of the summary of sightholder replies to the requests for information establishing the ratio between the quantity of rough diamonds purchased and the quantity of polished diamonds sold).

274    Secondly, the applicant submits that sightholders are de facto precluded from reselling rough diamonds received from De Beers to non‑sightholders. The replies to the requests for information disclosed ‘an enormous diversion of merchandise from the secondary market’, three-quarters of sightholders participating in downstream marketing programmes and 10% of sightholders engaging principally in downstream programmes.

275    It must be found that it cannot be inferred from sightholder participation in downstream marketing programmes alone that resales to non‑sightholders are de facto precluded. It is apparent from the sightholders’ replies to question No 11 of the request for information addressed to them – which are not indeed specifically disputed by the applicant – that, in order to participate in certain downstream marketing programmes, the use of De Beers’ diamonds was not required, so that a sightholder could participate in those programmes while reselling all its rough diamonds supplied by De Beers. In addition, the majority of those who participated in those programmes did so only partially (approximately 80%), from which it may be inferred that 85% of sightholders do not participate in those programmes or do so only partially. As to the applicant’s claim that after 2004 De Beers ‘reinforced’ the need to participate in those downstream marketing programmes, it is sufficient to note that this has not been proved.

276    In support of its claim that the sale of De Beers’ rough diamonds by sightholders to non-sightholders is de facto prohibited, the applicant also relies on two judgments of the General Court from which, it is alleged, it may be inferred that the lack of resale in question is in actual fact a consequence of the sightholders’ joint intention to conduct themselves on the market in a specific way which could if necessary be penalised under Article 81 EC (Case T‑41/96 Bayer v Commission [2000] ECR II‑3383, and Case T‑168/01 GlaxoSmithKline v Commission [2006] ECR II‑2969). However, the existence of a joint intention in the present case may not be inferred from the evidence provided by the applicant. The latter simply asserts that, if a sightholder resells rough diamonds from De Beers to non‑sightholders, the sightholder in question will be refused deliveries of diamonds, or even be excluded from SOC.

277    In so doing, the applicant proves neither that De Beers requires that sightholders as a condition of their contractual relations do not resell to non-sightholders, characterising an invitation to achieve an anti‑competitive goal, nor that the sightholders accept that invitation, expressly or impliedly, as required in particular by the case-law cited by the applicant (see, to that effect, Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, paragraphs 102 and 103, and Bayer v Commission, paragraph 276 above, paragraph 72). First, the applicant simply refers to a penalty in respect of sightholders reselling rough diamonds to non-sightholders, which may be imposed thanks to private investigators tasked with verifying sightholder profiles. However, it is apparent from the sightholder profile and the notes to it drafted by De Beers that a sightholder applicant is not required to disclose the names of its customers unless such information is publicly available. It is also apparent from the Ombudsman’s terms of reference, as revised in 2007, that the information not required under SOC, such as that relating to the sightholders’ customers, may no longer be disclosed to De Beers and used by it as a result, in particular, of the Ombudsman’s intervention (see paragraphs 329 et seq. below). Consequently, it cannot be inferred from this that De Beers requires its sightholders to disclose to it the names of their customers and a fortiori that it requires them not to resell the rough diamonds received to certain customers. Secondly, it must be pointed out that the sightholders themselves stated in response to questions Nos 12 to 15 of the request for information that they resold diamonds received from De Beers, thereby ruling out their acceptance of any invitation from De Beers. The applicant acknowledges moreover the existence of those resales while disputing their quality, regularity and reliability.

278    Thirdly, the applicant contends that the sightholder resales are sporadic, irregular, unreliable and of low quality, stating that in general sightholders resell poorer quality rough diamonds which they cannot process themselves. Admittedly, the sightholders’ replies to the requests for information refer to the resale of rough diamonds on account of their poor quality. However, the sightholders responsible for that reply are all sightholders which are predominantly manufacturers. That reply is therefore due to the questions asked. Indeed, none of the questions sought to obtain precise information about the quality of the diamonds resold, the sightholders only being questioned as to whether they resold the diamonds purchased because they were not interesting for their manufacturing activity (question No 14). As a result, only references to the resale of rough diamonds on the ground that they were inferior in quality could be included in the replies. It cannot therefore be inferred from the reference to the lower quality of the diamonds resold by the sightholders which are predominantly manufacturers, thus accounting for only a small proportion of diamonds resold, that the Commission made a manifest error of assessment of the quality of the diamonds resold by the sightholders.

279    As regards, lastly, the arguments in the applicant’s observations on the Article 7 letter to which it refers but does not set out in its pleadings (see paragraph 266 above), they must be rejected as inadmissible pursuant to the case-law cited in paragraph 97 above.

280    In those circumstances, the Commission did not make a manifest error of assessment in finding that there was a supply of rough diamonds originating from the sightholders themselves.

 Supplies by Diamdel (Case T‑339/08)

281    The applicant submits that Diamdel’s sales are governed by the SOC rules and that its staff numbers have been reduced and some of its offices closed, which means that the total amount of rough diamonds sold through it is likely to decrease.

282    In the supplementary rejection decision, the Commission stated that it had established in the rejection decision that around 10% of De Beers’ rough diamonds (amounting to approximately EUR 500 million) were sold to Diamdel, which belonged to the De Beers Group and was specialised in sales to non‑sightholders.

283    The Commission therefore contends that the objections directed at the assessment of supplies from Diamdel in the supplementary rejection decision are inadmissible, because they seek to re-litigate a matter already taken into account during the initial procedure and not disputed in Case T‑104/07.

284    Without there being any need to rule on the Commission’s plea of inadmissibility, it must be found that the applicant’s objections against the assessment of the supplies by Diamdel are in any event unfounded. First of all, the applicant does not provide any evidence in support of its contention that Diamdel applies the SOC rules, whereas the Commission annexed to the defence an interview with the managing director of Diamdel stating that Diamdel does not apply the SOC rules. Next, the decrease in the amount of rough diamonds resold by Diamdel as a result of the reduction in its staff numbers and the closure of its offices in some countries (South Africa and Botswana) was referred to in the supplementary rejection decision. The Commission stated in that regard, without making a manifest error of assessment, that that reduction would benefit local industries which supply local cutting and polishing companies instead of Diamdel in the context of the beneficiation process (see paragraphs 309 and 312 et seq. below), not De Beers and its sightholders. It cannot therefore be inferred from this that there is a reduction in the amount of rough diamonds available for non‑sightholders.

 Supplies by other producers (Cases T‑104/07 and T‑339/08)

285    In Case T‑339/08, the applicant submits, first of all, that the Commission was not entitled to take into account those supplies in the supplementary rejection decision, when it had not really taken them into account in its original assessment.

286    The Commission replies that it had taken the supplies of other producers into account in the initial procedure, so that the applicant’s other contentions in Case T‑339/08 in relation to those supplies must be rejected as inadmissible in that they are directed against the rejection decision.

287    It must be noted, first of all, that while the rejection decision makes no reference to the supplies from the other producers, it is based on the Article 7 letter, in which it is stated that diamonds produced by Alrosa complement the supplies from other competing producers such as Rio Tinto and BHP Billiton. It may also be noted that the applicant itself expresses several objections in its pleadings in Case T‑104/07 to the supplies by the other producers being taken into account (see paragraphs 289 and 293 below).

288    Next, without there being any need to rule on the Commission’s plea of inadmissibility, it may be found that all the arguments directed against the Commission’s assessment relating to the supplies by other producers raised in Case T‑339/08 must be rejected as unfounded.

289    First, in Cases T‑104/07 and T‑339/08, the applicant submits that the supplies from other producers are fragmented and rather limited compared to those of De Beers (it refers to 2.4% and 4.1% shares of worldwide rough diamond sales) and they could not therefore be considered an alternative to De Beers, which produces more than half of rough diamonds produced worldwide and distributes them abusively.

290    The rejection decision and the Article 7 letter do not refer to any figures for the other diamond producers and the summaries of those producers’ replies to the requests for information do not include such information either. That information is referred to for the first time in the supplementary procedure on the basis of the producers’ replies to the supplementary requests for information. In the supplementary rejection decision, the Commission therefore deduced from a press article and from the producers’ replies to the supplementary requests for information that other producers’ supplies amounted to between USD 3 and 4 billion in 2005.

291    As regards the objection against the rejection decision, it is sufficient to bear in mind the case-law according to which, in the context of an application for annulment, the legality of a measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted, the Commission’s assessment being open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time when the measure in question was adopted (see Case C‑449/98 P IECC v Commission, paragraph 212 above, paragraph 87, and the case-law cited). It follows that the figures put forward by the applicant, taken from the replies to the requests for information of October 2007, after the rejection decision, cannot call in question its lawfulness.

292    As regards the objection directed against the supplementary rejection decision, it must be pointed out, that contrary to the Commission’s contentions, the applicant also relies on data from the 2007 requests for information, relating to the market shares of producers in 2006, which cannot therefore be regarded as out of date. In relying on that data, the applicant does not, however, prove that the Commission made a manifest error of assessment. First, the applicant refers only to two producers’ sales whereas the Commission cites six in the supplementary rejection decision. Next, as the Commission states, the applicant does not dispute the total amount of the sales of the other producers referred to in the supplementary rejection decision, namely at least USD 3 billion, which, it must be added, represented approximately 20% of the worldwide supply in 2005 (that is USD 3 billion in relation to USD 13 billion). Lastly, it must be noted that the Commission did not regard the other producers as alternatives to De Beers, but simply referred to them as one of the four sources of supply of rough diamonds available to non-sightholders, on the same footing as Alrosa, Diamdel and the sightholders, together forming an alternative to De Beers.

293    Secondly, in Cases T‑104/07 and T‑339/08, the applicant submits that the sightholders and Diamdel may also purchase rough diamonds from other existing producers, so that those diamonds enter the SOC system and that, contrary to the Commission’s analysis, liquidity in the market decreases.

294    It is sufficient in that regard to refer to the earlier considerations relating to the supplies by the sightholders and by Diamdel, according to which, first, the Commission has not made a manifest error of assessment in finding that the sightholders and Diamdel constituted sources of supplies of rough diamonds for non-sightholders (see paragraphs 268 et seq. and 281 et seq. above) and, secondly, the rough diamonds sold to sightholders other than by De Beers do not fall within SOC (see paragraph 251 above) nor do the rough diamonds sold by Diamdel (see paragraph 283 above).

295    Consequently, the objections to the assessment of the supplies of rough diamonds from the other producers must be rejected in their entirety.

 Overall availability of rough diamonds (Case T‑104/07)

296    Since the applicant withdrew, in response to a question from the Court, its objections to the Commission’s assessment of the overall availability of rough diamonds in the supplementary rejection decision, the Court will consider below only the objections against that assessment in the rejection decision.

297    The applicant submits that the Commission’s analysis, in the rejection decision, of the availability of rough diamonds contains several errors. The first concerns the analysis of the impact of SOC on competition, the second the quantities and prices of diamonds available since 2003, and the third the reasons for the changes to those quantities and prices.

298    First, the Commission stated, in a preliminary remark in its conclusion in the rejection decision in relation to the foreclosure effects of SOC, that competition could only be negatively affected by SOC if the overall availability of rough diamonds were also negatively affected. It took the view, thereby reproducing the Article 7 letter, first, that it was questionable whether a mere reduction in the number of sightholders would lead to a reduction of competition between them and whether favouring manufacturing sightholders and excluding dealers would as such imply a reduction of competition. Secondly, it took the view that the focus on direct supply to downstream manufacturers did not in principle disrupt trade with dealers.

299    In the applicant’s view, those considerations are flawed by manifest errors of assessment. The limitation of the number of sightholders and the exclusion of sightholder dealers, and hence the limitation of competitors, is assumed to make the market more transparent, but not more competitive. In addition, the applicant states that it has already argued that the view that direct supply in the context of SOC did not in principle disrupt trade with dealers is based on a manifest error of assessment.

300    It must be found in that regard that, since the Commission simply expressed uncertainly in the context of the preliminary considerations in question and the applicant has adduced no evidence capable of establishing that there has been a restriction of competition as a result of the reduction in the number of sightholders from 120 to 93 and the alleged exclusion of sightholder dealers – which was moreover dismissed by the Commission without making a manifest error of assessment (see paragraphs 268 et seq. above) – the applicant’s arguments must be rejected. As regards the disruption of trade with dealers, with the applicant referring, essentially, to its argument that sightholders are prohibited from dealing in rough diamonds, it is sufficient to refer again to the abovementioned considerations rejecting such a line of argument.

301    Secondly, the applicant submits – contrary to the Commission – that since 2003, the date of implementation of the SOC system, the quantity of diamonds in the market has considerably decreased and prices of diamonds have risen. The Commission was incorrect to state that an analysis of De Beers’ production statistics had shown that recovery of rough diamonds increased from 2003 to 2005 and that during the same period De Beers’ stocks had decreased. The applicant also submits – and as a fundamental point – that even though De Beers’ stock might have decreased, it has been directed into its own channels, namely De Beers’ sightholders, so that those diamonds did not enter the ‘free’ market.

302    It is sufficient to note in that regard that the Commission stated in the rejection decision that the recovery of rough diamonds had increased from 40 million carats in 2003 to 50 million carats in 2005 and that the applicant does not provide any specific data to challenge those figures taken from De Beers’ statistics. It simply states that the reduction in the quantity of rough diamonds available is ‘the kind of elements that market players “touch with hand” in their daily practice’.

303    In addition, as regards the contention that De Beers’ diamonds did not enter the ‘free’ market, it is sufficient to refer to the reasoning in paragraph 268 et seq. above relating to the sales of De Beers’ rough diamonds by sightholders to non‑sightholders. As to the contention that prices rose, it must be found that the Commission did not make a finding directly, either in the rejection decision or in the Article 7 letter, on whether the prices of diamonds increased or decreased, so that the related arguments are ineffective.

304    Thirdly, the applicant submits that the Commission incorrectly found, in the rejection decision, that ‘the alleged rough diamond shortages and price developments could be ascribed to economic or luxury good cycles’. The applicant disputes that finding, which the Commission has not proved, arguing, in particular, that high prices for rough diamonds are the proof of the artificial restriction of rough diamonds on the market, which is the consequence of SOC, and that the overproduction of polished diamonds is also due to SOC. As a result of the sightholders’ willingness to please De Beers, more polished diamonds are manufactured by them and shipped downstream than is required by the retail sector. The applicant adds that the article of a diamond industry specialist dated 2006, which it annexed to its observations on the Article 7 letter, and which the Commission claims supports its own conclusions – referring to that article in the Article 7 letter and the rejection decision – contradicts the Commission’s position.

305    In the rejection decision and the Article 7 letter, the Commission stated, as the applicant notes, that ‘the alleged … shortages of rough diamonds and price rises could … depend … on economic or luxury goods cycles’, relying on the abovementioned article of the diamond industry specialist which states:

‘In real terms, the diamond business is stagnating – and in terms of the number of jewelry pieces, actually declining. Fewer pieces mean fewer consumers … For the second year in a row … more polished diamonds are manufactured than are required by the retail sector. This means a continued build-up of polished inventory downstream … [T]he oversupply of polished has recently triggered voluntary reduction of manufacturing in India … In the early months of 2006, manufacturers have been willing to sell polished at cost or even below cost. Even [De Beers] Sight boxes are being traded at list (meaning the loss of 2 percent Value Added Service (VAS) charge, 1 percent broker charge and the loss of interest ...) or even below list.’

306    There are no grounds for claiming that the Commission made assertions without adducing proof. It must be pointed out that the Commission did not maintain that there was a link between the quantities of rough diamonds available and economic or luxury goods cycles, but simply posited that the shortages of rough diamonds might be attributable to such cycles. It also adduced evidence in support of this, since it is apparent from the article of the diamond industry specialist which it cites that the reduction in the demand for diamond jewellery has led to an oversupply of polished diamonds, which has resulted in a saturation of the market for the supply of rough diamonds and a price reduction that is typical of such a situation.

307    In addition, the applicant has not provided during the procedure before the Commission, any more so than during the present proceedings, any evidence showing the alleged effect of SOC on the quantities of rough diamonds available or their prices. It simply claims that, in the article cited by the Commission, the author underlines ‘the perversions of SOC on diamond liquidity and prices’, without referring to any passage in particular. Moreover, the article in question does not contain any evidence substantiating such an assessment. The applicant also states that the saturation on the polished diamonds market is due to the sightholders’ willingness to satisfy De Beers at all costs, by using polished diamonds in the context of downstream marketing programmes imposed by De Beers. Without there being any need to determine the scope of the sightholders’ participation in downstream marketing programmes, it is sufficient to note, as the Commission stated in the defence, that since rough diamonds are the input necessary to create polished diamonds, a surplus in the supply of polished diamonds cannot stem from a foreclosure of the upstream market for the supply of rough and is more likely attributable to a decrease in consumer demand, as is indeed stated in the extracts reproduced in paragraph 305 above. On the contrary, as the Commission also pointed out at the hearing, saturation on the polished diamond market results in an increase in the quantities of rough diamonds resold by the sightholders, since these are no longer necessary for their activity of manufacturing polished diamonds. It follows that, even if the implementation SOC accounted for the saturation on the polished diamond market, as the applicant contends, it could not account for the shortage of rough diamonds also alleged by it.

308    It follows from all the foregoing that the objections against the assessment of the overall availability of rough diamonds in the rejection decision must be rejected in their entirety.

 Market developments (Case T‑339/08)

309    In the supplementary rejection decision, the Commission found that the beneficiation process (see paragraph 38 above) underway in the major African diamond producing countries (that is, South Africa, Namibia and Botswana), which account for the vast majority of De Beers’ diamond intake, was likely to reduce the sales of rough diamonds by sightholders and would thus lead to the reduction of the value of diamonds distributed through SOC. In the context of that process, the rough diamonds destined for local industry in Namibia and Botswana, alone the subject of the applicant’s contentions, are sold to joint ventures formed between De Beers and national governments, which resell the rough diamonds to companies selected on the basis of various selection criteria.

310    The applicant submits that the conclusions drawn by the Commission from the gradual reduction in the value of diamonds distributed through SOC by around USD 1 billion are incorrect. It misinterpreted that decrease as a ‘positive sign’, whereas even fewer diamonds will arrive on the free market. The applicant submits, in essence, in support of that contention, first, that De Beers could de facto exercise control over the joint ventures at issue and, secondly, that the Commission underestimated the importance of the SOC criteria in the selection systems in both Namibia and Botswana.

311    As regards the alleged de facto control exerted by De Beers over the joint enterprises at issue, it is sufficient to note that the applicant itself acknowledges that their boards are equally composed by De Beers and national government representatives and that it does not provide any evidence capable of establishing that De Beers could, despite that parity, exert the de facto control alleged.

312    As regards the application of the SOC criteria in the context of the selection processes in Namibia and Botswana, the applicant does not deny that the SOC criteria are not the only criteria to be applied. It submits, however, that because of the inclusion of the SOC criteria in the selection process in force in those two countries, only sightholders or companies linked to them could be selected, which gives rise to the misuse of the beneficiation process and the reappearance of SOC in those countries.

313    First of all, it must be noted that the Commission stated in the supplementary rejection decision, which the applicant does not dispute, that, of the 11 companies selected in Namibia for the 2007-2011 contract period, three of them were not affiliated to De Beers or a De Beers sightholder, which shows that the application of the SOC criteria in the context of the beneficiation process does not necessarily entail the selection of sightholders. The applicant does indeed state, in the application, that all the undertakings selected in Botswana have links to sightholders, which the Commission does not deny. However, the undertakings selected further to that procedure will not necessarily be selected in subsequent procedures. The undertakings are selected by comparing their individual marks calculated by adding together the points obtained for each of the selection criteria. Subsequent selection procedures could thus result in undertakings not linked to sightholders being selected, all the more so since the specific selection criteria for the beneficiation process (requiring a significant local presence in terms of employment, use of local raw materials or promotion of local industry), separate from the SOC criteria, account for 60% of the mark in the selection procedure in Botswana, as against 50% in Namibia. The applicant’s argument based on the selection procedure in Botswana cannot therefore call in question the Commission’s assessment in the supplementary rejection decision that the beneficiation process was likely to reduce sales by sightholders (see paragraph 309 above).

314    Next, even if some or all of the undertakings selected are affiliated to sightholders, that affiliation cannot call in question the Commission’s assessment that the beneficiation process leads to the reduction in the proportion of De Beers’ rough diamonds distributed through SOC. The use of the criteria applied in the context of the beneficiation process, albeit some of them are SOC criteria, results in local joint enterprises, and not De Beers, selling diamonds to the undertakings selected, without the various SOC rules being imposed on them, so that the diamonds in question may be regarded as not entering the SOC distribution system.

315    It follows that the arguments relating to the Commission’s assessment of the beneficiation process must be rejected in their entirety, as therefore must the first part of the fourth plea in law.

 Assessment of the Ombudsman’s role (Case T‑104/07)

316    The applicant submits, in essence, that the Commission made several manifest errors of assessment concerning the effectiveness of the Ombudsman’s revised terms of reference, and states that that the revised version of the Ombudsman’s terms of reference of 2007 did not contain any substantial amendments, contrary to the claims of the Commission, which moreover contradicted itself in the rejection decision.

317    The Commission contends that some of the applicant’s objections to the assessment of the Ombudsman’s effectiveness carried out in the rejection decision are out of time, re-litigating aspects of SOC already approved in its 2003 comfort letter, and must therefore be rejected as inadmissible.

318    In that regard, it is appropriate to refer to the case-law which states that the sending of a comfort letter reserving the right to re-open the procedure does not mean that the Commission is no longer entitled to take account of a new element or one which existed before the letter was sent but was brought to its notice only later, particularly in connection with a complaint lodged at a later stage (see, to that effect, Case C‑279/95 P Langnese-Iglo v Commission [1998] ECR I‑5609, paragraph 30, and Case T‑7/93 Langnese-Iglo v Commission [1995] ECR II‑1533, paragraphs 37 to 41). In the present case, the applicant refers incidentally, for the purposes of explaining the context of its arguments, to certain aspects of SOC assessed in the context of the procedure closed by the comfort letter, such as the information requested by the sightholder profiles or the SOC selection criteria (see paragraphs 326 and 333 below). However, all the applicant’s objections to the Commission’s assessment of the Ombudsman’s role relate either to the implementation of SOC, by definition subsequent to the 2003 comfort letter (see paragraph 9 above) which ruled on SOC before it was implemented, or the amendment of the Ombudsman’s terms of reference in 2007.

319    It follows, first, that those aspects could be examined by the Commission in the course of handling the applicant’s complaint, as it indeed did so in the rejection decision without taking refuge behind the comfort letter and, secondly, that the applicant is entitled to challenge that examination.

 The Ombudsman’s independence

320    The applicant disputes the Commission’s findings concerning the independence of the Ombudsman and his team, since they are financed by De Beers and the rules on the commencement and termination of the Ombudsman’s term of office do not apply to the members of his team. The applicant also submits that the rules on conflicts of interest lack detail, stating that it does not see where detail has been added to the revised version of the Ombudsman’s terms of reference when compared with the previous one.

321    It must be pointed out, first of all, as the Commission notes, that when it requires the establishment of an independent third party responsible for monitoring that the rules imposed on an undertaking are complied with, the costs of such monitoring functions are imposed on the undertaking concerned, while at the same time the Commission requires that such payment does not compromise the proper performance of its duties or its independence, as is the case here (see paragraphs 322 to 324 below). Such payment coupled with those conditions has never been considered as compromising of itself the third party’s independence (see, to that effect, Case T‑452/04 Éditions Jacob v Commission [2010] ECR II‑4713, paragraphs 83 et seq.).

322    As regards, next, the independence of the members of the Ombudsman’s team, it is sufficient to note, first, that they are chosen freely by the Ombudsman – whose term may only commence and be terminated with the Commission’s approval (points 2 to 7 of the Ombudsman’s terms of reference) – and, secondly, that the Ombudsman is under an obligation to ensure their independence from the commencement of his term until three years after its termination (point 10 of the Ombudsman’s terms of reference).

323    As regards the rules designed to avoid conflicts of interests set out in points 8 to 10 of the Ombudsman’s terms of reference, the applicant cannot successfully assert that they have not been substantially amended. Admittedly, they were not substantially amended between 4 July 2006, the date on which the previous version of the Ombudsman’s terms of reference were sent, and 11 January 2007, the date of the version annexed to the rejection decision. That latter version of the Ombudsman’s terms of reference simply changed the relevant paragraph numbering, removed the possibility for the Ombudsman to carry out certain acts that were the source of conflicts of interest, with the prior agreement of the Commission and of De Beers, and specified the persons in respect of which the Ombudsman and assimilated entities are bound by an obligation of confidentiality. By contrast, the rules on conflicts of interest had been substantially amended by the version of the Ombudsman’s terms of reference sent on 4 July 2006. Whereas the previous version of the Ombudsman’s terms of reference, which had been communicated by the interveners at the request of the Court, simply set out at point 5 the principle that conflicts of interests are prohibited, three points in the version sent on 4 July 2006 set out the various obligations imposed on the Ombudsman with a view to avoiding conflicts of interest.

324    In addition, the provisions in question cannot be criticised as lacking in detail, since they disclose the Ombudsman’s relationships with each of the parties in question (Annex 2 to the Ombudsman’s terms of reference), lay down (i) the acts which the Ombudsman is prohibited from undertaking and the duration of their prohibition (until three years following termination of his mandate), (ii) the obligations on the Ombudsman to ensure his independence and that of the entities working for him, and (iii) the sanctions when those obligations are not complied with.

325    The arguments challenging the Commission’s assessment of the Ombudsman’s independence must therefore be rejected in their entirety.

 The Ombudsman’s powers

326    The applicant submits, first, that the ‘new mechanism’ for the Ombudsman to oversee the information gathering by De Beers referred to in the rejection decision is not capable of ensuring that De Beers does not receive information which it is not authorised to obtain pursuant to SOC. The Ombudsman is not present when the sightholders are led to communicate extremely sensitive confidential information to De Beers, in particular in the constant contact between De Beers and its sightholders through the De Beers Key account managers who constantly monitor the sightholders’ strict adherence to the SOC rules, or during the numerous presentations which the sightholders must give to De Beers’ managers in London. The applicant also refers to the numerous items of information relating to the sightholders collected by De Beers’ subsidiaries and brokers which also evades the Ombudsman’s control and additional information provided by the sightholders themselves, who, through fear of not being selected, divulge detailed information over and above that requested from them in the sightholder profile, which already contains very ‘intrusive’ questions. In that connection, the applicant also states that, contrary to the Commission’s findings in the rejection decision, the amended wording of clause 18 (now clause 19) of the Ombudsman’s terms of reference does not meet the concerns which it raised, since it does not preclude De Beers from obtaining confidential information.

327    In the rejection decision, the Commission referred briefly to all the mechanisms laid down by the Ombudsman’s terms of reference intended to prevent the disclosure to De Beers of information relating to sightholders not required by SOC.

328    Without there being any need even to rely on the evidence after the rejection decision put forward by the Commission and the interveners, the Court finds that the arguments adduced by the applicant do not prove that those mechanisms are ineffective.

329    The applicant disputes, in essence, the Ombudsman’s filtering mechanism, arguing that De Beers had the possibility to obtain – and indeed is given – a whole series of information relating to the sightholders when the Ombudsman is not present and without the filtering mechanism being applied. However, it is apparent from points 14 and 15 of the Ombudsman’s terms of reference governing the filtering mechanism that the mechanism takes into account precisely that type of information and ensures that it is not disclosed indirectly to De Beers. Under point 14(i) to (iii) of the Ombudsman’s terms of reference, the Ombudsman’s filter applies to (i) all confidential information provided to De Beers, without specification, that is, in any context, (ii) confidential information obtained through third parties acting on behalf of or rendering services to De Beers and (iii) all the templates completed by De Beers personnel during their visits to the sightholders’ establishments in order to assess the criterion ‘technical manufacturing ability’. In addition, point 15 of the Ombudsman’s terms of reference provides, in respect of those templates, that members of De Beers’ staff who have completed the template may not disclose its contents to any other member of the De Beers’ staff until such time as the Ombudsman has filtered it. Point 15 also provides, in respect of all the information in point 14 of the Ombudsman’s terms of reference, that, should that information be provided to members of De Beers’ staff before going via the Ombudsman, De Beers must ensure that none of those members of staff is a member of any body that is empowered to take a decision in relation to any such confidential information. That final ‘safeguard’, called a ‘Chinese wall mechanism’, referred to moreover by the Commission in the rejection decision, is completely passed over by the applicant.

330    In addition, the Ombudsman’s terms of reference also provide that the taking into account of unauthorised confidential information may be penalised after the event, since point 19 thereof, in prohibiting De Beers from taking a decision based on unauthorised information, enables the Ombudsman to monitor compliance with that prohibition and, if necessary, impose sanctions for non-compliance. Once a case has been referred to him, the Ombudsman scrutinises all the acts carried out during the selection procedure, ascertaining whether or not De Beers has adopted an improper procedure. In other words, the Ombudsman ascertains, according to the definition in point 1 of his terms of reference, whether, during that procedure, De Beers (i) took into account any matter which it should not have taken into account under the SOC rules or, on the contrary, it failed to take into account any matter which it should properly have taken into account, (ii) complied with the various steps of the selection procedure and (iii) acted in a manifestly unreasonable manner.

331    In addition, contrary to the applicant’s claims, the 2007 amendment of point 19 of the Ombudsman’s terms of reference addresses the criticism which it had expressed in its observations on the Article 7 letter. The applicant complained that the initial version of the provision in question created uncertainty as to whether De Beers could have access to information going beyond what is required and suggested a more restrictive wording stating that none of that information would be disclosed to De Beers. That initial version was worded as follows: ‘For the avoidance of doubt, in taking Decisions, [De Beers] confirms that it has no need to rely and shall not rely on any information that goes beyond what is required by [it], or permitted to be obtained by [it], under the [SOC rules]’. In the revised version, the part of the sentence ‘confirms that it has no need to rely and’ was deleted, so that not taking into account additional information becomes an obligation. In addition, as the Commission states in the rejection decision, it cannot be excluded that additional information is deliberately or inadvertently submitted to De Beers, a fact acknowledged by the applicant, which the new version of the Ombudsman’s terms of reference takes into account by prohibiting such information from being used by De Beers. It follows that the new wording enables the objective pursued by the applicant of limiting the information used in the context of the selection process to be achieved, while taking into account the actual context of such a process.

332    That first set of arguments concerning the assessment of the Ombudsman’s powers must therefore be rejected.

333    The applicant submits, secondly, that the Ombudsman’s oversight of the sightholder selection procedure is also ineffective. It complains, in particular, that the Commission took the view, in the rejection decision, that the publication of the sightholder selection criteria and the communication to applicants of the weightings accorded to those criteria enabled the objectivity of the selection procedure to be safeguarded, whereas the selection criteria used to award sightholder status are so subjective that it is impossible for an applicant or third party to ascertain that they are uniformly applied. The applicant further states that the Ombudsman does not release to sightholder applicants their individual scores or how the scoring was obtained. Lastly, it submits that it is unlikely that sightholders will lodge a complaint with the Ombudsman against De Beers if their application for sightholder status is rejected.

334    Even if some criteria may be described as ‘subjective’, on the basis of De Beers’ margin of discretion in evaluating them, the Commission was entitled to find, without making a manifest error of assessment, that the objective character of the selection procedure was ensured thanks, in particular, to the various pieces of information forwarded to the applicants.

335    The selection procedure is based on a comparison of the replies given by all the sightholder applicants. It has been held, in civil service cases, that the consideration of comparative merits is the expression of the principle of equal treatment (see Joined Cases T‑7/98, T‑208/98 and T‑109/99 De Nicola v EIB [2001] ECR-SC I-A-49 and II‑185, paragraph 176 and the case-law cited), since it enables each candidate’s merits to be assessed on the basis of the same marking grid in relation to each other. In the present case, the selection criteria and even the weighting awarded to them constitute precisely a single ‘marking grid’ conferring an objective basis on the selection procedure.

336    In addition, contrary to the applicant’s claims, the publication and communication to sightholder applicants of the selection criteria and the weightings attached to them serve to ensure the selection procedure is implemented objectively, in so far as that publication and communication are associated with the transmission of other information to the applicants concerned and to the Ombudsman responsible for monitoring the selection procedure.

337    Therefore, first, De Beers is under an obligation, in accordance with point 12 of the Ombudsman’s terms of reference, to set out in sufficient detail the reasons for its decision with regard to the sightholder applicant, informing it, in particular, of the number of points awarded for each of the selection criteria, so that an unsuccessful applicant may compare that reasoned response to the information at its disposal in order if necessary to challenge it by submitting a complaint to the Ombudsman and to set out in detail the grounds of that complaint.

338    Secondly, as indeed the Commission states in the rejection decision, the selection procedure may be scrutinised by the Ombudsman, who is responsible for verifying that the selection criteria have been correctly applied. The Ombudsman may have access to all the information substantiating the decision not to select an applicant, including information not communicated to the latter because of its confidential nature in particular; this will also enable the Ombudsmen to compare that information with the selection criteria and weightings and the scores awarded to the other applicants to which he may have access (see point 30 of the Ombudsman’s terms of reference), in order to determine the grounds for awarding a particular score to a given sightholder and to ascertain that the score in question was not awarded arbitrarily. In addition, the applicant cannot claim that unsuccessful sightholders will probably not submit a complaint to the Ombudsman in order for the selection procedure to be reviewed by him, when the applicant itself refers to the case of a sightholder which submitted three complaints to the Ombudsman (see paragraph 340 below).

339    That second set of arguments concerning the assessment of the Ombudsman’s powers must therefore also be rejected.

 The Ombudsman’s decisions

340    The applicant submits, first, that the possibility that the Ombudsman might issue a binding recommendation to De Beers, if he determines that the selection procedure was not objective, is ineffective, because a recommendation cannot be binding. Even if such a recommendation were binding, that binding character would only be theoretical in the light of the economic and financial importance of De Beers, which could disregard the recommendation or appeal against it. The applicant relies, in that regard, on the case where a sightholder succeeded before the Ombudsman and yet the latter’s recommendations were not complied with by De Beers.

341    In the rejection decision, the Commission stated, in response to a criticism from the applicant as to the Ombudsman’s effectiveness, that the Ombudsman could issue ‘binding recommendations’. As the applicant correctly notes, a recommendation is not indeed as a rule binding. However, it is apparent in the present case from point 36 of the Ombudsman’s terms of reference that recommendations adopted by the Ombudsman after De Beers has failed to comply with procedures, and requesting the latter to reconsider its decision, are binding for De Beers. In addition, points 40 to 42 of the Ombudsman’s terms of reference lay down the particularly strict detailed rules for De Beers in implementing the Ombudsman’s recommendations, laying down for each type of recommendation periods for implementation, even when the recommendation has been appealed.

342    In addition, the arguments put forward by the applicant in arguing that the Ombudsman’s recommendations are not in practice complied with by De Beers are either not substantiated or are after the rejection decision. The case-law must be borne in mind according to which, in the context of an application for annulment, the legality of a measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see paragraph 291 above). In any event, as to the alleged case of a sightholder which lodged a complaint with the Ombudsman, who adopted a recommendation in its favour, it is apparent from the file that that recommendation was the subject of judicial review provided for in the Ombudsman’s terms of reference and that the competent courts held, contrary to the Ombudsman, that De Beers had acted within the terms of the SOC rules. It cannot therefore be inferred that De Beers did not comply with the binding nature of the recommendation in question.

343    Secondly, the applicant submits that the actions available to challenge the Ombudsman’s decisions, namely arbitration or litigation, are additional, lengthy and costly proceedings in a sector where rapid reaction is fundamental.

344    The dispute resolution mechanisms relating to the Ombudsman’s procedures are governed by points 49 to 57 of his terms of reference. Those points provide either for recourse to arbitration pursuant to the rules of the London Court of International Arbitration (point 50 of the Ombudsman’s terms of reference), or litigation, the competent courts being the English courts (point 51 of the Ombudsman’s terms of reference).

345    The Court notes that those mechanisms are also available to a sightholder applicant in order to challenge the rejection of his complaint before the Ombudsman or an Ombudsman’s recommendation unfavourable to it, and for the sightholder applicant have the advantage of being able to make binding on De Beers the means of resolving the dispute – arbitration or litigation – which the applicant has chosen (points 52 and 53 of the Ombudsman’s terms of reference). In addition, as the Commission states, arbitration is widely used in cases where the economic stakes are high and time plays a crucial role. Lastly, since the Ombudsman must notify his recommendations to the Commission (points 68 and 69 of the Ombudsman’s terms of reference), the latter is immediately able to take measures to prevent recourse to the dispute resolution mechanisms.

346    It follows from all the foregoing that the complaints against the Commission’s assessments in relation to the Ombudsman must be rejected in their entirety, as must this part of the fourth plea in law.

 Assessment of the other claims as to the illegality of SOC (Case T‑104/07)

347    The applicant disputed in its complaint several other practices of De Beers in the context of SOC, inter alia, (i) the imposition on sightholders of the VAS levy, which amounts to 2% of sightholder purchases from De Beers and which is intended to remunerate the additional services supplied by it, (ii) the organisation of a campaign aimed at discrediting non-sightholders and non-De Beers diamonds, (iii) the conclusion of an ‘alliance’ between De Beers and Alrosa, (iv) the obligation imposed by De Beers on sightholders to sell their polished diamonds in the context of marketing programmes or (v) the expansion of the ‘Forevermark’ project.

348    The applicant thus complains that the Commission failed to examine some of those practices – not all of which constitute anti-competitive practices per se – as forming part of a general strategy of De Beers aimed at remaining the only big player in the market.

349    It is sufficient to point out in that regard, as was noted in the examination of the third plea in law above, that a structured investigation of a complaint, differentiating the various alleged restrictive practices according to their nature, does not mean that the Commission does not take into account, as it is required to do, the interaction between those practices and a possible cumulative effect (see paragraph 193 above). It cannot therefore be inferred that the inclusion of the various alleged practices in an overall strategy of De Beers was not taken into account because they were examined separately. That is true all the more so since the Commission established in the present case links between the analysis of certain alleged practices and the analysis of other practices examined beforehand. It referred in particular, as regards the contentions concerning downstream marketing programmes, to its considerations in relation to foreclosure effects and the role of the Ombudsman.

350    The applicant’s first argument must therefore be rejected.

351    The applicant’s other arguments disputing the Commission’s assessment of De Beers’ other practices concern specifically the VAS levy.

352    The applicant submits, first, that VAS levies are inherently anti‑competitive, since they amount to bundling, distort competition between diamond manufacturers and dealers and lead to price increases for consumers.

353    In the rejection decision, the Commission considered that a VAS levy would have sufficient Community interest only if it would have foreclosure effects to a sufficient degree or would substantially affect competition between downstream operators. The Commission found that those effects had not been established in the present case, since the applicant had not explained how the VAS levy would distort competition between diamond manufacturers and traders, and had not demonstrated why a VAS levy does not offer the appropriate economic counter‑value to the services supplied. The Commission added that, even if it had to consider that the VAS levy was unfair, that aspect of SOC does not have enough importance to justify a complex enquiry.

354    It follows that the finding that the applicant’s contentions concerning the VAS levy did not have sufficient Community interest is based on two grounds, namely, first, the small likelihood of establishing a restriction of competition and therefore the existence of an infringement and, secondly, for the sake of completeness, the lack of significance of the alleged infringement on the functioning of the common market. However, since BVGD, in its application, simply repeated its arguments put forward during the administrative procedure and thereby simply disputed the first ground on which the finding of insufficient Community interest was based, without adducing any argument capable of calling in question the second ground, the present arguments aimed at establishing that VAS levies are intrinsically anti‑competitive must be rejected as ineffective.

355    The applicant submits, second, that even if the imposition of VAS levies is not inherently anti-competitive, those levies may be categorised as such because the monies they generate are used for anti‑competitive purposes, namely to steer downstream customers towards the sightholders.

356    The Commission replied to that contention in the rejection decision by stating that the evidence provided did not indicate appreciable concerns as to the foreclosure of non-sightholders, and that any further Commission investigation into that matter would be disproportionate to the nature of the applicant’s concerns, thereby reiterating its position in the Article 7 letter, in the absence of any additional element supplied by the applicant in its observations on that letter.

357    It is sufficient to note in that regard that the applicant has simply asserted that monies generated from the VAS levy are used for anti‑competitive purposes, annexing to its complaint the letter from a Spanish manufacturer stating that one of its main customers had been ‘approached’ and a list of De Beers’ sightholders and advertising aid proposed to it. That letter alone, reporting the words of an unidentified third party and not even stating that De Beers, or an associated entity, made the ‘approach’ in question, cannot be considered sufficient to warrant further investigations. The Commission did not therefore make a manifest error of assessment in finding that it was not required to investigate further on the basis of that letter.

358    The third part of the present plea must be rejected and therefore the fourth plea in law in its entirety.

5.     The plea alleging breach of the obligation to state reasons (Cases T‑104/07 and T‑339/08)

359    In Case T‑104/07, as in Case T‑339/08, the applicant submits that the Commission infringed its obligation to state reasons.

360    The applicant submits that there are various failures to state reasons or inadequacies of reasoning in the rejection decision. The Commission failed to answer some of the arguments raised by the applicant in its observations on the Article 7 letter, concerning quotas imposed on Alrosa and the Ombudsman’s effectiveness, and this, in particular, given (i) De Beers’ recourse to a private investigation firm to verify sightholder profiles and (ii) the new information document sent to sightholders (‘New Sightholder Contract Information’). The Commission also failed to take into consideration the applicant’s suggestion – made on several occasions during the administrative procedure – of alternative systems to SOC, such as the establishment of an open tender system. In addition, the Commission has not adequately explained some important factual information in relation to diamond supplies by Alrosa, referred to in the rejection decision, in particular information relating to the quantity and quality of diamonds sold outside De Beers’ channels since 2003. The applicant further states that the Commission cannot remedy the lack of reasoning in the rejection decision by introducing elements from the supplementary procedure initiated after the adoption of the rejection decision and following the action brought against the De Beers commitments decision.

361    In addition, the applicant submits, by reference to the case-law on the obligation to state reasons, that the supplementary rejection decision is also inadequately reasoned. It states, in particular, that the Commission did not reply to some of its claims set out in its observations on the supplementary Article 7 letter (paragraphs 64 to 70 of those observations).

362    According to case-law, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint, and those reasons must be sufficiently precise and detailed to enable the Court effectively to review the Commission’s use of its discretion to define priorities (Case C‑119/97 P Ufex and Others v Commission, paragraph 155 above, paragraphs 89 to 91, and Sodima v Commission, paragraph 190 above, paragraphs 41 and 42).

363    The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether a measure is adequately reasoned must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63 and the case-law cited).

364    Concerning, more particularly, a Commission decision rejecting a complaint on account of insufficient Community interest on the basis of Article 7(2) of Regulation No 773/2004, it must be borne in mind that such a rejection is always preceded by a letter informing the complainant that there are insufficient grounds for acting on its complaint, pursuant to Article 7(1) of Regulation No 773/2004. In addition, when a complaint is rejected on the basis of insufficient Community interest, the Commission does not rule on whether there is an infringement of Article 81 EC or Article 82 EC (see paragraph 155 above). It follows that the statement of reasons for a decision rejecting a complaint must be examined taking into account also the grounds in the letter under Article 7(1) of Regulation No 773/2004 and that the Commission need only set out the facts and legal considerations which are of decisive importance in the context of the decision, without having to adopt a position on all the arguments relied on by the persons concerned in support of their complaint alleging an infringement of Article 81 EC or Article 82 EC (see Case T‑114/92 BEMIM v Commission [1995] ECR II‑147, paragraph 41, and the case‑law cited; see also point 75 of the notice on the handling of complaints).

365    In the present case, it must be noted that in the rejection decision and the Article 7 letter, in order to determine the volumes of rough diamonds produced by Alrosa becoming available as a result of the De Beers commitments decision, the Commission took into account, without making a manifest error of assessment, the diamonds sold by Alrosa on the Russian domestic market and then exported outside Russia (see paragraphs 237 and 238 above). Since those exports were not limited by the export quotas imposed on Alrosa, the Commission was not required to respond expressly to the applicant’s contention concerning those quotas. Similarly, since the Commission took the view, again without committing a manifest error of assessment, that the Ombudsman’s terms of reference laid down two mechanisms for preventing confidential information relating to the sightholders from being improperly used by De Beers (see paragraph 329 above), it was not required to set out its findings on all the sources of that confidential information, and, in particular, on the new information document sent to sightholders, nor on the private investigation firms to which it indeed refers in the rejection decision and in the Article 7 letter. In addition, since the Commission took the view that SOC, as criticised by the applicant, did not require it to investigate further, it cannot be criticised on the ground that it failed to rule on the systems to replace SOC proposed by the applicant. Lastly, the applicant cannot complain that the Commission failed to explain its reference to the Alrosa diamonds sold outside De Beers’ channels since 2003, since such details were given in the Article 7 letter.

366    The rejection decision must therefore be regarded as being sufficiently reasoned and the plea in law alleging breach of the obligation to state reasons in Case T‑104/07 must be rejected. Accordingly, the objection alleging unlawful a posteriori reasoning of the rejection decision must also be rejected.

367    As regards the supplementary rejection decision, without there being any need to rule on the Commission’s plea that the objection alleging an inadequate statement of reasons was inadmissible since it had not been stated in even summary form, it is sufficient to note that, in that decision, as it had done previously in the supplementary Article 7 letter, the Commission explained the reasons why it did not consider it necessary to change its conclusion concerning the insufficient Community interest of the applicant’s complaint. It therefore examined all the sources of rough diamond supplies available outside SOC in the light of the supplementary market investigation – the volumes made available by Alrosa and the supplies from sightholders, Diamdel and the other producers – and concluded that over half the rough diamonds sold worldwide remained outside De Beers’ control (see paragraph 37 above).

368    As regards the alleged failure by the Commission to respond to some of the applicant’s arguments set out in its observations on the supplementary Article 7 letter, it is sufficient to note that the Commission did reply to the arguments which it had expressly referred to in the supplementary rejection decision, stating that they did not relate to the issue of the foreclosure effects of SOC, the only ones analysed in the context of the supplementary procedure. While the applicant challenges that reply, the Court notes that such a challenge concerns the examination of the merits of the Commission’s assessment and that the applicant does not adduce any evidence to substantiate its challenge, so that it must in any event be rejected.

369    Accordingly, the supplementary rejection decision must also be regarded as being sufficiently reasoned.

370    The present plea in law alleging infringement of the obligation to state reasons must therefore be rejected in its entirety.

371    It follows from all the foregoing that the present actions must be dismissed in their entirety, without the need to add to the file the documents disclosed to the Court by the Commission at the hearing.

 Costs

372    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must, in accordance with the forms of order sought by the Commission, be ordered to bear its own costs and also to pay those incurred by the latter.

373    In accordance with the third subparagraph of Article 87(4) of the Rules of Procedure, De Beers shall bear its own costs.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the actions;

2.      Orders Belgische Vereniging van handelaars in- en uitvoerders geslepen diamant (BVGD) to bear its own costs and to pay those incurred by the European Commission;

3.      Orders De Beers and De Beers UK Ltd to bear their own costs.

Truchot Martins Ribeiro Popescu

Delivered in open court in Luxembourg on 11 July 2013.

[Signatures]

Table of contents

Background to the dispute

1.  Case COMP/E-3/38.139 and the comfort letter of 16 January 2003

2.  The applicant’s complaint

3.  Rejection decision

4.  The General Court’s judgment in Alrosa and the supplementary procedure

5.  Supplementary rejection decision

Procedure and forms of order sought by the parties

Law

1.  The plea in law alleging that the supplementary procedure is unlawful (Case T‑339/08)

The lack of a legal basis and the existence of an abuse of process

Infringement of the principles of legal certainty and sound administration

2.  The plea in law alleging infringement of the applicant’s procedural rights (Cases T‑104/07 and T‑339/08)

Infringement of the right of access to the documents on which the Commission based its provisional assessment (Cases T‑104/07 and T‑339/08)

Objections alleging infringement of the right of access

–  The right of access during the initial procedure

–  The right of access during the supplementary procedure

The requests for access during the present proceedings

The confusion concerning the stage of the procedure in question (Case T‑104/07)

Exercise of undue pressure by setting unnecessarily short time-limits (Case T‑104/07)

The impossibility for the applicant of commenting on the new information available after the Article 7 letter was sent (Case T‑104/07)

3.  The plea in law alleging infringement of the Commission’s obligations in handling a complaint (Cases T‑104/07 and T‑339/08)

The failure to examine the complaint carefully and impartially

The infringement of the obligation to take into consideration all relevant matters of law or of fact

The lack of an overall assessment of the complaint (Cases T‑104/07 and T‑339/08)

The failure to take into account the continued effects of the alleged anti‑competitive practices (Cases T‑104/07 and T‑339/08)

The failure to take into account and analyse De Beers’ dominant position (Case T‑104/07)

4.  The plea in law alleging the incorrect assessment of the Community interest (Cases T‑104/07 and T‑339/08)

Assessment of foreclosure effects (Cases T‑104/07 and T‑339/08)

The relevant market (Case T‑104/07)

Alrosa’s supply (Cases T‑104/07 and T‑339/08)

–  The objections against the rejection decision

–  The objections against the supplementary rejection decision

Supplies by sightholders (Cases T‑104/07 and T‑339/08)

Supplies by Diamdel (Case T‑339/08)

Supplies by other producers (Cases T‑104/07 and T‑339/08)

Overall availability of rough diamonds (Case T‑104/07)

Market developments (Case T‑339/08)

Assessment of the Ombudsman’s role (Case T‑104/07)

The Ombudsman’s independence

The Ombudsman’s powers

The Ombudsman’s decisions

Assessment of the other claims as to the illegality of SOC (Case T‑104/07)

5.  The plea alleging breach of the obligation to state reasons (Cases T‑104/07 and T‑339/08)

Costs

* Language of the case: English